Yahong Li Interviewed on Taiwanese Case of “Secondary Creation” and “Fair Use” (Ming Pao)

A Taiwanese man, Gu Amo (谷阿莫), has become a celebrity for making 5-6 minutes short films from movie footages and putting them on YouTube. He was recently sued by several movie studios for copyright infringement because, in addition to using the footages without authorisation, he also added his own sarcastic narratives to the short films, which has allegedly harmed the original movies’ reputation and market. Mr Gu argued that his films are secondary creations, thus are exempted from copyright liability under “fair use” doctrine.

What is a “secondary creation” and how should “fair use” doctrine be applied to interpret this case? Recently, Ming Pao interviewed Yahong Li on these issues (see Ming Pao, 5 May 2017). Dr Li noted that “secondary creation” is not a legal concept and is not clearly defined. It shall not be confused with derivative work which is an adaptation from an original work into a new form (e.g., a novel to a movie) and needs permission from copyright owner. “Secondary creation” is similar to so-called “user generated contents” (UGC) which may be exempted from copyright liability under the doctrine of “fair use” (or as “fair dealing” under Canadian Copyright Act) based on the assessment of four factors: whether the use is commercial and transformative; whether the original work is creative and well-known; how much (quantitatively and qualitatively) of the original works are used; and whether the new work substituted the original work in the market. These factors are not all favourable to Mr Gu in this case because he had directly taken many key footages from creative films, which had resulted in some indirect profits for him and allegedly market harm to movie studios.

Dr Li remarked that, on one hand, the ultimate aim of copyright is to promote public access to creative works, and protecting copyright is only a means to achieve this aim. Encouraging users to create based on existing works is particularly important in a world where the traditional users have become prosumers (producer + consumer). In this regard, Hong Kong’s failure to adopt the Copyright (Amendment) Bill may have a detrimental impact on users’ creation. On the other hand, law reform also needs to consider how to encourage true creation that are beneficial to culture and society. As the quality of Gu’s works is generally low and does not represent a true spirit of creation, the defeat of Mr. Gu in this case, if he eventually loses the case, will not have a chilling effect on other “secondary creations”. Click here to read the full article in Chinese.