The New Right Limitation and Exception Rules in Chinese Copyright Law

Abstract

AbstractThrough the third amendment to the Copyright Law of the PRC, the legislator intends to adopt the three-step test while introducing an open-ended list of limitations and exceptions to constitute a China-specific “two-step test”. Court decisions in China frequently apply the fair use doctrine of US copyright law, neglecting to consider its peculiar context of the US common law tradition and thus, unduly expanding the Chinese courts’ discretionary power. The rules of “copyright limitations and exceptions” in the digital era are the landmark of determining copyright legitimacy and balance the tradeoff of interests among the copyright holders, users and the public. This chapter concludes that China should enact judicial interpretative guidelines under ripe conditions that reshape the “first step” of the three-step test, by “purposefulness” and “foreseeability,” and increase its openness. Also, it is suggested that the Article 24, paragraph 1, item 13 Chinese Copyright Law (2021) shall be revised in line with the proper interpretation of “the first step” of the three-step test and the four standards of fair use shall be adopted to extend and enrich the “second” and “third” steps and introduce “the principle of proportionality” to support its equilibrium.