[author]Ji Weidong
[content]
Parody and fair competition in a networked society-- A comparative analysis of the design of the copyright system
Ji Weidong
Senior Professor of Liberal Arts at Shanghai Jiao Tong University，dean of China Institute for Socio-Legal Studies
Abstract: In the discussion about parody and copyright this article pays particular attention to the great impacts of digital networking upon legal order as well as different new —type institutional designs. The author argues that it is necessary to distinguish bet ween the American model and the European model of copyright law and to consider the “fair use” principle in this context. The fact that China’s copyright law in force emphasizes protection of the personal rights of authors truly has its necessity and rationality. However, this feature may also hinder circulation of information and development of cultural industry. Therefore it is possible to say that the clash between a brief video “ Murder by steamed bread” and a famous movie “Promise” actually raised some basic questions concerning law and social transformation as following: How can we avoid the disintegration or devaluation of copyright caused by information technology ?How should we reconstruct the relations among personal interactions, a vast amount of contracts and procedural requisites for free communication and democratic decision ?The key to the questions is just comparative studies in the different ways and means for handling legal rights.
Keywords: author's personality rights, types of parody, digital networking, fair use principle, and mass rights processing
1.Main Focus: The Impact of Digital Networking on Intellectual Property Laws
No one would have thought that China's opening salvo in 2006 would be the hilarious online video drama, “ Murder by steamed bread”.
This short film was made by Hu Ge, an amateur of digital information technology, who spent only 10 days to reorganize and collage various ready-made video materials. The content is basically a parody, a 20-minute popular sketch that deconstructs the philosophical narrative of the 120-minute movie Promise, giving it a completely different meaning, with clever plot ideas, as well as banter, comical camera matches and voice-overs that make people laugh from time to time. At first, it was only circulated as a New Year's Day pastime among personal friends, then uploaded to the Internet by a sharp-tongued electronic server, and after winning a standing ovation, the clicks on the video's launch site began to increase geometrically - like thousands of glittering sprites suddenly rushing towards the piece of "steamed bread". It was like thousands of glittering elves suddenly rushing towards the "steamed buns", each grabbing and chewing on them, and then joining together to throw Hu Ge high into the air, applauding, and then throwing him even higher .......
Is busy marketing to the international film industry, "Promise" director Chen Kaige, in the face of unbridled parody of their own video clips that lasted about three years, cost more than 300 million of his favorite works, in the face of this skit is actually so "easy" to attract away countless eyeballs, inspired by the unexpected scene of unending cheers, deeply confused, dissatisfaction, indignation. So much so that in response to a reporter's question, he could not help but morally condemn Hu Ge, denouncing "people can not be shameless to such an extent", and further declared that he wanted to file a lawsuit to thoroughly investigate the responsibility for copyright infringement. As a result, the legal field is also suddenly lively. Although the spokesperson of the National Copyright Administration was cautious, he made it clear that the dispute should be resolved through civil litigation. Some academic institutions organized a panel discussion. To summarize the various ideas, most experts focused on the interpretation of copyright provisions and technical reasoning, focusing on the degree of protection of intellectual property; some scholars elevated the level of scrutiny to the level of constitutional principles, advocating that the freedom of expression should have a superiority in value ordering.
How to locate parody and its limits is an important topic in copyright research. Chen Kaige's litigation against Hu Ge obviously covers a wider range, which not only reveals the nature of the copyright law and the tax law as being national, but also makes parody a hot topic of concern to the whole country, and no matter what the outcome is, it will leave a strong stroke in the history of the development of China's modern legal system. In my opinion, it is particularly important to note that the “ Murder by steamed bread” actually proposes a new task of how to reposition the copyright law in the context of the digital network. Because new media technologies such as video can automatically transmit information to the world with the help of the Internet, resulting in arbitrary reproduction, adaptation and dissemination, and the hollowing out of the old rules of burden of proof, this situation is not expected by the current copyright laws of various countries. Not only that, but this controversy also brings into the public view the profound changes in communication methods and social organization forms, as well as the need for a series of institutional changes such as the paradigm shift of the rule of law. Recently, a journalist wittily used the phrase "the era of new media 'Promise'" to describe the characteristics of the digital network society and the difficulties of governance.
It can be seen that if the phenomenon of parody is regarded as the main axis of the conflict and legal controversy between "Promise" and the “ Murder by steamed bread”, then the focus of the refraction of the copyright rays parallel to the parody lies in how to understand the impact of the digital networked society on the rule of law and the corresponding institutional innovation. Assuming that such light radiates to the surrounding environment and then extends it in reverse along the public welfare, it will actually intersect with the normative question of how the order in the network structure should be constructed. Therefore, I believe that the main focus of the various discussions and the meaning behind them should be not so much on parody itself as on the design of institutions premised on the spread of the digital network.
2.Freedom of parody and copyright protection
2.1 China has been parody since ancient times
Although Daoists in recent times have repeatedly applied thick powder and heavy makeup to Chinese faces, leaving the impression of being too serious, stereotyped, serious, and lacking in a sense of humor, in fact, we have never lacked the cultural genes of parody. As early as the Warring States Period, Zhuangzi once expressed his opinions and criticisms in the form of a dialogue between Confucian masters and apprentices on political reform, collaging transcendence and cunning, responsibility and liberation, and subverting Confucius's sage and high standard of ideal of rule of virtue, so that his words and deeds more or less tainted with some human flavor, and even jianghu gas, just like a clear-cut world of art coach. If we take this as a starting point, Chinese parody has a long history of at least 2,300 years. If pushed back another four hundred years, we can cite a more typical example: Zhang Heng, a scholar of the Eastern Han Dynasty, while puzzling over the design of a geodesic instrument that could warn of landslides in a timely manner, wrote the "Two Capitals Fugue" as a parody of Ban Gu's brilliant ode to corruption and prosperity, and chanted the ancient line "Water can carry a boat, and it can also capsize a boat! In it, he wrote the famous line "Water can carry a boat, but it can also capsize it". What's more, the old Chinese literature emphasized the techniques of using, combining, imitating the ancient, pointing out, and using allusions against each other, and always continued the tradition of writing poems and filling in lyrics in accordance with the expression of the tune, and singing in rhyme, so it is not surprising that the ink and writing game around a certain work was very prosperous with its own competition and renovation. Although the use of such rhetorical devices may not always be related to satire, but the popularity of the phenomenon is also conducive to the growth and spread of parody. The title of many poems explicitly says "parody", a little more euphemistic, such as Li Shangyin's seven rhymes "Du Gongbu Shuzhong left the seat", on the one hand, implying that the pursuit of Du Fu's poems of that kind of heavy heart, worry about the country and the people's vigilance and sublime realm, on the other hand, but also to make the drunken guests with the kind of "Chengdu, fine wine can be sent to the old when the kiln is still Zhuo Wenjun". When the kiln is still Zhuo Wenjun," the daily life of the harmonic fun and their own envy, stay in love with the formation of contrast and ridicule, it is very much the parody of a three-dimensional.
