Abstract
This final chapter summarizes the research, and provides a solution proposal for fixing the problems of fan creations in the digital age. For that purpose, it begins with the main findings of the research (Sect. 5.1), and concludes this book with the proposed solution framework (Sect. 5.2), and a discussion of its future implications (Sect. 5.3).
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Notes
- 1.
Amartya Sen, Development as Freedom 288 (Oxford University Press. 1999).
- 2.
Comiket, also known as the Comic Market, is the world’s largest fair for transformative comic works such as doujinshi, which is held twice a year in Tokyo, Japan.
- 3.
Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 372–75 (Yale University Press. 2006).
- 4.
See e.g., Lessig, supra note 39 in Chap. 1, at 237 (Every company building a hybrid will face exactly the same challenge: how to frame its work, and the profit it expects, in a way that doesn’t frighten away the community); for the discussion about the trouble when social and market norms collide, see Ariely, supra note 42 in Chap. 1, at 68–88; for the discussion about the trouble when markets reach into spheres of life governed by non-market norms, see Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets 84–91 (Farrar, Straus and Giroux 1st ed. 2012).
- 5.
Benkler, supra note 3, at 59.
- 6.
Id. at 60.
- 7.
Yochai Benkler, Coase’s Penguin, or, Linux and the Nature of the Firm, 112 Yale L.J. 369, 422 (2002).
- 8.
See generally, Lessig, supra note 39 in Chap. 1.
- 9.
Wendy Pollack, Will Volunteers Replace Paid Workers? WSJ Blogs: The Informed Reader, Feb. 16, 2007, http://blogs.wsj.com/informedreader/2007/02/16/will-volunteers-replace-paid-workers/.
- 10.
See supra Sect. 4.4.1.2.3 Reintroduction of Copyright Formalities.
- 11.
van Gompel, supra note 235 in Chap. 4, at 1436–37 (“New-style formalities include requirements on metadata-tagging of digital works, the storage of rights management information in digital depositories, and virtually all digital tools that, in one way or another, create a link between right owners and their works… voluntary… formalities… are requirements to which authors or right owners voluntarily submit themselves… non-fulfillment of voluntary formalities does not result in a defeat of protection.”).
- 12.
For example, we could easily find copyright notices and statements on CDs, books, and motion pictures, even though that is no longer mandatory. Goldstein and Hugenholtz, supra note 167 in Chap. 4, at 225; Moreover, content conglomerates do have clear lists of their copyrighted works, and when they cooperate with platforms such as YouTube for the purpose of copyright protection, copyright owners will submit that list or even the sample of their works to them, so that these platforms could use their system to identify suspicious contents within the platform which are uploaded by its users. Besides, individual creators will also submit their independently created works with copyright information. See e.g., Content ID, YOUTUBE, http://www.youtube.com/t/contentid.
- 13.
See Loren, supra note 374 in Chap. 4, at 276–77.
- 14.
See Wu, supra note 42 in Chap. 1, at 634.
- 15.
See supra Sect. 2.2 Behind the Fans Activities: Challenges of the Digital Revolution.
- 16.
See e.g., Boyle, supra note 255 in Chap. 4, at 10.
- 17.
Id. at 9.
- 18.
See e.g., id. at 224; See also Mireille van Eechoud et al., Harmonizing European Copyright Law: The Challenges of Better Lawmaking 227–31 (Kluwer Law International. 2009).
- 19.
Mark Bauerlein, The Dumbest Generation: How the Digital Age Stupefies Young Americans and Jeopardizes Our Future (or, Don’t Trust Anyone Under 30) 32 (Jeremy P. Tarcher/Penguin. 2008).
- 20.
See generally, Dominique Wolton, Informer n’est pas Communiquer (CNRS éditions. 2009).
- 21.
Bauerlein, supra note 19, at 35.
- 22.
Id. at 152.
- 23.
Id. at 108.
- 24.
