Censoring the Censors in the WTO - Southwestern Law School

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20 J. Int’l Media & Entertainment Law Vol. 3, No. 1 that the public morals exception justifies China’s pre-importation content review scheme, China’s restrictions on U.S. companies’ trading (importation) and distribution services regarding media items that have been approved for entry into China constitute a violation of China’s commitment to liberalize those service industries 11 and furthermore such restrictions are not “necessary” to protect China’s public morals. 12 China denied this allegation and claimed that the challenged restrictions are indeed justified under the public morals exception provided in Article XX (a) of the GATT 1994 on the ground that limiting U.S. companies’ involvement in the importation and distribution of censorapproved U.S. media products furthered its pre-importation content review of those products. 13 Despite all the fanfare and drama that has played out on the world stage regarding this case, the Appellate Body’s decision affirming the great majority of the panel’s findings in the U.S.’ favor was widely expected, apparently even in China. 14 In short, China’s argument that Chinese entities must be involved in the importation and distribution of foreign media items that China has already determined are consistent with China’s public morals in order to protect China’s public morals is simply illogical. A telling fact regarding China’s rationale for restricting foreign involvement in the importation and distribution of media goods and services in China is that, shortly before China filed its appeal with the Appellate Body on September 22, 2009, a spokesperson for the Chinese Ministry of Commerce indicated that China was considering filing an appeal because [hereinafter “GATS”], Article 27:2 of the Agreement on Trade-Related Aspects of Intellectual Property Protection, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, The Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter the “TRIPS Agreement”] (concerning the issuance of patents), and Article XXIII:2 of the Agreement on Government Procurement, (Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 4B, 1915 U.N.T.S. 103 (1994) [hereinafter the “GPA”]. 11. China—Media Appellate Body Report, supra note 4, at 1-3 (referencing China’s Schedule of Specific Commitments under the GATS). 12. Id. at 4.319. 13. Id. at 7. 14. See, e.g., Bridges Weekly, supra note 7 (revealing that, following China’s loss at the panel level, the state-owned newspaper indicated that China might file an appeal “although it quoted a trade lawyer as saying that such a move would have little chance of success”); John W. Miller, China Cites ‘Morals’ in Its WTO Appeal, wsj.com, Sept. 23, 2009, available at http://online.wsj.com/article/SB125363796886541247.html (accessed Dec. 22, 2009) (“ ‘Just like in the U.S. [Gambling] case, China must now prove its trade restrictions are necessary to protect public morals,’ says Brendan McGivern, a Geneva-based trade lawyer for White & Case LLP. ‘It will be a difficult argument to make.’ ”). 3058-088-3pass-02_Wright-r03.indd 20 6/30/2010 12:01:58 PM
Censoring the Censors in the WTO 21 “the country needed to protect its market for cultural products since the competitiveness of the domestic industry was ‘still pretty weak’.” 15 This comment suggests that China’s primary motivation for restricting the importation and distribution of censor-approved foreign media items is the protection of its fledgling cultural industries, not its people’s morals. Such a protectionist motivation would also help explain why counterfeit copies of foreign media items denied entry into China on account of their content nonetheless appear to circulate freely within China, 16 and, at least prior to the WTO panel’s ruling in the case of China —Measures Affecting the Protection and Enforcement of Intellectual Property Rights , 17 were denied protection under China’s copyright laws. 18 While China’s concern that its domestic cultural industries may find it difficult to compete against the tidal wave of foreign media items entering China is understandable, this concern with the quantity of foreign media items is not equivalent to a moral objection to the content of such items. 19 15. News and Analysis: 6.U.S. Wins on Key Points in China Media Market Access Case, 13:3 Int’l Centre for Trade & Sustainable Dev., Sept. 2009, available at http://ictsd.org/i/news/bridges/54365 (accessed Dec. 8, 2009). 16. See, e.g., An Assault on Online Piracy in China: Public Morals and Private Property, economist.com, Sept. 24, 2009, available at http://www.economist.com/ businessfinance/displaystory.cfmstory_id=14517414 (accessed Dec. 7, 2009) (discussing how “[t]he government of China allows only a trickle of foreign films and television shows to be imported, claiming the restrictions are ‘necessary to protect public morals’. Yet there is no better place in the world for fans of Western television and cinema to live than in China.”); Ian Johnson, WTO Ruling May Not Alter Media Sector in China, chinhdangvu.blogspot.com, Dec. 22, 2009, available at http://chinhdangvu. blogspot.com/2009/12/wto-ruling-may-not-alter-media-sector.html (accessed Dec. 23, 2009) (noting that “almost any pornographic book or movie is already openly available in China in pirated form and the government does little to prevent this”). 17. WT/DS362/R (adopted on Mar. 20, 2009). The WTO panel hearing this case found that China’s failure to grant copyrights to the owners of foreign media items that are not approved for entry into China during the pre-importation content review process constituted a violation of China’s commitments under the TRIPS Agreement. Id. at 7.139. 18. The U.S. Government has contended on a number of occasions that the rampant counterfeiting of U.S. media items in China is directly linked to China’s failure to approve many U.S. media items for entry into China. See, e.g., World Trade Organization Report Upholds U.S. Trade Claims Against China, Press Release, Office of the U.S. Trade Representative, Dec. 8, 2009, available at http://www.ustr.gov/about-us/pressoffice/press-releases/2009/august/world-trade-organization-report-upholds-us-trade-cl (accessed Dec. 7, 2009) (Following issuance of the WTO panel decision in China— Media Appellate Report, supra note 4), U.S. Trade Representative and Ambassador Ron Kirk proclaimed “[t]his decision promises to level the playing field for American companies working to distribute high-quality entertainment products in China, so that legitimate American products can get to market and beat out the pirates.”). 19. This concern was the impetus for UNESCO’s adoption in 2005 of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, CLT- 2005/Convention Diversite-Cult Rev. (adopted at Paris Oct. 20, 2005), available at 3058-088-3pass-02_Wright-r03.indd 21 6/30/2010 12:01:58 PM
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