Generally speaking, there are two basic ways to express irony: one is based on cynicism, and the other is to make fun of it. The Roman poet Decimus J. Juvenalis, who lived at about the same time as Zhang Heng, is recognized as belonging to the former, with a sharp tongue like a knife, and a public slogan "Anger out of verse". Flaccus Q. Horatius, his predecessor, categorized the latter, for example, in his first satirical poem, "The Witch Canetia - The Narrative of Priapus," he openly lets the male root speak and farts in spite of obscenity, and his words are full of the lightheartedness of mass entertainment and revelry. In ancient times, long before Juvenalis was born, Confucius also said "Poetry can be a source of complaint", meaning that it is good to complain and make fun of people. Confucius also said, "Poetry can be complained about", which means that one may complain about, deride and ridicule the current political situation, and of course, anger is allowed as well. Perhaps influenced by the sages, the Poetry Scriptures - Preface to the Poems of Mao Shi, published in the Western Han Dynasty, advocated the spirit of criticism, "the lower uses the wind to assassinate the upper", and formed the tradition of "beautiful assassination" and "excellent admonition" in literature and art. In literature and art, the traditions of "beautiful criticism" and "excellent admonition" were also formed. In most periods of Chinese history, although there was no lack of prohibitions and "literal prisons", and although there were differences in degree between dynasties, basically the cynics dominated the public opinion of the Qing Dynasty. It is true that Sima Qian has long left a "comical biography" in the "Records of the Grand Historian", and the classical theater also has the performance strategy of putting advice into comical jokes, but at that time or later on, there are only a few of them who have really appeared or become famous in a similar way to the comical school of ancient Roman literature.
Of course, there are also some works (even academic articles) that fall between the two schools of thought. For example, many of Koo Hung-ming's words, a literary eccentric in the late Qing and early Republican period, and an old alumnus of Peking University, are considered to be "outrageous" from the standpoint of conservatism, but seem to be "playful" from the standpoint of modernism. What is most remarkable is that through comparative analyses of the discourses of the East and the West, he discovered and argued the ideal picture of feminism behind such phenomena as concubinage, foot-binding and the "Three Obediences and Four Virtues". If it were more playful, it would be called Cynicism. But Koo's nickname is not "Cynic", but "Mad Cynic". His discursive strategy is characterised by a novelty-based, old-fashioned "kung fu" around the interpretation of traditional Chinese phenomena, he is also good at striking two chords between the "new" Europeans and the "old" Chinese. He is extremely good at striking two chords between the "new" Europeans and Americans and the "old" Chinese; no matter whether he is right or not, he always sings his counterpoints to the universal and permanent axioms as well as the current theories for promoting reforms, and as long as he is witty enough, he can give other people a novel feeling through subversive symbolic manipulation, and obtain some false fame and real benefits as a result. Of course, it cannot be denied that he has also made some important contributions to the communication between East and West. However, to be clear, the opposite and confrontational "kung fu" is in fact mostly a kind of playful and comical parody. As G. C. Lichtenberg pointed out, there is a difference between positive and negative imitation; to follow in the same footsteps is imitation, and "to do the opposite is also imitation".
It has to be admitted that since the 1990s, the trend in China's metropolis has been towards satiety and games. As a result, the value of life for the citizens is more or less similar to that of the Five Wise Men of the Roman Empire. To borrow Juvenalist's ironic expression, "for bread and circuses (panem et circenses)". Against this backdrop, as a reaction to the grand narratives of the past, various forms of parody, hilarity, jokes, mockery, distorted criticism, and even its ruffian末流的痞化 also came into being and became widely popular. Although Wang Xingwei's oil painting The Road to the East (1998, parodying the ideological propaganda that fuelled popularity for the rule of man during the Cultural Revolution), Cai Guoqiang's sculpture The Rent House in Venice (1999, parodying the class struggle that altered the economic base), and Jin Haishu's and Lin Zhaohua's epic show The Orphan of Zhao (2003, parodying the tragic political story of a young man's death), these works have become popular in the past, especially after the popularity of Zhou Xingchi's "A Chinese Odyssey", it seems that the spiritual picnic of the comical school, which is based on the sweet and humorous entertainment of the public, but also has a slightly critical and spicy flavour, has become increasingly popular, and its style of expression has gradually penetrated into all aspects of society, and it has a tendency to compete for the dominance of the discourse. The popularity of digital information technology and the Internet has made it possible for creators to communicate with readers or viewers and listeners without insurmountable barriers, and has fuelled the "funny appreciation, scolding and analysing"“搞笑共欣赏、叫骂相与析”. It is in this context that Hu Ge's online video clips have won the overwhelming support of the masses.
