CHINA LEGAL SCIENCE 2023年第2期 | 著作权法中的“使用者权”评析

ON COPYRIGHT USER RIGHTS
Li Yang
TABLE OF CONTENTS
I. INTRODUCTIONII. THE GENEALOGY OF USER RIGHTS

A. The Prototype of User Rights

B. The Practice of User Rights

C. User Rights in China

III. DISAPPROVAL OF USER RIGHTS

A. Copyright Limitations and Exceptions Cannot Be Construed as Rights

B. User Rights as a Rhetorical Device

C. The Legislative Theory of User Rights Lacks Sufficient Arguments for Legislative Facts

D. Liability for Copyright Owner’s Wrongful Notice Infringement in the Online Environment Should Not Be Expanded

E. Malicious Copyright Litigation Does Not Need to Be Regulated by User Rights

IV. THE PROTECTION OF THE COPYRIGHT USERS’ INTERESTS

A. The Judicial Orientation of the Protection of Users’ Interests and the Restriction of Preconceptions

B. Interaction of the Law on the Protection of Consumer Rights and Interests and Copyright Law

V. CONCLUSION
Copyright user rights, which have emerged from copyright academia and foreign judicial practice, seek to elevate the limitations or exceptions of copyright to a subjective right of users. While user rights reflect the desire to protect the interests of users and prevent excessive restrictions on the public domain in the expansion of copyrights, such rights are not reasonable. The reasons are as follows: firstly, limitations or exceptions of copyright, such as the fair use doctrine, cannot be rendered as a right; secondly, in foreign cases, user rights are not a practical theory but a rhetorical tool; thirdly, the legislative theory of user rights failed in the arguments about legislative facts; fourthly, the liability of copyright owners’ wrongful notice in the online environment cannot be expanded as a general remedy of user rights; finally, malicious litigation by copyright owners does not need to be regulated by creating user rights. As for protecting users’ interests, we should shift to the balance in judicial cases and the support from the law on the protection of consumer rights and interests.
I. INTRODUCTION
The scope of copyright law extends to a wide range of fields such as literature, art and science. In order to prevent the expansion of copyright from excessively restricting the public domain and hindering the purpose of copyright law to promote the creation of works and cultural prosperity, copyright should be subject to certain restrictions from the perspective of distributive justice. The text of the Berne Convention shows that even in those countries where there is the most vigorous commitment to the advancement of authors’ rights, it is recognized that there is a need for restrictions or limitations upon these rights in particular cases. Accordingly, legislators have provided for limitations and exceptions of copyright, such as the fair use doctrine, originality and the duration of copyright, so that users can oppose the claims of copyright owners. In copyright academia, research concerning the protection of users’ interests has become more and more abundant. As the ‘most troublesome issue’ in copyright law, the fair use doctrine has never left the center stage of copyright law. For copyright law to respond to the impact of new modes of exploitation of works, there has been continued advocacy in the academia for the introduction of a general clause on the limitation of copyright, or an open-ended fair use doctrine in the United States. In addition, some scholars have proposed the doctrine to expand the first sale, countermeasures against the extension of the term of copyright protection, and the regulation of the abuse of technical measures by copyright owners, etc., hoping to bring different levels of inspiration for the protection of copyright users’ interests.
However, the most notable theme in recent research is ‘copyright user rights’, which have emerged in both academia and foreign judicial practice. The main arguments for user rights are as follows. Firstly, at the interpretive level, the limitations and exceptions of copyright are not only defenses, but also the rights of users. Secondly, at the level of legislative theory, user rights should be established as a subjective right that is actionable. Thirdly, expressions such as ‘limitation’ and ‘exception’, as well as the absence of ‘user’ and ‘public domain’ in copyright law, are immediate causes of the ignorance of users’ interests. Finally, a paradigm of actionable user rights has long existed in the current copyright law, namely, the copyright owner’s liability for infringement of wrongful notice in the online environment. In the ever-expanding pattern of copyright, user rights may have merit in preventing the public domain from being excessively limited. Such rights directly elevate the status of third-party subjects in copyright law other than copyright owners and neighboring rights holders, i.e., users or the public, so that copyright owners are forced to consider the adverse consequences of their infringement of user rights before suing, leading copyright owners to reach prior permission with users, and transforming possible infringement disputes into efficient ex ante transactions. In addition, the establishment of user rights may also influence the court’s adjudication philosophy, so that courts may not interpret the law too favorably to the copyright owner and discard the interests of users. However, this article argues that there are so many unexplained and ambiguous aspects of user rights and such rights should not be established at either the interpretive or legislative level. Part II examines the birth and evolution of user rights based on academic history and foreign jurisprudence. Part III analyzes the reasons why user rights are untenable in detail. In Part IV, the article proposes two feasible alternatives for the problem of neglected interests of users. Part V concludes with an opinion of the creation of such a new right.
II. THE GENEALOGY OF USER RIGHTS
A. The Prototype of User Rights
The history of copyright shows that the struggle of interests is the driving force for the creation and expansion of copyright, and copyright theory is a tool for the legitimization of interests. Yang Deqiao pointed out that the public reaction in the solicitation of opinions during the third amendment of the Chinese Copyright Law was different from that of the previous two amendments, because organized social forces began to form in the private sector to forcefully express their positions and seek to exert influence on the draft law, putting a legitimate stamp on the interest groups’ claims. The eagerness of interest groups has brought forth the question of why they are targeting the field of copyright. The conceivable answer is that copyright is rapidly becoming, or has already become, a pillar of corporate strategy on a par with patent rights, and the commercial attributes of copyright law as ‘an information content industry law’ are becoming increasingly evident, as the technical attributes and commercial value of works continue to emerge. However, copyright subject matter faces natural pricing challenges, and the pursuit of cultural diversity makes it difficult to develop agreed-upon, universal price standards as transactions accumulate. Its economic value depends mainly on artificial pricing based on individual transactions, and is highly susceptible to social changes. When works are artificially assigned high values, they inevitably become the target of lobbying and rent-seeking by interest groups.
In order to prevent the consequence of anti-commons of under-utilization of works caused by over-expansion and fragmentation of copyright, the interpretation of the legislative purpose of copyright law has become an urgent issue to public life and cultural prosperity, because the interpretation of purpose has the status of the final decision and unifies other methods of interpretation in adjudication, and judges can limit copyright owners’ excessive claims by interpreting the normative purpose of copyright law in individual cases. Specifically, legal interpretation is necessarily value-oriented in that human beings use norms to pursue certain purposes that are selected on the basis of certain fundamental value decisions. When interpreting the law, judges must be bound by fundamental values such as justice and fairness. Thus, whenever there is a contradiction between the normative purpose and the literal meaning of the law, the identifiable normative purpose usually takes precedence. Legal norms, on the other hand, are both an expression of the subjective will of the legislator and also contain the objective purpose and meaning of the law, and both subjective and objective factors must be considered when identifying the purpose of the norms. Therefore, because the intent of historical legislators is the starting point and medium for understanding and approaching the normative purpose of the present, the debate naturally revolves around the legislative purpose of the world’s first written copyright law, the British Statute of Anne of 1710. Scholars have sought to identify the primary beneficiaries of the Statute among authors, booksellers and the public, to determine whether the original copyright law was intended to protect the personal interests of authors, the trade monopoly position of distributors of works, or the right of the public to use and study works, and to provide a historical reference to the question of the balance of interests in the present.
