Li Guangyu<\/p>\n
INTRODUCTION<\/p>\n
Copyright law is a mechanism of protecting economic and moral rights arising from creations of literature, arts, science, engineering and so on. In the mechanism, authors are granted exclusive rights, including but not limited to right to reproduce, right to distribute, right to reform, right to display publicly, right to perform by means of digital devices, right to authorize others to exercise above rights and so on. The goals of copyright law are to encourage creations of individuals, and to promote cultural creation and development of the entire society. The two goals do not always reconcile with each other. When a copyright holder seeks such protection that copyright law does not allow, various defenses against alleged infringements are available.<\/span> One of the defenses is copyright misuse. The rationale behind this general principle in many jurisdictions is that rights of all kinds cannot be misused. <\/span><\/p>\n China\u2019s Copyright Law does not allow for a copyright misuse defense. Only the Anti-Monopoly Law prohibits \u201cmisuse of intellectual property rights\u201d. This arrangement is justified in the sense that copyright law protection denotes a form of lawful monopoly and overprotection of a copyright would constitute monopoly.[1]<\/a>\u00a0A<\/span>s explained in this note, however, this prohibition leads to some problems.<\/p>\n Copyright misuse defense in U.S. law is an equitable defense. Its effect is not to invalidate the copyright, but to preclude its enforcement during the period of misuse. Initially, U.S. courts recognized the defense when the conduct by the plaintiff, who is the copyright holder, barred competition through a licensing agreement. Misuses in these situations were deemed as exceeding the lawful scope of the copyright holder\u2019s monopoly. According to this rationale, the anti-competitive nature of the plaintiff\u2019s conduct is inevitable for determining copyright misuse, which is also a theme under China’s Anti-Monopoly Law.<\/p>\n Afterwards, however, U.S. courts developed another justification, namely, that it would constitute a violation of the public policy embodied in copyright law. This public policy manifests itself in the notion of promoting the dissemination of ideas. This development makes courts open to the possibility that one may misuse his or her copyright even without anti-competitive nature.<\/p>\n Part I of this note provides an overview of the copyright misuse defense in U.S. law, including how it was established and developed. Part II examines relevant issues regarding copyright misuse in China, pointing out that there are some limitations of copyright misuse protection under current legislation and judicial practice. Finally, Part III describes my proposal concerning copyright misuse in China\u2019s Copyright Law.<\/p>\n I. COPYRIGHT MISUSE DEFENSE UNDER US LAW<\/p>\n A.\u00a0 Lasercomb Am., Inc. v. Reynolds Establishes Copyright Misuse Defense<\/p>\n The United States Court of Appeals for the Fourth Circuit first established the copyright misuse defense in Lasercomb Am., Inc. v. Reynolds<\/em>.[2]<\/a> Plaintiff Lasercomb and defendant Holiday Steel were competing steel rule dies manufacturers. Lasercomb developed a software program and a copyright was granted.[3]<\/a> Before Lasercomb generalized the marketing of the program, it reached a licensing agreement with Holiday Steel.[4]<\/a> Then Holiday Steel created its own software program which was almost entirely a direct copy of Lasercomb\u2019s.[5]<\/a><\/p>\n In light of the language in the licensing agreement, the court concluded that Lasercomb barred Holiday Steel from developing any kind of computer-assisted die-making software, suggesting that Lasercomb attempted to control competition in the field of computer-assisted die manufacturing by using the particular expression in the form of its copyrighted software.[6]<\/a> Therefore, Holiday Steel\u2019s argument that Lasercomb misused its copyright was accepted.[7]<\/a><\/p>\n The court in this case made two vital contributions as to copyright misuse defense. The court concluded that, because copyright law and patent law \u201cserve parallel public interests,\u201d copyright misuse defense is allowed as is patent misuse. Secondly, the court wrote that \u201c[t]he analysis is necessary to a finding of misuse is similar to, but separate from, the analysis necessary to a finding of anti-monopoly violation.