China's New Article 4 Copyright Law: Censored Works Are Copyrighted Too

How would China change its article 4 Copyright Law after the panel decision in the World Trade Organization's Dispute Settlement (DS 362) case determined that that provision was not compatible with China's obligations under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) and the Berne Convention for the Protection of Literary and Artistic Works?


IP Dragon's friend Rogier Creemers sheds light on the matter:

"Following the Panel Report in the China - Intellectual Property Rights case (DS 362), the Chinese Copyright Law has been slightly revised. Article 4, which was deemed to deny copyright to certain classes of rights holders in violation of China's obligations under TRIPs and the Berne Convention, has been updated from:

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

Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests.

第四条 依法禁止出版、传播的作品，不受本法保护。

著作权人行使著作权，不得违反宪法和法律，不得损害公共利益。

to:

Copyright holders, when exercising their copyright, may not violate the Constitution and laws, and may not damage the public interest. The State implements supervision and management over publishing and dissemination according to the law.

著作权人行使著作权，不得违反宪法和法律，不得损害公共利益。国家对作品的出版、传播依法进行监督管理。

This update removes the provision containing copyright denial, while the added sentence makes clear that nonetheless, the censorship process remains unaffected."

Unexpectedly a new article 26 Copyright Law

Creemers writes:

"At the same time, a new Article 26 was added to the Law, stipulating:

Where copyrights are used as collateral, the pledgor and pledgee register the pledge with the State Council administrative copyright management entity.

以著作权出质的，由出质人和质权人向国务院著作权行政管理部门办理出质登记。

The use of copyright as collateral had already been regulated since 1996 through administrative registration, but this addition strengthens the legal position of such transactions."

Thank you Rogier.

IP Dragon: About article 4 Copyright Law, it says on the one hand that works are protected by copyright even if they are censored, but that censored works may not be disseminated. The great advantage for copyright holders is that they can file a lawsuit against copyright infringers so in principle they can obtain an injunction and/or damages. Before, holders of censored works were totally dependent on the efficacy of the Public Security Bureau in stopping any dissemination of their works.

The revisions will be effective as of April 1, 2010. This is for real, and has probably nothing to do with April Fool's Day, which is celebrated in China too.