This is the outline of my talk at Berkman Fellow’s Hour on 17 Nov. 2009. Needs improvement, just post for commentaries.

1. Copyright protection is justified in a utilitarian way in the US. Contrary to many people’s granted thought, my study find that although it is deeply affected by the Germeneric-japanese form of civil code system, China’s current copyright law is also based on utilitarian philosophy.

2. Pros and cons of the utilitarian justification to the copyright law, as well as some of cyberspace law.

Advantage: that’s the sourse of various thinking to the legal reform.
Disadvantage: when the understandings of “progress” (US Constitution Art. 8; China’s Constitution Art. 19, 20, 47, Copyright Law Art. 1) in different countries conflict with each other, conflicts of the law will be inrooted and hard to be coherent.

3. When the US is a giant but China is a dawf in the matters of either economy or civilization, US can impose its understanding of “progress” and the corresponding detailed copyright law to China, as it has been for many years. While if China becomes a giant also, what will happen? No matter how do people celebrate it or demonize it based upon different values/ideologies, the unique “socialist regime with Chinese characteristics” is an existence, and has developed a more and more complicated legal system.

4. The first formal head-on confrontation happened at the WTO dispute on the provision of denying copyright protection to the “illegal works” (either content-illegal or procedure-unlawful) in China’s copyright act.

5. There is a trend of the isolation of the Internet. The isolated and respectively utilitarianized legal system may enlarge the differences of copyright/information law among countris in future. (example (1) firewalled but flourishing Chinese “Intranet”; example (2) differentiated treatment to the books in the latest Google book settlement because of the needs to comply with the territorial copyright law).

6. What would be a uniform legal justification for the future reformed copyright law (or law on “creation in commons”)? Or, in what level, that justification is possiblly uniformed in such a utilitarian world?

My Paper:
Positive Analysis to the ‘Illegal Works’ under China’s Copyright Law: With Comments to the WTO DS362 and Suggestions to the Legal Reform

Abstract:

Abstract: This article reviews the copyright dilemma of illegal works in the context of Chinese copyright system. Under the current law, not merely the works with illegal content, but also the works did not fulfill the procedural requirement will be denied the copyright protection. Article 4(1) may find legitimacy in the domestic level, but does not comply with the WTO law. The three criteria in Article 13 of TRIPS Agreement can be applied to examine Article 4(1). The key problem lies in the uncertainty of the scope of denial of copyright. This leads to the Super-national Treatment. Based on these analyses, the last part of the article proposed some suggestions for the future legal reform.

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

The fulltext (in English) can be accessed at SSRN:

http://ssrn.com/abstract=1346325

Let’s see the three versions of English translation to Article 4(1) of Chinese Copyright Law:

Its Chinese orginal wording:

依法禁止出版、传播的作品，不受本法保护。

T1. In official database of the China National People’s Congress, this sentence is translated as:

Works the publication and dissemination of which are prohibited by law shall not be protected by this Law.

T2. In the China’s notification to the Council for TRIPS in 2002 (WT/IP/N/1/CHN/C/1), this sentence is translated as:

Works the publication or distribution of which is prohibited by law shall not be protected by this Law.

T3. In the WTO case DS362, the US and China agreed the following translation:

Works the publication and/or  dissemination of which are prohibited by law shall not be protected by this Law.

• According to T1, only when a work is prohibited publication and dissemination, it will not be protected by Chinese Copyright Law.
• According to T2, either when the publication or when the dissemination of a work is prohibited, it will be excluded the copyright protection.
• According to T3, if a work (1) the publication and dissemination are both prohibited; (2) one of them  is prohibited, it will be denied the copyright protection.

As for the WTO DS362 case, the distinction of these three translations may not be interested by the US negotiators because they might believe any version of such provision would violate the TRIPS obligation as it conflicts to the “automatic protection” principle stipulated in Berne Convention.

However, when we turn back to the domestic level and provided that the censorship would not be abolished in the near future, the distinction might be very significant. For instance, if someone “disseminated” (Alert: the “disseminate” dose not equal to “desseminate to the public”) a self-made movie about the fire at the CCTV (or TVCC, whatever) to his 10 friends privately, whether she would be protected by the current Copyright Law? If you know China, you will understand the movie would never be approved publication – attention! another language mist – “publication” in Article 4 is different from “the right of publication” in Article 10(1) – the former is Chu Ban (出版, printed or duplicated for distribution), the latter is  Fa Biao (发表, decide to make the work available to the public). At the same time, even according to the current censorship regulations, the moive will not be prohibited to be disseminated. Therefore, this movie may belongs to the “works prohibited to be published” AND “can be disseminated lawfully”. In this circumstance, different translations would leads to different answers, and it seems the T1 version would be more reasonable. But why and by what legitimacy?