\u201d[8]<\/a> So, the copyright holder may commit copyright misuse even without violating Anti-Monopoly Law.[9]<\/a><\/span>\u00a0<\/span>The matter to be examined is whether copyright holders\u2019 conduct violated \u201cthe public policy embodied in the grant of a copyright.\u201d[10]<\/a><\/p>\n Nevertheless, the Lasercomb<\/em> court did not give any specific instructions as to determination of plaintiff\u2019s violation of such a public policy. The court left a big question unanswered.[11]<\/a> Anyway, based on the foregoing analysis of court\u2019s opinion, in order for a conduct to be deemed as copyright misuse, although plaintiff need not violate Anti-Monopoly Law<\/span>, yet analysis of monopolistic nature of copyright holder\u2019s conduct is unavoidable.<\/p>\n B. Subsequent developments in Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc.<\/p>\n In DSC Communication Corp. v. DGI Technologies, Inc.<\/em>, where DSC sued DGI for copyright infringement, United States Court of Appeals for the Fifth Circuit concurred with the Lasercomb<\/em> court.[12]<\/a> DGI attempted to develop its own microprocessor card different from DSC\u2019s card which could be used in DSC\u2019s phone switches.[13]<\/a> Such development inevitably needed a copy of DSC\u2019s software in order to test the created microprocessor card.[14]<\/a> The court held in favor of copyright misuse defense after concluding that DCS tried to gain \u201ca patent-like monopoly over unpatented microprocessor cards\u201d by preventing others from copying its software to test new cards.[15]<\/a><\/p>\n In Practice Management Information Corp. v. the American Medical Association<\/em> (\u201cthe AMA\u201d), the AMA created a coding system capable of providing precise medical procedure identifications and developed it into a publication of the Physician\u2019s Current Procedural Terminology (\u201cthe CPT\u201d).[16]<\/a> The AMA licensed Health Care Financing Administration (\u201cHCFA\u201d) to \u201cuse, copy, publish and distribute the CPT.\u201d[17]<\/a> In exchange, HCFA was prohibited from using \u201cany other system of procedure nomenclature . . . . for reporting physicians\u2019 services.\u201d[18]<\/a> Practice Management, a publisher and distributor of medical books, brought a lawsuit arguing that the AMA misused its copyright after failing to get wanted discount of the CPT copies from the AMA.[19]<\/a> The court held that \u201climitation imposed by the AMA licensing agreement on HCFA\u2019s rights . . . . to use\u201d other systems constituted a copyright misuse because the AMA gained \u201ca substantial and unfair advantage over its competitors.\u201d[20]<\/a><\/p>\n The two cases mentioned above indicate that copyright misuse defense set in Lasercomb<\/em> is increasingly accepted in U.S. courts. The AMA<\/em> case developed copyright misuse defense into a cause of action, enabling plaintiffs to sue the copyright holder whose conduct constitutes misuse. Similar to the courts\u2019 reasoning in these two cases, many courts of appeals in other circuits analyzed the existence of copyright misuse based on monopoly conduct.<\/p>\n Such basis was not expanded until the Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc.<\/em> case. In this case, plaintiff (Video Pipeline) pointed out that the licensing agreements that Disney has entered into with three companies suggested copyright misuse.[21]<\/a> The agreements provided that Disney would deliver trailers for display on the licensees\u2019 websites on the condition that the websites where trailers were shown were not allowed to derogate or criticize the entertainment industry or Disney.[22]<\/a> The court held that the misuse defense failed because the licensing agreements\u2019 attempt to restrict expression was not so significant as to affect the \u201cpublic interest in increasing the public store of creative activity.\u201d[23]<\/a> Specifically, the court reasoned that, because the licensees were free to express criticism on other websites, the public was not adversely affected in terms of accessibility to criticism.[24]<\/a> Besides, fair use doctrine might be triggered when a critic comments on Disney and the entertainment industry, which can provide the alleged infringer with protection.[25]<\/a> To hold otherwise would harm the public\u2019s access to Disney\u2019s works because copyright holders like Disney would refuse to license trailers on any website for fear of being criticized.