2.2 Neglected Copyright Interests and Authorial Personality
Whether it is the long years of the cynics or the short-lived fashions of the comics, the history and scale of parody as an overall phenomenon in China is remarkable. This raises the question of whether there have never been any copyright disputes related to this in the past. To the extent that it is known, it seems that scholars have not yet examined this issue, but the proposition that the cultural emphasis on imitating the masterpieces of previous generations has led to a neglect of copyright protection has been noted. According to Professor William P. Alford of Harvard Law School, Chinese literature and art, especially poetry, painting, calligraphy, and retro-style prose, have always emphasised the imitation of precedents due to the influence of Confucius's concept of "to describe but not to create, to believe in and to love the past"“述而不作、信而好古” - as a natural as well as a shared experience. Chinese literature and art, especially poetry, painting, calligraphy, and prose of the retro school, always emphasised creativity based on imitation of precedents - laws that existed as a matter of nature and shared experience - and both the original authors and public opinion were very tolerant of imitation, with the result that there was no way to develop a sense of copyright. It is true that in the Tang Dynasty there was already a ban on unauthorised copying of the classics, and in the Song Dynasty censorship and punishment of private copying were established, but the aim was political control of heresy, not protection of the intellectual property rights of individual authors. Professor Zheng Chengsi, one of China's most prestigious experts on intellectual property law, disagrees with this politicised interpretation. He argues that China had already established a system of reprographic privileges since the "ban on unauthorised engraving" （“禁擅镌”）in 1068, and that the Song ban on engraving contained economic motives, that is to prevent people other than legitimate editors and publishers from "profit-making reprography"（“嗜利翻板”） and to provide for the "destruction of the plates"（“追板劈毁”）. He also argues, on the basis of historical sources, that copyright protection in the Song dynasty involved authorship and originality, and that non-plagiaristic labour was the basis for licensing economic interests. Here, I will not pass judgement on the rights and wrongs of the argument. Suffice it to emphasise that the key to further examination and consensus lies in whether or not the kind of private claims that link originality to economic interests can actually be reflected in the institutional framework, and to what extent they are recognised and protected by the state.
In fact, although there have long been demands from the public to protect publishing interests, the Chinese government has always been indifferent to recognising and enforcing the rights of creators and the workshops of the canonical books and atlases, focusing only on publishing control laws and regulations related to social order. As a result, individual copyright claims have had to rely on official intentions, such as public order and morality and political stability, in order to obtain some institutionalised protection. The common response of booksellers in this regard, as revealed in the late Qing Dynasty's Ye Derhui's Shulin Qingtian: "but the intention is to monopolise the profits, and to use the official text as a means to achieve their own selfishness". As far as the authors are concerned, the concept of the article of the country and the pursuit of "three immortal" naturally strengthen the moral point of righteousness rather than profit, they are more concerned about spiritual satisfaction, and hope that the government can do justice to protect their reputation and other rights and interests of the personality, in order to prevent "the monopoly of the great, or the publication of the same format, or The monopoly of the rich, or published in the same style, or add or subtract one or two, or slightly change its shape, that is to say, other people's achievements, impersonate their own, eat their profits and erase their name" (from the early Qing Dynasty dramatist Li Yu's confessions). As a corollary, in the depths of Chinese copyright consciousness, the value of personal taste is often more important than the demand for economic benefits, and the attitude of authors and public opinion towards parody tends to demand that the name not be obliterated, that the reputation not be damaged, and that it is preferable to obtain the author's recognition in advance. But in the successive written regulations, there is no safeguard for copyright, nor can we talk about the normative restrictions on parody. Generally speaking, Chinese society is very tolerant of parody, and the rights and interests of authors are basically ignored. Therefore, with the completion of the modern system of intellectual property norms, lawmakers have placed special emphasis on the protection of copyright.
2.3 Paradox of freedom of parody in modern copyright law
From the promulgation of the Qing Copyright Law in 1910 to the current Copyright Law amended in 2001, none of the provisions have touched on parody. This leaves open the question of how to reconcile the two different needs of encouraging creativity and facilitating the flow of information, and how to prevent the overprotection of copyright from overpowering the freedom to apply knowledge, etc. In other words, in China, the freedom of parody is a key element of copyright law. In other words, the phenomenon of parody itself has been commonplace in China for a long time, but what is new is the following question: given the emphasis on copyright protection, should the freedom of parody continue to be recognised? If the answer is yes, to what extent should it be tolerated? Should there be some degree of restriction on the growing phenomenon of parody? How can the competition between original works and imitations be fair and beneficial to the development of culture, art and knowledge economy? And so on. At a time when the social structure is undergoing huge changes in digital networking, these issues are becoming more and more prominent, and the unusually strong chain reaction caused by the "steamed bread blood case" has proved the necessity and urgency of the legislature and the judiciary to take parody seriously. Since there has been no relevant regulations in China in the past, there is also a lack of jurisprudence on the study of deduction, then in the face of the "Wuji" and the "steamed bread blood case" of the reality of the contradiction, had to be the first to foreign laws, jurisprudence, and doctrines as a clue to the understanding of the normative meaning of parody, in the comparison of the different types of systems on the basis of combining the phenomenon of real life and social and cultural conditions to explore the resolution of disputes. On the basis of a comparison of different types of systems, and in the light of real-life phenomena and social culture conditions, appropriate ways of resolving disputes and achieving a balance of legal interests should be explored.
Generally speaking, the concept of parody, as understood in modern copyright law, is a form of satirical expression, the aim of which is to ridicule or criticise, and the means of which is imitation - an imitation that differs from plagiarism in that it must be accompanied by some creative labour. The phenomenon of parody can be summarised into two basic types, namely (1) derivative parody within a series or sub-series of the original work (e.g. Stephen Chow's Journey to the West with Lies versus Wu Cheng'en's Journey to the West), and (2) parodic new works that are completely independent of the original work (e.g. Alice Randall's The Wind Done Gone versus Margaret Mitchell's Gone with the Wind). (Gone with the Wind) by Margaret Mitchell). In practice, parody results from the glamour of the original work, so the original author is often not displeased. In order for parody to achieve its purpose and be recognised, it has to be more skillful, or else it will be dwarfed by the brilliance of the original, and will bring shame to itself. In this sense, parody may even be more rare than the original, and cannot be separated from the added value of novelty and intellectual contribution - however, there is a different criterion for the author's self-parody, which in any case will be regarded as a sign of "exhaustion of talent", and the decline of creativity. The author's self-parody, however, is judged by a different standard, and in any case is regarded as a sign of "exhaustion" and diminished creativity. There have been many instances in history where parodies have been more popular, better known, or have completely overwhelmed the original (and of course there have been many or more instances to the contrary), such as the world-famous literary classic Don Quixote, a parody of the chivalric saga, which spoofed the road of authorship that has been "overturned by those who came before it and those who came after it".
