Copyrightable or Not: A Review of the Chinese Provision on 'Illegal Works' Targeted by WTO DS362 and Suggestions for Legal Reform

Asian Journal of WTO and International Health Law and Policy, Vol. 4, No. 2, 2009

33 Pages Posted: 19 Feb 2009 Last revised: 15 Feb 2010

See all articles by Hao Dong

Hao Dong

School of Law, City University of Hong Kong

Minkang Gu

City University of Hong Kong (CityUHK)

Date Written: February 19, 2009

Abstract

This article reviews the copyright dilemma with regard to illegal works in the context of China’s copyright system, and comments on the relevant WTO DS362 panel report. Under the current Chinese Copyright Law, not merely the works with illegal content, but also the works which do not fulfill the procedural requirements of the law will be denied copyright protection. Article 4(1) of China's Copyright Law may find legitimacy at the domestic level, but does not comply with China’s WTO obligations. The three criteria in Article 13 of TRIPS Agreement can be applied to examine Article 4(1), and this approach is better than the WTO panel’s pure literary approach. By the “Three-step Test” approach, this article finds the key problem of Article 4(1): The uncertainty of the scope of denial of copyright. To comply with the WTO rule, China may employ a mechanism of “super-national treatment”, but it is not a preferred choice. Based on these analyses and considering the context of China’s legal regime, the article proposes some practical suggestions for legal reform.

Keywords: Illegal Works, DS362, TRIPS, Three-Step Test, China, Copyright Reform

JEL Classification: K19, K33, O34

Suggested Citation

Dong, Hao Donnie and Gu, Minkang, Copyrightable or Not: A Review of the Chinese Provision on 'Illegal Works' Targeted by WTO DS362 and Suggestions for Legal Reform (February 19, 2009). Asian Journal of WTO and International Health Law and Policy, Vol. 4, No. 2, 2009, Available at SSRN: https://ssrn.com/abstract=1346325

Hao Donnie Dong (Contact Author)

School of Law, City University of Hong Kong ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

HOME PAGE: http://www.blawgdog.com

Minkang Gu

City University of Hong Kong (CityUHK) ( email )

83 Tat Chee Avenue
Kowloon
Hong Kong

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