[26]<\/a><\/p>\n Video Pipeline<\/em> case was a milestone case. Even though the Court decided that the misuse defense was inapplicable in this case, the reasoning it provided is what is relevant here. The court here explicitly cited as the underlying policy rationale for the copyright misuse doctrine an argument other than the anti-monopoly one:<\/p>\n Misuse\u00a0often exists where the patent or copyright holder has engaged in some form of anti-competitive behavior . . . . More on point, however, is the underlying policy rationale for the\u00a0misuse\u00a0doctrine set out in the Constitution’s Copyright and Patent Clause: \u201cto promote the Progress of Science and useful Arts.\u201d Const. Art. I, \u00a7 8, cl. 8 . . . . The \u201cultimate aim\u201d of copyright law is \u201cto stimulate artistic creativity for the general public good.\u201d\u00a0Sony Corp.,\u00a0464 U.S. at 432, 104 S.Ct. 774<\/a> . . . . Put simply, our Constitution emphasizes the purpose and value of copyrights and patents. Harm caused by their\u00a0misuse\u00a0undermines their usefulness.[27]<\/a><\/p>\n <\/p>\n II. COPYRIGHT MISUSE IN CHINA<\/p>\n A. legislation relating to copyright misuse in China<\/p>\n The expression of \u201cmisuse of intellectual property rights\u201d first appeared in China\u2019s Anti-Monopoly Law, but it does not give any explanation of the term. \u201cCopyright misuse,\u201d as a subtype of intellectual property right misuse, therefore, has no definition.<\/p>\n China\u2019s Copyright Law does not provide for a copyright misuse defense, but that does not mean misuse conduct is permitted. Theoretically, on the one hand, China\u2019s Copyright Law allows for the Fair Use doctrine.[28]<\/a> On the other hand, Civil Law and Anti-Monopoly Law give protection beyond Copyright Law.[29]<\/a> For example, the basic principles of civil law including good faith and adherence to honesty guide parties not to misuse their rights.[30]<\/a> Moreover, business operators violate Anti-Monopoly Law when they misuse their intellectual property rights, precluding or restricting competition.[31]<\/a><\/p>\n Note that the Fair Use doctrine in China\u2019s Copyright Law includes 12 types of conduct, but certain copyright misuse is still beyond the scope. Protection in Copyright Law against copyright misuse is rather limited. Besides, the judiciary has not so far applied principles of Civil Law to copyright misuse problems, partially because judges seem to have a belief that copyright holder\u2019s rights cannot be surpassed by the basic principles of Civil Law.[32]<\/a> Judges are more comfortable with those principles appearing as supporting authorities and citing specific provisions in the most related area of law.[33]<\/a> Lastly, Anti-Monopoly Law generally applies when misuse conducts involve potential monopoly.<\/p>\n Some scholars categorize the restrictions under these laws as internal (Copyright Law, Civil Law and Contract Law) and external ones (for example, Anti-Monopoly Law).[34]<\/a> Parties suffering from copyright misuse are entitled to the right of claim under Copyright Law, Civil Law and Contract Law. To the extent that the dispute arises from the private parties, the protection is internal.[35]<\/a> Because executive power of public authority is supposed to interfere and regulate copyright misuse conducts under Anti-Monopoly Law, the protection is external.[36]<\/a> As is further discussed below, such dual mechanism has some problems.<\/p>\n B. Examination of China\u2019s judicial practice concerning copyright misuse<\/p>\n The guiding case system is a system in which the Supreme People’s Court determines and uniformly publishes guiding cases that have a guiding function for trial and enforcement by people’s courts throughout the country.[37]<\/a> Up until February 25 2019, 112 guiding cases have been released. Their legal force is that they \u201cshall\u201d be used \u201cas a reference\u201d.[38]<\/a> Specifically, unlike the common law system, they have no binding effect and cannot be cited as law itself.[39]<\/a> Instead, they should be referred to as reasoning of the ruling.[40]<\/a> Guiding cases issued by the Supreme People\u2019s Court may justify judges\u2019 ratio decidendi. [41]<\/a> Beijing Jingdiao<\/em> Technology Co., Ltd. v. Shanghai Naikai<\/em> Electronic Technology Co., Ltd. is a case decided in 2006 and released as one of the guiding cases in 2015.