On The "Reuse" Of Artworks In Public Places In China After Fair Use

Article 18 of China’s "Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law to the Trial of Civil Disputes on Copyright" provides for a system of re-use of artworks in public places,granting "those who copy,paint,photograph or video record artistic works" the right to make subsequent use of their achievements in a reasonable manner,encouraging the dissemination of works and it is conducive to the development and prosperity of socialist culture and science.This article intends to examine the typical legislation of civil law systems and common law systems and summarize their legislative features.After analysis,it is concluded that,compared with China,many countries have clearly limited the way of re-use,such as "distribution and public exhibition" in the United States and "distribution and public dissemination" in Britain,and the provisions of relevant legal concepts are also clearer,such as the time of placement.For example,in terms of placement time,the Britain and New Zealand clearly stipulate that works must be permanently located in public places.Japan and Korea,on the other hand,adopt a reverse enumeration model in their regulations,so they have different characteristics compared to other countries,namely,they explicitly exclude some commercial uses and respect the original author’s wishes to the greatest extent.The logic behind the legislation shows that the legislation of the re-use system is more inclined to protect the rights and interests of the original authors.In comparison with the experience of the typical countries of this system,it is necessary to explore the dilemma of the re-use system in China in light of the actual situation in China.First of all,the legislative style of the re-use system should be further optimized,as re-use is a new kind of fair use situation,but it is regulated by judicial interpretation,which is suspected to be ultra vires;secondly,the scope of application should be limited,and there are problems that the specific way of re-use is too broad,and the scope of applicable space and time is not clear;once again,the standard of judging reasonableness in judicial practice is not unified,such as the different standards for judging the obligation of "attribution",and there are still differences in whether commercial use is reasonable.Finally,there is a situation that the original author’s will is not fully respected and there is an excessive presumption of the author’s will.There are two main reasons for these dilemmas: firstly,the legislative concept of China’s fair use system tends to protect public interests,and secondly,the implied permission of the original copyright owner is overly presumed.Taking into account foreign legislative examples and China’s judicial practice,the relevant system in China should be improved in the following aspects: firstly,clearly define the legal concepts of the scope of space,type of work and placement method in the provisions on fair use of art works in public places;secondly,amend the Copyright Law and change the legislative concept,which may elevate the provisions on re-use to the Copyright Law,and in the re-use method,clearly exclude two core uses of art works,exhibition and projection;again,clarify the criteria for determining reasonableness in reuse,and adopt a ladder type of reasonableness judgment criteria according to the nature of different results;and finally,fully respect the will of authors and construct an author’s declaration exclusion system.