This one is going to be relatively short and sweet, ’cause for the life of me, I cannot figure out what the USTR is talking about. The USTR fact sheet on the IP case specifies four areas of violation. I have already covered the first two in earlier posts.

Number three is labeled: “Denial of Copyright Protection to Works Awaiting Censorship Review.”

To be thorough, here is the complete text of this paragraph:

China’s copyright law denies copyright protection to imported works waiting for approval to enter the Chinese market. (Domestic works do not require such pre-distribution review.) During the review period (and potentially forever for works that fail such review), unauthorized persons are able to put copies of works on the market without infringing copyright and thus without incurring civil or criminal copyright liability. This aspect of China’s copyright law appears to be inconsistent with China’s commitments under the TRIPS Agreement.

Unpacking this allegation, USTR is saying that owners of imported works (e.g. a movie or book) that are under censorship review would not be able to enforce their copyright.

I confess that I can’t figure this out, and I would love for someone to write to me and explain this. There are only three possible categories of products here, as follows:

1) Products that are created offshore and never imported - these would automatically be protected by Chinese copyright law through the Berne Convention, an international copyright treaty, of which China is a signatory.

2) Products that are imported and distributed in China - also covered by Berne Convention.

3) Products undergoing censorship or have failed censorship - if a product fails censorship, then it will not be imported, and logically should be treated the same as category 1. Why censorship rejection would effect a product’s copyright makes absolutely no sense. Moreover, why a copyright would be temporarily ineffective during censorship also makes no sense. You either have it or you don’t.

I have looked at the law here, I have talked to one of our copyright lawyers, and I even reached out to a copyright expert at the IPR center at the China Academy of Social Science (CASS). No one seems to know what the heck this is all about. There must be something that USTR was looking at - these guys do not screw up; I just can’t seem to find what it is.

That’s all I can say unless someone wants to enlighten me. If not, I will have to try getting in touch with someone at USTR.