<\/p>\n In Beijing Jingdiao<\/em> Technology Co., Ltd. v. Shanghai Naikai<\/em> Electronic Technology Co., Ltd., plaintiff Jingdiao<\/em> Technology developed software called JDPaint and was entitled to a copyright. It must only be used through an engraving machine produced by Jingdiao<\/em> Technology. Jingdiao<\/em> Technology encrypted data necessary for using the software, trying to prevent others from reading the data and using the JDPaint software. Defendant Naikai<\/em> Electronic avoided the encryption and developed its own engraving machine which is capable of reading the data to use JDPaint. Plaintiff Jingdiao<\/em> Technology then sued for copyright infringement. Naikai<\/em> Electronic alleged that plaintiff made a tie-in sale by encrypting its software and thus monopolized the market. The Shanghai High People\u2019s Court concluded that according to Article 48 Paragraph 1 Subparagraph 6 of China\u2019s Copyright Law and Article 24 Paragraph 1 Subparagraph 3 of the Regulations on Computer Software Protection, avoidance or destruction of copyright protection measures is a copyright infringing conduct.[42]<\/a> However, the protection measures shall not be misused.[43]<\/a> The encryption used by the plaintiff was not to protect its copyright, but to protect its interest in engraving machine by restricting competition and obtaining monopoly advantage.[44]<\/a><\/p>\n This case is analogous to DSC Communication v. DGI Technologies to the extent that the two courts defined plaintiff\u2019s conducts\u2014attempting to monopolize the market by taking advantage of the link between copyrighted software and certain physical products\u2014as exceeding the protection scope of the copyright and thus constituting a misuse of the copyright.[45]<\/a> The court analyzed misuse conduct based on the anti-competitive nature of the conduct. It is noteworthy that Anti-Monopoly Law was not enacted yet at the time of decision, so whether the Supreme People\u2019s Court would have guided other courts to require violation of Anti-Monopoly Law in order to constitute copyright misuse is not clear. Anyway, this case shows that analysis of anti-competition is an inevitable consideration of copyright misuse, which is similar to judicial practice in the United States.<\/p>\n Since 2009 the Supreme People\u2019s Court of China has been publishing 50 typical cases of intellectual property each year. Even though the cases have less force than guiding cases, they not only indicate the Supreme People\u2019s Court\u2019s recognition of judgment by courts at all levels, but also can be used to provide guidance and reference for judges.[46]<\/a> Jilin University Press LLC v. Changchun Publishing & Media LLC is a typical case decided and released in 2015.<\/p>\n In Jilin University Press LLC v. Changchun Publishing & Media LLC, Changchun Publishing was entitled to a copyright of the Chinese Textbook (Grade 5 First Volume) of Compulsory Education Course Standard<\/em>. Jilin University Press copied it in its Star Teachers on Textbook<\/em> by including 11 of the same units and the same content under several units. Changchun Publishing sued for copyright infringement. Jilin University Press responded that Changchun Publishing misused its copyright because Changchun Publishing would monopolize the education publication market if it claimed to cease the alleged infringing conducts of Jilin University Press.<\/p>\n The first-instance court rejected the misuse defense. It concluded, firstly, that there would be no monopoly if Jilin University Press was able to use the copyrighted work after obtaining a license from Changchun Publishing and, secondly, that to ask for the cessation of the infringement is a proper exercise of copyright. Jilin University Press appealed, alleging that textbooks are in essence public products, which should be differently protected from other books. They argued that to support Changchun Publishing\u2019s complaint is to damage the public interest.<\/p>\n Jilin Province Higher People\u2019s Court held in the second instance that the publishing industry in the educational field is a commercial field open to all eligible publishers where they compete to make profits and improve qualities of textbooks objectively.[47]<\/a> Changchun Publishing put efforts into creating the books and was entitled to copyright against any other person\u2019s infringement. The claim that the copyright holder, Changchun Publishing, violated Article 55 of Anti-Monopoly Law of the People’s Republic of China\u2014prohibition of intellectual property right misuse\u2014was not supported by sufficient evidence and was only arbitrary.