Promovendus: Dhr. T. He

Promotor: Prof.Dr. A.W.J. Kamperman Sanders

Duur: 1/9/2011 - 31/8/2015

Promotie: Maastricht, 1/7/2016

Abstract:

The article 4 of 2001 Copyright Law of Peoples Republic of China was criticized for its violation of the automatic protection principle in the Berne Convention for the Protection of Literary and Artistic Works and denied the copyrightability of illegal works by stating that Works the publication and/or dissemination of which are prohibited by law shall not be protected by this Law. this provision had been revised due to the recent WTO dispute (China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights, DS362) and the article 4 of 2010 Copyright Law of Peoples Republic of China deleted the above-mentioned sentence. This change will fundamentally alter the ways that copyright holders deal with the unauthorized distribution of copyright works, especially fansub activities. We need to analyze it in detail and investigate the following hypotheses in the context of Chinese legal system: H1. Before the 2010 revision of Copyright Law of China, in some certain circumstances, the fansubs are actually defending the right of freedom of speech of the copyright owners under current Chinese legal system. H2. After the 2010 revision of Copyright Law of China, with the exception of claiming fair use doctrine in some circumstances, the fansubs are actually all copyright infringement works under current Chinese legal system. H3. Fansub groups as a whole are beneficial to the copyright owners in a cyber age and in current commercial model. Copyright works transactions in a digital age are fundamentally vary from the old age, these differences are asking for a change in the rules of Copyright Law of China. H4. When facing the request of the delicate balance between the public interest and the rights of copyright owners, the current provisions of Copyright Law of China (especially the fair use doctrine) fail to satisfy that and thus need to be revised in order to cope with the new commercial model of the digital age. In order to research H1, I will examine fansubs in different circumstances (before the revision), and then compare them and classify them in current legal system and then come up with a conclusion. H2 further points out that after the 2010 revision, Copyright Law of China is pushing more pressure on copyright protection, and leave no room for fansubs except for a fair use claim in the current Copyright Law. H3 then questioned the existing general practice that uses copyright rules which is not design for a digital age to govern the copyright related transactions, and then I will compare the current legal solutions between China and other countries. In studying H4, I may use the method of comparative law again to investigate the possibilities in setting new rules for Copyright Law of China to regulate copyright works transactions in a cyberspace regime