For instance, during an interview, Mike Medavoy, a famous Hollywood producer claimed that: “Making money is not the main purpose, according to the tradition of the U.S. film industry… Now the majority of film production company in Hollywood are controlled by conglomerates such as Viacom, run by lawyers, bankers, and businessman, these people had destroyed the creativity of Hollywood… (Today) movie no longer cares about the society, people’s mind and thoughts, they just go for the lowest standard, cater to audiences, they only do movies that teenagers will like, they make block busters and popcorn movies… In order to lower the risk and make money, production companies only wish to do commercials, therefore a movie’s diversity and plurality have been ignored.” Medavoy’s view is no doubt over-exaggerated, because the market of U.S. is free and big therefore it is obvious that there will always be practitioners who consider film making as an art. See Ying Zhang (张英), Haolaiwu Zhizuoren Maike Maidewo Jiangshu Dianying Guilu (好莱坞制片人迈克 麦德沃讲述电影规律) [Hollywood Producer Mike Medavoy on the Rule of Film], Nanfang Zhoumo (南方周末) [Southern Weekly], Jul. 14, 2012, http://www.infzm.com/content/78431.
- 25.
Ke Zhang (张柯), Kan Dian Kanbudong de Dongxi (看点看不懂的东西) [See Something that You Could not Understand], Renmin Ribao (人民日报) [People’s Daily], Jan. 16, 2015, at http://paper.people.com.cn/rmrb/html/2015-01/16/nw.D110000renmrb_20150116_5-05.htm.
- 26.
Bauerlein, supra note 19, at 29.
- 27.
See Samuelson, supra note 357 in Chap. 3, at 1206 (“…assessing whether a particular use will eventually be deemed fair by a court involves a complex and context-specific analysis…”). See also Tim Armstrong, U.S. Government: Fair Use is Too Complex to Explain to Kids, Info/Law Blog, Aug. 10, 2007, at https://blogs.law.harvard.edu/infolaw/2007/08/10/us-government-fair-use-is-too-complex-to-explain-to-kids/; Lee, supra note 16 in Chap. 1, at 1480.
- 28.
See e.g., Edward Jenks, The Function of Law in Society, 5 Journal of Comparative Legislation and International Law 169 (1923) (“For it is the peculiar characteristic of the English system, and of systems derived from it, that the judges, though historically and technically the servants of the State, and bound to enforce its commands, have, almost from the first, also played the important part of educating the community in the ethics of social conduct.”); See also Christopher L. Eisgruber, Is the Supreme Court an Educative Institution?, 67 N.Y.U. L. Rev. 961 (1992) (“[T]he Supreme Court cannot be fully understood except as an institution with educative responsibilities, responsibilities that depend upon the excellence of its arguments.”).
- 29.
Qun Wang (王群) and Shibao Deng (邓世豹), Daxuesheng Banquan Yishi Xianzhuang Yanjiu (大学生版权意识现状研究) [Current Situation of College Students’ Awareness of Copyright], Dangdai Qingnian Yanjiu (当代青年研究) [Contemporary Youth Research], no. 1, 2013, 126–27.
- 30.
Id. at 126.
- 31.
Id.
- 32.
Priest, supra note 94 in Chap. 2, at 472–73.
- 33.
Viktor Mayer-Schonberger and Lena Wong, Fan or Foe: Fan Fiction, Authorship, and the Fight for Control, 54 IDEA 1, 11 (2013) (“…those perceived to be a threat to rights holders are very often the same people who are target customers.”).
- 34.
Burgess, et al., supra note 29 in Chap. 1, at 12–3 (noted that if “Australia is to maximise its ability to capitalise – in both economic and social terms – on these digital ‘lifestyle’ products, it needs to understand the various dimensions of cultural citizenship and support the creative application of these tools for the purpose of participation, education and innovation. Fostering human talent and digital creativity outside formal school or workplace environments will favourably nurture societal and cultural values–promoting not only an innovation culture and economy but an inclusive society.”).
- 35.
Hamilton, supra note 10 in Chap. 1, at 623–32.
- 36.
17 U.S.C. § 512 (2012).
- 37.
Although recently many service providers such as YouTube had signed many package licenses with several big copyright conglomerates such as Warner and Sony. Therefore, it is fair to say that the service providers and copyright owners are somehow connected, but evidently there is no olive-branch offer for the users. See Lev-Aretz, supra note 375 in Chap. 4, at 139; The neglect of the users in the above-mentioned package licenses will cause many problems, and, more importantly, both “safe harbor” rules and the pre-emptive licenses between the service providers and the copyright owners are getting around the fact that the users are the heart of the matter deliberately. As an emergency measure the “safe harbor” rules will suffice, but without the mutual understanding between the mass and the copyright owners, eventually, it will still be an endless game of hide-and-seek for both parties. Id. at 173–4.
- 38.
See Lessig, supra note 12 in Chap. 1, at 123.
- 39.