Here was born the embryonic form of user rights, which was simply some historical interpretation that favored the public interest. As is well known, the Statute of Anne was the product of lobbying by British booksellers in the 18th century for monopoly interests. Patterson argues that the so-called author’s right was more a form than a substance, and that the booksellers promoted the most logical and natural form of right, the author’s copyright, to lobby for legislation that would hide their monopoly interests behind the scenes. On this basis, Patterson and Lindberg understood the Statute of Anne as a ‘trade regulation law’ that prevented booksellers’ monopolies through a limited period of copyright protection, the availability of copyright to anyone, and the price-control provisions. Patterson and Lindberg also note that the Statute of Anne’s provisions on the elements of a work, the duration of protection, and the limitation of rights do create the public domain. Thus, the ‘trade regulation’ and the ‘creation of the public domain’ are the turning points in the Statute of Anne’s recognition that copyright serves the public interests. Ultimately, copyright law does not serve the interests of authors and distributors alone, it has been concerned with the interests of users from its inception. Deazley agrees that the Statute of Anne was a bargain for public interests, rooted in a desire to encourage learning and foster a thriving marketplace of ideas, where the interests of the broader community were paramount. The High Court of Australia held a similar view: ‘In both its title and opening recitals, the Statute of Anne of 1710 echoed explicitly the emphasis on the practical or utilitarian importance that certain seventeenth-century philosophers attached importance to knowledge and its encouragement in the scheme of human progress. The ‘social contract’ envisaged by the Statute of Anne, and still underlying the present law, was that an author could obtain a monopoly, limited in time, in return for making a work available to the reading public.’
There is a lack of clarity and certainty as to how useful the above review of the legislative purpose of the Statute of Anne is for the protection of the interests of users. One side argues that the Statute of Anne does not provide a concrete blueprint for contemporary legislators, nor does it offer a concise way forward for decision-makers in the digital age. The other side argues that the legal and social structures inherited from the past are stable and that the emergence of new technologies has not overturned the fundamentals of copyright law. Finally, some scholars have argued that the Statute of Anne does not have a consistent and interesting purpose, that public enlightenment and the preservation of cultural excellence have never been distinguished from one another, and that copyright law is not choosing an all-or-nothing position, but rather finding a relative position on a spectrum. In any case, the inquiry into the legislative purpose of the Statute of Anne brings historical lessons for understanding and approaching the user rights theory that is emerging in current judicial practice and scholarship. However, these historical insights provide only a more modest basis than the radical forms of user rights today, which are closer to a concern for the public interest or a hidden concern about the imbalance of interests among the subjects involved in copyright law than to a concrete guide to the operation of user rights in practice.
B. The Practice of User Rights
User rights have not yet appeared in judicial practice in China, it is scattered throughout the United States and Canada in the discussion of the legal nature of fair use doctrine in judicial practice. In a note in Bateman v. Mnemonics, Inc., the U.S. Court of Appeals for the Eleventh Circuit wrote that in the absence of a statutory basis, fair use was a judicial principle, an excused infringement, which is why it was considered a defense. However, since 1976, when fair use was incorporated into the Copyright Act, it is only logical to consider fair use as a user right, since section 107 of the Copyright Act expressly states that fair use of a work ‘is not an infringement’. However, ‘regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.’ However, bound by precedent, in its later opinion in Suntrust Bank v. Houghton Mifflin, the court made a more compromising statement: on the one hand, it recognized the nature of fair use as an affirmative defense, and on the other hand, it held that this nature ‘does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes’. Thus, according to the prevailing view of U.S. judicial practice, fair use remains an affirmative defense that must be determined on a case-by-case basis, rather than a general right of users. Thus, the theory of user rights has failed to become the norm in the U.S., and this marginalized theory only highlights and suggests the importance of the fair use doctrine in the copyright law system once it is written into the statute law.
However, user rights have taken a different path in Canadian judicial practice. In CCH Canadian Ltd. v. Law Society of Upper Canada, the limitations and exceptions of copyright were first established as user rights, as interpreted by the Supreme Court of Canada. The defendant in the case of CCH operated a library that provided document copying and transmission services at the request of patrons such as legal practitioners and researchers, and was sued by the plaintiff publisher. Under section 29 of the Copyright Act of Canada, the use with the purpose of research, personal study, education, parody or satire, criticism or commentary, or news reporting does not constitute an infringement. Thus, it was clear that the dispute in the case of CCH was about inconsistent subject matter: the subject matter that met the purpose of the research was the defendant’s patrons, while it was the defendant’s library staff that made the copies and transmitted the work. The court held that while the defendant was procedurally required to prove the reasonableness of its use, ‘the fair dealing exception was perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.’ Accordingly, the defendant’s copying and transmission were an integral part of the customer’s research activities and did not infringe the plaintiff’s copyright. Starting with the case of CCH, the Supreme Court of Canada has restated the idea that the exception of copyright is a user right several times in its subsequent jurisprudence. As a precedent, the user rights set forth in the case of CCH were also invoked by the lower courts.
C. User Rights in China
Initially, the discussion of user rights in China also revolves around the nature of the fair use doctrine: fair use is a limitation on the scope of copyright owner’s rights, while it is a right to benefit from the use of another’s work in the eyes of the user. The early form of the user right in China sought a relativistic interpretivist position between the restrictive property of the right of fair use and the benefit nature, and like foreign judicial practice, it did not make any form of construction and conception of the way to realize this right, nor did it go beyond the problematic domain of copyright expansion and benefit balance. In recent years, the theory of user rights has become relatively radical in China, and even developed various forms of legislative theory, perhaps because the advocates of this theory have transcended the scope of previous problems and taken the ‘chaos’ in the copyright field, such as the ‘black hole photo incident’, as the starting point for their arguments. In these incidents, the conflict often occurs between users and malicious litigants, rather than between users and authors. Accordingly, proponents of user rights not only hope to adjust the balance between authors and users, but also envision user rights as a powerful countermeasure against phenomena such as malicious litigations and copyright trolls.
The above depicts the basic schema of the origin and practice of user rights. The embryonic form of user rights emerged from the debate around the balance of interests in copyright expansion and the legislative purpose of the Statute of Anne, and through a blip in the U.S., this ‘right’ was finally confirmed in the judicial practice of the Supreme Court of Canada, gaining the status of a precedent. The theory of user rights was introduced into China and gradually moved from a moderated notion to a radical form such as the legislative theory.
