The hottest public order can constitute a justific

2022-08-23
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Public order can constitute a legitimate reason to derogate from treaty obligations

refutation of the third allegation of the United States in the first WTO case of Sino US intellectual property dispute

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the first WTO case of Sino US intellectual property dispute has now entered the stage of dispute adjudication by the expert group. In the request for the establishment of the expert group, the United States raised three allegations, of which the third allegation is mainly against the provision of Article 4 of China's copyright law that "works that are prohibited from publication and dissemination by law are not protected by this Law". In fact, the provisions of Article 4 of China's copyright law are based on the protection of public order, and a country has the right to take certain measures based on public order, which is also recognized by the TRIPS Agreement. Therefore, the above accusations made by the United States against China belong to the wrong interpretation of Article 4 of China's copyright law, which is completely unreasonable

On August 13, 2007, the United States announced that it would request the WTO to establish an expert group at the WTO Dispute Settlement Body meeting on August 31 because the consultation with China did not achieve satisfactory results. After China refused this request, the United States again requested the establishment of an expert group at the meeting of the WTO dispute settlement body on September 25. According to WTO rules, the expert group will be established automatically after the second request for the establishment of the expert group. In the request for the establishment of the expert group, the United States raised three allegations, of which the third allegation is mainly against the provision of Article 4 of China's copyright law that "works that are prohibited from publication and dissemination by law are not protected by this Law". The United States believes that according to this provision, it is actually equivalent to that China refuses to protect the copyright and neighboring rights of those works that have not been approved to be published or disseminated in China. Therefore, the above provisions of Article 4 of the copyright law and the measures taken for the prior examination of foreign works thus violate China's obligations under Articles 3.1, 9.1, 14 and 41.1 of the agreement on trade related aspects of intellectual property rights (TRIPS Agreement)

in fact, the provisions of Article 4 of China's copyright law are based on the protection of public order, and a state has the right to take certain measures based on public order, which is also recognized by the TRIPS Agreement. Therefore, the above accusations made by the United States against China belong to the wrong interpretation of Article 4 of China's copyright law, which is completely unreasonable

public order and the provisions of Article 4 of the copyright law

for any country, there are some fundamental values and systems that are indispensable to its tradition, legal, economic and political systems. Leaving these values and systems will endanger the survival and development of the country. These fundamental values and systems constitute the public order or public policies and public interests of the country. Countries often incorporate public order into their legal system, and clearly stipulate that acts against public order are invalid and the law does not provide protection

different countries have the right to determine the meaning of their own public order according to their national conditions. In the "Antigua v. U.S. gambling case", the WTO expert group believed that the meaning of "(public morality and public order) depends on a series of factors, including the dominant social, cultural, ethical and religious values. Therefore, members should have a certain policy space to define and apply public morality and public order in their own territory according to their respective value systems and standards."

the traditional public order theory is mainly applicable to the field of private international law. When applying the law of a foreign country according to the conflict norms of private international law will be contrary to the public order of the country, the foreign law will not be applied and the national law will be applied. As more and more countries attach importance to public order, more and more international treaties stipulate that public order can constitute a legitimate reason for a country to derogate from its treaty obligations

the first sentence of Article 4 of the copyright law stipulates that "works whose publication and dissemination are prohibited by law are not protected by this law." The second sentence goes on to emphasize that "the copyright owner shall not violate the Constitution and laws, and shall not harm the public interest when exercising copyright." This clearly shows that: (1) in China, only those works that do not conflict with China's public order can enjoy the protection of copyright law. Works that conflict with China's public order will not be protected by the copyright law. Although the copyright law does not define the specific content of China's public order (that is, which works are prohibited from publication and dissemination), Article 26 of the regulations on the administration of publication, Article 32 of the regulations on the administration of radio and television, Article 3 of the regulations on the administration of audio and video products, and Article 25 of the regulations on the administration of film Article 57 of the regulations on the administration of telecommunications stipulates 10 categories of prohibited acts (7 categories in the regulations on the administration of radio and television and 9 categories in the regulations on the administration of telecommunications) in roughly the same wording. These 10 categories of acts should be regarded as acts contrary to China's public order. Therefore, the grasp of the specific content of China's public order should be based on the above 10 types of behavior. (2) For works protected by China's copyright law, the copyright owner must also abide by the restrictions of public interest when exercising copyright. Therefore, the restriction of public order on copyright is not only reflected in the legitimacy of copyright, but also in the specific exercise of copyright

the above provisions of Article 4 of China's copyright law are applicable not only to Chinese citizens, but also to foreign nationals

the provisions of TRIPS Agreement on public order

the provisions of TRIPS Agreement on public order mainly have two parts: one is in the preface. The preface "recognizes the fundamental public policy objectives existing in the domestic system in the protection of intellectual property rights, including development and technology objectives." One is in the text. Article 8 (1) stipulates that "in formulating or modifying domestic laws or rules, members may take necessary measures to safeguard their public health and promote the public interests of sectors vital to their socio-economic and technological development, as long as such measures are in line with the provisions of this agreement."

