Intellectual property enshrines innovations in the present while disregarding the historical developments that allowed it to occur in the first place. Innovative creativity doesn’t exist entirely in the present but is rather derived from the past.

The noted copyright scholar Carla Hesse has argued in a succinct essay that the recognition of creativity is largely a modern phenomenon because in every civilization knowledge was traditionally regarded as coming from divine revelation or the past. In addition to illustrating European history, Hesse particularly mentioned China to support her argument by referring to William Alford. 3 Alford believes that `the power of past and its consequences for possession of the fruits of intellectual endeavour' is overwhelming in Chinese history. 4 He points out such a so-called Chinese-characterized phenomenon by quoting the noted scholar of Chinese literature Stephen Owen, who articulated that `the Confucian imperative insists that in encountering the ancients, we ourselves must be changed.' 5 According to this, Alford further suggests that `the replication of particular concrete manifestations ... by persons other than those who first gave them form never carried ... the dark connotations ... [as] it does in the West. ' 6 Alford's theory of past thus, from a cultural perspective, denies the possibility of generating the concept of copyright and other intellectual property forms in Chinese values. Hesse's use of China is common. There is of course a difference between Hesse-style scholars and many others. 7 For the former, the evidence of lack of creativity is employed to shake the sacred foundations of intellectual property, which is often said to be historically `eternal' and 'natural'. 8 For the latter, however, China's example is frequently used to condemn contemporary China's notorious piracy problems; as they purport, the Chinese do not really want to create and only steal the creative fruits of the Western genius. 9 But has China been rightly used? Is it necessary to criticize intellectual property by denying the existence of creativity? It is noteworthy that Alford rightly points out that the historical inquiries made by Confucius (551BC-479 BC) should not be construed as connoting a lack of originality, although his theory of the past begins with Confucius's famous saying: `I transmit rather than create; I believe in and love the ancients'. 10 This is true even if we purely label Confucius as a chronicler who treats the original text prudentially and avoids random collation and haphazard explanation. " As Alford argues, by quoting Edward Pulleyblank, `the selection and arrangement of [the historian's] ... material called for the exercise of critical judgement, and conclusions about the causes of events or the characters of historical persons could be expressed separately in the appropriate place. ' 12 However, Alford does not further examine other aspects of Confucius's creative sparks. Alford's overemphasis of the role of past is de facto a Weberfan approach, which views Confucian culture as submitting to parents, authorities and ancestors. 13 However, Confucianism itself as a set of principles and concepts is not invariable. Even the Tao (way), which constitutes the central values of Confucianism and is transmitted from the past, is not entirely unchangeable. As Herrlee Greel argues, Confucius has never defined his way. 14 The Tao is not viewed as a `fixed code' but a `way of ideals', 15 which, as William de Bary puts it, needs to be continuously reconstituted. 16 The Tao itself contains the progress of creativity and is not simply a revivalist process. As Tu Wei-ming suggests, individuals can draw inspiration from the past and discover new meanings by their own experience and consciousness. 17 The Tao may also change when situations change and the Tao can be improved in tune with social evolution. 18 Even if some aspects of the Tao are permanently unalterable, there are still ample spaces left for creativity. Herbert Fingarette provides an insightful understanding. He suggests that a sole idea of Tao, which excludes individual creativity, cannot explicitly actualize every aspect of social life, as mere proficiency in the basic skills and common elements of music is not sufficient to create an original and charismatic stanza. 19 Throughout history, the Tao has been repossessed and reinterpreted several times, often in the name of worshipping the past. In this regard, Confucius himself is a highly creative genius. 2' His transmission and love of the past Tao should be best understood as humility and wisdom rather than starchiness. As articulated by Kuang Ya-min, who has written the biographies of many Confucian scholars, `Confucius created while transmitting'. 21 This explains that why Confucius's core conceptions of benevolence, equal education and electing the competent run contrary to the most wonderful system of the Zhou kingdom that Confucius himself admired, and that he acted not merely as an editor, compiler, abridger or expurgator, but, as demonstrated in the case of compiling the Zhou Yi and the Chun-qiu, comes close to being what we would call, in a modern context, an author. 22 Confucius's academic behaviour per se remains a paradigm of Confucian tradition, which was established expressly by Mencius (372-289 BC), who criticized the learning method treating Confucius as a still model for imitation. 23 This fostered a vogue for scepticism in the Song dynasty (960-1279) when printing mushroomed rapidly, transmitting knowledge to a much more significant extent. It was widely encouraged that, as one of the most noted Neo-Confucian thinkers Cheng Yi (1032-1107) said, "Student must first of all be able to doubt". This was echoed by many others, including the most successful Confucian philosopher, Zhu Xi (1120-1200), who taught that "great doubts lead to great progress", and put his philosophy into practice by proposing numerous innovations in the fundamental Confucian Classics. 24 As a matter of fact, that Confucianism constantly reinvented itself by coming to terms with the political and social changes of the time is nowhere more clearly illustrated than in the case of the Song Neo-Confucianism. 25 Individuals with independent personalities and creative sparks remarkably increased in the Song, albeit this phenomenon was largely confined within officials, literati and highclass merchants. 26 In the Ming (1368-1644), creativity started to emerge in ordinary people, especially when Wang Yang-ming (1472-1528), the second authoritative Confucian thinker after Zhu Xi, theorized the possibility for ordinary people to become sages. 27 With respect to creativity in humanism and individualism, the sixteenth and seventeenth centuries are probably the most creative and exciting period in China's history. 28 The justification of change and creativity stems from one of the fundamental philosophies of Confucianism, which views the entire universe as an endless, positive and progressive process. 29 In particular, the Song Neo-Confucianism developed a sophisticated theoretical system of taiji (Supreme Ultimate) to explain the creative nature of the universe. Zhang Zai (1020-1077) was one of the first Song Confucian scholars who invented the taiji theory. He attributes the driving force behind the universe to the continuous power of creativity. 30 Therefore, if the universe itself is creating things in a continuous way, then human beings must not be satisfied by merely being the creature of the universe but should actively participate in the creative process. 31 The meanings of life can only be reflected by continuous creative progress; 32 otherwise, as the erudite Song philosopher Lü Zu-qian (1137-1181) has argued, in hundreds of years the world 33 will remain stagnant. The role of the past is of course crucial. In every civilization, the past overlooks the present because the present needs acknowledged principles and paradigms, which largely come from the past, to be its societal underpinning. However, as Lloyd Rudolph demonstrated, it is more important to dialectically examine the relation between the past and the present. In many instances, the past is not absolute but is always creatively updateable without denying the values from the past. In a Chinese sense, the past is not the only thing. As the reputed French Sinologist Jacques Gernet has articulated, nothing can be more evident as a Chinese character than the notion that the future is always different 35 from the past.