On The Test Of "the Substantial Non-Infringing Use"

The test of"Substantial Non-Infringing Use"("the test") which roots in a famed adjudgement handed down by the Supreme Court of U.S.A. has now been widely recognized as a landmark rule for all levels of courts in finding copyright indirect infringement. The challenge imposed by the Internet technologies to China's copyright institution makes discussing the value and implication of such test more meaningful from a practical view. This article aims to propose a useful option for the progress of China's copyright institution, by introducing the background, origin, evolution, limitation, and solution regarding the test.The introduction section begins with a brief etymon of the test and a real image thereof in the context of American copyright arena. After examining China's different circumstance to the peer of US, this article argues that a full-round analysis and exertion of the test totally follows the evolution of China's copyright law.Section I analyzes several significant basic legal concepts i.e. copyright, direct infringement, indirect infringement, etc. The article states that the value behind copyright arises from the encouragement in creating and communicating on a monopolizing base, while its negative side is to restrict and limit public freedom from accessing, communicating and expressing the ideas. On the one hand, for the purpose of pursuing the positive side and leaving the encouraging mechanism away from market failure, the policy maker established indirect infringement application. On the other hand, a way out of the dilemma concerning punitivity to the indirect infringement should be found to refrain the negative result of blocking scientific advancement and culture communication. The latter issue also falls into the area in respect of fault determination under the classical civil law doctrine. The parallel to the test in the fault theory is the duty of care.Section II elucidates the origin and the evolution of the test with the approach of case law study and theoretical discussion, following with different options to draw the prospect of the test. This article holds that the test implicated the efforts taken by US's courts in balancing two competing social interests i.e. copyright protection and technological innovation. The 20 years'history in US afterward proves the correctness of those efforts, the core of which is the independent value of the"non-infringing uses", which is one product or service can also acquired market acceptance even all the infringing uses removed.Section III discusses several misunderstanding concerning the test, along with its own limitation, and proposes solutions. This article favors the conclusions that the"share"between end users constitutes direct infringement, and that the test should not be deemed as the only rule to determine fault. However, with the absence of other forms of the subjective fault, the providers of decentralized P2P might bear no liability though win a big benefit from the user's infringing activities. That's not a good story. Therefore, the article advises establishing some technology standard to promote the duty of care along with the test.Section IV makes a conclusion. This article recommends to establish indirect infringement institution in China's law system by enlarging the application of"joint infringement"rule, as well as importing the test to face the challenge brought by the technological innovation. Furthermore, this article also summarizes several main points in interpreting the test, and claims that an established technological standard could settle the liability determination down to the providers of decentralized P2P.