An Analysis Of The Copyright Issues Of Fan Fiction

Fan fiction as a cultural phenomenon has its roots in history prior to the emergence of copyright law in folklore tradition. “The retelling and revision of classic stories is still alive and well in the print market”. But the Internet has changed the way of distribution, no fan fictions can spread as fast and expansive as now in early days. The fan fictions constantly conflict with the interests of the authors of canons, and the issue has become more heated thanks to the Internet.How to resolve such a conflict from the perspective of copyright law? Firstly, the problem cannot be solved if we cannot accurately define fan fiction; secondly, in order to solve the problem, it is better to identify the conflicts between canon authors and fan fiction author; thirdly, how the fan fiction can fit into the current copyright law system need to be analyzed; at last, a possible solution will be designed according to the idea-expression dichotomy, which will apply specifically to different types of fan fictions.Fan fiction is defined as: first, the work should be developed by people other than the canon author; second, the work should be non-commercial in nature when created; third, the work is fictional; fourth, the work must depend on a canon.The interests of canon author and and fan fiction from the perspective of copyright law must be based on the portion of the canon that is protected by the copyright law. Two questions can be asked to challenge that portion of canon: first, if that part of canon is facts or not; second, whether the work is still under copyright protection.There’s no possible alleged infringement of the moral rights or property rights of the canon that is unique from the other types of copyright infringements, so this issue will not be discussed here. While the other conflicts that closely related to the definition of Fan Fiction will be discussed below. The issues including the categorization of Fan Fiction into transformative works and the applicability of fair use doctrine. Thus the goal of this part of the thesis is to distinguish the situations where the infringements exist and the situations where there’s no infringements.The disparaging use of canon may have been a major reason for which its author go after the fan fiction authors. But only economic rights infringement rather than moral rights infringement which the canon author want to address can be used as a cause of action. Without copyright protection, these contents in the canon can only be protected by trademarks under disparagement claim.Before going over the tests for fair use, whether fan fiction can be categorized into the current copyright system need to be analyzed. Fan fiction is defined as “depend on canon”, “fictional” and “not developed by the canon author”, then fan fiction can probably fit into derivative works or transformative works.§ 107 sets up a fair use test while Berne Convention, Japaneses Copyright Law and Chinese Copyright Law give a list of fair uses or exception. Both Japan and China did not add a miscellaneous provision, making the list exhaustive. But not all the works that fit into the list should constitute fair use. The 3-factor test created by Berne Convention is often judicially adopted. First, only in certain special cases; second, such reproduction does not conflict with a normal exploitation of the work; does not unreasonably prejudice the legitimate interests of the author. The § 107 test is a detailed 3-factor test in Berne Convention: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” and “the nature of the copyrighted work” is the specification of “only in certain special cases”; while “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” is the requirement of normal exploitation; “the effect of the use upon the potential market for or value of the copyrighted work” is the aspect of economic rights in accordance with “does not unreasonably prejudice the legitimate interests of the author”. Idea-expression divide is used to distinguish elements in public domain and elements under copyright protection. And the substances of elements must be evaluated collectively.The current copyright system is not very pro-copyright sharing. Legal disputes arise too easily in this system(PAE; anti-trust issues; frivolous litigation etc.) And the copyright market is not yet efficient(The parties negotiate individually; The collectives have too much bargaining power; Problems of copyright valuation). But the Internet has brought about new issues as well as new possibilities, first, the Internet weakens the monopoly of copyright holders. Second, new modes of copyright sharing/copyright transaction(through assignment and license) emerge thanks to the Internet. Through the analysis of the impact of the Internet on copyright sharing, it is established that the mode of copyright sharing is basically a business mode, as well as discuss the possibility of inventing a new licensing mode in order to adjust the information age.The mode of copyright sharing is basically a business mode. There are attempts to abolish Copyright as an exclusive right or create a middle ground, like the pirate party and NGOs, as well as their “darknet” proposal; or the pirate party and their propaganda for a free cyberspace and possible abolishment of the patent system. But it’s way too radical, as the Internet must be governed by the copyright lawCreative Commons created a semi-commons for works and incorporated the norm of “share-alike”.This system can only be a minority approach because it heavily relies on voluntary contribution. As it’s quite similar to the Copyleft system, the open source software is analyzed to compare. Open source system is not so renewable unless it’s created as a business strategy(like IBM; like Android by Google, which is a defensive move) without direct financial incentive. Developing software really costs. Free software license is a system guarantees “end users” the freedom to use. Still it’s impossible to persuade large companies to join as they have no reason to join. It’s a nice attempt to enrich the public domain but developing useful software is a business not a hobby. This is a mode can coexist with but not replace the business modes of software. It will always be a minority approach.The key is to reduce monopoly in copyright, and emphasize its liquidity. In short, it needs to be more market based. copyright as a type of commodity and part of capital. There are attempts to securitize copyright and develop copyright derivatives(like IPXI). There shouldn’t be an extreme situation where commercial use is strictly restricted while non-commercial use is free. Commercial use and non-commercial use should be put in a same market but with different terms. All in all, there must be a pecuniary incentive for creation. An easily accessible market helps eliminating monopoly by competition(among alternatives) and augmented sells(which diluted fixed costs).It helps with the valuation of copyright, increasing its liquidity. Market has its scheme to regulate, there could be less disputes. There should be a more market based copyright licensing mode.The collectives like ASCAP and BMI facilitates copyright licensing. But it also gives rise to anti-trust issues(ASCAP vs. USA) And the collectives have too much bargaining power when it comes to royalties, so the whole system is not totally market based. IPXI is a very nice attempt to securitize IP. Its FRANK licensing mode is a FRANK license with certain exceptions. And a market based license must be non-discriminatory to guarantee the liquidity. There are many variations of the standardized licenses, the terms have to be fair(fair trade, contract and license are the same in civil law but not the same in common law). There are exceptions which can be applied to a situation that otherwise may fall into a standardized license provided that the terms in the exceptions are reasonable.