Fair use project

The core area identified by this project is in fair use of copyrighted works in the digital domain. Fair use seeks to strike a balance between the rights of content owners and those who seek to exploit the content for research, individual study, news gathering and other activities that fall in the public interest. Different jurisdictions have different ways of regulating fair use.

The aim of the project is in addressing the following sub-questions:

(a) What would be the value of fair use agreements in a China context?

(b) What can be learned from UK-China comparisons in areas of cultural practices and moral rights theory?

(c) In the digital space where content is frequently available across civil, common and mixed law jurisdictions is harmonization of ‘fair use’ terms in copyright dealings necessary or even possible?

China suffers from a reputational problem of excessive trade in counterfeit and/or pirated copies of copyrighted intangible works, such as music, films and e-books. There is another connected issue of exploitation of trade secrets obtained through cybercrime and commercial espionage. Despite these reputational issues, China is undoubtedly moving from ‘made in China’ to ‘created in China’ with the subsequent interest of Chinese producers, writers, directors, and artists who create original works to see such works protected through copyright, and subsequent commercial exploitation through legal licensing. How will these parties strike the right balance between those who access their content on fair use terms and those who need to pay market rates for commercial licenses?

Fair use encourages innovation, creativity, dissemination, more accurate and comprehensive news reporting, and research and development. Without an effective and balanced IP policy on fair use, societies keen on growing a knowledge economy will stagnate. Newscasters need access to rich sources of information to help enlighten society. Researchers in University centres of excellence, need access to timely information to assist with research and development and this has important implications for the training of the human capital base. Simultaneously, a too open policy on fair use will not sufficiently provide a regulatory environment where rights owners are rewarded for their investment in time and effort in creating original works, and often without sufficient remuneration in the early years of creation, and where reputation may not yet have developed.

Currently, the Chinese government is in the process of completing the third revision to its present Copyright Law. On the issue of fair use provisions, the government is attempting to balance the need to expand the list of exceptions with the interests of rights holders who wish for a stricter regime. There has been mixed opinion on both sides and the position remains to be clarified in the draft yet to be sent to the National People’s Congress and currently with the Chinese State Council. A significant question to address is whether the current list of fair use exceptions as set out in the draft Copyright Law is sufficient to meet the needs of business, civil society, academia and end-users in the electronic space or whether the list needs expansion or contraction in light of best practice?

This project brings collaboration from academia, Anglia Ruskin University in the UK, Peking University Law School and IP Academy, Xi'an Jiaotong University Law School and IP Research Centre in China, and business and regulatory (Dr Jiang Zhipei) an ex-Chief Judge of the IP Tribunal of the Supreme People’s Court in China. Such a collaboration between the business interests of those who seek to exploit copyright, and those who seek to understand the interests of the public in exploiting the same copyright with those who have a deep understanding of both the practical and theoretical regulatory frameworks for the creation, exploitation and enforcement of copyright in China will create the necessary dialogue to find focus on fair use terms in digital copyright.

Research Design & Methodology

The project will be established through three distinct stages: Stage (1) market research of different interests groups on fair use terms in China; Stage (2) a survey of legal terms on fair use in different jurisdictions of the world (including China); and Stage (3) the drafting of policy recommendations on fair use for consideration by the Chinese government.

Stage 1 (market research): will focus on targeted market research of the user sector in China, the content generation sector, and the regulatory sector. The market research studies will seek to explore how these different sectors understand the term ‘fair use’ in the electronic context. Market research surveys will be conducted across China and will be managed by Peking University Law School and XJTU Law School.

Stage 2 (comparative analysis): will run concurrently with Stage 1 and will focus on a desk- based comparative survey of domestic law fair use terms, cultural practice and moral rights in different jurisdictions including China, and also provisions on fair use in the IP Schedules of regional trade agreements that include some of China’s largest trading partners by volume, such as the US, the EU, Taiwan, Japan, South Korea, Germany, Australia, Malaysia, Brazil and Russia. The comparative analysis will incorporate a mixed methodology approach (mainly qualitative and black letter but also addressing non-doctrinal wider issues informing our response to the first part of the question, for example on cultural practices and moral rights theory).

The results of Stage 2 will create a database of terms and categories of usage that will be created for comparative study. Stage 2 will also see the research and drafting of a set of fair use contract templates. We will plan to showcase the database at a conference on fair use terms (China/UK conference on fair use of copyright terms in the digital domain)(see below for conference details), Beijing in September 2016.

Stage 3 (conclusions and dissemination): will draw together the results of Stages 1 and 2 to produce a report of policy recommendations on fair use. The Beijing conference will present and disseminate the project’s preliminary findings in September 2016. A draft written report, also drawing on feedback from the conference, will be scheduled for November 2016 with a final version ready for release by the project’s end in December 2016.  The project will look to the business partners to help furnish data on fair use contract templates on commercial fair use and the judiciary on regulation and enforcement.

The originality and innovativeness of the project

The planned research is very timely in that the draft third revision of the Copyright Act has yet to be finalised by the Chinese State Council, and approved and bought into law by the National Peoples’ Congress. The planned outputs of the project could therefore directly inform government policy before the final draft of the Copyright Act is passed into law. The field research interviews will capture a range of end-user and civil society opinion. Further, as far as we understand, no study on fair use as envisaged in Stage 2 (combining Chinese international trade treaty analysis and domestic law) has ever been done before. The research will seek to address the 'harmonization' issue posed at question (c) above. Finally (again as we understand), no database of fair use contract templates has ever been designed for public consumption in China.

The relevance of the project to China

An effective fair use policy will allow end users across China, whether from developed and/or underdeveloped regions, access to content that will enhance scientific and economic development and help to promote innovation and research, and development. Also, it will lead to greater pluralism and the strengthening of civil society. The collaboration envisaged by this project connects academia in both the UK and China, and incorporates both business and regulatory expertise in China. We believe that the outputs planned by this project will develop research partnerships and promote the economic development and welfare of China as a developing country.

We believe that improving the skills set of the human capital base in China through education will directly address issues of poverty and development. An effective fair use policy will enhance access to knowledge for the public good. As this project also directly impacts on the regulation (through effective and efficient regulation of copyright) of digital products and services, the outputs will help address digital divide issues both domestically within China (requiring the information rich to share content with end users across China by way of a balanced fair use policy), but also the international digital divide through incorporation of effective fair use terms in China's international trade agreements. The fair use project will generate knowledge and content, and provide training to enhance the social and cultural development of nationals of China.

The project will assist with developing research and innovation at the country level by helping to inform policy on fair use in copyright in the digital domain. Also, the project will help inform China's trade policy in IP with respect to China's international trade agreements with its largest trading partners. As such, the outputs envisaged by the project and the continuing collaboration of the research partners will help support the development of a research infrastructure that will contribute to China’s economic development and welfare.