Public Order and Chinese Copyright Enforcement

One of the newly published SIEL working papers is The Doctrine of Ordre Public and the Sino-US Copyright Dispute by Prof. Kong Qingjiang of Zhejiang Gongshang University. The paper addresses the ongoing dispute in China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights , arguing that an ordre public exception applies to copyright enforcement under TRIPS. The claim is that such an exception applies on the basis of the TRIPS preamble (I think this is unpersuasive on a textual and contextual level) and on the basis of Article 17 of the Berne Convention which provides that "[T]he 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". There is a host of  arguments against this position, For example, while Article 17 Berne might mean that the obligation to copyright protection cannot restrict the right of a government to censorship (to the extent that it is acknowledged), it does not follow that the right to censorship can restrict the obligation to copyright protection. In other words, frontally resorting to the censorship argument does not mean that censored works (or yet-to-be-authorized works) do not enjoy copyright protection.

Furthermore, not affording copyright protection to censored works can be understood as actually promoting distribution of the censored work. They might be illegal, but as a matter of fact readily available, and at a lower cost that does not reflect copyright protection exclusivity. Therefore the public order argument, if at all applicable, would not necessarily support non-application of copyright. Indeed, if distribution of a particular work is deemed illegal by the government, copyright can be a relevant factor in assignment of criminal responsibility to violations of censorship laws.

Another question that arises in this respect is the relationship between the TRIPS and Art. XX GATT (public morals). To the extent that Art. XX does not apply to TRIPS, can one claim that the public order exception as argued by Prof. Kong, if it applies, can apply to TRIPS without satisfaction of the Article XX GATT tests that would apply otherwise, such as necessity? What factual implications would this have, or is it argued that states have complete discretion? And there are burden of proof issues that should be taken into account as well...

I would think hard about raising the public order defense. Its formal grounds appear to be shaky, and its public relations effects would be disastrous.

T.