Glynn S. Lunney, Jr., Copyright, Private Copying, and Discrete Public Goods, 12 Tul. J. Tech. & Intell. Prop. 1, 23 (2009).
- 40.
Id. at 32.
- 41.
Yochai Benkler and Helen Nissenbaum, Commons-based Peer Production and Virtue, 14 Journal of Political Philosophy 394 (2006).
- 42.
See generally Fisher, supra note 23 in Chap. 1; Eric Von Hippel, Lead Users: a Source of Novel Product Concepts, 32 Manage Sci. 791(1986).
- 43.
Fisher, supra note 23 in Chap. 1, at 1418–30.
- 44.
Ilkka Tuomi, Networks of Innovation: Change and Meaning in the Age of the Internet 8–29 (Oxford University Press. 2002).
- 45.
Pan-European Laboratory Infrastructure Implementation, Considerations on user driven innovation (1st version), Deliverable D1.2, PII Consortium Report, 2009, http://www.panlab.net/fileadmin/documents/PII-Deliverables/D1.2-Considerations_on_user_driven_innovation__1st_version__v1.0.pdf (“User-driven innovation, or just user innovation has a number of degrees: innovation of use, innovation in services, innovation in configuration of technologies, and finally the innovation of novel technologies themselves.”).
- 46.
He, supra note 123 in Chap. 2, at 1031.
- 47.
See e.g., Owen Gibson, What Happens Next? You Decide, as Channel 4 Launches T’s First Interactive Drama, The Guardian, Sep. 26, 2005, http://www.theguardian.com/technology/2005/sep/26/media.broadcasting; Audience to Decide Plot for ‘Mundasuppatti 2’, Deccan Chronicle, Jul. 9, 2014, http://www.deccanchronicle.com/140709/entertainment-kollywood/article/audience-decide-plot-mundasuppatti-2.
- 48.
Lessig, supra note 39 in Chap. 1, at 245.
- 49.
Id. at 246.
- 50.
Id. at 184.
- 51.
Id. at 184–5.
- 52.
Id. at 196.
- 53.
In the light of transnational fansubbing activities, Kensaku Fukui, a copyright expert in Japan, advocated cooperation as a solution. See Fukui, supra note 263 in Chap. 4 (noted that Japan could utilizes fan groups by encouraging Japanese copyright owners to give them permission, so that fans could produce fansubs voluntarily.).
- 54.
Moning Zhang (张墨宁), “Daohuo” de zimu zu (“盗火”的字幕组”) [Fansub Groups that “Steal Fire”], in Nan Feng Chuang (南风窗) [South Winds], Oct. 19, 2013, available at http://mobile.nfcmag.com/article/4319.html.
- 55.
See e.g., Leonard, supra note 28 in Chap. 1, at 201 (in explaining why Japanese anime company refuse to officially give fans a license to reproduce, Leonard states as follows: “The reasons involved protections of copyrights; the impracticality of studios in Japan giving written permission to informal American fan groups to show their animation; the risk of losing the opportunity to sell their programs to American syndicated TV markets if the American TV representatives felt that there were already too many bootleg video copies in circulation; and other cavils of this nature”).
- 56.
Balkin, supra note 15 in Chap. 1, at 16.
- 57.
Id.
- 58.
- 59.
Henry Jenkins, Convergence culture: Where Old and New Media Collide 58 (New York University Press. 2006).
- 60.
See e.g., Thomas Mentel, China’s Film Industry Takes Measures to Compete with Hollywood, MoviesCheatSheet, Jun. 20, 2014, available at http://wallstcheatsheet.com/entertainment/chinas-film-industry-takes-measures-to-compete-with-hollywood.html/?a=viewall.
- 61.
See e.g., Alex Stevens, The Chinese Obsession with Korean Dramas is Making Bad Chinese TV Look Bad, Shanghaiist, Mar. 3, 2014, at http://shanghaiist.com/2014/03/03/chinese-obsession-korean-dramas.php; Coco, Chinese Entertainment Faces Tough Competition From Korean Dramas, Dramafever, Mar. 3, 2014, at http://www.dramafever.com/news/chinese-entertainment-faces-tough-competition-from-korean-dramas/ (last visited Apr. 4, 2014); Gavin J. Blair, China’s iQIYI and Japan’s Fuji TV Link on Drama Production, The Hollywood Reporter, Jun. 17, 2014, at http://www.hollywoodreporter.com/news/chinas-iqiyi-japans-fuji-tv-712401.
