Copyright Protection Of Unapproved Foreign Works

On February 26,2010, the 11^th National People's Congress Standing Committee approved the Decision of Modifying Copyright Law of the People's Republic of China .It deleted Article 4(1) of Copyright Law of the People's Republic of China(2001),and increased the provision in Article 4(2) that"The state has the power to supervise the publication and dissemination of works".Though the change of these two sentences is so tiny, it affords for thought. At the same time, it propounds the copyright protection of unlicensed foreign works to us again.The dissertation makes the dispute of WT/DS362 about Article 4(1) of Copyright Law of the People's Republic of China(2001) as an entry point. It uses economic analysis, comparative analysis, normative and demonstration analysis to discusses the copyright protection of unlicensed foreign works. It's reasonable to endow copyright protection to the unlicensed foreign works. It's also valid to limit the copyright exercise. By drawing lessons from other countries, it points out the deficiency in our institution of administrative examination and the improvement. By understanding Article 4 of Copyright Law of the People's Republic of China(2010) exactly, it propounds suggestions of copyright protection to the unlicensed foreign works, under the new development situation of the cultural products market.The structure was divided into four parts, besides the introduction and the peroration.The introduction is mainly about the modify background of Article 4 of Copyright Law of the People's Republic of China(2001). It draws forth the discussion of the copyright protection of unlicensed foreign works, by introducing the 3^rd request of WT/DS367. Article 4 means that the legislation finally endows copyright to the unlicensed foreign works. But it's still the dissertation main purpose to discuss how to specify the copyright protection to balance the cultural development and the public interests.The first part introduces the conception and category of the unlicensed foreign works. The second part discusses and proves that it's reasonable to endow copyright protection to the unlicensed foreign works, by analyzing"Doctrine of Automatic Protection"and the use of"The Three-step Test". Then, it affirms the reasonableness again with"Cost-Income"economic analysis, comparative analysis and the analysis for the legal regard for public morality. These works is more related to the balance between the regard for public morality and cultural development. It's also the maximal dispute of whether to endow copyright protection to these works. The legal regard for public morality should have foresight ,and also should balance between the public interests in cultural development and it, instead of denying the copyright rigidly. Today, the cultural products market is flourishing as never before. The polybasic values and ethics can coexist. It's reasonable, lawful and sensible to endow copyright to these works.The third part based on the second part, combining with the institution of administrative examination, analyzes that it's valid to limit its copyright exercise. The publication and dissemination of both the foreign works and domestic works should be limited by public morality and interests. Administrative examination is the sovereign power of the country. It's important to the copyright protection of unlicensed foreign works. And they're compatible.The dissertation finds the third way to resolve the copyright protection of unlicensed foreign works through the analysis of the second part and the third part. It's that admit its copyright but limit its copyright exercise.The forth part based on the legal framework of our nation's system, discusses how to improve the institution of copyright protection of unlicensed foreign works. It points out that our institution of administrative examination should define the subject of the power, and define the examination standard scientifically. Also, it advises add measures for temporary protection to the works which haven't submitted applications for administrative examination or waiting for the result. For the different unlicensed foreign works, it discusses the application of statute of limitation, compensation for damage, and of how to identify the infringement act.The peroration is that it should endow copyright protection to unlicensed foreign works, but limit its copyright exercise reasonably. The key to resolve the dilemma of these works is to improve the level of the government's supervision institution, define the examination standard scientifically to prevent it from enforcing power selectively. And add measures for temporary protection based on the legal framework of our nation's system. At the same time, the legislation should establish rules of right remedy etc. when the copyright of these works are infringed. Only by this way, it can ensure the Copyright Law to be logical and normative.