However, it seems that several profound paradoxes can be found here. Firstly, since parody is essentially a replica of another person's work, it will never be free of any interest in another person. Poor parody is often easy to tarnish the reputation of the original work, while the superb parody is likely to intentionally or unintentionally lead to the devaluation of the rights of the original work, to varying degrees, bring economic or spiritual loss. Secondly, in principle, parody should not be premised on the recognition of the rights holder of the original work, or else the sharpness of the satire will be worn out. However, the uncommitted parody and can not be licensed wholesale, otherwise anyone who comes to the brand-name effect of free ride, will inevitably lead to the consequences of the copyright system is falling apart. Between the grey area between can not be very wide, to the infringement provides a convenient, but also to the management system has caused difficulties. Thirdly, without satire, there is no need for parody, while satire is inevitably mixed with denunciation, hidden malice, and obscenity, which is related to the reputation of the original author as well as the stakeholders and even the social atmosphere. However, narrowing the scope of satire is tantamount to weakening the strength of discussion and reflection, which will inevitably inadvertently lead to a bad cycle of using one kind of tolerance (protection of private rights) to offset another kind of tolerance (treating public criticism well).
It follows that, when considered from a legal perspective, the central question surrounding the phenomenon of parody is: what are the limits to the freedom to use the original work without the commitment of the holder of the rights to the original work? Insufficient copyright protection reduces the incentives for the original author, thereby depressing the incentive to create and hindering cultural development. On the other hand, if copyright protection is too great, the rate and scale of information flow will be affected, and the variety of activities that involve the use of original works and the creation of new ones will decline. Digitalisation and networking have made the above situation even more complex, but the basic conflict is still the competition between parody and original works. In other words, the tension between freedom of expression and copyright protection, i.e., the tension between constitutional principles and private law principles, is actually most fully and distinctly reflected in the parody phenomenon. Lawyers, as well as researchers in the relevant fields, must repeatedly explore these two different social needs and value orientations to find an appropriate equilibrium point, and use it as a benchmark for normative decisions. This is precisely the reason why the principle of fair use has been constantly mentioned in recent discussions on the "steamed bread and blood" case.
3. Jurisprudence of so-called fair use of works
3.1 The Fair Use Doctrine as an American Feature
First of all, it should be recognised that "fair use" is a fundamental feature of US copyright law and cannot be unconditionally and directly imported into the practice of other countries. It is well known that the United States attaches great importance to the realisation of economic value in the process of booming. This is reflected in the protection of copyright, that is, the purpose of the legislation emphasises that the interests of the concession should serve the social purpose, and that copyright is distinguished from the concept of personality, individuality and natural rights of the author, and is regarded as a means to develop the cause of social culture and art. In this sense, there is a fundamental difference between the concept of copyright in the United States and the Anna Act of 1709 in England, which is the mother law, in that the author's personality rights are not emphasised, and the gain or loss of personal interests is basically regulated by the market competition mechanism, which is a kind of "society-oriented" rights [according to Koizumi Naoki]. ". Because of this feature, the United States recognises that copyright may be limited on certain public interest grounds, i.e., policy considerations, and the criterion for limitation is the fair use jurisprudence set forth in Section 107 of the Copyright Act (17 U.S.C. §107, Limitations on Exclusive Rights: Fair Use). Some scholars have even gone so far as to define fair use as a remedy for market failure, implying that copyright's inherent public good properties require state intervention. All disputes involving parody are also weighed and dealt with primarily on the basis of this general fair use provision, in addition to separate individual rights restrictions.
Since the United States defines copyright in terms of "ends-means" utilitarianism, relativises the legitimate interests of authors, and recognises the personality rights of authors only on rare occasions, it is conceivable that, when it comes to disputes over parody, only the narrow concept of copyright as a property right is generally considered. The opposing party, in order to limit the coverage of intellectual property rights, in accordance with the logic of legal reasoning, is bound to emphasise the principle of freedom of expression, taking the constitutional norms, which are of a more superior nature, as the normative basis of resistance. In such a realistic situation, since it is not possible to make claims from the broad concept of copyright, including personality rights, and the existing legal provisions are therefore mostly defective, in order to safeguard their own rights and interests, the authors can only resort to the jurisprudence of fair use - I believe that this is the unique significance of the general provisions on fair use in the United States. As a result, a private law suit is naturally placed in the spotlight of public deliberation, and the issue of parody becomes the perfect subject for American discussions of copyright and freedom of expression, as well as policy considerations of interest. The effectiveness of the fair use doctrine in the deliberation and negotiation of such disputes depends on the conditions of American law and society, including the "litigious" culture, the dominant power structure of the judiciary, and the institutional arrangements for institutional innovation through argumentation and bargaining. The same is true for the principle of fair liability under Article 132 of the General Principles of the Civil Law of China and the adjustment of the apportionment of losses, which has been unimpeded, mainly due to the contextual thinking of the Eastern style of justice and the spiritual structure of the settlement of disputes, which requires mutual concessions and win-win situations. However, although it is self-evident, it is still necessary to mention in passing that when discussing the issue of parody and the weighing of interests, the two fundamentally different ways of thinking of the principle of fair use and the principle of fair liability should not be entangled and confused.
3.2 Standards of Judgement, Judicial Policy, and Competition Rules
Section 107 of the 1976 U.S. Copyright Act, which summarises and expressly sets out the results of previous case law developments, suggests various indicators of fair use that are not considered to be infringing, in particular the following four elements that must be considered with discretion in trial practice: (1) the purpose and attributes of the use of the work, including whether it is a commercial use or a use for non-profit educational purposes, (2) the the nature of the copyright object (the work), (3) the quantitative and qualitative weight of the used portion of the copyright object as a whole, and (4) how the market potential or price of the copyright object is affected after the use. Obviously, it is the work, not the author, that is valued here, and it is the economic loss (measured in terms of field of distribution, quality, size, price, potential share, etc.), not the moral damage, that is to be weighed. The treatment of rights related to this can basically be contractual and can be put into the market adjustment mechanism. However, if the original author refuses to parody, even if prior commitment and willingness to pay for the parody is not allowed, the bargaining between the parties can not solve the problem, it can be said that the market fails, which requires a third party's judgement, need to be based on the principle of fair use of the judgement. Judges and scholars have made a number of suggestions regarding the fairness of use standard. For example, from a utilitarian point of view, it would be more beneficial to society to allow the parodist to use the original work; there would be no substantial harm to the positive aspects of creative cultural activity; and there would be no direct competition between the original work and the parody in terms of sales and revenues, and so on.