III. DISAPPROVAL OF USER RIGHTS
In foreign copyright theory and judicial practice, user rights have had only limited success and have not had any substantial impact outside of Canada. However, as a highly attractive resource, the user rights doctrine is revealing its hidden risks. In order to prevent legislators, judges and scholars from being confused by this fanciful theory and from embracing it as a significant contribution and innovation, with all the unjustified consequences for legislative and judicial activities, it is necessary to analyze and test user rights in depth at the theoretical level. This paper argues that the theory of user rights cannot be established for the following reasons.
A. Copyright Limitations and Exceptions Cannot Be Construed as Rights
1. User Rights Do Not Have the Connotation of Civil Rights. — Contextually, there is no provision for user rights in the enactments of various countries, but the expression ‘limitation’ or ‘exception’ is used. For example, the Copyright Law of Japan provides for a fair use system in a section entitled ‘Limitation of Rights’; in the Copyright Law of the U.S., it is expressed as ‘Limitations on Exclusive Rights’ or ‘Scope of Exclusive Rights’; in the Copyright Act of Canada, it is expressed as ‘Exceptions’. Obviously, the user rights that have emerged in judicial practice in the U.S. and Canada have broken through the boundaries of the meaning of terms such as ‘limitations’ and ‘exceptions’. It has been interpreted creatively by the courts on the extended line of the statute law. However, regardless of whether such extension is necessary and reasonable in the context of the common law system, in the continental law system, copyright law is a special law of the civil law. Thus, so-called ‘user rights’ can only become a right with theoretical and practical significance if it conforms to the definition of the connotation of the right in civil law.
Copyright is ‘the exclusive right of a civil subject to a work and its related objects in accordance with the law’, and a right is a ‘force of will’ or ‘force of law’ given to a person by law to meet his needs. The civil law ensures the complete realization of rights by granting the right holder certain remedies. Accordingly, the subject of copyright in the narrow sense (regardless of neighboring rights) is the copyright owner, the object of the right is the eligible work, the content of the right is the right of authorship and the right of copyrighted works, and the civil remedies for infringement of the right are injunction, compensation for damages and return of unjust enrichment, etc. Accordingly, user rights can only be elevated from a ‘restriction’ of copyright to a right on a par with copyright if they contain the corresponding right subject, right object, right content and remedies. However, the foreign judicial practice has not explained the connotation of the user rights clearly and distinctly. Even if the subject of the user right can be identified as the user of the work, the object of the right can be identified as the work to which the act of use refers, and the content of the right can be identified as the way of using the work such as personal use and reasonable quotation, the remedy for infringement of user rights is still hollow. In the current civil law system, due to the lack of remedies provided by the force of law, the user rights can at best be interpreted as ‘object rights’ that bring reflective benefits to the users of the work by limiting the rights of the copyright owner. It does not contribute to the protection of users’ interests.
2. Copyright Limitations and Exceptions Are Not ‘Rights’ But ‘Privileges’. — The original advocates and judicial practitioners of user rights came from the U.S., but even if this theory is tested within the traditional analytical jurisprudence, it cannot be evaluated as a sensible right. The well-known Hohfeld system provides for an interrelated dichotomy of ‘right’ and ‘duty’. When someone has a right, he or she must have a duty associated with it. However, neither the statute law nor the jurisprudence has the subject of obligations associated with the so-called user rights that have been established. When the limitations and exceptions of copyright are interpreted as rights creatively, once this concept goes too far, the copyright owner is imposed with the obligation to act corresponding to the user’s request, and it eventually comes to such a conclusion that ‘if the user requests the copyright owner to provide the work for the purpose of personal use, proper citation, etc., the copyright owner must provide the work without compensation, otherwise it will be liable for infringement’.
The limitations and exceptions of copyright, at least in the current copyright framework, can only be understood as ‘privilege’ in the Hohfeld system. Privilege is associated with ‘no right’, and its opposite is ‘obligation’: the possession of a privilege by a person indicates that others do not have the right to ask that person to do something, and it is also a denial of the person’s own duty, namely, an acknowledgment of the absence of duty. For example, a user’s privilege to use a work fairly can be understood as that the copyright owner does not have the right to prevent the user from using the work fairly and the user does not have the obligation to use the work reasonably. However, the privilege is not a right, and the copyright owner does not have a corresponding obligation to make the work available to reasonable users. When the limitations and exceptions of copyright exist as defenses, they are consistent with the attributes of the above privilege: the user may use the work without permission under certain conditions, and the copyright owner is not obligated to assist him in his use.
In summary, no matter whether according to the rights theory of civil law or the Hohfeld system of analytical jurisprudence, user rights can hardly be interpreted as rights that transcend the scope of defense, have the corresponding subject of obligation, and have litigability and means of remedy. The improper reference to the theory of user rights will impact the existing right system, and even reverse the general and the special, allowing the mature right theory to accommodate the immature theory of user rights, which is detrimental to the realization of the purpose of copyright law.
B. User Rights as a Rhetorical Device
The user rights in the case of CCH did not emerge from a doctrinal fault line, but were rooted in a shift in the Supreme Court of Canada’s conception and value judgment of copyright. The Supreme Court of Canada once adhered to an author-centric philosophy of adjudication that had its roots in the distinctly natural law tradition of author’s rights. As the mouthpiece of creators, the authorship tradition was underpinned by the eternal truth of natural rights and the romantic indulgence of talented artists. These discourses have been influential in Canadian judicial practice because when the natural law perspective was first explicitly applied in intellectual property law, it was an attempt to regulate and govern copyright in the British colonies (and Canada in particular). ‘It was said that the idea, which was ‘confirmed by international agreement, that copyright law involved the protection of literary and artistic property as a natural right of an author to the fruit of his labour’, was used to argue that there was an obligation on all members of the Empire (viz. Canada) to recognize the ‘natural rights of authors’.’ As a result, remnants of author-centrism continued to shine through Canadian judicial practice well into the last century. For example, in Bishop v. Stevens, the Supreme Court of Canada rejected a narrow interpretation of the term ‘reproduction’ in its copyright law, holding that temporary reproduction for broadcasting purposes was also controlled by the reproduction right. Performing Right Society, Ltd. v. Hammond’s Bradford Co., cited in Bishop v. Stevens, was even blunter in stating that the sole goal of copyright law is to protect the interests of any author in literary, dramatic, musical, etc. works. However, inThéberge v. Galerie d’Art du Petit Champlain inc., the Supreme Court of Canada turned to the balance of interests between right holders and users as the key value of copyright law: It is only by recognizing the limited nature of creators’ rights that an appropriate balance can be found between the public interest in the creation and dissemination of the work and the private interest in providing appropriate remuneration to creators. The case of Théberge was evaluated by subsequent jurisprudence as a departure from Bishop v. Stevensbecause it was no longer grounded in an author-centric philosophy that valued the copyright owner’s exclusive rights and market control, a decision based on author-centrism would not have valued the public sphere of copyright law as it did, and the public’s benefit from the copyright system would have been ‘only a fortunate by-product of private entitlement’. Finally, the case of CCH completes the shift from author-centrism to user-centrism by interpreting fair use directly as a user right.