- 62.
Grant David McCracken, Plenitude 2.0 88 (Periph.: Fluide. 1998), at https://www.scribd.com/doc/61801857/Plenitude-2-0-by-Grant-McCracken.
- 63.
For example, BitTorrent have released their new ‘Bundles’ platform that enables “direct-to-fan” publishing, it “gives the content creators the power of choosing how they want to benefit from their film”, you could “give users the film for free if they first share a link to your film’s website.” See Noam Kroll, Breakdown of The Major Online Indie Film Distribution Platforms, Premiumbeat.com, Dec. 13, 2013, at http://www.premiumbeat.com/blog/breakdown-of-the-major-online-indie-film-distribution-platforms/.
- 64.
See supra note 4 and accompanying text.
- 65.
See Cintas and Sánchez, supra note 44 in Chap. 2, at 46.
- 66.
Jia Fanyi Fengbo Xu: Wo Meiyou Bei Haolaiwu Fengsha (“贾翻译风波”续: 我没有被好莱坞封杀) [“Translator Jia’s Trouble” Continued: I am not blocked by Hollywood], Shidai Zhoubao (时代周报) [Time Weekly], Aug. 23, 2013, available at http://ent.ifeng.com/movie/news/toutiao/detail_2013_08/23/28939468_0.shtml (last visited Jun. 19, 2014) (described that Miss Jia, the official translator of the Pacific Rim & The Man in Black III, were criticized heavily by senior fansubbers as “lacking basic training and experience”.); see also Fulian 2 Fanyi zao tucao Wangyou ni Siji Guole Meiyou (《复联2》 翻译遭吐槽 网友: 你四级过了没有) [Official Translations of the Subtitle of Avengers: Age of Ultron were Attacked by Netizens in China], Wang Yi 163 (网易163) [NetEase], May 13, 2015, at http://ent.163.com/15/0513/07/APFRR1P7000300B1.html#p=APFUDUQD00AJ0003. But cf. Shuang Yan, Lights, Camera, Captions!, Global Times, Mar. 18, 2012, at http://www.globaltimes.cn/content/700857.shtml (indicated that professional translators and experts believe fan translators “lack basic background in translating and knowledge of Western history and culture”).
- 67.
Feng and Wang, supra note 251 in Chap. 3 (“the government has indicated in private talks with Internet companies that it plans to close this control gap with new rules this year”).
- 68.
Zhang, supra note 54; For example, the department head of the American television series of Tudou has pointed out that, since they have introduced many foreign titles and are in desperate need of subtitle translations, the cooperation between video platforms and fansubbers is a win-win solution. See Fei Lu (陆飞), Shipin wangzhan yinjin meiju shui shu shui ying? (视频网站引进美剧谁输谁赢) [Video Platforms Introduce American TV series, Who’s the Winner?], Beijing Qingnian Bao (北京青年报) [Beijing Youth Daily], Sep. 30, 2011, B11, at http://bjyouth.ynet.com/3.1/1109/30/6305923.html; During an interview, Zhang Chaoyang, the CEO of SOHU, also noted that digital piracy is still there but that it has little influence over the market now in terms of audiovisual products, and that it has also helped in fostering fansub groups that are capable of delivering high quality translations, so there is no problem between them now. See Xuejing Zhang (张雪静), Sohu Shipin Jiang Daliang Yinjin Meiju Shishui Meizong (搜狐视频将大量引进美剧 试水美综) [Sohu Video will Introduce Massive Amount of American TV Series, and will Test the Waters of American Variety Shows], www.lmtw.com (流媒体网) [Streaming Media Net], Feb. 19, 2014, at http://sm.lmtw.com/dongtai/201402/101032.html (last visited Jun. 18, 2014).
- 69.
The payment for translating an episode is 400 Yuan, which is less than 70 dollars. See Zhang, supra note 54; in some cases, the price for translating an episode is even less than 80 Yuan, and yet that amount has to be divided equally among five people. See Cen Chen (陈岑), Xingxing Fanyi Tuandui: Gongzuo Jiuxiang Dazhang Choulao Budao 20 Kuai (< 星星 > 翻译团队:工作就像打仗 酬劳不到20块) [The Translation Team of the “My Love From the Stars”: Working like Battling but Payment is less than 20 Yuan], JinLing Wanbao (金陵晚报) [Jinling Evening Post], Mar. 1, 2014, http://www.chinanews.com/yl/2014/03-01/5898503.shtml.