[48]<\/a><\/p>\n The first instance ruling has two problems.<\/p>\n The first one is that the court actually gave no boundary or way of determining the boundary of misuse. Thus, it gave no reasoning as to why the copyright holder\u2019s conduct was a proper exercise of copyright. That said, the fact that the court referred to \u201cmonopoly\u201d in its conclusion probably suggested the court\u2019s opinion: copyright misuse has something to do with monopoly.<\/p>\n The second problem lies in the causation between the license agreement and absence of monopoly. The court concluded that \u201cif Jilin University Press lawfully used the copyrighted textbook after obtaining a license and paying for it, then there would be no monopoly of the textbook market.\u201d But is it true? Recall the AMA case where the U.S. court held that the licensing agreement was a misuse of copyright because it enabled the copyright holder to monopolize the market by prohibiting the licensee from using any other system for reporting physicians\u2019 services than its own one. It is obvious that even if Jilin University Press gained permission in the form of license, there could still be a monopoly.<\/p>\n As to the analysis of copyright misuse in the second instance, the court concluded that there was no sufficient evidence supporting the \u201cmonopoly\u201d claim and, thus, the copyright holder did not violate the intellectual property right misuse provision in China\u2019s Anti-Monopoly Law. It is clear that this court directly applied the Anti-Monopoly Law to address defendant\u2019s copyright misuse argument without showing any possibility to include other bases of analysis, like public policy.<\/p>\n C. Disadvantages under China\u2019s current system<\/p>\n \u201cCopyright misuse\u201d is likely to be misused by parties and courts. In Jilin University Press case, Jilin University Press\u2019s defense was that the copyright holder misused its right because to ask for cessation would constitute monopoly. Like other intellectual property rights, copyright is inherently monopolistic in nature. Only through lawful monopoly can a right holder protect its interests and can a society encourage cultural creation. What is prohibited is unlawful monopoly, like those exceeding the scope of copyright in DSC and Beijing Jingdiao<\/em> Technology cases. Since Jilin University Press was unable to prove unlawful monopoly, the defense is unjustifiable.<\/p>\n Accordingly, if the legislature does not provide a provision of copyright misuse, \u201ccopyright misuse\u201d will potentially be misused by parties. This may harm the interests of both copyright holders and alleged infringers, elevate the risk of power rent-seeking behavior, and waste judicial resources. Besides, courts may misuse \u201ccopyright misuse\u201d as well when giving their reasoning. For instance, when addressing the defense of copyright misuse, the first-instance court in Jilin case did not clearly draw the line between proper exercise of the right and misuse of the right, but directly concluded that the conduct of copyright holder was appropriate.<\/p>\n The standard for determining copyright misuse, which involves anti-competition conducts, is not unified or reasonable. In Jilin University Press case, it seemed that the court defined copyright misuse as a violation of Anti-Monopoly Law. However, in Beijing Jingdiao<\/em> Technology case, the court merely included analysis of anti-competition in considering the copyright misuse. Because Jilin case was decided in 2015 and Beijing case in 2006, such inconsistency was probably caused by the fact that Anti-Monopoly Law was not enacted until 2008. Judging from the decision in Jilin case, it is possible that courts have been leaning towards requiring the extent to which the conduct in question has violated Anti-Monopoly Law to establish copyright misuse. If this is true, namely what legislature and judiciary want, then there will be further concerns arising out of dual mechanism of civil litigations and administrative enforcement.[49]<\/a> For instance, measures taken by courts must coordinate with those taken by government agencies, in terms of filing a case and process of dealing with the case.[50]<\/a> Because this needs more cost, the dual mechanism results in procedural inefficiency.