AHRC Project 1

Programme of research

The core area identified by this project is in fair use of copyrighted works in the digital domain. Fair use seeks to strike a balance between the rights of content owners and those who seek to exploit the content for research, individual study, news gathering and other activities that fall in the public interest. Different jurisdictions have different ways of regulating fair use.

The aim of this project is in addressing the sub-questions posed by the AHRC-DC on fair-use:

• What would be the value of fair use agreements in a China context? What can be learned from UK-China comparisons in areas of cultural practices and moral rights theory?
• In the digital space where content is frequently available across civil, common and mixed law jurisdictions is harmonization of ‘fair use’ terms in copyright dealings necessary or even possible?

China suffers from a reputational problem of excessive trade in counterfeit and/or pirated copies of copyrighted intangible works, such as music, films and e-books. There is another connected issue of exploitation of trade secrets obtained through cybercrime and commercial espionage. Despite these reputational issues, China is undoubtedly moving from ‘made in China’ to ‘created in China’ with the subsequent interest of Chinese producers, writers, directors, and artists who create original works to see such works protected through copyright, and subsequent commercial exploitation through legal licensing. How will these parties strike the right balance between those who access their content on fair use terms and those who need to pay market rates for commercial licenses?

Fair use encourages innovation, creativity, dissemination, more accurate and comprehensive news reporting, and research and development. Without an effective and balanced IP policy on fair use, societies keen on growing a knowledge economy will stagnate. Newscasters need access to rich sources of information to help enlighten society. Researchers in University centres of excellence, need access to timely information to assist with research and development and this has important implications for the training of the human capital base. Simultaneously, a too open policy on fair use will not sufficiently provide a regulatory environment where rights owners are rewarded for their investment in time and effort in creating original works, and often without sufficient remuneration in the early years of creation, and where reputation may not have yet developed.

Currently, the Chinese government is in the process of completing the third revision to the present Copyright Law. On the issue of fair use provisions, the government is attempting to balance the need to expand the list of exceptions with the interests of rightsholders who wish for a stricter regime. There has been mixed opinion on both sides and the position remains to be clarified in the draft yet to be sent to the National People’s Congress and currently with the Chinese State Council. A significant question to address is whether the current list of fair use exceptions as set out in the draft Copyright Law is sufficient to meet the needs of business, civil society, academia and end-users in the electronic space or whether the list needs expansion or contraction in light of best practice?

This project brings collaboration from academia, Anglia Ruskin University in the UK, Peking University Law School and IP Academy, Xi'an Jiaotong University Law School in China, and business and regulatory (Dr Jiang Zhipei) an ex-Chief Judge of the IP Tribunal of the Supreme People’s Court in China. Such a collaboration between the business interests of those who seek to exploit copyright, and those who seek to understand the interests of the public in exploiting the same copyright with those who have a deep understanding of both the practical and theoretical regulatory frameworks for the creation, exploitation and enforcement of copyright in China will create the necessary dialogue to find focus on fair use terms in digital copyright.