ABSTRACT
One of the most pivotal doctrines in copyright law is its infringement test, which determines whether a defendant’s acts violate reproduction rights. This test, which continues to plague US copyright law, includes two widely adopted and influential prongs: (1) factual copying; and (2) improper appropriation. To establish factual copying, US courts allow a sliding scale of proof between the defendant’s access to the copyrighted work and similarities between the defendant’s and plaintiff’s works. The improper appropriation prong requires the similarities to reach a substantial level that is deemed improper. However, both prongs are fervently discussed, questioned, and criticized by US courts, scholars, and practitioners. These critics neither form a unified understanding of each prong nor share similar viewpoints on the test’s desirability and potential reform. Despite the test’s intricate complications, its influence extends to other jurisdictions due to the global ‘reach’ of US copyright law. China, a jurisdiction that has adopted many doctrines and rules from US copyright law, seemingly uses a similar copyright infringement test: the rule of ‘substantial similarity’ plus ‘access’. The strikingly similar terminology, supported by anecdotal evidence, suggests a direct legal transplantation of this test from the US to China. This observation implies that China essentially shares the same test as the US due to this legal transplantation. However, positive discussions of China’s law in books and empirical explorations of the law in practice in this Article reveal substantial differences from the US version, despite the similar terminology, which remain unnoticed and underexplored in current literature. Although some spillover from the US test to China is acknowledged, the similarities noted in the current literature are quite superficial. These differences raise several unexplored questions: Should China’s test draw further from the US to enhance future improvements? Does the Chinese version function effectively in practice and withstand theoretical scrutiny? If not, what should be the future direction for the Chinese version based on comparative insights? Should China consider a direct transplantation of the entire US test in the future? This Article unravels the differences between the US and Chinese infringement tests and addresses these questions. It delves into the history of how the ‘substantial similarity’ plus ‘access’ test was introduced to Chinese copyright law and its relationship with the superficially similar US test, indicating the potential spillover.
Chen, Yang, Copyright Infringement Test (Re)visited: US Spillover into China Yielding a Similar Test? (March 19, 2024), City University of Hong Kong School of Law Legal Studies Research Paper.
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