<\/p>\n To conclude on this issue, there should be firstly a unified view over whether a violation of Anti-Monopoly Law is a prerequisite for a copyright misuse or not, and secondly a more reasonable view, which is the determination of copyright misuse is independent of that of violation of Anti-Monopoly Law.<\/p>\n Certain copyright misuse conduct cannot be governed by the current system. Recall the scenario in Video Pipeline case. Although the court rejected the copyright misuse argument after concluding that the conduct by the copyright holder was not sufficiently significant and that the fair use doctrine could provide protection, it adopted an approach of analyzing copyright misuse different from that based on anti-competition conducts. What if the copyright holder did obstruct public expression to a significant extent and the alleged infringer cannot be protected by the fair use doctrine in China? With rapid development of the copyright industry, there will always be misuse by copyright holders which contradicts the purpose of the Copyright Law but cannot be prohibited by existing provisions. This is especially true when the conduct is not related to anti-competition.<\/p>\n III. SUGGESTIONS<\/p>\n In light of the problems mentioned above, I support making relevant amendments of China\u2019s Copyright Law, a position supported by scholars.[51]<\/a> <\/span>Firstly, include the copyright misuse doctrine in Copyright Law as a miscellaneous provision to both standardize its use and maintain the balance between the rights of copyright holders, alleged infringers, and the public. Secondly, consider setting up a standard for determining whether there is a copyright misuse, abolish the requirement of violating the Anti-Monopoly Law, and rather adopt the analysis of mere anti-competition behavior. Last but not least, apart from the misuses involving anti-competition, the copyright misuse doctrine should also include an approach to identifying misuse on the basis of public policy considerations, namely, by analyzing whether the conducts hinder the promotion of cultural creation contrary to the legislative purpose of Copyright Law.<\/p>\n [1]<\/a> U.S. courts also recognize such a basis: anti-monopoly violation analysis is similar to misuse analysis. See<\/em> Lasercomb Am., Inc. v. Reynolds<\/em>, 911 F.2d 970, 971 (4th Cir. 1990).<\/p>\n [2]<\/a> See<\/em> \u5b59\u8fdc\u948a (Sun Yuanzhao), \u7248\u6743\u7684\u5e73\u8861\u4e0e\u6ee5\u7528:\u7f8e\u56fd\u4e0e\u56fd\u9645\u53d1\u5c55\u7684\u542f\u793a [Copyright Balance and Misuse:\u00a0 Enlightenment from U.S. and International Development], \u7248\u6743\u3001\u7f51\u7edc\u548c\u6743\u529b\u5e73\u8861 [Copyright, Internet and Right Balance] (2016).<\/p>\n [3]<\/a> Lasercomb<\/em>, 911 F.2d at 971 (4th Cir. 1990).<\/p>\n [4]<\/a> Id.<\/em><\/p>\n [5]<\/a> Id.<\/em><\/p>\n [6]<\/a> Id.<\/em> at 978.<\/p>\n [7]<\/a> Id.<\/em><\/p>\n [8]<\/a> Id.<\/em><\/p>\n [9]<\/a>\u00a0The reason why Anti-Monopoly Law is mentioned here may lie in the fact that the Court recognizes that Ccopyright protection has monopolitic nature, as mentioned in Supra<\/em> note 1.<\/p>\n [10]<\/a> Lasercomb<\/em>, 911 F.2d at 978 (4th Cir. 1990).<\/p>\n [11]<\/a> Supra<\/em> note 2. See<\/em> also Kathryn Judge, Note, Rethinking Copyright Misuse, 57 Stan. L. Rev. 901, 904 (2004) (concluding that the relationship between misuses arising under violation of antitrust law and those under contradiction with public policy of copyright law, and \u201cthe degree to which competition policy underlies the public policy approach\u201d \u201cha[ve] been a source of significant confusion\u201d.).<\/p>\n [12]<\/a> DSC Commc’ns Corp. v. DGI Techs., Inc.<\/em>, 81 F.3d 597, 601 (5th Cir. 1996).<\/p>\n [13]<\/a> Id. <\/em>at 599.<\/p>\n [14]<\/a> Id.<\/em><\/p>\n [15]<\/a> Id.<\/em> at 601.<\/p>\n [16]<\/a> Practice Management Information Corp. v. American Medical Ass\u2019n<\/em>, 121 F.3d 516, 517 (9th Cir. 1997).<\/p>\n [17]<\/a> Id.<\/em><\/p>\n [18]<\/a> Id.<\/em><\/p>\n [19]<\/a> Id.<\/em><\/p>\n [20]<\/a> Id.<\/em> at 521.<\/p>\n [21]<\/a> Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc.<\/em>, 342 F.3d 191, 203 (3th Cir. 2003).<\/p>\n [22]<\/a> Id.<\/em><\/p>\n [23]<\/a> Id. <\/em>at 206.<\/p>\n [24]<\/a> Id.<\/em><\/p>\n [25]<\/a> Id.<\/em><\/p>\n [26]<\/a> Id.<\/em><\/p>\n [27]<\/a> Id.<\/em> at 204.