Research On Copyright Protection And Interests Balance Of Fan Works

With the development of network technology,a variety of phenomena which deserves scholars' attention and consideration come up in Copyright Law.Although the fan works discussed in this paper have already appeared before the birth of network technology,the progress of network technology has completely released this mode of creativity.If such mode has the “originality” provided by the Copyright Law,it can be protected by the law even if it is without the permission of the original author.However,on one hand,just because the fan works are the second creation depending on the original works,they have certain connections with Copyright Interests of original works.So that if the fan works are created without permission,they are on the suspicion of prejudicing the copyright in the preexisting works.On the other hand,in order to embody the strong connection with the original works,the fan works use more contents and settings that existing in the original works.Therefore,the fan works without permission of the original author are not applicable to use “rational use” as their justification.In conclusion,creating fan works without permission is suspected of encroaching the copyright of the original works,and are on the risk of infringement of copyright.Chinese Copyright Law promotes the spread and innovation of knowledge by balancing the interests between copyright owners and the public.However,since the fan works are suspected of encroaching the copyright of the original works and the law of China did not give rational answers to the copyright of the fan works,so that their legitimate copyright interest can not be properly protected.It also means that the Copyright Law can not balance the interests between the public and the original author.The legislative purpose of Chinese Copyright Law which balancing the interests of copyright owners and the public to promote knowledge dissemination and innovation will be difficult to achieve.There have been widely differing versions about the legal position of the fan works in academic world.The existing documents make a full analysis of the definition,classification of the fan works and causes of the conflicts between the fan works and the original works.However,it is seldom discussed whether the fan works which are regarded as infringing works will constitute unbalance interests.In addition,there are few reasonable suggestions to solve the conflicts and balance of interests between fan works and original works.Therefore,all kinds of social background have decided the importance and necessity of studying the copyright protection and interestsbalance of fan works.In summary,due to the suspicion of infringement and imperfect legal protection,although the legal interest of the fan works can be partly protected,their protection status is not optimistic.First of all,this paper makes a definition to discuss their legal features.Secondly,by analyzing their legal features,this paper determines that the fan works without permission of the original author are on the suspicion of prejudicing the copyright in the preexisting works,and are not applicable to use “Fair Use” as theirdefence under the current legal system.Then,this paper argues that in the context of the Internet,if entirely prohibit unauthorized fan works,it may cause the imbalance of the interests of the parties in Copyright Law,and can not achieve the purpose of the legislation of Copyright Law.At last,this paper explores the theories and methods of how to balance the interests between those unauthorized fan works and original works,especially in the network environment.This paper also lists some relevant feasible solutions that can deal with the seemingly conflicts between the two sides,thus realizing the win-win situation.The protection of the fan works' copyright and the balancing mechanisms can be solved from two angles of “Fair Use” and the exclusion of the liability for tort of “stopping infringement acts”.On the one hand,we can protect the fan works as a new type of “Fair Use”.When using the fallback provisions to judge whether these fan works are “Fair Use”,the criteria of quantity,proportion and degree of using the original works can be leaved out.Since fan works are fit for “Fair Use Defense”,the illegality is been eliminated,the fan works are not infringing works.From a long-term perspective,in order to clear that “Fair Use” system can be used on fan works,the Implementing Regulations of the Copyright Law should change “Three-step test” to “Two-step test” in fan works area.However,from the perspective of practice,it is difficult to change legislation system in a short time.Under the current legal system,since fan works meet the essential elements of tort liability,they should be stopped and prohibited.However,if all the fan works are identified as infringing works and stopped,the goal of legislation on copyright and pursuit of equity benefit can not be achieved.Therefore,the another way of balance mechanism is the exclusion of the liability for tort of “stopping infringement acts”,which means we do not have to change our legislation system.In order to balance the benefit between public and authors,the court can use the exclusion of the liability for tort of “stopping infringement acts” in judgment.That means even fan works are infringing works,they are beneficial to Chinese culture and prosperity of socialist society and major development.So fan works do not have to be stopped and banned.However,authors of fan works still need to pay compensation to the original authors.Therefore,the exclusion of the liability for tort of “stopping infringement acts” can balance the interests and conflicts between the fan works and the original works from the perspective of practical management.