Title: Reconstruction of copyright limitations and exceptions in the digital network age: importation of legal flexibility and certainty
Authors: Jie Hua
Addresses: Intellectual Property Department, Deacons (Hong Kong), 5/F Alexandra House, 18 Chater Road, Central, Hong Kong
Abstract: This article proposes to reconstruct the system of copyright limitations and exceptions under the digital network environment by introducing mechanisms that guarantee legal flexibility, certainty and predictability. Facing the increasing convenience of exploitation of copyrighted works brought on by digital network technology, this article suggests proposals for revising copyright limitations and exceptions by importing a four-factor balancing test based on the USA copyright system with the focus on the first and fourth factors, namely, the purpose and nature of the use, and the influence on the market of the original work as an abstract guidance to guarantee legal flexibility and a list of non-exclusive exceptions as the minute prescriptions to guarantee legal certainty. The importance of the analysis is placed on weighing the transformative nature of user-generated contents and remix creation in the abstract guidance as well as the typical situations in the non-exclusive list by comparative research on legislations of copyright limitations and exceptions among different jurisdictions. This article finally provides several alternative schemes such as compulsory licensing, no action notice scheme and community guidelines to supplement copyright limitations and exceptions.
Keywords: copyright limitations; copyright exceptions; legal flexibility; legal certainty; fair use; fair dealing; compulsory licensing; copyright reform; digital networks; legal predictability; no action notices; community guidelines.
International Journal of Technology Policy and Law, 2014 Vol.1 No.4, pp.363 - 386
Received: 08 May 2021
Accepted: 12 May 2021
Published online: 26 May 2014 *