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The sharing economy has had a substantial impact on the labor market and created challenges for companies in traditional industry and businesses. In conducting micro-comparative research on the existing standards that test the employment relationship between Uber and Uber drivers, this study reveals how different traditional labor law dogmas deal with the conundrum brought about by the sharing economy. The test of personal dependence derived from German labor law has been a model for China, Japan, and other civil law countries as the main standard to identify an employee. This test encounters a failure in the context of the sharing economy. Unlike China, the latest court decisions in the jurisdictions of the UK, the EU, and the US tend to increasingly categorize Uber drivers as employees. This study proposes that a new test or standard in labor law should be developed 'bottom-up' through the increasingly consistent development of local court decisions and local regulators' efforts. A category that lies midway between the employee and the semi-employee is proposed for Uber drivers and other workers intermediated by sharing firms. The sharing firms (platforms), rather than individual workers, would have the ability to undertake the social cost and economic burden incurred when they are categorized as employers in labor law. Only these platforms can invoke their technological and organizational power to reasonably allocate such costs and burdens. [ABSTRACT FROM AUTHOR]

By conducting field research and analysing judgments delivered in Beijing courts from 2004 to 2011, we find that the popular notion held by China's trade partners of the inadequacy of intellectual property protection is only partly supported by the empirical evidence. The likelihood of winning lawsuits is higher for foreign than domestic plaintiffs and the extremely low damages ruled by Chinese courts are due to particular causes. Courts lack consistent methods to calculate incurred losses in intellectual property right (IPR) infringements and consequently routinely apply the statutory damages whose upper limit is restricted by legislation. Efforts by Chinese legislators to enhance compensation by lifting the upper limit of awardable statutory damages in the Third Amendment of Chinese Patent Law (2008) did not seem to have an effect on our sample. Chinese policymakers should instead focus on the cause of the issue by providing more implementable guidelines for courts to calculate losses. Courts need to develop applicable conventions for calculating damages, based on objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. Thus, the new provision of the "right of information" on pirated goods proposed by the ongoing Fourth Amendment provides a significant weapon to combat counterfeiting. [ABSTRACT FROM AUTHOR]

Although Uber's arrival in China has resulted in disruptive competition for incumbent taxi companies, it offers an attractive alternative in China's supply-demand-imbalanced urban passenger transport system. China's regulatory regime for Uber has evolved in three stages: from the regulatory vacuum prior to 2015 to its official legalization in 2015–2016, and the enactment of numerous local regulations in 2016, with specific and more demanding requirements for Uber. This policy is a part of the Chinese approach to the gradual liberalization of the urban passenger transport market. Policymakers should consider 'fair competition' as the guiding principle to balance the interests of sharing firms and incumbent service providers, as well as between different sharing firms. The core value of this principle lies in the benefits it provides for consumers and the way it engenders a pro-competitive market environment. The labor protection arrangements for sharing firms' laborers should be more flexible and diversified. In order to recognize whether an Uber-Driver is an employee or independent contractor, a new standard taking into account a range of factors should be established through collective negotiations between the participants of the sharing economy, and dialogues between members of the judiciary, academics, and the policymakers. Further, consumer protection law and personal data protection provisions should apply when sharing firms misuse their distinctive algorithmic management model to compete unfairly to the detriment of consumers and other users. Ex ante regulatory measures designed to protect the personal data of users should be introduced for deployment in the context of the sharing economy. When enforcing these rules, a balance should be struck ensuring free data flow that is essential to sharing firms' innovation and competition, and the need to ensure the level of data security required to underpin a well-functioning sharing society. [ABSTRACT FROM AUTHOR]

In the ‘Metall auf Metall’ case, the German Federal Constitutional Court recently deliberated the permissibility of sampling, an essential tool of musical borrowing in pop music production. The court reiterated that the freedom of art stipulated in Article 5, Paragraph 3 of the German Constitution requires that the ‘sampling’ of bits of sound recordings be recognized as artistic expression and creation instead of an infringement of rights. Thereby, the ‘per se infringement rule’ applied by the German Federal Supreme Court in this case (2013) was rejected. The note argues that more careful consideration must be given to the extent to which musical borrowing can and has been a source of innovation within the music industry. Copyright law must recognize and incorporate musical borrowing by developing commercial practices, such as ‘sample clearing’, for music that samples existing works in its creation. Moreover, the judiciary in Germany and the EU must endeavour to develop conventional practices to balance the interests of rights holders and users in disputes resulting from the challenges of modern digital technology to the traditional copyright framework with an enumerative and exhaustive list of copyright exception and limitation rules. [ABSTRACT FROM AUTHOR]

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. This paper summarizes the case law in China and takes a comparative approach to address the divergence between the judicial application of cyber copyright law and the existing legislation. It suggests revising the proposed Article 43 of the Copyright Law of the PRC to capture the due interpretation of the three-step test, thereby finessing the delineation between rights protection and free use with the compensation of remuneration under the principle of proportionality. It argues that transplanting the US fair use doctrine into Chinese copyright law is feasible, but with the preconditions of endeavouring to strengthen judicial reform to integrate the IP adjudication systems, enhancing the coherence and efficiency of copyright enforcement, and facilitating consistent dialogues between scholars, practitioners, and lawmakers. [ABSTRACT FROM AUTHOR]