According to the above scale of judgement, the parody of " Murder by steamed bread" can be fully recognised. Because this video clip is for the purpose of personal enjoyment, not commercial, and can non talk about the market competition with "Promise" ; it has already formed a alone impression, and does non belong to the derivative work of "Promise", which satisfies the elements of creativity and labour payment ; it besides has the aim of quoting other people 's work to illustrate a certain issue, and the social effect of criticism, which is in line with the public good. Regarding the critical function of parody, it is useful to distinguish between two different types . One is that the original work becomes a tool for criticism through parody, such as the hilarious use of CCTV's Legal Channel news programme footage in " Murder by steamed bread". In a nutshell, if the parody mainly treats the original work as a tool for satirising a certain aspect of social culture, it can be approved almost unconditionally. Another kind of parody is when the original work is directly used for the purpose of parody, as in the case of "Murder by steamed bread", which mocks the switching magical realm of love and hatred depicted in " Promise", as well as the flaws in the technique of expression. In this case, the parody of the original work can more or less change the audience's impression of the original work, affecting the reputation of the author, and needs to be treated more carefully; nevertheless, it should be allowed as a way of literary criticism. Moreover, when a film is already well known, quoting the footage in question to convey an ironic meaning presupposes that the audience has already established a certain impression, otherwise it would not be able to produce the kind of mocking effect that the parodist seeks, which is comical in contrast, and therefore, the use of the original work here belongs to the category of the use of factual use, and infringement cannot be pursued in the name of plagiarism or tampering. The use of the original work here falls into the category of factual use and cannot be held liable for plagiarism or falsification.
In the judicial practice of the United States, the tendency to condone parody is obvious. For example, in 2001, the Court of Appeals made a final judgement in a lawsuit filed on the grounds that the aforementioned "The Wind Rises" was a parody of the masterpiece "Gone with the Wind". The Court of Appeals reversed the trial court's decision to suspend the release of the film, and acknowledged that "The Wind Rises", which was a critique of slavery on behalf of black people, had made fair use of the content material of "Gone with the Wind". The most important of the relevant precedents is Campbell v. Music Recording Company, in which the court considered whether a "rap number" parodying the repetitive syllables and lyrics of the popular film theme song "Ah, Pretty Woman" constituted copyright infringement. The trial concluded that the parody was fair use because it was satirical social criticism from a black standpoint, even though the parodist had an obvious commercial purpose, and even though the parody appropriated the core of the original work's content. What is more, works that parody the original work in its entirety are also judged to be fair use because the intent of copying the entire text is to make a rebuttal. The benefits of relaxing the scale of copyright protection are that it can encourage creativity and promote the use of a large number of works, thus flourishing the cultural industries of different disciplines. However, on the other hand, if a work that has attracted widespread public attention is quoted without authorisation as a parody when it is about to be published, this situation is not recognised by the case law and, on the contrary, is classified as a form of unfair use. Here, the judgement of parodic use clearly involves the question of the fairness of commercial competition.
Since the principle of fair use under US copyright law is institutionalised according to a design scheme based on market regulation supplemented by state intervention, it is not surprising that the relationship between originals and parodies is understood from the perspective of commercial activity, and that the freedom of expression is frequently dealt with in connection with unfair competition law. In the discussion around parody in the United States, Section 1125 of the Trademark Act (15 U.S.C. §1125, False designations of origin, false description and dilution forbidden) provides "dilution" relief and limits on unfair competition. The question of how the remedies for "dilution" and the limitations on unfair competition apply to fair use of copyrights is also at the centre of attention. With regard to the parody of films by video clips, which is closely related to the " Murder by steamed bread" case, in the United States, there are the so-called "Silicon Valley School" (which promotes parody on digital networks) and the "Hollywood School" (which defends the vested interests of film studios). (defending the vested interests of the film studios), each trying to influence decisions and modifications of competition and industrial policies, always disturbing the House. In terms of the standards of judgement established by judicial practice, if the parody in the trade descriptions is only for the purpose of satire itself and does not involve an intent to sell, it is fair use; if the parody is of the object of trade mark protection and other alternatives are available to achieve the purpose of satire, then it is not fair use, and the property rights under trade mark law should be allowed to take precedence over the need for expression. In China, we only need to go to the living district of the photocopying shop round, or to those never-ending pirate CD vendors to ask a few words can be understood, into the information age, even from the commercial point of view, how to protect copyright has become almost everyone's share of the public issues involving the interests of all the people, and even can be said to be its universality and importance of the law is no less than the tax law. Here, authors want strict protection of copyrights and the corresponding exclusive revenues, parodists want to be more tolerant of free, unlicensed use, and consumers always want unlimited, cheap copying. These conflicting interests are in many cases part of a zero-sum game, and it is difficult to reach an understanding or compromise. It is precisely because the stakes are so high that there is an urgent need to establish legal rules that ensure a free and fair competitive order and to resolve disputes through a neutral process.
3.3 The European Approach to Individual Authors' Rights
In any event, the fair use doctrine in US copyright law is concerned with the social good and the regulation of material interests between private parties, and is somewhat indifferent to the personal rights and moral claims of the original author. The design of the European system is quite different. There is a stark contrast between "rights in rem" and "rights in personam".
For example, in the current British law, legal parody is limited, firstly, to the creative use of the "idea" or "thought" of the original work, i.e. the object of the use is not the form of expression but the idea, and the way of use must add new skills and efforts. Secondly, it is not possible to use the original work for parody after it has been altered, that is to say, the homogeneity of the original work must be maintained (involving the integrity of the author's personality). In addition, the parody can not copy the substantial part of the content of the original work. Obviously, such a rule is harsh. We all know that direct imitation of ideas and thoughts does not constitute an infringement of copyright; this is legal common sense and applies to any creative activity other than parody. The restrictions of the British copyright law actually almost negate the special tolerance for parody. Civil law countries have gone further in protecting copyright. France, in particular, out of the practical need to break the monopoly of the guilds during the Revolution, attached great importance to the protection of the author's personality rights as well as individuality in the process of formulating the copyright law, and rejected the utilitarianism and the policy thinking of adjusting the relationship between property, one of the results of which was the adoption of a particularly harsh attitude towards parody.