- 70.
It is noted that the Chinese fansub groups are hesitating about that kind of “commercialization”, because some of the core members believe that the commercialization of the fansub groups is contrary to their original purpose, and “that degree of cooperation means nothing”. See Zhang, supra note 54.
- 71.
Foreign Television Program Import and Broadcast Management Regulations, art. 9(6) (When applying for importing foreign film and television dramas, the following materials shall be submitted:…Chinese and foreign language subtitles of title and end credit that are consistent with the specimen tape…); Dianying Juben Genggai Beian Dianyingpian Guanli Guiding (电影剧本(梗概)备案、电影片管理规定) [Provisions on the Archival Filing of Film Scripts (Abstracts) and the Administration of Films] (promulgated by SARFT Decree No. 52, May 22, 2006) art. 17 (China), translated at China Copyright and Media (Rogier Creemers trans.), https://chinacopyrightandmedia.wordpress.com/2006/05/22/film-script-outline-filing-film-management-regulations/ (The completed film shall be reported to the corresponding film examination organ for examination. For film submission, the following materials shall be provided…7, a complete screenplay set…). Dianshiju Shencha Chengxu (电视剧审查程序) [Television Drama Examination Procedure], SAPPRFT, Aug. 16, 2007, at http://www.sarft.gov.cn/articles/2007/08/16/20070913171221490947.html (5. Requirements about demo tapes of various kinds of Television Dramas that are sent for approval…all imported TV dramas (including Animation)…must have Chinese subtitles in the demo tapes that are sent for approval…).
- 72.
Id.
- 73.
See supra Sect. 3.1.3 Censorship.
- 74.
Piasentin, supra note 123 in Chap. 2, at 233.
- 75.
Armstrong, supra note 89 in Chap. 4.
- 76.
See supra Sect. 4.2 Legal Determination at National Level.
- 77.
2010 Copyright Law of the People’s Republic of China, art. 12.
- 78.
Japanese Copyright Law, art. 11; 17 U.S.C § 103(a) (2012).
- 79.
The commentator believes that without the consent of the original author, derivative works such as fansubs may not enjoy copyright protection in China. See Yunting You, Does Tudou.com Require Permission for the Use of YYeTs’ Unauthorized Subtitle Translation in China?, Bridge IP Law Commentary, Oct. 10, 2014, at http://www.chinaiplawyer.com/does-tudou-com-require-permission-use-YYeTs-unauthorized-subtitle-translation-china/.
- 80.
See supra Sect. 4.4.2.2.5 The Reasons.
- 81.
Japanese Copyright Law, art. 28.
- 82.
17 U.S.C § 103(a) (2012).
- 83.
17 U.S.C § 103(b) (2012).
- 84.
Popeye Necktie Case, Supreme Court, 17 July 1997, Minshu Vol. 51 No. 6: 2714; Kewpie Doll Case, Tokyo High Court, 30 March 2001, Hanrei Jiho No. 1797: 111, as cited in Transparency of Japanese Law Project, at http://www.tomeika.jur.kyushu-u.ac.jp/ip/index.html (“Since a derivative work receives protection on the basis that new original expression has been added to the existing work, the copyright protection for derivative works extends only to the newly bestowed original expression and does not cover expression that is the same as the existing work. It is obvious that where it is only the expression of the existing work within the derivative work that has been exploited, then the owner of the copyright on the derivative work cannot exercise their rights.”).
- 85.
Fumio Sakka (作花文雄), Chosakukenhō: kiso to ōyō (著作権法: 基礎と応用) [Copyright Law: Foundations and Applcations] 53 (Tōkyō: Hatsumei Kyōkai, 2005).
- 86.
2001 Copyright Law of the People’s Republic of China, art. 4.
- 87.
2010 Copyright Law of the People’s Republic of China, art. 47(6).
- 88.
For a detailed discussion on the history of Article 4 of the CCL, see supra Sect. 3.1.1.5 Open Up Period (1991–present).
- 89.
3 William Blackstone, Commentaries on the Laws of England in Four Books, 23 (J. B. Lippincott Company, 1893). at http://oll.libertyfund.org/titles/blackstone-commentaries-on-the-laws-of-england-in-four-books-vol-2.
- 90.
