Positive Analysis to the Illegal Works in China

Copyrightable or Not: A Positive Review of illegal Works under China’s Copyright Law and Suggestions to the Legal Reform

GU Minkang & DONG Hao

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.

Copyrightable or Not: A Positive Review of illegal Works under China’s Copyright Law and Suggestions to the Legal Reform

GU Minkang & DONG Hao

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 of working paper (in English) can be accessed in SSRN:

http://ssrn.com/abstract=1346325