Social Sciences in China (Chinese Edition)

No.7, 2018

Institutional Innovation in China’s Copyright Legislation

(Abstract)

Xiong Qi

As China’s copyright legislation shifts from learning from foreign experience to active restructuring, the associated institutional arrangements should aim to respond to China’s problems. However, the different value settings of comparative and indigenous law have led to divergences over how best to frame indigenous issues accurately in copyright theory and practice. Present day copyright legislation in China tends to be oriented toward directly replacing arbitral arrangements that proceed through market games with the distribution of statutory rights, in which rights holders and users start from their respective positions and expect the law to bestow on them an autonomous space that accords with their own interests. This eventually leads to a dilemma due to the absence of a basic consensus on legislative and judicial options. An appraisal of the history of indigenous institutional change shows that the key to achieving institutional innovation in China’s copyright law lies in the coordination and complementarity of regulatory and autonomous rules in terms of value positioning and the coordination of the institutional concepts of inherited rulesand the operational tradition of indigenous rules. The solution to this problem is to define the boundaries of private autonomy and government regulation in the copyright field in the context of Chinese society, industry and culture. On the one hand, we should allow the indigenous copyright industry agency to establish rules for copyright market transaction in accordance with its own market and social environment, while on the other hand, we should optimize government intervention in cases of market failure.