Tong Lingyun

Beijing Deheheng Law Offices (Suzhou)

Abstract：

The legitimate source defense system is set forth in Article 59 of the Copyright Law of the People's Republic of China (hereinafter referred to as the "PRC Copyright Law"), What the benefits of this system are protecting the reasonable interests of bona fide infringers and combating copyright infringement. However, the PRC Copyright Law still lacks specific provisions regarding the subjective elements of this system in comparison with the TRIPS Agreement, the Patent Law of the People's Republic of China, and the Trademark Law of the People's Republic of China, which has already led to predicament in judicial practice. Based on the legislative purpose  and a horizontal comparison with relevant laws of the legitimate source defense, this paper emphasizes the necessity of establishing these subjective elements. Furthermore, it explores the criteria for assessment and the allocation of the burden of proof.

Key Words：

legitimate source defense; subjective elements; duty of care; good faith