<\/p>\n [28]<\/a> Under Fair Use Doctrine, copyrighted work can be used even without permission of the copyright holders or paying royalties. Its purpose is to ensure that copyright holder exercises control over the work expression, but the control will not extend to what is unprotected by Copyright Law. See<\/em> \u51af\u9a81\u9752 (Feng Xiaoqing), \u8457\u4f5c\u6743\u5408\u7406\u4f7f\u7528\u5236\u5ea6\u4e4b\u6b63\u5f53\u6027\u7814\u7a76 [Study on Legitimacy of Copyright Fair Use], \u73b0\u4ee3\u6cd5\u5b66 [Modern Law Science], volume 32, No. 4 at 29 (2009). \u201cCopyright Misuse\u201d, by its nature, prohibits copyright holder\u2019s control beyond the lawful scope (scope defined by Copyright Law). So it shares common logic with Fair Use. This is the reason why Fair Use Doctrine is discussed here.<\/p>\n [29]<\/a> General Principles of the Civil Law (2009 Amendment) prescribes \u201cintellectual property rights\u201d under Section 3 Chapter 5, which includes copyrights, patent rights, rights to exclusive use of trademarks, rights of discovery. This suggests that China categorizes intellectual property rights as civil rights. Besides, latter clause of Article 55 Anti-Monopoly Law of provides that \u201cthis Law shall apply to the conduct of business operators to eliminate or restrict market competition by abusing their intellectual property rights.\u201d<\/p>\n [30]<\/a> Minfa Zongze (\u6c11\u6cd5\u603b\u5219) [General Provisions of the Civil Law] (promulgated by the Nat\u2019l People\u2019s Cong., Mar. 15, 2017, effective Oct. 1, 2017), art. 7 (China).<\/p>\n [31]<\/a> Fan Longduan Fa (\u53cd\u5784\u65ad\u6cd5) [Anti-Monopoly Law] (promulgated Article 55 of Anti-Monopoly Law of the People’s Republic of China by the Standing Comm. Nat\u2019l People\u2019s Cong., Aug. 30, 2007, effective Aug. 1, 2008), art. 55 (China).<\/p>\n [32]<\/a> After all, copyright holder\u2019s rights are lawfully obtained under Copyright Law. If there is no provision explicitly providing for \u201cmisuse\u201d in Copyright Law, judges should be cautious to determine misuse of rights based on basic principles of Civil Law. A surpass of basic principles of Civil Law over copyright calls for a high quality legal interpretation, in order to achieve consistency in judiciary.<\/p>\n [33]<\/a> For instance, in Beijing Chuangci Kongjian<\/em> Media LLC v. Mu Deyuan et el., which is a case on appeal involving unfair competition, Beijing Intellectual Property Court, in order to apply Anti-Unfair Competition Law that was limited to competitors in the same industry to market participants from different industries, mentioned \u201csevere violation of principle of good faith and adherence to honesty.\u201d This suggests court\u2019s reliance on the basic principles of Civil Law as indirect legal authority for reasoning, but the direct authority is Anti-Unfair Competition Law.<\/p>\n [34]<\/a> See<\/em> \u6768\u660e (Yang Ming), \u77e5\u8bc6\u4ea7\u6743\u4e0e\u53cd\u4e0d\u6b63\u5f53\u7ade\u4e89\u4e2d\u7684\u5229\u76ca\u8861\u91cf [Interest Balancing in Intellectual Property and Anti-Unfair Competition], \u4e91\u5357\u5927\u5b66\u5b66\u62a5 [Journal of Yunnan University], volume 18, issue 1 at 48 (2005).<\/p>\n [35]<\/a> Id.<\/em><\/p>\n [36]<\/a> Id.<\/em><\/p>\n [37]<\/a> See <\/em>\u6700\u9ad8\u4eba\u6c11\u6cd5\u9662\u5370\u53d1\u300a\u5173\u4e8e\u6848\u4f8b\u6307\u5bfc\u5de5\u4f5c\u7684\u89c4\u5b9a\u300b\u7684\u901a\u77e5\uff08\u6cd5\u53d1\u30142010\u301551\u53f7\uff09 [Notice of the Supreme People’s Court on Issuing the Provisions on Case Guidance] (issued by the Supreme People’s Court, Nov. 26, 2010, effective Nov. 26, 2010), art. 1 (China).<\/p>\n [38]<\/a> See <\/em>supra<\/em> note 35, art. 7 (China).<\/p>\n [39]<\/a> See<\/em> \u5218\u5b54\u4e2d (Liu Kongzhong) & \u5f20\u6d69\u7136 (Zhang Haoran), \u6700\u9ad8\u4eba\u6c11\u6cd5\u9662\u77e5\u8bc6\u4ea7\u6743\u6cd5\u89c1\u89e3\u53ca\u5176\u4f5c\u6210\u65b9\u5f0f\u7684\u8bc4\u4ef7\u4e0e\u53cd\u601d [Comments and Reflections on the Supreme People\u2019s Court\u2019s Ways to Express Its Opinions on Intellectual Property Law], \u77e5\u8bc6\u4ea7\u6743 [Intellectual Property], issue 5 at 40 (2018).<\/p>\n [40]<\/a> Id<\/em>.<\/p>\n [41]<\/a> See<\/em> \u6700\u9ad8\u4eba\u6c11\u6cd5\u9662\u5370\u53d1\u300a\u5173\u4e8e\u52a0\u5f3a\u548c\u89c4\u8303\u88c1\u5224\u6587\u4e66\u91ca\u6cd5\u8bf4\u7406\u7684\u6307\u5bfc\u610f\u89c1\u300b\u7684\u901a\u77e5\uff08\u6cd5\u53d1\u30142018\u301510\u53f7\uff09 [Notice of the Supreme People’s Court on Issuing the Guiding Opinions on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments].