清末民初中美版權之爭

Abstract

1903年「中美商約」首度訂立版權和專利條款，形成此後中外有關版權問題的依據。從清末到民國初年，美國人出版的書籍被盗印的情況至為嚴重，引起的版權紛爭亦最多起，而中美之訴訟及判決所依據的條約亦即援用清末「中美商約」中所允諾的保護條款及其適用範圍。就在清末中美首度交涉版權保護的同時，國際版權公約的訊息也首度被引介到中國來，並催化了國內對版權問題的重視和相關法令的頒佈。然而，涉外版權命題，對於中國而言，主要關係西方知識和教育文化的傳佈問題，而非保護洋人智慧財產權的命題，雙方認知大有差異。\\r 清末民初的中美版權交涉是理解近代中美關係與中國邁向國際化過程的重要議題。本文探討清末中美商約簽訂以後至1920年代，中美版權紛爭和外交交涉的重要個案，以及在此期間美國如何通過國際版權同盟和多邊組織的影響力來約束中國。中國從國內法、國際公約和雙邊條約的規範上均取得自由譯印西書的權利，不必受美國約束，且在華洋公廨會審中屢獲勝訴，此為清末民初外交上極少有的現象。此一版權交涉過程，儘管對美國是挫敗的歷程，卻是中國認識西方知識產權和國際版權功能的一個開始。

The Chinese-American Commercial and Navigation treaty of 1903 demonstrated American determination to protect their copyrights in China. From the late Qing to the early Republican period, many American intellectual properties had been plagiarized and misused by the Chinese, and accordingly the U. S. tried to take legal action in China by using the Commercial Treaty of 1903 as legal weapon. Through this process, the Chinese learned the most up-date information in the world about copyrights and their protection and helped Chinese intellectuals develop an understanding about international copyright protection agencies and laws. However, the gap between the USA and China was large since the Chinese then mainly focused on how to introduce foreign knowledge to China rather than protect international copyrights. A thorough study of the Sino-American negotiations in the area of copyright protections will help us better understand US-China relations and China’s search for internationalization. By examining some important copyright cases between China and the USA, this paper tries to shed a new light on how the United States imposed its influences on China through international and multi-national organizations. The author argues that on the basis of China’s own legal system and international law as well as the Sino-American Commercial Treaty of 1903, China was not legally bound to protect the copyrights of western books in China. Indeed, China accordingly won many lawsuit cases at the Mixed Court in the International Settlement. The Sino-American copyright cases were the unexpected success in the diplomatic history of modern China. This paper also demonstrates that through the legal process to fight American copyright violation law suits, the Chinese learned and discovered Western-style intellectual properties rights and the functions of International Organization for the Protection of Literary and Artistic Works.