Page 304 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Appendix 8 Interview Record (Participant G)
An Intermediary-oriented Approach

From the perspective of “ordinary observer” or “specialized expertise”? Would the court
or the private party invite expert advisors?
Participant G: Generally, we determine the similarity by ourselves. We may consult technical
investigators in patent cases or copyright cases over software. Sometimes private parties
will invite expert witness. However, these experts are often bribed by private parties
and their opinions are neither credible nor professional. What they do is to confuse the
judges.
Huang: If the defendant’s content has substantial similarities as well as substantial
differences with the claimant’s work, would the defendant constitute infringement?
Participant G: Yes, this is a typical example of plagiarism provided in our copyright law. But
personally, I think “plagiarism” is more of an ethical concept rather than a legal term.

c. Fair use/dealing
Huang: Chinese copyright law adopts a closed-ended fair-use conception. Would the courts
intentionally expand the literal meaning of the fair-use doctrine? For example, the first
clause of the fair-use doctrine is “use of a published work for the purposes of the user's
own private study, research or self- entertainment”. Would the court expand the meaning
of “private study, research and self- entertainment”?
Participant G: Fair use decision is a fact-intensive question and requires case-by-case study.
Generally speaking, there are not many defendants defending themselves by fair-use
doctrine. And the first clause you mentioned has seldom been applied.
Huang: Wow, that’s a bit beyond my expectation. Because in America, fair use is often
invoked in copyright cases.
Participant G: This reflects the fact that the copyright practice in China is still in the entry
level. People just copy others’ work without making additional intellectual contribution.
Huang: Would “transformative use” be considered in the fair-use decision?
Participant G: As far as I know, “transformative use” hasn’t been written in judicial decisions
yet. However, it is a topic that raises heated discussion. Professor Wang Qian wrote
an article particularly addressing this issue recently. He argued that live online game
competition is a transformative use of live streaming software. Whereas, Judge Ou
Xiuping contends that live online game competition infringes the right of performance.
Huang: Could commercial use be considered as fair use?
Participant G: In the Five Sheep Sculpture case several years ago, Guangzhou Intermediate
Court argued that using the photo of Five Sheep Sculpture to make key rings constitutes
fair use, reasoning that even though it is commercial use, it would not substitute the
market for original work. Nevertheless, the Guangdong Higher Court revoked the
intermediate court’s decision and decided in favor of the copyright owner. The later
decision explained that the reason why copying, drawing and photographing of an
artistic work located in an outdoor public place constitute fair use: the artistic work is

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