论著作权合理使用制度的开放化路径: 以 “中间层次” 一般条款的引入为中心

The traditional closed-list model of copyright fair use has been greatly challenged in a digital age. The last revision draft of the third-round amendment of the Copyright Law of China took a radical move by introducing an open style general clause of fair use, leaving ample empty space in terms of application. Open style general clause are essentially legal loopholes, so that the introduction of that represents the shift of rule-making power. In that sense, to merely introduce a “catch-all” general clause will not solve the problem. It is suggested that “middle level” general clauses could be simultaneously introduced, so that the fair use conditions can be categorized in a more specific way, by which a three-level structure of rules could be built. The 2018 amendment to the Copyright Law of Japan subdivided fair use circumstances into three categories: “harmless use”, “minor use” and “use for public policy purposes”, and employed a composite structure that consists of “general clause + list + catch-all”, making it a worthy reference for China. But we should not overlook its problems such as the non-existence of a general clause, and the overemphasized division based on fields. In forming our fair use model, we need to identify our own needs via a more opened democratic negotiation platform, and respect the role of market power in it.