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Intellectual Property and Commercial Court


2014 Xing Zhi Shang Yi Zi No. 33

Decision No. 2014 Xing Zhi Shang Yi Zi No. 33
Date July 3, 2014
Decision Highlight

Article 52 of the Copyright Act indicates that “Within a reasonable scope, works that have been publicly released may be quoted where necessary for reports, comment, teaching, research, or other legitimate purposes”. In the context of the Copyright Act, fair use allows an individual apart from the economic right holder to exploit the work, even without the consent of or a license from the economic right holder. It does not constitute an infringement on economic right. The legislative purpose is to reach a balance between the right of the economic right holder and the need of public interest. When the public interest brought by the maintenance of certain use outweighs the protection of the economic right, the economic right shall concede to a reasonable extent, in order to improve social welfare. According to Article 12 of the Constitution, the people shall have freedom of speech and publication. However, while the speech people address involves commentary, it is inevitable and necessary to quote the commented one’s copyrighted works. In such case, if absolute copyright remains granted, it is predictable that the author will only consent or license the right to use to flatterers, and turn down those who are likely to give negative comments. As a result, the author is essentially allowed to manipulate the marketplace of ideas, and to sabotage the transparency and free flow of information on the pretext of his copyright. Apparently, this is not the purpose of the Copyright Act’s protection. Therefore, the reason why the commentators can claim the right of fair use is to reconcile the conflicts between freedom of information and the Copyright Act. Copyright shall be limited on the premises of information accessibility protection.


Fair Use, Freedom of Speech, Limitations of Copyrights

Relevant statutes Copyright Act: Article 52
  • Release Date:2020-11-13
  • Update:2020-12-03