The case of CCH is reminiscent of a case with similar facts but opposite adjudication philosophy and results, namely, Keigo Higashino et al. v. Sundream Co. Ltd. in Japan. The defendant in this case cut, scanned and submitted to the client an electronic version of a book provided by the client without the permission of the book’s author. Thus, the controversy in this case likewise centered on the inconsistency between the subject of the act of copying and the subject of the limitation of rights: it was the defendant who copied the work, but it was the defendant’s clients who qualified for the personal use exception. Contrary to the Supreme Court of Canada’s philosophy in the case of CCH, the Intellectual Property High Courts in Japan upheld a strict interpretation of copyright law. Since article 30(1) of the Japanese Copyright Act explicitly limits the subject of the personal use exception to ‘users’, this article guarantees freedom of action in private and domestic spheres, where trivial use does not cause excessive economic damage to the copyright holder; the defendant intervened in the scope of personal use from the outside, increasing the number of copies, causing substantial damage to the copyright owner’s market interests and infringing the plaintiff’s copyright. However, the narrow interpretation was only a means adopted by the Japanese courts to achieve an author-centered decision, and the interpretation in this case essentially divided the interest of the ‘personal use’ clause into two: one is to safeguard the public’s freedom of action in the private sphere, and the other is to ensure that a small number of copies would not cause excessive economic harm to the copyright owner, with the latter clearly being given more weight. The latter is obviously given more weight. In short, in the case of CCH and the self-catering substitution case, the Canadian and Japanese courts have adopted the user rights theory and narrow interpretation respectively to make the decision in favor of the user and the copyright owner.
After examining the history of jurisprudence and comparative law, it is clear that the Supreme Court of Canada did not intend to create an ambiguous right without remedy, but rather to move toward a more user-oriented interpretation, a rhetorical device to shift the paradigm of adjudication to user-centrism. In other words, judges already had ‘meaningful expectations’ to adjudicate on the basis of user-centrism long before they wrote in the decision that ‘fair use is a user right,’ and the so-called user right was merely a means to legitimize those expectations. The Supreme Court of Canada may have thought that the limitations and exceptions of copyright could only play a negative role in the sense of being subordinate to rights, but the expression ‘users rights’ at least provides positive support for user-centrism: ‘for to balance rights is to balance similar entities, while balancing a right against an exception is either nonsensical or starts off with a linguistic bias against the exception.’
Although linguistic rhetoric relies on personal aesthetic experience rather than the clear and well-defined arguments preferred by lawyers, the utility of rhetoric is still undeniable, as the sense of beauty can sometimes trigger the attachment of decisive individuals: ‘These are the arguments, rarely entirely explicit, that appeal to the individual’s sense of the appropriate or the aesthetic … nevertheless, the importance of aesthetic considerations can sometimes be decisive. Though they often attract only a few scientists to a new theory, it is upon those few that its ultimate triumph may depend. If they had not quickly taken it up for highly individual reasons, the new candidate for paradigm might never have been sufficiently developed to attract the allegiance of the scientific community as a whole.’ However, even if the merits of the author-centric and user-centric paradigms are suspended, the expression of user rights in Canadian judicial practice uses the term ‘user’s right’ intentionally to attach itself to the discourse of right, while user rights are interpretively incompatible and cannot transmit the lineage of rights. Thus, the Supreme Court of Canada’s attempt lacks a sufficiently definitive justification, and the court has not succeeded in establishing a close and meaningful relationship between the questions of whether ‘limitations and exceptions constitute user rights’ and ‘whether courts should interpret these rules narrowly or broadly’.
For this reason, proponents of user rights have made a concession from their desire to find a home for ambiguous user rights in the genealogy of rights, arguing instead that there is nothing inherently wrong with treating the infringement defense as a user right: ‘There is however nothing inherently wrong in treating copyright defenses as user rights. They may not be entitlements that may be transferred or that have correlative duties in the way Hohfeld conceived of rights, but they are entitlements nonetheless.’ However, once ‘right’ is relegated to ‘entitlement,’ user rights become de facto rights, rather than legal rights that can be enforced in practice. Thus, such moderated user rights are at best a rejection of the ‘infringement deterrence’ of the nature of fair use, which hold that fair use, although an infringement of copyright, is deterred by the provisions of the law. Accordingly, the moderated user rights no longer hold the ambition to elevate the limitations and exceptions of copyright right to user rights, nor do they contribute to the proof of the paradigm of user-centrism.
C. The Legislative Theory of User Rights Lacks Sufficient Arguments for Legislative Facts
However, the current theory of user rights does not stop at the realm of interpretive and rhetorical tools, but rather engages in an exercise of legislative theory. Of course, this legislative theory does not go to the extreme that ‘the copyright owner must actively provide the work to the users who have user rights’ as assumed above, but humbly believes that user rights should also be subject to the three-step test, under the condition that it does not affect the normal use of the work and does not unreasonably harm the author’s legitimate interests, and creates a subjective right around ‘the right to personal use’ and ‘fair use’ that is actionable. The legislative theory is the most important branch of the contemporary theory of user rights in China, and this path reverses the epistemological direction. In Canadian judicial practice, user rights are merely a rhetorical tool to avoid a narrow interpretation of fair dealing and to justify user-centrism. When user rights are transferred from interpretive theory to legislative theory, they change from a means to an object and an end of justifying. In other words, the legislator no longer tries to make user rights in judicial practice conform to the existing civil rights or the Hohfeld system, because legislative theory is a technique that can directly design the content and the realization of user rights from the standpoint of the legislator. With the development of the legislative theory, the user right can completely close the loophole of its lack of infringement remedy and finally become a subjective right indistinguishable from the author’s right.
However, the burden of proof of legislative theorists shifts to the level of legislative facts. The legislative fact is the starting point of legislative planning, and this concept is introduced to pursue scientific legislative effects, to inquire into the rationality of legislative intent, and to prove the connection between legislative means and legislative ends. In other words, legislative theorists must prove that there are certain ‘general facts of social, economic, and cultural significance that support the purpose of the legislation and the reasonableness of the means to achieve the purpose of the legislation’ in the current copyright practice, and these facts invite the need to legislate on user rights. Legislative facts can be divided into social facts, which are social needs expressed as social problems in certain social conditions, and institutional facts, which focus on the impact of the currently effective legal system on future legislative acts. Legislative theorists of user rights have been unsuccessful in arguing both the social facts and the institutional facts.
