Copyright Infringement Test (Re)visited: U.S. Spillover into China Yielding a Similar Test?

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 U.S. copyright law, includes two widely adopted and influential prongs: (1) factual copying; and (2) improper appropriation. To establish factual copying, U.S. 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 than is deemed improper. However, both prongs are fervently discussed, questioned, and criticized by U.S. 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 U.S. copyright law.

China, a jurisdiction that has adopted many doctrines and rules from U.S. 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 U.S. to China. This observation implies that China essentially shares the same test as the U.S. due to this legal transplantation. However, positive discussions of China’s law in books andempirical explorations of the law in practice in this Article reveal substantial differences from the U.S. version, despite the similar terminology, which remain unnoticed and underexplored in current literature. Although some spillover from the U.S. 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 U.S. 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 U.S. test in the future?

This Article unravels the differences between the U.S. 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 U.S. test, indicating the potential spillover. It also offers some empirical evidence based on Chinese court cases applying the test to see how it functions in practice, with a particular focus on whether the Chinese test achieves similar outcomes to the U.S. test. The Article attempts to reveal whether the Chinese version achieves the intended function of copyright infringement tests and withstands theoretical discussions. This Article argues that the Chinese version is more desirable than the U.S. version for China. One reason is that the Chinese version better aligns with China’s civil procedure law, which differs significantly from U.S. law. Also, the Chinese version can address the issues and problems identified in the current U.S. tests. Therefore, there should be caution about suggesting any future transplantation from the U.S. However, this Article acknowledges the vagueness and problems of the Chinese version and proposes a reformed test for Chinese law to better achieve its intended functions.