The rapid development of digital network technologies greatly facilitates the expansion of fan fictions and user-generated works to new media formats such as music and video in China. However, these fan fictions are currently in the gray zone under Chinese copyright law. Until now, formal judicial decisions have not covered the user-generated works disseminated in the digital network environment in China, but some Chinese cases arose continuous public dispute on the legitimacy of digital remixed works, such as The Steamed Bun Bloody Case in 2006, in which the Chinese video editor and broadcaster Hu Ge, produced a twenty-minute video named The Bloody Case that Started from a Steamed Bun, using fragments of the film The Promise made by the famous Chinese director Chen Kaige.
The research project proposes to reconstruct the copyright limitation and exception system in the digital network environment in China by introducing mechanisms that guarantee legal flexibility, certainty and predictability. The proposed new system will include a two-factor balancing test as an abstract guide which imports flexibility for judicial discretion to distinguish free, permitted uses from copyright infringement case by case, and a list of safe harbors as minute prescriptions, which imports certainty and predictability for judiciaries and the public to ensure certain uses as permitted under regulatory circumstances. The application of a two-factor test will allow judiciaries to weigh the purpose and character of the use at issue against the effect of the use upon the potential market of the copyrighted work. The list of safe harbors will primarily contain three categories: the minimalist uses under which specified limited quantitative uses are permissible; the uses that benefit special classes such as the blind or the minorities; and the free uses under technological protection measures.
