The beginnings of copyright law in Macau

• Author: Henrique Carvalho
• DOI: http://doi.org/10.1111/jwip.12106
• Date: 01 July 2018
• Published date: 01 July 2018

DOI: 10.1111/jwip.12106

ORIGINAL ARTICLE

The beginnings of copyright law in Macau

Henrique Carvalho

School of Law, Birkbeck, University of

London, London

Correspondence

Henrique Carvalho, School of Law, Birkbeck,

University of London, Malet Street, London

WC1E 7HX.

Email: h.carvalho@bbk.ac.uk

This paper attempts to trace the history of copyright law in

Macau from 1869 to 2001. In so doing it identifies two

separate beginnings, each set in motion by external actions

directed toward the territory, namely the extension of the

Portuguese Civil Code of 1867 to its overseas colonies in

1869, and the inclusion of Macau in the Special 301 Report

of the United States Trade Representative between 1998

and 2001. By trying to show a discontinuity between the

city's rich cultural history and the introduction of copyright

law, it suggests that we cannot begin to understand this

history without locating copyright law within the intricate

network of internal and external forces that shape Macau's

complex metabolism.

KEYWORDS

colonialism, copyright history, Macau, Special 301

But what is the fate of man? Endowed with a heart whose wickedness is as great as his spirit; crime lies at the

side of genius. Of all sublime inventions have men abused.

(Andrade 1835, p. 5: my translation).

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INTRODUCTION

Macau has all the ingredients for a valiant copyright history, just waiting to be told.

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A cosmopolitan center of

knowledge production where the first Western printing press in China was set up, equipped with one of the earliest

copyright laws in East Asia, and praised for its fight against piracy during its post-colonial years. And yet it is not easy to

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

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tell this tale as a “memory of the Macanese feats against the pirates”—following the title of the 1835 book from which I

borrowed the opening quote. Mirroring the various discontinuities that the reader will find in the following pages;

technological innovation, grand cultural landmarks and laws seem to appear in all the wrong places in this historical

timeline. Thus the story that will be told here can perhaps be best described as a trail of official papers whose

connection to social life is extremely hard to pin down. If, for Sherman and Bently (1999) “much of the history of

intellectual property law can be seen as one of the law attempting ... to capture the phantom”(p. 59), here the law itself

is the phantom constantly escaping the historian's grasp.

In one sense, this history begins in the second half of the nineteenth century when, in 1869, the Portuguese Civil

Code of 1867

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—with its chapter on literary and artistic labor (do trabalho literário e artístico) articles 570–612—was

extended across the Portuguese colonial empire.

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Still, in at least two other senses this is a false start. On the one hand,

a history that does not account for its own pre-history seems unable to explain its object (Pottage & Sherman, 2013).

On the other, the historical significance of this statute should not be assumedfrom the outset, particularly considering

that, as Hespanha (1995) points out, there was generally a very low level of enforcement of official law in the

Portuguese overseas territories (p. 4). To use a common strategy, I shall try to begin where others have found a

promising start: the printing press (e.g. Feather, 1994; Goldstein, 2003; Patterson, 1968; Samuels, 2000). Thus the

first part of this paper will deal with the beginnings of printing in Macau, drawing extensively on a short essay written

in 1963 by Macanese intellectual José Maria (“Jack”) Braga. As we shall see, this is a tale of two beginnings anchored in

the history of two artefacts: the Jesuit Press (1588–1620) and the British East India Company Press (1815–34). In the

second and third parts of this paper I shall turn to the beginnings of copyright law in Macau and, borrowing from Braga,

this too will be a tale of two beginnings anchored in the local history of two foreign artefacts: the decree that extended

the Portuguese Civil Code of 1867 to the colonies (Decreto 18.11.1869) and the 1998 Special 301 Report of the United

States Trade Representative

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that catalyzed unprecedented levels of legislative and administrative action in the

enforcement of copyright. By juxtaposing these two local histories, with their four disconnected beginnings, my aim is

to examine the law's imagined potentiality—in its ability to control social behavior—and the symbolic role it played in

the construction of an image of Macau that was refracted in the external centers of power that have shaped and

continue to shape its copyright law.

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GUTENBERG IN THE “ROME OF THE EAST”

The appealing image of the printing press as an agent of change (Eisenstein, 1979) has left its mark on copyright

historiography. There are several good reasons to resist its seductive force (Bowrey, 2007; Bracha, 2013) and yet I am

not compelled to withdraw from it altogether. If, as Oren Bracha (2013) claims, a version of copyright's history as “a

path leading from ‘Gutenberg to the Celestial Jukebox’or as a series of technological developments and the legal

reactions to them”(p. 45) has captured the popular imagination, there is a potential for critique in engaging the

narrative and taking it to a less familiar territory.

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The Jesuit Press

So let us begin this path with the setting up of a Western printing press with movable metal types at the Jesuit College

of Macau in 1588. This is believed to have been the first Western printing press in China, both in terms of type and

geographical origin (Braga, 1963, pp. 30–31; Matos, 2011, p. 726). But, during its short stay in Macau, this press played

only a minor role in the construction of Macau as a “centre of science and education”(Pires, 1991, p. 15) or as the

“bridgehead of Christianity in the Far East”(Teixeira, 1991, p. 43).

Macau's true relevance was instead that of a powerful linguistic center, a “unique place where it was possible, at

the same time, to learn Portuguese, Latin, Chinese and Japanese, where there are Asian and European masters

teaching beginners' and advanced courses for these languages.”(Barreto, 2006, p. 314: my translation) During these

CARVALHO

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