Introducing the Open Clause to improve copyright flexibility in cyberspace? Analysis and commentary on the proposed 'two-step test' in the Third Amendment to the Copyright Law of the PRC, in comparison with the EU and the US

摘要

The so called "three-step test", that the limitations and exceptions of copyright shall be allowed in certain special cases, provided that they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author, grants copyright flexibilities to balance the interests of all stakeholders, especially within the European system of circumscribed limitations and exceptions. This is essential for the domain of computer law, confronted by rapid and unpredictable global technological developments, and is, thus, enshrined in the most important international intellectual property(IP) treaties. Through the proposed third amendment to the Copyright Law of the PRC, the legislature intends to adopt this test while also introducing an open-ended list of limitations and exceptions that constitutes a China-specific "two-step test." This contravenes prima facie the thesis endorsed by the WTO Panel in the case concerning Section 110(5) of the US Copyright Act in 2000. In contrast, court decisions in China frequently apply the fair use doctrine of US copyright law, neglecting to consider its peculiar context of the US common law tradition and, thus, unduly expanding the Chinese courts' discretionary power.