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According to Article 4 of the Copyright Law of the People’s Republic of China (PRC): “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.” The Chinese authorities have used this Article as a legal basis for trade restrictive measures over creative works of authorship, sound recordings, and performances which should otherwise enjoy a great deal of protection in accordance with the Intellectual Property Rights (IPRs) Rules adopted in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Not only that but China also has supported this claim when challenged before the World Trade Organization (WTO) with Article 17 of the Berne Convention for the Protection of Literary and Artistic Works which states the following: “The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.” Yet, the United States (US) in the case China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, claimed that Article 4 (1) of the Copyright Law of the People’s Republic of China (PRC) “denies legal protection to certain categories of works, in particular works that were censored, and that it denies the authors of such works of the broad set of rights enumerated in Article 10 of the Copyright Law”. The panel has decided that Article 4(1) is inconsistent with Article 5(1) of the Berne convention and which is incorporated through Article 9.1 of the TRIPS Agreement. In this context, Article 5(1) states the following: “Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.” In the chapter, “China Meets Hollywood at WTO: Janus Faces of Freedom: Standards of Right and Wrong Between National and International Moralities”, the author Christophe Germann examined this particular case study and the manner in which the Dispute Settlement Body (DSU) of the WTO ruled in this situation. As such, the author revealed the importance of such disputes in securing access to creative works of authorship, sound recordings, and performances which were prohibited from entering the country for reasons related to immoral contents and so on. This is not the only case that was filed before the WTO and in which China had to defend its measures that were falling under the same legal justifications. Indeed, Beijing had for instance to defend the “measures regulating activities related to the importation and distribution of reading materials, audiovisual home entertainment products, sound recordings, and film for theatrical release” in another case filed by the US.
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