Research On Standard For Recognizing Fair Use Of Copyright By State Organs In Official Business Performance

According to the provisions of the Copyright Law,the state organs shall have the right to use the released works within reasonable scope without obtaining the permission of the copyright owner or paying relative remuneration.However,three indefinite legal concepts: “state organs”,“performance of official business”,“reasonable scope” are applied in such provisions,which make it hard to judge if an act of using released works in an individual case belongs to official business performance or not.This paper,except the foreword and conclusion parts,is composed of three parts:In the first part,the legitimacy of the official use system and the purpose of legislation for rules of official use were both studied.First of all,the official use system represents the balance between copyright owner’s interests and public interests.The state organs are the natural representative of public interests.And the performance of official business is right the process of chasing for public interests.However,the scope of use cannot result in excessive damage to copyright owner.Secondly,it is possible that the using of copyright works for purpose of performing official business by state organs can result in market malfunction,unsuccessful trading,and harm to public interest due to the reasons of trading barriers or uninternalized behavior externalities.Finally,the state organs shall have the constitutional obligations to guarantee the citizens’ access to information.And the Copyright Law itself also has the legislation purpose of spreading works and guaranteeing information access of citizens.In the second part,the judicial application dilemma of the official use system was sorted out and summarized,thus to further study the reasons causing such dilemma under the guidance of the problem.The main body of official use is state organs.However,on one hand,the concept of “state organ” is in generalities,and on the other hand,it is still a dispute if a non-state-organ organization could act asmain body of official use in practice or not.The purpose of official use is to“perform official business”.There’s no clear standard available for judging if a behavior of use is for purpose of performing official business or others.Moreover,state organs have a lot of duties.And both the academic circle and judicial practice generally believe that some "official duties" should be restricted and excluded from official use scope.But there lacks a unified standard to classify “official businesses” and exclude part of the official business from the scope of official use.According to the official use rules,the state organs are allowed to use others’ works within “reasonable scope”.That’s also a fuzzy concept.And the standards to recognize “reasonable scope” in practice somehow contradict each other.In the third part,as for the construction of the standards to recognize official use,the interest balance should be taken as the principle,and the "three-step test" in international treaties should be taken as the guide,hoping to benefit the judicial practice.First of all,the main body of official use includes various state organs and their subordinate agencies as stipulated in Chapter 3 of the Constitution.The Communist Party of China and the CPPCC should also be recognized as state organs.Other agencies of non-state-organs in the official use system can also be the main body of official use in certain cases.Secondly,the purpose of the use behavior is to perform a specific statutory duty of the state organs,and taking use of works to convey information is an inevitable means of performing that duty,and the types of "official business" are only limited to the maintenance of national political governance and the management or services that can only be provided by the state authority due to the lack of social offering.Finally,the scope of use should be subject to double restrictions,that is: neither exceeding the scope required for the performance of official businesses,nor causing serious harms to the economic and personal interests of the copyright owner.