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Above Copyright Law: One of China’s Most Notorious Black Markets

By: Nicole Metzgar-Schall 

The sale of illegal copies of DVDs is a global problem, especially in China, where legally purchased DVDs are virtually non-existent. Individuals in China who wish to see certain films must resort to piracy or bootlegs due to the Chinese Government’s strictly held regulations placed on foreign film imports.  Indeed, in 2010 alone, China’s pirate DVD industry made an estimated $6 billion, compared to their country’s box-office revenue of $1.5 billion.  While, China does not maintain a movie rating system similar to the United States, instead, the Chinese government decides what movies can be shown in the country, and those films must yield to China’s censors. Though China’s censorship has eased in recent years, the process is still rigorous and certain themes are subject to government censorship. The Chinese government maintains control over the film industry through governmental ownership, where a quota system for imported foreign films is implemented, which places preventative restrictions on foreign investment.

Of all the countries with markets for pirated and bootlegged films, China’s situation is the most notorious because such a large market exists for cheap, international, and uncensored films. Furthermore, cheap, international, and uncensored films are readily accessible with little intervention by the Chinese government. For example, in Beijing, China, the Hailong Market openly offers bundles of pirated DVDs  for sale as well as hard-drives that are loaded with counterfeit movies.  Moreover, many bootleggers offer to wipe hard-drives clean in order to reload the device with new movies at a very low price. Furthermore, local stores in Shanghai, China openly advertise the sale of pirated films, where they offer high quality DVDs that are wrapped in plastic. Some individuals attribute China’s large pirate market to the country’s lack of cultural understanding that media is intellectual property, where exclusive rights are held by an individual author.  Moreover, these individuals reason their argument by tracing modern day piracy back to the views in China that individual rights are of no concern.  Many people living in China are torn between an upwardly mobile ambition and Confucian order and many illegal DVDs are sold in the open via a “don’t ask, don’t tell,” piracy policy.  Thus, a communist ideology can explain the lack of an effective system for copyright protection.

The Berne Convention and the Universal Copyright Convention (“UCC”) were designed to protect authors from the type of infringement taking place in China, yet, it seems that the market for pirated DVDs in China remains.  In China, perhaps the widespread piracy and theft of copyrighted material is caused by the country’s natural economic phase rather than cultural tendency to ignore property rights of creators.  However, this makes it even more difficult for the enforcement of international legal policies, such as the Berne Convention or the UCC because the market for illegal films accounts for a large portion of China’s gross domestic product.  Without China’s willingness to amend its domestic law to meet the standards of the Berne Convention or the UCC, DVDs will see little, if any, protection in China.

Nicole Metzgar-Schall is a 2L at the Sandra Day O’Connor College of Law at Arizona State University. She is an associate editor for the Sports & Entertainment Law Journal.

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