See Han Li (李含) and Fei Chou (仇飞), Weihuo Shouquan Yanyi Zuopin Yeyou Zhuzuoquan (未获授权作品也有著作权) [Unauthorized creations can enjoy copyright protection as well], Fazhi Zhoumo (法治周末) [Legal Weekly], Oct. 14, 2014, http://www.legalweekly.cn/index.php/Index/article/id/6143. See also You, supra note 79.
- 91.
Li and Chou, supra note 90.
- 92.
Id.
- 93.
- 94.
Suli, supra note 105 in Chap. 4, at 12.
- 95.
See e.g., Rogoyski and Basin, supra note 6 in Chap. 1, at 241; Suli, supra note 105 in Chap. 4, at 11; Ji, supra note 105 in Chap. 4, at 21; Yufeng Li (李雨峰) and Tirui Zhang (张体锐), Huaji Mofang Yinfa de Zhuzuoquan Wenti (滑稽模仿引发的著作权问题) [The Copyright Problems Caused by Parodies], Renmin Sifa (人民司法) [People’s Judicature], no. 17, 2011, at 102.
- 96.
U.S. Const. Amend. I.
- 97.
Constitution of the People’s Republic of China, art. 35.
- 98.
Id. art. 13.
- 99.
Suli, supra note 105 in Chap. 4, at 4; Furthermore, considering the influence of parodies on China and the number of them, it is also a fair conclusion that “China does not have much tradition of humorous give and take”. See Robert Marquand, A Spoof Hits China’s Web—and a Star is Born, The Christian Science Monitor, Mar. 13, 2006, at http://www.csmonitor.com/2006/0313/p01s03-woap.html.
- 100.
- 101.
- 102.
See e.g., Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 594 (1982) (“…all forms of expression that further the self-realization value, which justifies the democratic system as well as free speech’s role in it, are deserving of full constitutional protection.”).
- 103.
Rogoyski and Basin, supra note 6 in Chap. 1, at 245–8.
- 104.
See supra Sect. 3.1.5 Participatory Culture and Civic Engagement. Just as Jack Balkin has indicated, “the forces of democratization operate not only through regular elections, but through changes in institutions, practices, customs, mannerisms, speech, and dress.” Balkin, supra note 15 in Chap. 1, at 35. According to Balkin, a “democratic” culture means democracy “in which ordinary people gain a greater say over the institutions and practices that shape them and their futures.” Id. That echoes with “semiotic democracy” that Fisher among others advocates, which aims to decentralize the power of making cultural meanings. See Fisher, supra note 13 in Chap. 1, at Chap. 1; See also Neil Weinstock Netanel, Copyright’s Paradox (Oxford University Press. 2008); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Ent. LJ 215 (1996).
- 105.
Rogoyski and Basin, supra note 6 in Chap. 1, at 262.
- 106.
Guowuyuan Fazhi Bangongshi Guanyu Gongbu Zhonghua Renmin Gongheguo Zhuzuoquan Fa Xiudingan Songshengao Gongkai Zhengqiu Yijian de Tongzhi (国务院法制办公室关于公布《中华人民共和国著作权法(修订草案送审稿)》公开征求意见的通知) [Circular of the Legislative Affairs Office of the State Council on Promulgating the Copyright Law of the People's Republic of China (Draft Revision for Review) for Public Comments], Legislative Affairs Office of the State Council P.R. China, Jun. 6, 2014, at http://www.chinalaw.gov.cn/article/cazjgg/201406/20140600396188.shtml.
- 107.
Zhonghua Minguo 103 Nian Zhuzuoquan Fa (中華民國103年著作權法) [Copyright Act of 2014], Jan. 22, 2014, Zongtongfu Gongbao (總統府公報) [Presidential Office Gaz.], no. 7123, 2014, at 65, translated at Intellectual Property Office Ministry of Economic Affairs, https://www.tipo.gov.tw/dl.asp?filename=42129352671.docx.
- 108.
The Berne Convention provides that “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” Berne Convention, art. 9(2). However, paragraph 2 of Article 43 of the third draft amendment of the CCL only provides that, “in the exploitation of a work under the circumstances listed in Article 43, such exploitation must not conflict with a normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the author”.
- 109.