Legislative theorists presuppose a series of social facts that justify the need for legislation, for example, the balance of interests between copyright owners and users has tipped, and author-centrism and powerful copyright owners arbitrarily restrict the freedom of the public and overly squeeze the space of the public sphere, resulting in copyright law’s drift away from the legislative purpose of promoting cultural prosperity, etc. These presuppositions are difficult to be proved in the empirical field, and even the trade-off between author-centrism and user-centrism is questionable. Intellectual property brings dynamic efficiency that stimulates innovation, but for this reason it has to sacrifice static efficiency that is reduced by the exclusion of others from using it. If the fundamental value of the IP system is the improvement of efficiency, as advocated by utilitarian or incentive theory, then it is an open question as to which should be given greater weight: dynamic efficiency, which protects authors and encourages creativity, or static efficiency, which facilitates broad public access and use of work.
However, we are still able to derive structural biases within copyright law based on the theory of public choice. Mansur Olsen points out that even if each individual in a large group agrees on a common interest, the group as a whole does not develop a tendency to seek or expand that interest. Since an individual can only capture a tiny fraction of the gains from the actions of the group as a whole, the gains from the sacrifices he or she makes for the group will be shared by members who have not paid anything, and ultimately, individuals will have an incentive to ride along with each other rather than act in the collective interest. Thus, a small group with close ties is more likely to reach collective action than a large group with fragmented interests. In the legislative process of copyright law, the above model can be expressed as a ‘minoritarian bias’. Compared to a wide range of users, a few powerful copyright holders, such as large corporations and author associations, who have pooled together to lobby for legislation, are more capable of influencing the interest structure of copyright law. In addition, in the ‘era of a million authors’ where more and more people are involved in copyright practice, copyright law will broadly affect the public’s freedom, which exacerbates the dilemma of the majority of users in reaching collective action and makes copyright law an area where the minoritarian bias is particularly pronounced.
On this basis, since the potential structure of imbalance between the interests of copyright owners and users can be directly deduced from the rational man hypothesis, the premise of a series of imbalance of interests presupposed by the legislative theorists of user rights is not unreasonable. However, their presuppositions are neither derived from credible empirical facts nor from public choice theory or any other explanations of human behavior, but merely infer the existence of imbalance of interests from the ‘absence of users’ in copyright law. In other words, the legislative theorists do not argue the necessity of legislating user rights based on social facts, but focus only on institutional facts such as ‘users are mentioned too infrequently in copyright law’ and ‘copyright law does not positively delineate the public domain’. According to legislative theorists, the concepts of ‘user’, ‘public’ and ‘public domain’ are seldom mentioned in copyright law compared to those of copyright owners and authors. As a result, users are not given much weight and their interests are not taken seriously, and they become passive recipients of unmanaged work. The approach of focusing on a creator’s right and a distributor’s right as the main focus of legislation ignores the subject position of users, thus causing the deviation of the value objective of copyright law and the imbalance of interests. The terminology in the Copyright Law of the U.S.appears to be more confusing, with authors and copyright owners mentioned many times, but with no general designation of users, who are pervasive in the images of ‘persons,’ ‘the public,’ ‘owner of a copy’, ‘transmission recipient’, ‘subscriber’, ‘consumer’, etc. Finally, the most radical view is that the absence of users has become a feature of copyright law. In the digital age, this absence has had a domino effect that has affected the structure of copyright law, creating its unquestionable rules and most intractable dilemmas, and the resulting imbalance has produced bad doctrine, policy, and law.
The above discussion of institutional facts presupposes some questionable premises, namely, (1) the number of times that a subject is mentioned in a statute law is closely related to the degree to which its interest is valued, and (2) a subject with a general designation is more likely to be protected by law.
The first view is trapped in a ‘metaphysics of presence’. It holds a binary hierarchy in which presence is considered supreme or privileged and absence is considered unprivileged. Legislative theorists of user rights repeatedly emphasize that copyright law lacks positive provisions for user rights, and that the interests of users can only be deduced from the opposite side of copyright, which would bring about an unbalanced structure of copyright law or other more serious consequences. However, legislative theorists’ opinion is untenable because what these arguments deny is precisely the general way in which we acquire meaning: the meaning of a symbol does not derive from its essence, but from its difference from other symbols. That is to say, for ‘presence’ to function as it is called, it must have the nature of the absence, which generally appears to be its opposite. ‘Thus, instead of defining absence in terms of presence, as its negation, we can treat ‘presence’ as the effect of a generalized absence.’ There is no natural hierarchy between authors and users arising from the absence of one and the presence of the other. The two subjects are interdependent in copyright law, and their presence and meaning are precisely given and determined by the absence of the other. Thus, it is not copyright law, but the legislative theorists of user rights that create this artificial hierarchy. Deducing an imbalance in the interests of authors and users simply on the basis of the number of times that users are mentioned in copyright law would instead allow this inequality to take firm hold in the structure of copyright law.
The above conclusion can be easily understood and confirmed in ‘the theory of articles of law’. The theory of articles of law deals with the law with normative significance, and this theory divides the law into complete and incomplete articles, and incomplete articles can be classified into descriptive articles, restrictive articles and indicative reference articles. If the relationship between copyright and its limitations and exceptions is reduced to a restrictive article, then copyright would constitute a prior ‘affirmative provision’ and the limitations and exceptions of copyright would be a ‘negative provision’ (inapplicable). According to the theory of articles of law, the reason why the positive and negative provisions are written into two different articles is, firstly, for the comprehensibility of the text. If all aspects of a right are exhausted in the affirmative provisions, the articles of law will be long and cumbersome, and difficult to read. The second is to allocate the burden of proof between the plaintiff and the defendant according to the ‘principles’ and ‘exceptions’. Incomplete articles can only become complete by combining affirmative and negative provisions. Importantly, the doctrine of the law dissolves the binary hierarchy and bias between rights and their exceptions, merging positive and negative provisions in a single, complete article. Although named ‘affirmative/negative’ or ‘principle/exception’, there is no natural hierarchy between these two types of provisions in lawmaking. Thus, copyright and its limitations and exceptions are no longer opposed to each other, but exist as horizontal and vertical axes in the coordinate system of a complete article, and the interests of users do not become subordinate to copyright, as predicted by the legislative theorists of user rights, because of the times of mentions and the naming of ‘limitations and exceptions’.
The second presupposition about the lack of general designation of the user is even more untenable. Copyright law is concerned with the cultural field of pursuing diversity, and for this reason, legislators in various countries have provided for a wide range of legal acts of copyright exploitation, fair use, statutory license and compulsory license, so that copyright law can cover as many scenarios of use of works as possible. The legislators use various terms to refer to the users not only to keep the formulation of the law smooth, but also to abstract the actual copyright practice scenarios of the copyright law, so as to match the acts with specific types of subjects and achieve the purpose of regulating each scenario. For example, China’s Copyright Law uses ‘the public’ in the provisions of the right of distribution and the right of communication through information network to emphasize the provision of work to an unspecified or specified majority of people, and uses ‘others’ in the provisions of the right of modification and the rental rights to indicate people other than the copyright owner; the Copyright Law of the U.S. uses the term ‘subscriber’ in the compulsory license for satellite retransmission to refer to a payer who receives secondary transmission services from a satellite operator, etc. Obviously, there is no causal relationship between the absence of general designations and the balance of interests in copyright law. On the contrary, if these differentiated designations are replaced by any general designation of users, copyright law will not be able to accurately describe the scenario of the use of works. When the boundaries of copyright become no longer clear, the interests of users will then be unreasonably harmed.
