—Discussion on the Protection over the Prohibited Works by China Laws

Although China is among the few countries attempting to control the ideology, the rule of law is progressing in this country. Currently, the previously unprotected works, like the pornography or ungranted published works, all could be protected by the Copyright Law.

In recent, Shanghai Pudong People’s Court judged an infringement case of the cyber disseminated movie, and in the case the legal owner of the movie, which however has no administrative license for public show, was protected by the judgment and the owner’s claim of compensation was also supported.

In this case, the plaintiff purchased the movie of Shinjuku Incident from a Hong Kong company and owned the exclusive right of network dissemination in mainland China.  Afterwards, the plaintiff found the defendant streaming the movie on its website, while the defendant argued that the movie was not legally imported and had no license for public show. Today, Bridge IP Law Commentary today will introduce you the legal protection on the prohibited works in China, basing on the WTO’s ruling on U.S.A’s charge against the intellectual property protection in China in 2009 and the Copyright Law revision of China in 2010.

I. WTO’s ruling and the revision of China Copyright Law

As regulated in the paragraph one of article one of China Copyright Law before the revision in 2009, the works prohibited for publication and dissemination will not be protected by law. In 2007, U.S.A initiated the lawsuit in WTO, complaining the IPR protection in China, and among the claims one is charging the above article is against the Berne Convention and TRIPs. However, U.S.A didn’t present any evidence proving that the said works were not protected in China.

Therefore, the Ruling of WTO in 2009 only judged the said regulation violated the “Minimum Protection Principle” specified in the Article 5 (1) of the Berne Convention and the Article 41.1 of the TRIPs, as for the works, the contents of which are invalid, are not covered by the judicial reliefs. In other words, the Chinese laws don’t exclude the copyright protection of the works, the contents of which are invalid, and by the regulation the copyright owners of such works are only not able to initiate an infringement action through a people’s court.

Although the ruling didn’t virtually deny the support and protection for the prohibited works by Chinese laws, the third session of the standing committee of National People’s Congress passed the decision on the revision of the Copyright Law, according to which the first paragraph of the Article 4 of the Copyright Law was deleted. And the current Article 4 specifies that  copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests, and the State shall supervise and administer the publication or dissemination of works in accordance with the law.

II. Could the prohibited works be protected by China Copyright Law?

First of all, we shall clarify the scope of the prohibited works. In fact, the determination standard in China is the legality of the content, and the State Copyright Bureau once stated in a written reply to the Supreme People’s Court that the works which publication or dissemination is prohibited by law as specified in the Article 4 of the Copyright Law only refers to those containing illegal contents, including the reactionary, pornography, superstitious ones … and those works publicized or disseminated in illegal ways shall not be the prohibited ones in the Article 4 of the Copyright Law”.

It follows that Chinese government judges a prohibited work in according to whether the content of the work violates the laws or damages the public interests. Moreover the WTO ruling also affirmed the Chinese government’s examination and review right for the contents. So it can be said that the ungranted cinematographic work concerned in the case mentioned above is not necessarily a prohibited work. Bridge IP Law Commentary believes that only works involving pornography or are antiadministration shall be regarded as the prohibited work in China.

Second, according to the Article 2 of the Copyright Law, the copyright shall be automatically granted when the works are completed. In other words, the examination on the works shall be conducted after the copyright is granted rather than be the precondition of the right granting. Furthermore, the Article 4 of the Copyright Law only limits the exercise of copyright by examination and review instead of deprive the right on finding the illegal contents.

Certainly, the copyright owner of the prohibited works could not gain the compensation like the owner of the general works, while their claims of stop infringement against their works could be supported.

Nevertheless, for the low proportion of the prohibited ones among all the works, those works completed outside China could still be protected in China according to the Berne Convention, and when foreign copyright owners find infringements in China, they can protect their rights by themselves or entrusting Chinese lawyers.

Author: Ms. Chen Danhong
Paralegal of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.

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