Search

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]