He Tianxiang is an Assistant Professor at the School of Law, City University of Hong Kong. He holds an LLB degree from the Huaqiao University (China), a Master’s degree in International Law from Jinan University (China) and received his PhD degree in IP law at Maastricht University (The Netherlands) and another PhD degree in Criminal Law at Renmin University of China (China). He is the author of the book ‘Copyright and Fan Productivity in China: A Cross-jurisdictional Perspective’. His articles appeared in SSCI journals such as the American Journal of Comparative Law, Queen Mary Journal of Intellectual Property, Journal of the Copyright Society of the USA, Computer Law & Security Review, and Asia Pacific Law Review. He is currently on the editorial board of the Chinese Journal of Comparative Law published by Oxford University Press.
City University of Hong Kong
City University of Hong Kong
Transplanting Fair Use in China? History, Impediments and the Future
The history of the Copyright Law of China (CLC) is a history of Òlegal transplant. Since its enactment in 1990, the CLC has been continually shaped by factors such as legal traditions, international norms, legal developments in advanced countries, and technological challenges. This hybrid legislative model has provided an extremely useful tool for transitional China to readily establish an operative copyright legal framework and demonstrate its compliance with various international treaties. However, after almost 30 years of development, China has developed to a stage that necessitates a customized, demand-driven, and internally coherent CLC. The evolution of its copyright exceptions model that concerns the balance between the interests of the copyright owner and public interests such as access to knowledge and freedom of speech is a pivotal part of the new search. It will also further our understanding of the global paradigm shift related to copyright exceptions models.
The nature of a future copyright exceptions model in China has been intensely debated since 2011, when the Chinese government launched a public consultation regarding the third-round amendment of the CLC. In the revised 2014 draft, an open-ended general clause of copyright exceptions was proposed; however, this was criticized by academics for its imprecision and several internal inconsistencies. Nevertheless, over the past few years, many new forms/ways to utilize copyright works have emerged, during which the existing closed-list copyright exceptions model was heavily challenged due to its inflexibility in the face of these new cases. Although Chinese judiciaries have already employed the US four-factor fair use model or its elements in deciding difficult copyright cases, whether the US approach will eventually be transplanted to the CLC remains unclear, making it a “must-solve” problem in the upcoming round of revisions.
To demonstrate the complicity of the evolutionary process and the search for a solution, the first section of this article explores the historical constraints on the current model of copyright exceptions adopted by the CLC and the new challenges it is facing. The second section explores why the current approach taken by Chinese courts is meant to be an interim one. The third section critically assesses the latest published revised draft and addresses why China will not transplant the US fair use model directly. The concluding section identifies a possible model of copyright exceptions for China. This model should be flexible enough to cover future needs and better reflect local realities and priorities by learning from civil law jurisdictions, such as Japan and Taiwan, that have transplanted or planned to transplant an exotic model like fair use.