PERSPECTIVE ON CHINA : Pressuring the Pirate : People who lack fundamental rights cannot be expected to embrace complex property rights.

Anyone who doubts that fact is stranger than fiction need only consider that Mickey Mouse, Isaac Bashevis Singer a& Ms now threaten to have a greater impact on Sino-American relations than the issue of basic human rights.

A White House that has resolutely fought those who, in the name of human rights, would limit most-favored-nation trade benefits China, stands ready to impose major trade sanctions because of the way the Chinese treat Mickey and these other exemplars of American intellectual property. The U.S. trade representative’s office threatens to impose tens of millions of dollars of tariffs on Chinese goods if China fails to agree by mid-January to revise its copyright, patent and trademark laws to our satisfaction.

China is, indeed, at the forefront of nations pirating intellectual property. Although Western goods were virtually unknown there a mere decade ago, Deng Xiaoping’s policy of “openness to the outside world” has brought with it a seemingly insatiable appetite for such key elements of Americana as Mi Lao Shu (Mickey Mouse) whose smiling, if counterfeited, image has long since replaced the stern visage of Mao Tse-tung in the average Chinese household.

Nor is Mickey without company in China. “Secret” state-run bookstores to which non-Chinese are denied admittance specialize in the sale of unauthorized reproductions of foreign books ranging from “Gray’s Anatomy” to Webster’s dictionary to the collected works of Isaac Bashevis Singer--each of which bears an imprint indicating that it is not to be shown to foreigners. And the problem is by no means confined to books, as evidenced by the fate of Mars candy (which had to cope with the sale of W&W; chocolate candies) and a host of other American and foreign companies in industries as diverse as pharmaceuticals, chemicals, entertainment, computers, clothing and footwear.

American exporters and the Bush Administration are, understandably, angered. To be sure, neither industry nor U.S. government estimates of the cost of piracy are wholly reliable, as they presume that Chinese consumers--who earn on average less than $50 a month--would purchase at full price genuine versions of the counterfeited items now in the marketplace. Nonetheless, China is well on the way to earning the dubious title of the “single largest pirate worldwide,” recently bestowed by Joseph Massey, our government’s chief negotiator on this issue. And prospects are that the problem will increase as the Chinese economy expands.

The fact that there is a serious problem does not, however, mean that the Bush Administration has the right solution. As it has from the President’s first days in office, the Administration has slighted human-rights concerns in China and so, unwittingly, undercut the very considerable effort it has put into protecting American intellectual property. To begin meaningfully to address this problem, the Administration needs to understand far more fully both the character of legal development in Chinese society and the linkage to the different parts of its own China policy.

Pressuring the Chinese government to revise its intellectual-property laws along American lines is not the way to foster serious protection for such American property in China. To avert trade sanctions, China may yet yield on this point and might even facilitate a modest number of show trials. Such gestures, however, will have a negligible effect on the lives and actions of the vast bulk of China’s officialdom and populace. It would be somewhat anomalous for an impoverished nation like China, lacking any tradition of such rights, to devote enormous resources to developing elaborate protection that would exist principally for the benefit of foreign parties.

The Bush Administration needs to realize that laws premised on the values and institutions of an economically advanced capitalistic democracy will not generate identical results when transplanted to a different setting. Rules that presume an independent judiciary, a professionalized bar, powerful interest groups and a rights-conscious populace fall chiefly on deaf ears in contemporary China.

As our experience with Taiwan demonstrates, merely ratcheting up the pressure will not change people’s basic attitudes about intellectual property law. Such attitudes are changing on Taiwan, but only because rapid economic, political and cultural transformations there have provided a domestic rationale for taking intellectual property more seriously, not because of American pressure--which Taiwan is better positioned to resist today than at any point in its history.

If the United States is serious about protecting intellectual property in China, we need to promote the cause of human rights far more vigorously than the Bush Administration has. People who lack fundamental political and basic property rights can hardly be expected to embrace complex and rarefied intellectual-property rights, which even in this country are hard to grasp.

Getting our priorities straight--and devoting considerably more of the diplomatic influence we may have with China to core issues of human rights--will not of itself lead 1.2 billion Chinese admirers of Mickey Mouse suddenly to insist on the genuine article. It is, however, a necessary first step toward fostering values and institutions that will advance the rights of one-quarter of humanity, and with it, the likelihood that they will in time have their own reasons for insisting on bona-fide Mickeys.