Thus, when discussing the fair use principle, we must be clear that the copyright system design of the United States and Europe is fundamentally different; even after the establishment of the WTO system, the differences between the two models have not been eliminated. However, around the "Murder by steamed bread" parody "Promise" is a fair use of the legal debate, it seems that most of the above differences and its background, the purpose of the neglect.
4. Institutional design on the axis of authors' personality
4.1 Fair Use and Author's Personality in China
Many scholars have pointed out that the 12 grounds for restricting the use of copyright provided for in Article 22 of China's current Copyright Law are the criteria for judging fair use. This opinion can certainly be accepted. However, it should be further clarified that the fair use in this case is very different from Section 107 of the U.S. Copyright Act, although it also has some similarities in principle. For the purpose of resolving immediate disputes and improving future legislation, it is more important to emphasise the differences.
Formally, Article 22 of China's Copyright Law adopts a list of constituent elements, stipulating in specific terms the various circumstances that should be excluded from the possibility of prosecution for infringement, basically leaving no room for individual discretion and legal discussion based on the general provisions. Therefore, to be more precise, Article 22 provides neither the jurisprudence of fair use nor the scope of fair use, but rather: the right to use legally without the permission of the copyright owner and without payment, or the items of exceptions to copyright claims. In terms of substance, China's copyright law adopts the civil law principle of automatic protection of rights (Article 2(1)), and in principle understands copyright in terms of "author's rights" rather than "rights in works" (Articles 9, 11(1), 28). 28). Thus, special emphasis is placed on the protection of the author's personality rights, and infringement liability is imposed for use, adaptation and Internet dissemination without the permission of the copyright holder, and it can be said that the legal provisions alone are almost like sealing the space for the survival of parody (e.g., Articles 10 (4), 20, 28, 46 (4), (6), 47 (1)).
Article 10 of the current Copyright Law covers the two main components of property and personality. Let us first look at the rights related to property, of which there are 12, namely, the right of reproduction, the right of distribution, the right of rental, the right of exhibition, the right of performance, the right of projection, the right of broadcasting, the right of dissemination through the information network, the right of photography, the right of adaptation, the right of translation, the right of compilation and so on. There is no explicit provision on the rights of the original author of a derivative work, but this can be deduced from the meaning of "other rights" in Article 10(17). Therefore, it seems that there is an avenue for the introduction of "parody rights". Looking at the rights related to personality, there are four kinds of rights: the right of publication, the right of attribution, the right of modification, and the right to protect the integrity of the work. It is particularly noteworthy that, in addition to the right to maintain identity, which exists in other countries of the civil law system, China has also established the author's right of modification, which further strengthens the direct control over changes such as adaptations and parodies. Article 28 requires that the exercise of the right of use by others must fulfil the duties of not infringing the author's personality rights and paying remuneration. In addition, the exception to the duration of copyright protection in Article 20 explicitly declares that "the period of protection of the author's right of attribution, the right of modification, and the right to protection of the integrity of the work shall be unlimited", which can only be interpreted in the context as granting permanent protection for an unlimited period of time. This means that China adheres to the relevant provisions of the Berne Convention and the "author's right" model of European countries, and gives the part of copyright related to personality a much more favourable status [In this respect, the Japanese copyright law is the same as China's, and even goes further than the content of the Berne Convention, by including the scope of the right to protection of personality in the Article 20 on the maintenance of identity. In Article 20 on Maintenance of Identity, the scope of protection of personality rights is extended from reputation and honour to mood (which cannot be changed against the author's will). See Sakana, "Detailed Explanation of the Copyright Law" (op. cit.) 213-216. Thus, Japanese legislation and jurisprudence tend to strictly limit parody]. . Compared to China's historical neglect of authors' copyright, the progress of the current law is certainly remarkable. The design of the system that fully respects the spiritual world of authors also has many strengths. However, it should also be noted that personality rights are not suitable for a contractual approach, and over-emphasis may in turn impede the free flow of information.
4.2 Exploration of the inherent contradictions of copyright law
Specifically to "Murder by steamed bread", according to the current copyright law, article 46 (4) and (6), Hu Ge on the " Promise" adaptation without the permission of the film copyright holder, there are distortions, tampering with the plot, there is indeed a suspicion of infringement. However, according to Article 22 (1) and (2) of the Act, since the funny drama is for personal enjoyment and also has the purpose of quoting to illustrate a certain issue, the allegation of infringement is actually quite difficult to establish. If we further investigate the right to disseminate information network as stipulated in Article 10(12) of the Act, and the right of personality of the work as stipulated in (3) and (4), we can find that "Murder by steamed bread" led to "Promise" can not maintain the same footage, therefore, there is still the problem of copyright infringement. However, if we further investigate the copyright of compilation works involved in article 14 of the copyright law, considering the "Murder by steamed bread" has formed a separate impression, does not belong to the "Promise" derivative works, but has the characteristics of an independent parody works, and therefore ruled that the infringement of copyright is still insufficient arguments. Nevertheless, although the network funny drama "Murder by steamed bread" and the film "Promise" did not produce direct competition of interest, but still may be to a certain extent to the original work to bring this or that kind of loss (especially the loss of personality rights), how to judge is indeed very delicate.
If we read the relevant arguments, we will find that the above inherent contradictions in copyright law have not only not been dissolved, but have even become more acute. Why is this the case? Apart from the fact that the distinction between the American model and the European model is still insufficient, the cultural and psychological structure should also be one of the reasons. As mentioned earlier, traditional societies have been less concerned with the protection of authors' property rights, or, to put it nicely, with the social benefits of knowledge, treating cultural writings entirely as public goods. This makes it easier for us to accept the adjustment and even regulation of the relevant interests by the state organs, rather than tend to understand copyright as a pure "private right", and therefore we also feel that the fair use principle of the United States seems to be "in tune with each other", and it is easier for us to resonate with each other. It is therefore easier to resonate with them. However, on the other hand, being influenced by Confucianism's idea of moral writings to help the people, at least in public discourse, Chinese authors have always cared more about human dignity and spiritual fulfilment, and have taken a relatively lighter view of material interests, which makes the design of the European copyright system, in a sense, more likely to be supported by legislators and more likely to be legitimised. As a result, China's legislative and judicial policies seem to fall somewhere between the two models, with a compromise. In addition, the impact of digital networking on the existing social structure and order has not yet been fully reflected in the content of copyright law, resulting in a disconnect between norms and facts. Copyright law is acknowledged to be the institutional foundation of the information age, but there is a failure to recognise, or an unwillingness to acknowledge, the reality that copyright law itself tends to lag behind the development of the times.
