Limitations To Copyright

The purpose of copyright law is to grant exclusive rights to an author for his/her creative work while also establishing appropriate limitations and exceptions to those exclusive rights to harmonize the interests of copyright holders and the general public.Accordingly,the protection of copyright owners' rights together with appropriate corresponding limitations may be viewed as the two main pillars underlying copyright law.With the spread of the Internet and new technological advancements,however,creative works using different types of new media have emerged,broadening the scope of exclusive rights afforded to a copyright holder beyond what was granted at the time of enactment of the relevant copyright laws.Meanwhile,limitations to copyright,which are intended to protect the interests of the public at large,have not been expanded at a commensurate level,meaning that a proper balance between copyright owners and its users has not been achieved.Consequently,many jurisdictions have been trying to lessen this impact by embarking on copyright law reform.Based on these factual findings concerning copyright law,both past and present,this paper seeks to explore and identify a more reasonable means of applying limitations and exceptions as well as ways to improve legal or institutional shortcomings in order to respond more proactively to the upcoming digital era.It offers a comparative analysis of current copyright limitations stipulated in the national copyright laws of Germany,which is a representative civil law jurisdiction;the U.S.,a representative common law jurisdiction;and three main Northeast Asian countries including Korea,China,and Japan while also comparing their respective judicial practices and reform initiatives.For this purpose,Section two(2)of the paper outlines the significance of limitations to copyright and fair use,introducing different types of legislation concerning copyright limitations adopted by different countries and relevant international treaties;Section three(3)introduces the limitation regime adopted by China and its copyright amendment bill;Section four(4)discusses the "restricted enumeration" approach adopted by civil law jurisdictions including Germany and Japan,while outlining current statutory provisions,judicial practices and reform measures and covers the hybrid regime adopted by the U.S.and Korea,which combines the “comprehensive pattern" and "enumeration" approach to copyright limitations,while also outlining their judicial practices and reform measures;Section five(5)introduces copyright limitation provisions included in China's Copyright Act,while providing an analysis of relevant judicial practices and reforms in China,proposes institutional or legislative reform alternatives for China based on analytical findings outlined in Section three(3).In Section six(6)'s conclusion,the paper offers recommendations on possible institutional and legislative improvements to China's copyright limitation regime,in effect proposing the following measures for the purpose of institutional reform: 1)The adoption of open-ended general provisions on copyright limitations,i.e.the principle of "fair use",which is in line with "Auffangstatbestand"-general provisions on the principle of subsidiarity;2)the adoption of a system of "rule making" which currently provides grounds for exemption from technical protection measures as grounds for applying copyright limitations while also supplementing the "fair use" principle;3)the introduction of exceptions to "private-use" copying to prevent undisciplined abuse of private copying provisions;4)the adoption of a remuneration system for copying;5)making "selfuse" copying lawful in addition to private-use copying;6)legislation that provides a more concrete and reasonable set of standards relative to the abstract and careless nature of current legal provisions on private-use copying;7)legislation on preventing illegal recordings of films;8)legislation making parodies lawful;9)the introduction of a system of "Zweiterver?ffentlichungsrecht"-the right of secondary publication.Further,for the purpose of legislative reform,this paper offers recommendations on the revision of relevant copyright-related civil and criminal code provisions and copyright laws,as well as other relevant administrative laws and regulations,judicial interpretations,etc.Nevertheless,copyright laws are sensitive to real world conditions.Even if a particular institutional regime or legislation has certain superior qualities in theory,it may still be difficult to put into practice or gain international support due to constraints under international conventions or treaties or the competing interests of different countries depending on their level of economic development,etc.Accordingly,this paper focuses purely on an academic perspective while ruling out any external non-legal factors.