Institutional Reconstruction Of Fair Use In Internet Environment

As an restriction to copyright system, the doctrine of fair use is vital in adjust to balancing the interests of copyright owner and the public. The era of internet provides great conveniences for the public to acquire knowledge, learning techniques and etc, and the interests of the public is met unprecedentedly. However, with the increasing development of network technology, the acts infringed upon copyright emerges in a large scale, and in various types, thus making many of the copyright owner’s rights near to be null, and letting relevant laws and regulations lag behind the pace of social development. This in some degree makes the tension between copyright owner and the public become more tense. So in the context of internet age, we need to define the four corners of fair use doctrine, and determine when the acts of using copyright works infringe upon copyright, and we need to find out how to guarantee that the public can get the knowledge what they needed, in the meanwhile, make sure the rights of copyright owner are well protected. All this is pivotal in the re-construction of fair use doctrine in the age of internet. In the context of revising Copyright Act of People’s Republic of China, how to adjust the scope of copyright restriction in order to make it more responsive to the development of society, has become one of the focus of this discussion and revision of amending the law. Chinese Copyright Law enumerated 12 cases in which the use of copyright works constitutes fair use, but this approach has been proved to be unsuitable with the development of society in judicial practices. This article analyzed the recent lawsuit, Wang Shen V. Google Company and Guxiang Company, and combined the representative legislation both domestic and foreign countries, in order to study how to reconstruct the doctrine of fair use in internet context, so as to make balance between the protection of the interests of copyright owner and the dissemination of copyright works.The article consists of the following five parts:The first part is about the case abstract and the analysis of dispute. In this part, through analyzing the dispute and the determination of the act of using copyright works by the court in its ruling in the case of Wang Shen V. Google Company and Guxiang Company, I introduced conflicts between existing doctrine of fair use and judicial practices, which would be the focus of this article.The second part is a generalization of fair use doctrine. In this part, I delineate the history and status of fair use doctrine, so as to explain why the doctrine of fair use should come into existence and elaborate the problems concerning the application of this doctrine brought by the coming of internet age. Based on this analysis and the tendency of revising fair use in Copyright Law, I intend to provide an advising reference for the reconstruction of fair use doctrine.The third part is an introduction to some typical foreign laws and regulations about fair use. In this part, I introduced and analyzed the relevant regulations of English law, American law and Taiwan district Law, and the “three steps criteria” existed in international treaties. Based on the particular needs of our country, I recommended the theories applicable to our country.The fourth part is about the reconstruction of fair use doctrine in the age of internet. This part, under the outline of “principle, rule and element,” includes three sub-parts: in the sub-part of “principle,” I proposed the principle of balance of interests as basic principle, the criteria of three steps as concrete principle; in the sub-part of “rule,” retain the prior structure of Chinese Copyright Law, maintaining the stability of the law; in the sub-part of “element,” I proposed four factors which should take into consideration, including the purpose of use, the extent of use, the manner of use and the effect. This frame is fitted with the developments of our country’s judicial practice and society, and has the spirits of certainty and flexibility, which can be a better way to achieve fair and justice.The fifth part is an visualization of the expanding of fair us in moral rights. Considered that copyright deals are increasing day by day in international market, but fair use doctrine does not take effect on the author’s moral rights, so I try to expand the application range of fair use, so as to promote the development of copyright industry and the prosperity of culture.