The Risk of Copyright Infringement of American Enterprises by the Differences between Chinese and American Copyright Law

With the trend of digital reading, more and more works are kept by the online library. There is much controversy existing that whether it is a reasonable use or constitutes copyright infringement that when website operator provides users with a book search service after digitally scanning other people's books. When facing the same situation, the courts of China and the United States made completely opposite judgments.

In a typical case that a prominent internet company in USA and its Chinese affiliate represented by Beijing Wis & Weals Law Firm against a writer Mrs. Wang in a book searching copyright infringement, the court made a controversial judgment on the above issues that the internet company as website operator constitutes copyright infringement. Based on this typical case, we discuss whether the author digitally scans the book constitutes infringe the author's copyright or constitutes fair use.

I. Similar cases in the U.S.

Since as early as 2005, a series of lawsuits filed by individual writers, writers' associations and publishers against Google Inc. for the Google Library Project have taken place in the U.S. These cases are distributed in different courts.

In the US cases, the courts all supported Google's fair use defense.

II. The criteria for fair use: differences in judgments between China and the U.S.

From the above, we can see that for the same Google Library Project, the main difference between the Chinese and U.S. court decisions lies in the assertion of fair use.

The U.S. courts' understanding of the principle of fair use is different from that of Chinese courts. For example, in the judgments issued by the District Court of New York in 2013 over the lawsuits filed by the Writers' Association and writers like Betty Miles, Joseph Goulden, and Jim Bouton against Google, the U.S. court held that Google's acts constituted fair use.

The court first expounded the benefits of the Google Library Project:

1. Google Books provides readers and researchers with a new way of book search, which provides great convenience for the librarians' identification and discovery of the sources of books, for interlibrary borrowing, as well as for the search and inspection of citations. Therefore, Google Library Project has brought convenience to researchers and librarians, as well as contributed to the cause of education.

2. Google Library Project allows scholars in the humanities to analyze the big data, and greatly promotes the development of "data mining" and "text mining" through the analysis of such contents as vocabulary search frequency.

3. Google Library Project has greatly increased public access to books.

4. Google Library Project helps to preserve books and give them a new life.

5. By helping readers and researchers identify books, Google Library Project also benefits authors and publishers.

Next, the U.S. court made a detailed explanation on the application of the fair use provisions in Article 107 of the U.S. Copyright Law in this case, which related to (1) the purpose and characteristics of use, (2) the attributes of copyrighted works, (3) the quantity and importance of the part used, (4) the impact on the potential market or value of books, and (5) other comprehensive considerations.

Ⅲ. To balance the application of law with the law of the industry

When judging the reasonableness of the defendant's behaviors in this case, we should balance the application of law with the law of the industry, to discover the behaviors' impact on the society on the basis of fully understanding the business model of the industry, while applying the law on this basis.

Although it is difficult to ascertain the merits and demerits of a certain orientation due to the differences in value orientation and other influencing factors, there are anyhow some basic rules that can be followed, including:

1. Inspecting whether the purpose and means of the product are fair.

2. Inspecting whether the profit model is direct or indirect, realistic, or prospective, predictable or uncertain; and

3. Inspecting whether product behavior and profit-making behavior exist simultaneously.

The purpose of considering the above factors is to determine the amount of public welfare and commercial components in the disputed behavior when the dispute occurs, to determine the severity criteria for judging the reasonableness of the behavior. That is, first to determine the general direction, and then to make judgments based on the fair use judgment elements and other specific judgment grounds in the Google Library case. Only judgments made on this basis can realize win-win results for society, enterprises, and stakeholders.