On the legal interpretation of parody in the new Copyright Law of China

Abstract

Although the free use provision of the new Copyright Law of the People’s Republic of China has added a 13th clause (the miscellaneous clause), it has not changed the closure of the free use system. The nature of appropriate quotation is a transformative use. In China, court decisions on whether parody constitutes free use are inconsistent. The interpretation of the requirement for the designation of source in the free use standard must consider the creation habits of different forms and the citation conventions of different industries. Substantial use of the work is the premise of applying the free use standard. The determination of not conflicting with a normal explication of the work involves a demarcation of the market scope of the work. In addition, courts should investigate the economic and personal rights of copyright owners when it comes to judging ‘not unreasonably prejudicing the lawful interests of the copyright owner’. Finally, it is suggested that legislators should change the 13th clause into an open standard when revising copyright law in the future.