Fair use regime in China : findings from an exploration into judicial experiences

Abstract

The objectives of copyright law are dual, i.e., to protect the interests of copyright holders and to promote affordable access to works. The regime of fair use is an important mechanism to achieve the balance of the two aspects. The fair use regime in Chinese copyright law is a closed model and some of the provisions are rigid, which cannot meet the demand of the society. The draft of the third copyright law revision proposes a catch-all clause which would change the regime from being closed to open. However, it fails to provide a clear criterion which can ensure the certainty of law. By contrast, Chinese courts show their flexibility in recognizing fair use and the remedies thereafter, especially in recognizing new circumstances of fair use beyond the law. This phenomenon, however, has not received the attention it deserves as it has great significance for copyright law overall. The literature in both Chinese and English on this phenomenon is quite limited.

On the basis of a comprehensive review of the cases regarding fair use recognition, this thesis finds that in spite of the closed model and rigid provisions in legislation, the Chinese judiciary has applied existing provisions in a flexible manner. The flexibility is reflected in three aspects: the courts make expansionary or restricted interpretations according to practical needs; they determine new situations of fair use beyond the statute on various grounds, including the US-style four-factor analysis, objectives of the copyright law, principles of the civil law and customary practices; when deciding remedies and compensations, judges take account of various considerations to achieve a balance of interests, which also brings a certain degree of flexibility.

The contrast between rigidity of legislation and flexibility in judicial practices is remarkable as well as puzzling. This thesis tries to explain this phenomenon in the context of the legislative history of Chinese copyright law and judicial tradition. It is argued that the hybrid characteristic of copyright law provides the ideological foundation of flexible application in trials, and the pragmatic judicial tradition provides the institutional conditions. The flexible practices are not occasional acts of individual judges, but reasonable collective choices of the judiciary system to achieve copyright objectives in the digital economy, i.e., the balance of interests of copyright holders and the public.

These practices, however, have caused concerns due to the illegitimacy of judges’ discretion and uncertainty of the law. As a response, this thesis recommends a catch-all clause to clarify the open status of the fair use regime in Chinese Copyright Law during its third revision. It suggests that, in order to achieve the balance of flexibility and legal certainty, the following changes should be considered: (1) adding a general fair use clause which contains specific factors for judges’ consideration; (2) providing the flexibility for the use of the work of others for creation; and (3) adding mature categories of fair use which are summarized from the judicial experiences to the list of permissible acts.