In summary, although legislative theorists of user rights are free from the shackles of the existing civil right theories, they failed to provide sufficient corroboration in both the social facts and institutional facts that constitute the legislative facts, and the necessity of the legislation is questionable.
D. Liability for Copyright Owner’s Wrongful Notice Infringement in the Online Environment Should Not Be Expanded
The legislative theory of user rights was reviewed above at the macro level of legislative facts. At a more micro level, another argument from legislative theorists focuses on the wrongful notice liability of copyright owners in the online environment. A comparative law-based examination opens up a space of entry for legislative theorists of user rights.
A legislative theorist of user rights cites Lenz v. Universal Music Corp. in the U.S. for clarification. In the case of Lenz, the U.S. Court of Appeals for the Ninth Circuit first recapitulated the Eleventh Circuit’s characterization of fair use in Bateman, holding that the normative purpose of the Digital Millennium Copyright Act(DMCA) gives fair use a special status: even if fair use is an affirmative defense, it differs from a traditional affirmative defense because section 107 of the Copyright Law of the U.S. creates a ‘non-infringing use’, which makes fair use authorized by law. Intriguingly, however, judges of the case of Lenz then wrote that the copyright owner has a subjective ‘good faith belief’ obligation regarding the likelihood that an Internet user does not constitute a fair use (i.e., constitutes infringement) before the notice is given (as opposed to the possible outcome of a court’s determination of fair use). In other words, a right holder may be liable for infringement under section 512(f) for misrepresentation if he or she fails to exercise the duty of good faith care with respect to such possibility as set forth in section 512(c)(3)(A)(v) of the Copyright Law of the U.S. Accordingly, legislative theorists of user rights hope to build on the series of interpretations of misrepresentation and fair use in the case of Lenz, use the liability of misrepresentation as an example of liability of infringement of user rights, apply it by analogy, or even expand it to all scenarios of copyright limitations, and ultimately construct remediable user rights as such.
However, copyright owners’ liability of wrongful notice infringement in the online environment cannot be expanded to other types of fair use. Firstly, this expansion stems from a misunderstanding of the range of the case of Lenz, which separates judges’ abstract discussion from the fact and context of the case and exaggerates the scope of the case. The practice of the ‘notice and takedown’ regime in the age of algorithms is significantly different from the practice in the period when the DMCA was first passed in the U.S. more than 20 years ago. In the era when online copyright practice around UGC platforms was still in its infancy, the main means for copyright owners to exclude online infringement was to send out notices manually. However, in the age of algorithms, although right holders are faced with the difficulty of massive infringement on platforms, automatic notices issued in bulk through algorithmic technology have incurred the risk of excessive and abusive wrong notices while enhancing the efficiency of Internet infringement enforcement. It was the consideration of the reliance on automatic notice by right holders in ‘the era of a million authors’ and the balance of interests involved that led the U.S. Court of Appeals for the Ninth Circuit to write in a footnote of the oral argument of the case of Lenz that a right holder who wishes to rely solely on a computer algorithm to form a good faith belief that a work constitutes infringement must have that algorithm capable of making a determination of the four elements of fair use doctrine. Placing the case of Lenz in the context of automated algorithmic notice, it can be understood that the requirement that the plaintiff considers ‘the likelihood that the defendant constitutes fair use’ in determining the liability for wrongful notice infringement is at best a case-by-case balancing of interests. Thus, the case of Lenz is far from being universally binding in terms of explaining the nature of fair use and the burden of proof, let alone creating any forms of user rights.
Secondly, in Dr. Seuss Enterprises L.P. v. ComicMix LLC, the U.S. Court of Appeals for the Ninth Circuit clarified the interpretation of the nature of fair use in the case of Lenz. Confronting the defendant’s challenge, the court repeatedly emphasized that, as a precedent, the case of Lenz did not change the nature of fair use as an affirmative defense. The case of Lenz involved only fair use under the safe harbor for Internet service providers in the DMCA, which is a special area in copyright law. The reason why the case of Lenz required right holders to consider the likelihood of fair use before sending notice is not only because of the misrepresentation liability, but also because the case of Lenz’s approach of treating fair use differently from traditional affirmative defenses is based on the ‘normative purpose of the DMCA’. Because Dr. Seuss Enterprises is a dispute over whether a ‘mash-up book’ constitutes fair use, and the fact and context of the case of Lenz are so different, the case of Lenz, based on the particular scenario of section 512(f) of the Copyright Act of the U.S., is not binding on Dr. Seuss Enterprises. Thus, ‘the burden of proving fair use is always on the putative infringer.’
The background and the fact of the case of Lenz show that it can only be seen as a special case in the online environment when the right holders send automatic notice in the framework of the ‘notice and takedown’ regime in section 512 of DMCA. Dr. Seuss Enterprises shows that the case of Lenz did not bring about any change in the nature of fair use, nor can it be a paradigm of subjective user rights. Legislative theorists of user rights neglect the nature of the ‘notice and takedown’ system as an ex ante dispute resolution mechanism, and try to extend the liability of wrongful notice, which can only be applied in a special context, to any litigation context where the ‘notice and takedown’ regime is not relevant. It should not be forgotten that the prerequisite for the application of liability of wrongful notice is that the copyright owner has sent a notice. In a litigation scenario where there is no antecedent act of a ‘notice’, how can the liability of wrongful notice be analogized or expanded? The idea of imposing a ‘good faith belief’-like obligation on the copyright owner thus becomes contradictory, dangerous and extreme: the copyright owner must prove that it is considered the possibility that the defendant constitutes fair use before initiating any litigation, otherwise it will be liable for infringement of the user rights. This view creates a clear contradiction with the judicial tradition that the putative infringer bears the burden of proof of fair use. Moreover, although section 107 of the Copyright Law of the U.S. expressly provides that fair use is not an infringement, the prerequisite is that the defendant’s conduct constitutes fair use, and it must be judged by the court. Thus, the above view is suspected of using the prior judgment of the copyright owner to hollow out the judicial function of judging fair use, which is not desirable.
E. Malicious Copyright Litigation Does Not Need to Be Regulated by User Rights
It is conceivable that the purpose of user rights may not be intended to invite the unreasonable results described above, but rather to provide a means of relief for users in the event that a copyright owner initiates malicious litigation.