<\/p>\n [42]<\/a> \u5317\u4eac\u7cbe\u96d5\u79d1\u6280\u6709\u9650\u516c\u53f8\u4e0e\u4e0a\u6d77\u5948\u51ef\u7535\u5b50\u79d1\u6280\u6709\u9650\u516c\u53f8\u4fb5\u5bb3\u8ba1\u7b97\u673a\u8f6f\u4ef6\u8457\u4f5c\u6743\u7ea0\u7eb7\u4e0a\u8bc9\u6848 [Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd.] (2006) \u6caa\u9ad8\u6c11\u4e09(\u77e5)\u7ec8\u5b57\u7b2c110\u53f7, (Shanghai High People\u2019s Ct. 2006) CLI.C.8709416 Chinalawinfo.<\/p>\n [43]<\/a> Id.<\/em><\/p>\n [44]<\/a> Id.<\/em><\/p>\n [45]<\/a> See supra<\/em> note 11.<\/p>\n [46]<\/a> \u5218\u5b54\u4e2d (Liu Kongzhong), supra<\/em> note 39.<\/p>\n [47]<\/a> \u6700\u9ad8\u4eba\u6c11\u6cd5\u9662\u53d1\u5e032015\u5e74\u4e2d\u56fd\u6cd5\u966250\u4ef6\u5178\u578b\u77e5\u8bc6\u4ea7\u6743\u6848\u4f8b\u4e4b\u4e8c\u5341\u516d:\u5409\u6797\u5927\u5b66\u51fa\u7248\u793e\u6709\u9650\u8d23\u4efb\u516c\u53f8\u7b49\u8bc9\u957f\u6625\u51fa\u7248\u4f20\u5a92\u96c6\u56e2\u6709\u9650\u8d23\u4efb\u516c\u53f8\u8457\u4f5c\u6743\u6743\u5c5e\u3001\u4fb5\u6743\u7ea0\u7eb7\u6848 [Jilin University Press LLC v. Changchun Publishing & Media LLC] (2015) \u5409\u6c11\u4e09\u77e5\u7ec8\u5b57\u7b2c68\u53f7, (Jilin High People\u2019s Ct. 2015) CLI.C.8248705 Chinalawinfo.<\/p>\n [48]<\/a> Id.<\/em><\/p>\n [49]<\/a> Civil litigations here mean proceedings between private parties, for example, copyright holders and alleged infringer, based on Copyright Law or pertinent civil laws; administrative enforcement mean procedures where government agencies deal with unlawful monopoly under Anti-Monopoly Law.<\/p>\n [50]<\/a> See <\/em>\u738b\u5148\u6797 (Wang Xianlin) \u8bba\u53cd\u5784\u65ad\u6c11\u4e8b\u8bc9\u8bbc\u4e0e\u884c\u653f\u6267\u6cd5\u7684\u8854\u63a5\u4e0e\u534f\u8c03 [On the Connection and Coordination Between Anti-monopoly Civil Action and Administrative Enforcement], \u6c5f\u897f\u8d22\u7ecf\u5927\u5b66\u5b66\u62a5 [Journal of Jiangxi University of Finance and Economics], issue 3 at 87 (2010).<\/p>\n [51]<\/a> For example, after commenting on coordination between Intellectual Property Law and Competition Law, Professor Feng Xiaoqing states that, unlike developed countries which have well-organized laws in terms of anti-monopoly of intellatual property right, it is vital for China to protect against foreign countries’ companies from unlawfully exercising controls over Chinese markets by leveraging intellectual property rights is vital. See<\/em> \u51af\u6653\u9752 (Feng Xiaoqing), \u8bba\u77e5\u8bc6\u4ea7\u6743\u6cd5\u4e0e\u7ade\u4e89\u6cd5\u5728\u4fc3\u8fdb\u6709\u6548\u7ade\u4e89\u65b9\u9762\u7684\u5e73\u8861\u4e0e\u534f\u8c03 [On the Balance and Harmonization in the Promotion of Effective Competition as to Intellectual Property Law and Competition Law], \u6cb3\u5317\u6cd5\u5b66 [Hebei Law Science], issue 6 at 48 (2008).\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":" Li Guangyu INTRODUCTION Copyright law is a mechanism of protecting economic and moral rights arising from creations of literature, arts, science, engineering and so on. In the mechanism, authors are granted exclusive rights, including but not limited to right to reproduce, right to distribute, right to reform, right to display publicly, right to perform by … Continue reading China’s Copyright Misuse Law Compared to US Law<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"_wpas_customize_per_network":false,"jetpack_post_was_ever_published":false},"categories":[47],"tags":[],"class_list":["post-402","post","type-post","status-publish","format-standard","hentry","category-antimonopoly-law"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/pgBdw4-6u","_links":{"self":[{"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/posts\/402","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/comments?post=402"}],"version-history":[{"count":16,"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/posts\/402\/revisions"}],"predecessor-version":[{"id":464,"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/posts\/402\/revisions\/464"}],"wp:attachment":[{"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/media?parent=402"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/categories?post=402"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stllawreviewblog.com\/index.php\/wp-json\/wp\/v2\/tags?post=402"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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