Copyright Fair Use in the People\u27s Republic of China--on the Road of Development: a Comparative Copyright Analysis of Chinese and the U.S. Fair Use, and Proposals for Corresponding Legislation in China

Since the enactment of the Statute of Anne, the purposes and manifestations of almost every copyright regime are the same: protecting the interests of both copyright holders and the public. Also, all copyright laws share the same spirit, functionality, and balance in order to let all competing interests co-exist in harmony and arrive at the best possible scenario. In order to fulfill the dual purposes of copyright laws, and to strike a balance among the interests of copyright holders, users, and the public, nearly every copyright regime sets up exceptions and limitations to copyright protections. One type of copyright limitation or exception is non-infringing acts of using copyrighted works without consent and compensation. Such exceptions or limitations are named differently and adopted through varying approaches in jurisdictions, due to differing philosophical, economical, and social considerations. In China, it is custom in academia and legal practice to employ the term “fair use” to refer to this kind of copyright limitation or exception, but has nothing to do with which approaches are adopted to determine those non-infringing consent-and-compensation-free acts. This dissertation centers on the issues of Chinese fair use legislation. The legislation governing Chinese fair use in the newly passed and effective 2020 Chinese Copyright Law has made much progress. However, problems still exist in the newly amended legislation. One such problematic area is targeted by this dissertation: Chinese fair use expansion. A true and complete Chinese fair use general catch-all clause is justified by the dual purposes and spirit of copyright law, the needs of social and technological development, and the status quo of Chinese judicial practice. To design Chinese fair use general legislation that is aligned with international treaties, compliant with the purposes and spirit of copyright law, practical, and continuously up-to-date, this dissertation explores the three-step test and the U.S. fair use four-factor analysis. The dissertation concludes with a detailed, creative, and feasible legislative design of Chinese fair use general legislation