4.3 Digital Networking and the Restructuring of Human Relationships
The ripples caused by the "Murder by steamed bread" case strongly suggest that China's social structure as well as the tone of its economy and culture are indeed undergoing some profound qualitative changes, and that understandings of personhood and community relations are very different from those of the past. First of all, it is important to note that this event shows that the media and entertainment industries are in the process of being deconstructed, and that organisations, norms, and relations of rights and duties are being separated and reorganised. There is no doubt that the spread of video reproduction and editing technologies has broken the monopoly of existing institutional authorities such as producers, directors, script writers, male and female stars. As a result, the boundary between professional and amateur activities in the field of video and sound gradually faded or even disappeared, and face-to-face exchanges between producers and consumers were possible without the need for other intermediaries. As a result, the institutional conditions of the market will be changed - the qualification requirements for participation and the various devices for business management will become dispensable to a certain extent, and the bargaining price in free competition will become the yardstick for judging the superiority or inferiority. That is to say, when the cultural industry cannot monopolise the operation technology, it cannot continue to monopolise the sales of products, and therefore no longer enjoys the right to regulate the supply and demand relationship as well as the dominance of the price system. Not long ago, the hot scene of "Supergirl" interacting with the public voting has already foretold that after such a deconstruction, a new kind of public space and a new kind of screening mechanism will be possible to take shape and develop in the process of thorough marketisation. From the perspective of comparative sociology of law, this heralds the replacement of the type of behaviour and the rules of the game, and the freedom and fairness of competition will become the axis of institutional design.
The direct link between producer and consumer inevitably leads to a change in the mode of communication. For example, in the film era, that is, up to the end of the 1970s, it was the director who had the monopoly on discourse and interpretation of meaning, and all scripts and plots were unidirectional flows through a single channel, with the viewer essentially in a position of passive acceptance. However, entering the era of online video, i.e., after the mid-1990s, the interrelationship and interaction between producers and consumers have become increasingly prominent. Especially today, when funny dramas have become hugely popular, the adaptor can take material from the multimedia space and create it twice according to his or her own subjective will, and can independently voice and interpret the message and the content of the claim differently. In this context of two-way communication, the subjects of media activities have diversified, and the meaning and evaluation criteria of a phenomenon have also diversified, and there may even be a discrepancy between the producer's intention and the consumer's understanding - "Promise" and "Steamed Buns" are very typical examples. The "Wuji" and "Steamed Bun" are typical examples. Over-emphasis on the protection of the producer's reputation, honour and even mood may lead to resistance from viewers, listeners and readers.
The popularity of online funny dramas is the inevitable result of the two-way communication mechanism between media, entertainment and other social communication mechanisms. In a sense, it can also be said that Hu Ge actually represents the general image of this generation of new human class, embodying a kind of flexible liberalism focused on the pursuit of beauty and pleasure. The new human beings are different from the pragmatic rigid liberals who fight for their rights as advocated by the famous civil law expert Liang Huixing . Nor are they like the rock avant-garde Cui Jian, who sends out soul-stirring wild cries from the bottom of his heart and tries to change the external environment. They are slender, quiet, introverted and even a bit cynical; sometimes they resemble a closed-door snail, but at other times they are like a spider warrior, able to weave a big web with fibre optics and broadband and move around freely. They use IT to play with multimedia, bringing to bear their talents, creativity, sense of humour, desire for self-expression and skill. To use a sociological term, they exist as homo ludens, pursuing a momentary opportunity for self-expression and value realisation - a bit like the symbolic hybrid tree in "Promise", where the only thing that strikes the eye is the apricot tree, and the only thing that moves the eye is the apricot tree. The only thing that strikes the eye is the colourful fall of apricot blossoms or cherry blossoms in full bloom.
For the "gamer" in the digital network era, the basis of self-identity is the variable and fragmented ID, the most intimate relationship with the other is cyber love, and the collective to which he belongs is the online chat room with no boundaries, entities, or maps. He does not want others to look at him, and is even suspicious of being exposed to the light of day, preferring instead to be transformed into the various sounds and colours of the internet's hilarious dramas, or one of their protagonists. As a result, the community relationships that are gradually formed in the digital environment will be mainly in the form of easy and light forms like Christmas text messages on mobile phones or BBS messages. In such a context, the conceptual content of personality rights has actually undergone a very subtle change. Such changes will not fail to affect the design of the copyright system that attaches importance to the element of personality.
5. Rights handling in digital networks
5.1 Information flows and rights handling
In the boundless digital network, large amounts of information accumulate and flow rapidly, sometimes "exploding". Information technology and multimedia have made it possible for people to freely transmit and process a wide range of information, and to communicate with each other extremely easily. However, due to the repeated rise and fall of personalities in the chaos of the network, and the sudden change of the basis of identity, it seems that the more advanced the communication technology is, the more frequent the occurrence of "discommunication" in the current stage of society. It is precisely this state of affairs that has led to the increasing complexity and difficulty of negotiating and dealing with rights around works of authorship, making it difficult for authors and users to continue to negotiate and decide whether or not to grant authorisation in the same way as they did in the past. In other words, the sheer volume and speed of information flowing through digital networks is dismantling the material composition of the value of works, fragmenting copyright into many causes of action and allowing them to float and proliferate in the information network. the CCTV public v Dopod "TV mobile phone" case that took place at the beginning of 2005 is a representative example of this. The case of CCTV Public v. Dopod's "TV mobile phone" in early 2005 is a typical example. In early 2006, the " Murder by steamed bread" case showed that: the parody, but also for such a legal deconstruction of the role of the push and pull. It is clear that the existing mechanisms for securing copyright owners' licences, royalties or royalties are now overstretched on many occasions, and new remedies have yet to be created.