However, malicious copyright litigation does not require the creation of any new right. First of all, the Supreme People’s Court has already listed ‘disputes over liability for damages due to malicious filing of intellectual property lawsuits’ as a third-tier cause of action in 2011, which is located under the fifth part of ‘intellectual property and competition disputes’. Thus, when users’ interests are damaged by malicious litigations of copyright owners, they will not be caught in the dilemma of not being able to file a case due to the lack of independent causes of action. Secondly, although the Civil Code of the People’s Republic of China does not establish malicious litigation in general as a special tort, as advocated by scholars, malicious litigation can certainly be regulated by the general tort liability. This view has been confirmed by judicial practice. For instance, in Shenzhen Tencent Computer System Co., Ltd. v. Tan Fawen and COFCO Corporation v. Shandong Zhongwo Manor Wine Co., Ltd., the Intermediate People’s Court of Shenzhen and the First Intermediate People’s Court of Chongqing both identified malicious litigation as a kind of tort ‘manifested by abuse of rights with the purpose of obtaining illegal benefits’, and both cited article 6(1) of the Tort Law of the People’s Republic of Chinato determine whether malicious litigation was constituted based on the four elements of subjective fault, infringement, damage and causation. Therefore, the practice of governing malicious IP lawsuits through general tort liability is not only in line with the purpose of judicial policy, but has also become the general practice of judicial practice.
The need to create any additional user right in copyright law to regulate malicious litigation thus becomes questionable. Ultimately, malicious IP litigation is not a phenomenon observed only in the field of copyright, but mostly in the field of patent and trademark. In these two fields, the acquisition of rights is formalistic, and the putative rights born from examination errors are easily exploited by malicious litigants. For this reason, patent law and trademark law of China have some confirmatory provisions written in relation to malicious litigation. In this regard, if advocates of user rights want to regulate malicious IP litigation by creating new rights, it is more urgent to create ‘patent user rights’ and ‘trademark user rights’. Obviously, malicious litigation in intellectual property is already covered by the general tort liability, and such views of promoting the proliferation of new rights are not acceptable.
IV. THE PROTECTION OF THE COPYRIGHT USERS’ INTERESTS
The above study of user rights is not in any sense a rejection of the proposition that the interests of users should be valued and protected, so the original intent of proponents of user rights remains undeniable. In this regard, two responses that have been scarcely addressed in existing research are described below, one of which is the judicial orientation of protection of users’ interests, and another focuses on the interaction between the law on the protection of consumer rights and interests and the copyright law.
A. The Judicial Orientation of the Protection of Users’ Interests and the Restriction of Preconceptions
According to Part III, the absence of users in the copyright law does not directly equate with the neglect of users’ interests, and this tendency of inequality is implicit in the bias of the minority in the legislative process. Further, the interests of users may not be better protected simply by introducing a general provision on the limitation of rights in copyright law, or by the open-ended fair use doctrine. Fair use is a legal ‘standard’, and courts will have more discretion to find, weigh, and compare more facts when deciding on the basis of the standard if more elements were written directly into the ‘rule’ of law. Just as determining which is stricter, a rule of ‘50 km/h speed limit on this road’ or a standard of ‘no dangerous driving’, it depends on how the judge ultimately equates the facts of the case with the norm of ‘dangerous driving’. In a busy rainy night, driving at 45 km/h is likely to constitute dangerous driving; in a clear midday with few people around, driving at 55 km/h is likely not to constitute dangerous driving. Therefore, the introduction of open-ended fair use doctrine is not a direct defense of users’ interests, but a more flexible case-by-case consideration by shifting the subject of judging from legislation to justice.
The comparison of rules and standards provides an important insight into the protection of users’ interests, and these discourses open up the space for judicial intervention. Rather than being satisfied with observing and extrapolating the structural biases in the legislative process through public choice theory, ‘the theory of intellectual property law and policy’ introduces a viewpoint of functional apportionment between the legislature and the judiciary, attributing the protection of users’ interests to the judicial function of correcting rent-seeking activities of interest groups. It is true that courts are not immune from exposure, criticism, and censure of various lobbying and rent-seeking issues, but the unique procedures and contexts of the judiciary still undermine the influence of interest groups’ rent-seeking activities: judges are not paid by litigants, and they are ‘less likely to engage in logrolling than large legislative bodies’. As a result, the purpose of protecting users’ interests has shifted from ‘the perspective of the unbalanced structure of copyright legislation’ to ‘the avoidance of injustice and inequality in judicial cases’, and the problem of preconceptions in judicial decisions has emerged.
Judicial decisions sometimes may rely on the flash of intuition, prejudice, sense of law, and premonition, which can easily slip into the pragmatic adjudication position of ‘conclusion first, judgment later’, ‘decision first, trial later’, and ‘cause by effect’ as advocated by consequentialists: the judge first tentatively forms a preconception of the case, and then retrospectively searches for the justification of that preconception. This position is not without merit, for ‘prejudice (Vorurteil) means a judgment that is rendered before all the elements that determine a situation have been finally examined’. In other words, prejudice ‘certainly does not necessarily mean a false judgment, but part of the idea is that it can have either a positive or a negative value’. But while these hermeneutic definitions justify consequentialist decisions, they also draw a line of demarcation between legitimate prejudice, which is the indispensable starting point for understanding the text, and negative ‘preconceptions’ (in Vorurteilen), which is the obstacle that judges strive to remove.
Therefore, in order to protect the interests of users, the negative preconceptions of judges in individual cases must be bound and guided by the legislative purpose of copyright law, the scope of functions of the judiciary, and the relevant laws and judicial interpretations. On the one hand, when intending to make interpretations that create or strengthen the rights of authors, courts should respect the legislative power and political responsibility of the legislature. Especially under the special circumstances that article 10(1)(17) of the Copyright Law of the People’s Republic of China provides for ‘other rights which shall be enjoyed by the copyright owners’, judges should maintain a modest attitude towards this. On the other hand, it is relatively difficult to reflect the interests of users in the legislation, so the judiciary can open a vent for users through individual cases in accordance with the legislative purpose of the copyright law to promote cultural prosperity. For instance, since the Copyright Law of the People’s Republic of China does not provide for general provisions on the limitation of rights, courts should take into account the freedom of users and avoid a narrow and author-centric interpretation of limitations of copyright. Article 8 of the Opinions on Several Issues Concerning the Full Play of Intellectual Property Judicial Functions to Promote the Great Development and Prosperity of Socialist Culture and the Independent and Coordinated Development of the Economy issued by the Supreme People’s Court in 2011 states that ‘under special circumstances where it is necessary to promote technological innovation and commercial development, the use of work may be considered as fair use if it neither conflicts with the normal use of the work nor unreasonably harms the legitimate interests of the author, taking into account the nature and purpose of the use of the work, the nature of the work being used, the quantity and quality of the part being used, and the impact of the use on the potential market or value of the work.’ This provides a direction for restraining the courts’ preconceptions in the determinations of fair use: even if the defendant’s use is ultimately not fair, the court should refer to these four elements, continually revise and exclude prior meaningful planning, and make a ‘faithful’ decision in which the argument precedes the result and all reasons for the decision are disclosed. Thus, some decisions failed to reflect the most important element of fair use, namely, ‘market substitutability’, and are disputable.
