When Could “Fair Use” Other’s Works in China?

By Albert Chen

Techdirt recently reported the US court has adopted scanning within the scope of fair use, and by China Copyright Law, the library could also make a special copy or digitalize its collection, as well as the communication. Today, we would introduce the statutory license in Chinese legislature.

As known to us, the using of others work demands the right owner’s consent and the payment of the royalty (unless no payment as approved by the right owner). But as aiming to promote the cultural development, the emphasis on the exclusive right protection could only damage the spread-out of the culture and information. Thus, in addition to the protection, we also see Copyright Law regulates the “fair use” of the works, under which the using by a third party shall not be approved by the right owner or to pay the royalty.

Today’s post will introduce you the fair use system in China:

I. Judgment standard of fair use

The adopted standard for fair use decision is the “three-step test” (the “Test”), which is mainly provided in Berne Convention and TRIPs. By the Test, 1) the fair use could only be adopted in special circumstances; 2) the fair use shall not lead to the conflict to the original work; 3) the fair use shall not damage the legitimate interests of the right owner unless with legal reasons.

As stipulated in Article 21 of Enforcement Regulations of Copyright Law of China:

“By the Copyright Law, to use others’ published works with no consent from the right owner shall not damage the normal use of the original work, and shall not damage the legitimate interests of others.”

For this regulation, the Test is also the legal standard in our country.

II. Circumstances for “fair use” in Chinese laws

The circumstances for fair use are mainly regulated in Article 22 of Copyright Law, and it stresses the fair use could only be applied to the published works. And the specific regulations are as follows:

1. Personal use

By the Copyright Law, the personal use could only for “the user’s own private study, research or self-entertainment”, yet there attaches no limitation on ways of using and amounts. By the Test, the way and amount of using shall naturally not damage the legitimate interests of the right owner, therefore any exploitation for in commerce, unless it has been proved of no damage to the right owner’s interests, or copy in big amounts shall not constitute the “fair use”.

In addition to the way and amounts of using, the origin of the work is also prominent in judgment of the fair use, for any adoption of unlicensed copies or pirated pieces could be deemed as infringement.

2. The appropriate quotation

The appropriate quotation is mainly for the introduction to, or comments on, a work, or demonstration of a point. Considering the precondition of “appropriate”, the length of the quotation shall not be the whole content of the user’s work or the core contents of their work, and that means any quotation shall not be the display of the original work, for it shall aid in the demonstration to the opinions of the users at all.

The most typical case for the appropriate quotation is the “parody” under the transformative using, including A Murder Case Caused by a Bun (一个馒头引发的血案) in 2005, parodying a Chinese legal talk show and the film The Promise to satirize Chinese cinema.

3. the use in media report of current issues, comments on current issues and the speech at a public gathering

To the fair use in the media report, fair use of comments on current issues and speech on public gathering, are all aiming at the guarantee of the public’s right to know the current issues. These statutory fair uses are all limited in length and amount, i.e. no full quotation of other’s comment in news report, no compilation of others’ speech on public gathering.

It shall come to the attention that, the comments on current issues shall only refer to the articles on politics, economy and politics. In the meantime, due to not only the objective reporting but also the personal opinions are contained in the current issue reports, and therefore, once where the author has declared that the reprinting and rebroadcasting is not permitted, not fair use shall thereby be made.

4. Use by teachers and scientific researchers

According to Chinese Copyright Law, the way of using in teaching and research shall only limit to the translation and copy in small quantities, and shall not publish. And as to the subject, only the teachers and researchers are included, and as reasoned by the Test, they shall not come from non-profit institution.

To further check the regulation, it is not difficult to find that the widely adopted teaching with copied documents is in fact infringing the owner’s rights. For it, as advocated by some academic, a group management organization shall be set up, thus with the unified collections on fees, the problems could be fixed.

5. Used by a State organ for the purpose of fulfilling its official duties

To use other’s works in fulfilling the official duties is not rare in China, like the picture (if it could be a work for its originality) on the wanted, literal work in judicial decisions. And to maintain the order or state administration and judicature, Chinese Copyright Law also lists the use by State organ as the fair use.

Yet it shall also be attentive that the legitimate purpose could not exempt the infringement in “means”, which is to say any knockoff or pirated pieces’ using could be the infringement.

6. The copies and communication by libraries and other institutions for its collection

To protect its collection while avoid any negative influence on its communication, libraries and other institutes of public interests would copy or digitize their important collections. Such copy and digitization is also regulated by statutory limitations, especially for the digital copy. The limitation of places, objects or methods of copy or copy checking are emphasized by Article 7 of Protection Regulations of Information Communicated by Networks:

“A library, archive, memorial hall, museum, art gallery, etc. can provide relevant digital works that have been legally published and preserved by the institution to their service objects and can legally reproduce a work in digital form for the purpose of displaying or preserving a copy of an edition, without the permission from, or paying remuneration to, the copyright owner, but shall not directly or indirectly obtain any economic benefits, except when stipulated by the owner.”

And it is obvious that by the above regulations, the scanning by China libraries could also constitute the fair use.

7. Free performances

The free performance shall refers to those performance “not charging the spectator, nor reimburse the performers.” By this limitative condition, any performance with reimburse to the actors or actress, and the performance in restaurants free to consumers who, however, shall still pay for their meal, could both not be the free performance. Surely, the fair use could not be applied.

8. To copy an artistic work located or on display in an outdoor public place

As to the exploitation of the work located or on display in an outdoor public place, it could be varied into use of 2D works and 3D works. Yet they bear a slight difference on the fair use decision. Among which the commercial exploitation of 2D artistic work, namely the copy, drawing or picture shut for them, is not permitted in commercial operation. For the copies, drawings or pictures may compete or replace the original works, and the using of the original work will be influenced.

Yet for the 3D work, the exact copy or miniature of it, by the Test, is prohibited by law. And as to the 2D copy to them, however, we have seen established cases to support this kind of fair use. In our opinion, it mainly with the consideration under the Test that the copied one will not replace or compete with the original work, and therefore the legitimate interests of the original creator will not be damaged either. Therefore, such use could be fair by the domestic judicial practices.

9. Translation or transliteration to minority nationality language or Braille

The aims of them are of no question to promote the welfare of the minority groups, but they are of slight difference. The translation into minority group’s language could only for those works created by Chinese citizen, legal entity or other organizations. Yet the transliteration into Braille is of no such limitations.

In the latest 2^nd draft of amendment to Chinese Copyright Law, I notice the listing legislature has been amended with a transparency clause. And once it could be the final legislature, it is, of no doubt, enhancing the application scope and frequency of Test application in judicial practices.

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When Could “Fair Use” Other’s Works in China?

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