The Doctrine of Ordre Public and the Sino-US Copyright Dispute

Abstract

The first complaint concerning China's protection of intellectual property rights that was brought to the WTO Dispute Settlement Body, highlighted the compatibility of Article 4 of China's copyrights Law and the TRIPS Agreement. Recognizing that the doctrine of ordre public represents a topic of highly theoretical and practical importance, the paper tries to expound the provision of Article 4 of the Copyright Law in light of ordre public, and to examine whether the ordre public exception is permissible against the backdrop of China's obligations under the TRIPS Agreement and the Berne Convention. A preliminary finding, which is based on the interpretation of relevant articles of the international legal documents and the practice of the international adjudicatory bodies, shows that the Berne Convention confer its members rights to invoke the ordre public exception and that the TRIPS Agreement can and should be interpreted and implemented in a manner supportive of its Members' right to protect ordre public. The paper ends in concluding that Article 4 of the Chinese Copyright Law sounds justifiable in both the TRIPS Agreement and the Berne Convention.

Keywords: Ordre Public, China, Copyright, Intellectual Property, Berne Convention, WTO, TRIPS Agreement

JEL Classification: F02, F10, F13, F14, F15, K33, O34