http://ipkitten.blogspot.com/2019/07/book-review-copyright-and-fan.html
The accommodation of user-generated creativity within copyright law has consistently proved challenging.
In Europe, the closed catalogue of exceptions and limitations allowed under the InfoSoc Directive has been often ‘accused’ of excessive rigidity. In the context of the discussion that eventually led to the adoption of the DSM Directive, consideration of whether the EU should introduce an ad hoc user-generated content exception was undertaken at some point [see Amendment 55 here].
Before that, individual Member States had also considered accommodating user-generated creativity within reformed or new copyright exceptions. For instance, readers might remember that, back in 2013, the Irish Government-appointed Review Committee submitted that this Member State should introduce an innovation exception (even if no such exception is expressly found in any EU copyright directive).
In jurisdictions that instead envisage an open-ended, fair use-style, exception things might seemingly look easier. Yet, the legal status of unlicensed parodies, fan fiction, fansubs, etc, has been tested in court and not always the results have been consistent.
But what is the legal treatment of fan creativity in jurisdictions like China? What should the preferred approach be?
| Fansub of The Big Bang Theory |
These are the main questions at the heart of Copyright and Fan Productivity in China, a monograph authored by Tianxiang He (currently an Assistant Professor at the School of Law, City University of Hong Kong) and based on his PhD thesis at Maastricht University.
The monograph, which also includes a comparative angle on the legal treatment in the US and Japan, provides a thoughtful insight into the issues surrounding fan creativity or, as the author calls it, productivity.
As explained by the publisher,
This book takes a unique approach to mitigate the problem of massive online copyright infringement and justify fan activities. It argues for a cooperative approach that encourages copyright owners to exert a degree of control over their fan creators. In contrast to the current approach, which treats fan utilizations as theft, this book suggests that the copyright owners and the lawmakers should instead distinguish between fan creators and commercial pirates, allowing them unleash their potential.
The book provides several examples and insightful anecdotes. The author guides the reader through a fascinating journey into relevant legal issues, whilst also explaining the peculiarities of Chinese culture and copyright law.
This work is in my view indispensable reading for anyone who wishes to deepen their understanding of the relationship between copyright and user creativity and appreciate what the relevant issues, approaches and solutions might be in a jurisdiction like China.
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Pages: 265
Published: Springer, 2017
Hardcover ISBN: 978-981-10-6507-1
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