In the final analysis, the essence of copyright law lies in the recognition of the monopoly interests of authors (or copyright holders); and the judgement of the value of a work and the adjustment of the size of the profit are generally put into the market competition mechanism. In order to maintain such a basic institutional arrangement, a clear distinction must be made between the circumstances under which imitation is permitted and not permitted, so as to reduce the free-riding phenomenon. This means that anyone wishing to use a work must negotiate with the author or copyright holder to conclude a contract on various matters relating to the treatment of rights. In a digitally networked society, where technological advances have made it possible for anyone to have easy access to information, and where the volume of information circulating has increased geometrically, it is very difficult to negotiate one by one. This results in having to deal with a large number of rights processing developments, and the related transaction costs expand exponentially, making infringement almost impossible to prevent. In this context, the digital network of parody restrictions are strict, or wide problem is particularly prominent - too strict, will cause the blockage of information flow; too wide, it is likely to make the value of copyright depreciation, the relevant provisions of the law is only a piece of paper, the formation of a broad illegal zone. If the judicial policy of finding out after the fact and imposing severe penalties is adopted, there will be too many judgements ordering the defendant to pay huge amounts of compensation, which will inevitably weaken the incentives to make developmental investments in the use of information content in virtual space in the long run.
5.2 Reflective Experiments and Institutional Design Diversity
In view of this dilemma, a number of institutional design options have been considered. For example, by setting up a centralised copyright management organisation, authors deliver their rights in a fiduciary assignment, and no longer negotiate individually in person. In such a case, individuals or enterprises that need to use the works will only contract with the management organisation, and the management organisation will be held legally responsible for any infringement of rights. As a large number of rights are concentrated in a specific institution, it can produce economies of scale in rights protection, and therefore, the management institution is more able to adequately monitor and prosecute infringement than the individual authors.
In addition, the American scholar Lawrence Lessig put forward the national legal restrictions and private use of code technology (standard code, electronic authentication, etc.) to build a protective fence "two hands" idea. However, as licensed CDs and the like can be freely resold on the thrift market, and digital technology has made the quality of copies no less impressive than that of the original, this provides many opportunities for "drilling holes in the law" - individuals trying to take advantage of this may wish to buy the original first, copy it and then resell it. This provides many opportunities to "exploit" the law - individuals seeking to take advantage of the law may wish to buy the original copy first and resell it later. In order to close such loopholes, countries with high levels of copyright protection have responded by establishing a system of compensation, whereby compensation is levied on machines with a copying function and distributed among rights holders. Existing copyright laws and doctrines do not yet recognise that works that reorganise the vast amount of material that exists in the digital space should also be afforded institutional protection, but it has been argued that those of them that are highly invested and creative can be considered for legal status separate from copyright and provided with certain protective measures. For example, Chapter III (in particular Article 7) of the EU Databases Directive (Council Dierctive of 11 March 1996 on the Legal Protection of Databases) proposes to protect the legitimate interests in such works as "sui generis right". The legal interest in these works is proposed to be protected as a "sui generis right". Particularly noteworthy are the institutional innovations that have been introduced in response to the need to protect copyright in the context of digital networking, such as the introduction of an explicit right of authorisation for online dissemination in the law.
In addition to this, there are theoretical scenarios for solving the problem of dealing with rights in digital networks by means of outright marketisation. One of them is the "Copymart" advocated by Professor Zentaro Kitagawa, Deputy Director of the International Institute for Advanced Studies in Japan. In a nutshell, the basic feature of this scheme is that it reverses the design concepts of fiduciary transfer management of copyrights, uniform fees and compensation mentioned earlier, and thus changes the starting point of institutionalisation from prevention of infringement to free trade of copyrights. This is done in the following way: copyright holders register the rights data of the whole work and its components in the "copying bazaar" and list the conditions for licensing, and users go to the "copying bazaar" - which includes both the copyright market and the market for works - to obtain a licence. -Users go to the Reproduction Bazaar - which has two different levels, the copyright market and the market for works - to make purchases, from which they obtain the rights to use and make copies, and wire transfer royalties to a designated account. In effect, the Reproduction Bazaar itself is a network of digital information technologies that allow users not only to retrieve the necessary information and estimate the costs involved, but also to negotiate directly with rights holders on issues such as price. The legal basis of the "copymarket" is three systematic clusters of contracts (the overall structuring of a large number of dispersed contracts): (1) a contract for the registration of copyright data, (2) a contract for the use of the copymarket, and (3) a contract for the provision of reproductions of works of authorship. The above scenario leaves open the challenge of how to protect the personality rights of authors. Since personality rights are not the purpose of the "copying bazaar" contract, disputes would have to be resolved through ex post facto judicial remedies and interactions.
5.3 Conclusion: a rational choice based on reflection
In conclusion, if we expand our view to the qualitative change of social structure and the legal basis of the digital network era, we will see that the importance of "Promise" to "Steamed Bun" does not lie in the battle of wills and the victory or defeat of the lawsuit between a director with an international reputation and an Internet celebrity, or the debate on the interpretation of copyright law, or even the challenge and deconstruction of elite culture by popular culture. It is not even limited to the challenge and deconstruction of elite culture by popular culture. This dispute, which has attracted countless eyeballs from all over the country, actually raises some fundamental questions related to institutional transformation: what kind of legislation and judicial policy should be adopted in copyright protection after the popularisation of information technology? In what way will the relationship between individuals, enterprises, markets and the state and the corresponding institutional conditions be reorganised in relation to the development of a knowledge-based economy? Can the normative framework built on the two polar axes of the systemic contractual approach, characterised by the overall structuring of plural or large groups of contracting parties (with formal similarities to Internet conventions without losing the essence of private contracts), and the new proceduralism, which emphasises egalitarian dialogue, reflexive rationality, and the link between function and meaning in the process of legal decision-making, adequately accommodate planar interactions, networked communication, and the avoidance of deconstruction and devaluation of the system of rights? Can the normative framework constructed on these two axes adequately accommodate flat interaction, network communication and avoid the deconstruction and devaluation of the rights system? On a more macro level, what will characterise human interaction and order in the twenty-first century, and how should the rule of law paradigm be innovated?
In order to answer these questions, of course, it is not possible to do Taoist work only in the "snail shell" of the current legal provisions, but it is also not possible to unilaterally emphasise the changed or changing patterns of reality, and irresponsibly go along with the tide in the sea of information and parody. Therefore, this paper focuses its analysis on the relationship between texts and facts, emphasising the different combinations of reflexification and copyright reconstruction as mediators between the two, i.e. the diversity, comparability and rational selectivity of institutional design.