(A Blog Reaction to the Article, "A Chinese Blogger's Tale", published in BusinessWeek on March 2, 2006.)
Without the name or the unbelievable luck, would Hu Ge still be able to hide behind the mantle of free expression or would he be hung with the noose of Intellectual Property Law?
Hu Ge is fortunate indeed. He must’ve been born on an auspicious day. There has been a growing trend in the relaxation of the fair use principle espoused by many jurisdictions. Influenced by our colonizers, we copied the fair use doctrine and incorporated it into our Intellectual Property Code* as Section 185 reproduced in part hereunder:
Hu Ge was saved by his caustic tongue, eye for details, and artistic prowess. By the mere fact that he wanted to scoff at Chen’s The Promise, he was given a virtual license to morph something that was distasteful in the first place, to something that was actually funny. Not only was his parody a lawful exercise of free speech, it may also fall under the mantle of “criticism” which specifically is defined by law as “not an infringement of copyright.” American Jurisprudence qualifies the fair use further by categorically stating that a parody is a defense to copyright infringement and falls under the fair use principle.**
Is it good policy?
Should we import the Acuff-Rose doctrine to our sunny shores? It might have disastrous consequences. Not all jurisdictions concur with the Acuff Rose doctrine. In England, Japan and Canada, parody does not serve as a valid defense in infringement cases.***
Adopting the Acuff-Rose doctrine might result in the obsolescence of an author’s moral rights.**** It also detracts from the effectiveness of the fourth fair use principle (The effect of the use upon the potential market for or value of the copyrighted work.).
Intellectual Property Rights were codified into law in order to avoid a tragedy of the commons. The Intellectual Property Code serves to strike a balance to rights that an author might keep in relation to his works as well as to diversity and incentive for the creation of new works. A parody, no matter how funny, expresses disrespect for an author’s work and must properly be made only with the author’s permission. To relax our laws drastically so as to encourage the distortion of original work would be a Hu Ge mistake.
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*Republic Act 8293
**Campbell v. Acuff-Rose Music, Inc. 114 S. Ct. 1164 (1994).
***http://www.cll.com/articles/article.cfm?articleid=25#fn3
****Article 193, RA 8293
par•o•dy (păr'ə-dē)It was written in the stars. Hu Ge, by his name alone, was destined for infamy. Although perhaps not in the same league as Weird Al Yankovic who liked to star in his own parodies, Hu Ge made quite a big splash in the vast and unchartered place called the internet. How could he have survived that feat alive without being gunned down by operatives of China’s Secret Service is a mystery. But he survived.
n., pl. -dies.
1.
a. A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.
b. The genre of literature comprising such works.
2. Something so bad as to be equivalent to intentional mockery; a travesty: The trial was a parody of justice.
Without the name or the unbelievable luck, would Hu Ge still be able to hide behind the mantle of free expression or would he be hung with the noose of Intellectual Property Law?
Hu Ge is fortunate indeed. He must’ve been born on an auspicious day. There has been a growing trend in the relaxation of the fair use principle espoused by many jurisdictions. Influenced by our colonizers, we copied the fair use doctrine and incorporated it into our Intellectual Property Code* as Section 185 reproduced in part hereunder:
Sec. 185. Fair Use of a Copyrighted Work. -
185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright…In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work. x x x”
Hu Ge was saved by his caustic tongue, eye for details, and artistic prowess. By the mere fact that he wanted to scoff at Chen’s The Promise, he was given a virtual license to morph something that was distasteful in the first place, to something that was actually funny. Not only was his parody a lawful exercise of free speech, it may also fall under the mantle of “criticism” which specifically is defined by law as “not an infringement of copyright.” American Jurisprudence qualifies the fair use further by categorically stating that a parody is a defense to copyright infringement and falls under the fair use principle.**
Is it good policy?
Should we import the Acuff-Rose doctrine to our sunny shores? It might have disastrous consequences. Not all jurisdictions concur with the Acuff Rose doctrine. In England, Japan and Canada, parody does not serve as a valid defense in infringement cases.***
Adopting the Acuff-Rose doctrine might result in the obsolescence of an author’s moral rights.**** It also detracts from the effectiveness of the fourth fair use principle (The effect of the use upon the potential market for or value of the copyrighted work.).
Intellectual Property Rights were codified into law in order to avoid a tragedy of the commons. The Intellectual Property Code serves to strike a balance to rights that an author might keep in relation to his works as well as to diversity and incentive for the creation of new works. A parody, no matter how funny, expresses disrespect for an author’s work and must properly be made only with the author’s permission. To relax our laws drastically so as to encourage the distortion of original work would be a Hu Ge mistake.
-----------------
*Republic Act 8293
**Campbell v. Acuff-Rose Music, Inc. 114 S. Ct. 1164 (1994).
***http://www.cll.com/articles/article.cfm?articleid=25#fn3
****Article 193, RA 8293