B. Interaction of the Law on the Protection of Consumer Rights and Interests and Copyright Law
As market players, consumers are in a recognized vulnerable position compared to managers and operators. In the scenario of using or consuming works, although consumers do not bear the risk of endangering their personal and property safety by consumer goods, their disadvantaged position is still reflected in the following aspects: consumers’ needs can only be satisfied after the transaction is completed and consumer goods are obtained and used, while operators’ interests can be instantly satisfied; there is a serious information asymmetry between consumers and operators; operators may be in a monopoly position, so that consumers have to accept consumer goods of inferior quality and high price. There is no consensus among copyright scholars as to whether the subject of using the work should be called a user or a consumer. Advocates of the ‘user’ argue that this concept emphasizes the identity of the individual as a participant in the production of the information environment, while the ‘consumer’ is merely a passive recipient. Proponents of ‘consumer’ argue that ‘user’ places too much emphasis on the static use of the work and makes it difficult to highlight the vulnerability of individual consumers. It is not the purpose of this article to identify the meaning and rhetorical function of the terms ‘user’ and ‘consumer’, but rather to consider these debates as a medium for introducing the law on the protection of consumer rights and interests into the problem of copyright users.
Although the law on the protection of consumer rights and interests protects vulnerable subjects in the market, the interaction between the law on the protection of consumer rights and interests and the copyright law has not received enough attention in the methodological list of protection of users’ interests. The reason for this phenomenon is that, firstly, there seems to be a natural disagreement between the naming of ‘consumption’ and copyright work as public goods. Unlike the physical carrier of work, the marginal cost of using the work for an additional person is zero and does not reduce the stock of the work. Thus, it is argued that intellectual property ‘cannot be consumed.’ However, the term ‘consumption’ in the context of the law on the protection of consumer rights and interests does not concern the economic properties of consumer goods, but the living nature of consumption. This is evidenced by article 2 of the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests, which stipulates that ‘the rights and interests of consumers in purchasing and using commodities or receiving services for daily consumption shall be under the protection of the law.’ Accordingly, the consumption of works to meet personal spiritual and cultural needs is ‘daily consumption’ in the sense of the law on the protection of consumer rights and interests. The view that intellectual property ‘cannot be consumed’ does not speak of consumer behavior in the same context and does not pose an obstacle to the introduction of the law on the protection of consumer rights and interests.
Secondly, the consumer of work may be a passive recipient. Consumers under this image only appreciate and use existing works in a limited time and space, and these consumption activities, which are only for satisfying personal needs, do not detract from the creative incentives of authors, and copyright law has no intention to regulate the personal use of work, so naturally, there is no need for the intervention of law on the protection of consumer rights and interests. However, the mechanical and passive image of the consumer does not provide an accurate picture of the consumption behavior of copyright work. In contemporary literary criticism theories, the status of readers and reading has become pivotal, and the power to interpret the meaning of a text is no longer the exclusive preserve of the author: ‘The words reader and audience, once relegated to the status of the unproblematic and obvious, have acceded to a starring role.’ Michel de Certeau has characterized such active reading as ‘poaching’, in which they hunt for riches in the hunting ground of the text, gaining self-gratification and competing with the author for the ownership of the text and the interpretation of its meaning. The relationship between ‘reception’ and ‘production’ is also succinctly summarized by Jim Collins in his description of postmodern television culture: ‘Not only reception has become another form of meaning production, but production has increasingly become a form of reception as it rearticulates antecedent and competing forms of representation.’ These studies around readers and audiences have revised the monotone and passive image of consumers and lifted the unilateral suppression of production over reception. Consumer behavior is no longer confined to the downstream zone of cultural product market circulation, but directly influences the upstream production of cultural products, giving them a new meaning. The passive image of the consumer of the work is thus transformed into a spectrum of multiple identities: the consumer as the receiver and the consumer as the author are located at the two poles, while the consumer in the middle is the most neglected, with ‘interests in autonomy, communication and creative self-expression’. As a recipient, the consumer can invoke the ‘personal use’ defense of fair use; as an author, the consumer enjoys the copyright of the interpreted work; and when the consumer behavior falls into the ambiguous middle ground, the law on the protection of consumer rights and interests can be used to protect the vulnerable consumer of the work.
For example, is it possible for players to have the copyright over the graphics of video games? On the one hand, players are not entirely passive recipients: they are interactively engaged in the game, exchange ideas in online communities, and make irreplaceable creative contributions to the overall value of the game. On the other hand, players are not able to create new audiovisual work through game operations in all cases, because the images that can be shown in the game may have already been predetermined by game developers. Therefore, there is a need to protect the interests of such players (consumers) through a ‘two-step approach’. First, the copyright law should make a distinction in the type of game. If the graphic is automatically generated according to the players’ operation and the game elements preset by the game developer are invoked according to the established rules, the players’ operation is not a creative act; if the game has reserved space for players to create, then it is a ‘creative tool-providing’ game. If the player creates other expressive elements outside the scope of audiovisual expression preset by the developer, the relevant creation results meet the composition elements of the work, and the player, as the author of the relevant creation results, enjoys the corresponding copyright. Second, the function of law on the protection of consumer rights and interests is to restrict the unfair format terms unilaterally formulated by game operators. If an operator sets up a click license agreement that unreasonably excludes or restricts the player’s copyright, for example, ‘the copyright of all text, art, music, audio-visual works created by the player in the game shall belong to the operator’, the content of the agreement shall be deemed invalid according to article 26(2) and (3) of the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests.
V. CONCLUSION
The entry of new rights into the law is a guarantee of new social interest claims. However, when the law establishes an unreasonable new right, the legitimacy of the right discourse will be deconstructed. In the path of incorporation of new rights, there is a distinction between radical incorporation and progressive incorporation. The former writes new rights directly into the enacted law, focusing on making the emerging interests get immediate protection; the latter follows the three-step method of ‘case specific relief — normative continuation of judicial interpretation — the universal structure of legal provisions’, which is the main choice for the incorporation of new rights in China. In China, user rights have not been explored and tested in any judicial case, and the liability of wrongful notice in judicial interpretations cannot be any paradigm of the remedy of user rights. Therefore, user rights, which attempt to be directly incorporated into the law, is a radical path for the incorporation of new rights into the law, and the advocates of this theory must bear a stricter burden of legislative justification than the progressive incorporation. After the above analysis and examination, the theory of user rights fails to succeed at both the interpretive and legislative levels compared to its laudable original intent. Rather than creating a new right for users rashly, more attention should be paid to the protection of the users’ interests through the justice of individual cases in judicial decisions and the external resources of law on the protection of consumer rights and interests.