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。
(Yi Fa Jin Zhi Chu Ban, Chuan Bo De Zuo Pin, Bu Shou Ben Fa Bao Hu.)
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 be just 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).