Yes, the above paragraph may just be stupid crabs. But what I want to say is: We need a long long long long march to archive the so-called Rule by Law – let’s just forget the Rule of Law for a while (or at least lower our estimation to its archivement before used to being Zhetenged by the poor legislation). We have to pay more attention to the meticulous research to the details of our rules, and from my view, we have to Zheteng our legislations and make it being proof of vagueness. There is too much work to be done before (or at least besides) falling into the controversial value-relevant noises.

ps: Don’t ask me what is the official language of China, I have answered it here (in Chinese).

According to the Office of the US Trade Representative, the United States’ IPR consultation request to WTO on IPR protection and enforcement consists of FOUR aspects:A. the high quantitative thresholds that must be met in order to start criminal prosecutions of copyright piracy and trademark counterfeiting, and this makes a “safe harbor” for pirates and counterfeiters. B. Rules of disposal counterfeiting goods seized by Chinese Customs authorities – permitting them go back to the market after the removal of fake labels or other infringing features.C. Chinese copyright law provides the copyright holder with no right to complain about copyright infringement (including illegal/infringing copies and unauthorized translations) before censorship approval is granted. Immediate availability of copyright protection is critical for new products entering a market, and it appears that copyright protection is available immediately to Chinese works.D. Chinese law appears to provide that someone who reproduces a copyrighted work without the owner’s permission is not subject to criminal liability unless he also distributes the pirated work.OK, let’s put the United States’ complaint aside for a while, see the newly promulgated The Second Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate Concerning Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights now:Article I: decreasing the quantitative thresholds of criminal penalties to the half of the previous interpretation. I don’t know where is the reasonable line of the quantitative thresholds of criminal prosecution in a state where the criminal procedure are not be arranged as a parallel means of civil damages. Every one knows that in Civil Law System, the criminal procedure is only prepared for those severe offenders. Because of the existance of “administrative law” and the corresponding “liabilities under administrative law”, there is an reasonable enormous gap between the damages of civil infringement and the penalties of criminal guiltiness. The penalties issued by administrative authorities in China are mostly included in the criminal regime in those countries of Common Law System. So if one is not intended to ignore the existence of those administrative regulations, the so called “thresholds to start the criminal prosecutions” is actually NOT very relevant to the question of “whether Chinese legislation and regulation punish the piracies and counterfeitings other than civil damages.” Acrtually, Chinese administrative authorities have enough provisions to strictly punish the piracies and counterfeitings. There is no “safe harbor” in legislation. The problem is not in the legislative aspect.
In TRIPS, Article 61 is the only article relevant to criminal procedures. This article requires party members of the WTO “provide for criminal procedures and penalities to be applied at lest in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.” So what is “the commercial scale” becomes the key issue. Before the above interpretation, the number of the quantity threshold of being guilty in China is 1000 copies, while in the newest Interpretation, it dropped to 500. In EU Criminal measures IP directive (COM/2006/0168 final – COD 2005/0127), the term of “commercial scale” still needs to be defined. To solve this question, the Max Planck Institute proposed to substitute this term to the following elements:”- Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).- Commercial activity with an intention to earn a profit.- Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.” However, this is not an interpretation to the term of “commercial scale” but a proposal to substitute it. In another word, the Max Planck dose not define the “commercial scale” here but the change the standard of putting the pirates into jail from the “commerial scale” to the above elements. But in TRIPS, the treaty merely requires the member parties “at least” using criminal penalties to the pirates who are in “comercial scale”.Another question is: What reason makes the judges obtained the power to creat the standards of being guilty or not guilty? (attention, it’s not the standard of prosectution, but the standard of finding guiltiness!) I am not a professional in criminal law, but I DON’T BELIEVE that, when considering the basic principles of rule of law, any lawyer will think that theses standards can be of the “interpretation” but not the law by legislative organs.Article II: interpret the expression of “duplicate distribute” (well, if you can speak Chinese, you will not feel uncomfortable when reading two verbs without any conjunctions) in article 217 of Chinese Criminal Code as “duplicate OR distribute”.
Frankly speaking, when I read the “duplicate distribute” (复制发行) in Chinese, I will add an “AND” between the two words instinctually. But I am a lawyer, and judges are lawyers. They will not read the articles like reading novels. Article 47 of Chinese Copyright Code has clearly solved this question – it has been “OR” for years.
Now, let’s go back to the complaints of the United States. “A” and “D” are solved (or I shall say, have never ever been the real problems). How about “B” and “C”? Since I don’t know the situation of “B”, only “C” will be discussed as follows.Yes, there is censorship. But the censorship is not only to the foreign works but also to Chinese works. A work must be “legal” when it hopes to be protected by the copyright law. A work must not only be legal, but also be “correct” (or at least “not wrong”) when it hopes to be published. Even a work is “not wrong” at the time of publication, it may be regarded as an illegal work afterwards. These are common sense in China. The only difference between Chinese and the foreigners is: the foreigners do not used to the new environment.