Li, supra note 138 in Chap. 4, at 17; Prof. Qian Wang has also criticized this “copycat” way of copyright legislation in China, indicating that it makes the law outdated and sketchy. See Qian Wang (王迁), Zhuzuoquan Fa Jiejian Guoji Tiaoyue yu Guowai Lifa Wenti yu Duice (著作权法借鉴国际条约与国外立法:问题与对策) [Using International Treaties and Overseas Legislation for Reference for the Copyright Law: Problems and Countermeasures], Zhongguo Faxue (中国法学) [China Legal Science], no. 3, 2012, at 31–5.
- 110.
For similar proposals, see Li, supra note 138 in Chap. 4, at 17–8; see also Yong Wan (万勇), Meiguo Banquanfa Gaige Fangan Shuping (美国版权法改革方案述评) [Comments on the U.S. Copyright Law Reform Plan], Zhishi Chanquan (知识产权) [Intellectual Property], no. 1, 2014, at 87.
- 111.
See supra note 93–94 in Chap. 4 and accompanying text.
- 112.
Suli, supra note 105 in Chap. 4, at 12–3.
- 113.
Rogoyski and Basin, supra note 6 in Chap. 1, at 262.
- 114.
Noda, supra note 25 in Chap. 1, at 140–48.
- 115.
Jiayi Liu, Apple has Accepted Inspections in China: Report, ZDnet, Jan. 21, 2015, at http://www.zdnet.com/article/apple-has-accepted-censorship-in-china-report/.
- 116.
Henry Jenkins, Fans, Bloggers, and Gamers: Exploring Participatory Culture 149 (New York University Press. 2006).
- 117.
Henry Jenkins, supra note 59, at 92.
- 118.
Some even believe copyright is hampering cultural diversity and creativity. See generally, Joost Smiers and Marieke van Schijndel, Imagine There is no Copyright and no Cultural Conglomerates too (Institute of Network Cultures, Amsterdam 2009); but some believe that intellectual property rights, including copyright, will still play a role in the future, but its importance will tend to decrease. See Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U. L. Rev. 460, 503 (2015).
- 119.
Chen Li (李琛), Zhishi Chanquan Fa Jiben Gongneng Zhi Chongjie (知识产权法基本功能之重解) [Reinterpreting the Basic Functions of Intellectual Property Law], Zhishi Chanquan (知识产权) [Intellectual Property], no. 7, 2014, at 6.
- 120.
Hamilton, supra note 10 in Chap. 1, at 623.
- 121.
See supra Sect. 5.2.1 A Feasible Solution.
- 122.
- 123.
Creemers, supra note 64 in Chap. 3, at 190.
- 124.
Li, supra note 119, at 9.
- 125.
See generally, Barry Schwartz, The Paradox of Choice: Why More is Less (Ecco 1st ed. 2004); For the artificial choice problems created by censorship in China, please see the discussions in supra Sect. 3.1.3 Censorship.
- 126.
Anderson, supra note 35 in Chap. 1, at 171.
- 127.
For instance, most doujinshi works in Japan are tolerated by the copyright owners, but if the fan work contains porn elements that are deemed harmful to the original work (a children’s manga), or bears a strong resemblance to the original one, which may cause confusion, the copyright owners will notify the fan authors. See He, supra note 123 in Chap. 2; in terms of fansubs, online streaming platforms, even commercial pirates constantly lift fan-translations without any permission, and fansubbers can do nothing to change that because they believe they have no rights in their fansubs. See Zhang, supra note 54.
- 128.
See U.S.-China Trade: Preparations for the J. Commission on Commerce and Trade: Hearing Before the Subcomm. on Commerce, Trade, and Consumer Protection, of the H. Comm. on Energy and Commerce, 108th Cong. 45–55 (2004) (testimony of Fritz E. Attaway, Executive Vice President of MPAA), at http://www.gpo.gov/fdsys/pkg/CHRG-108hhrg93302/html/CHRG-108hhrg93302.htm.
- 129.
See Priest, supra note 94 in Chap. 2, at 515 (“…creative works can be consumed–and monetized–in a theoretically unlimited variety of formats and locales, the health of a creative industry ultimately depends on its ability to effectively monetize works for each market in which they are consumed.”).
- 130.
For a detailed explanation on what constitutes a “good life” for human beings, see e.g., Martha C. Nussbaum, Constitutions and Capabilities: Perception against Lofty Formalism, 121 Harv. L. Rev. 4, 13–16 (2007). See also Fisher, supra note 214 in Chap. 4, at 1746–51.
- 131.
Li, supra note 119, at 9.
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He, T. (2017). Conclusions and Recommendations. In: Copyright and Fan Productivity in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6508-8_5
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