A Study of Fair Use Provisions with Pure Public Good Purposes in Copyright Law

Discussions concerning the concept of “Fair Use” have been a popular issue in Taiwan Copyright Law for a long time. It is because of the numerous related regulations, the extensive fields being applied to and the ambiguity in legal exercise as well as applications that make fair use an important topic. The studies on fair use have been mainly focused on the general clauses together with similar ones in the U.S. However, in contrast with abundant academic productions of general clauses accumulated in these years, other specific regulations of fair use have long been neglected. Therefore, I decided to conduct my research from a different point of view. Starting from the review of related domestic and abroad materials, I would like to concentrate my study on specific fair use clauses, in order to make a contribution to the progress of Copyright Law in Taiwan.
With a view to having a complete understanding of the concept of fair use, this research will begin with analyses on the meaning and purposes of copyright. After comparisons of different global copyright systems, I would then focus my research on the “Copyright Limitation Systems”. In the discussion of copyright limitation systems, not only its meaning, definition as well as purposes were reviewed, the contrasts of different systems were also made. By contrasting all kinds of copyright limitation systems, I have find out different objects of each concept and summed up a group of copyright limitation systems possess the core idea of copyright limitation systems. After that, I would narrow my scope of study on to the analysis of the special copyright limitation systems with core elements, including” Compulsory license”, “Regulatory license” and “Fair use”, and come up with the conclusion that fair use is the core system among all copyright limitation systems.
Since that the core position of fair use is confirmed, the following passage will put a stress on the discussion of numerous fair use clauses from different standards of classifications. Traditional classifying methods of fair use clauses contain “General clauses and specific clauses” as well as “Different objects of each regulation”. Some studies also suggest that we can classify fair use clauses by “A clause is constructive or not” and “Does that clause harm the economic interests of the copyright owners”. Others think that fair use clauses can be classified by different constitutional purposes.
Apart from all these classifications methods, I would try to bring up a whole new aspect of categorizing fair use clauses. The newly-created categorizing principle is sorting fair use clauses by “Does a clause contain profit-making characteristics” or “Is the way of utilization set in a clause for personal or public usage”. By applying those two essential factors, we can come up with a category of clauses which are for public use only and without profit-making purposes. These kind of fair use clauses, including paragraph 2 and 3 of article 48, article 53 and article 55, are called “Fair use provisions with pure public interest purposes”. Because fair use provisions with pure public interest purposes could harmonize conflicts between public and personal interests properly, it is considered the most representative stipulations among all copyright limitation systems.
After classifying fair use clauses into pure public interest fair use clauses, the following passage will focus on the discussion of history developments, the main purposes as well as related foreign regulations of these provisions. Through those discussions, disputes and shortcomings of present provisions will be discovered. Their common drawback is that copyright owners have never been compensated for their economic losses to the pursuit of public goods. This research will step deep into these defeats with complete analyses, especially the common drawback mentioned, and come up with applicable replenishment and replacement systems. The substitutive systems includes “The special sacrifice theory” (The sonderopfer theory), “The copyright management system”, “The collective management of copyright” and “The regulatory license system”. These systems could not only compensate the losses originally endured by copyright owners alone, but also maintain the public- for trait of pure public good fair use clauses. In other words, by the instruction of the reforming systems, pure public interest fair use clauses would become a complete and proper system in striking a balance between public and personal interests.