The significance of the preamble of the treaty is that it embodies the purpose and purpose of the treaty; The contents of the preamble can best reflect the various understandings reached by the States parties on the implementation of the specific obligations of the treaty and the contracting intention of the States parties. Therefore, when interpreting the specific provisions of the treaty, we must pay attention to the relevant contents in the preamble. The preamble of the TRIPS Agreement points out that "intellectual property rights are private rights". It is precisely because the attributes of private rights of intellectual property rights are taken into account that the preamble also emphasizes that while providing protection for them, the needs of the state to maintain public order must be taken into account. A state has the right to impose certain restrictions or requirements on its treaty obligations for the purpose of maintaining its public order, as long as such restrictions or requirements do not constitute a clear violation of treaty obligations and thus affect the interests enjoyed by other members of the treaty. To this end, Article 8 (1) specifically emphasizes that the state has the right to formulate necessary measures to "promote the public interests of sectors vital to its socio-economic and technological development" and "such measures are in line with the provisions of this Agreement". This provision is the concrete embodiment of the preamble and the guarantee of the right of the state to take certain actions based on public order

when any country accedes to the treaty and undertakes its obligations, it is impossible for it to accede to and undertake its obligations in a way that will fundamentally endanger its political, cultural, economic system, cultural tradition, etc. Other Member States should not have such inappropriate expectations to any extent. Any treaty obligations undertaken by a state must be within the scope of its own public order. Only by maintaining a reasonable balance between treaty obligations and the protection of public order, can countries cooperate with other countries and the international community, and then achieve a win-win result for all parties to the treaty. The protection of intellectual property rights must also adhere to this principle. A country should not expect another country to fulfill its treaty obligations in a way that will lead to the collapse or subversion of its own public order just for its own private interests and the purpose of protecting its own intellectual property rights. This expectation has exceeded the reasonable expectation of another country to join the treaty and the bottom line of its treaty obligations, so it is unreasonable and illegal. No treaty can have such a system design in the way of performance

because the value maintained by public order is so important to the country, any work that violates Article 4 of China's copyright law, no matter what form it belongs to, will not be protected by China's copyright law. Therefore, before any work is protected by the law of our country, it must be examined in advance to determine whether it is contrary to the public order of our country; During this review period, of course, it cannot obtain any protection under Chinese law. Therefore, the provisions of Article 4 of the copyright law and the measures taken thereby do not violate China's obligations under Article 14 and article 41.1 of the TRIPS Agreement

Article 4 of the copyright law does not result in different treatment of foreigners and natives.

of course, when defending the provisions of Article 4 of the copyright law of our country on the basis of public order, we also need to pay attention to one point: whether Article 4 actually creates different treatment of foreigners and natives

the United States believes that according to the provisions of Article 4 of the copyright law and the practice of prior examination of foreign works adopted thereby, in fact, have resulted in different practices for foreigners and natives, which is not in line with tr's obligations under Articles 3.1 and 9.1 of the IPS agreement

In fact, Article 4 of the copyright law applies not only to foreigners, but also to Chinese nationals. Before the works of Chinese citizens are published or disseminated, their contents must also conform to China's public order and must be subject to the prior examination of their contents by the competent authorities. Once Article 3 is found to be inconsistent with China's public order, it belongs to "works that are prohibited from publication and dissemination according to law", and it also cannot obtain any protection from China's copyright law

whether the Berne Convention for the protection of literary and artistic works or the TRIPS Agreement, the most important and fundamental requirement for Member States on the protection of intellectual property is to implement and realize the "national treatment" for the protection of foreigners' intellectual property rights. Neither the Berne Convention nor the TRIPS agreement stipulates the so-called "minimum" copyright protection standard (the United States must also be aware of this. Therefore, although the United States emphasized that the Berne Convention constitutes the "minimum international standard" for copyright protection in the consultation request on April 10, it removed this wording in the final request for the establishment of an expert group), but only emphasized that, "The treatment provided by a member to the nationals of other member parties shall not be inferior to the treatment provided by it to its nationals."

due to the provisions of Article 4 of the copyright law and the practice of prior examination of works adopted thereby

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