A Study Of Fair Use Of Copyright Law

In copyright law field, to some extent, there are always kinds of confrontations among the creators, publishers and the users of the information. To keep the balance of the three parties' interest, "fair use" exceptions were erected. Fair use, which is the most important and extensive restriction to the right owners, means that in special circumstances, without the owner's permission and with no payment, the use of other's copyright is fair. As a restriction to the functions of copyright, fair use is extensively applied in modem copyright laws of all the countries, and meanwhile, it is also a most controversial and complicated rule in the copyright practice and theory.The new technological revolution is not only an accelerator of the development of economy, but also a catalyst of legal reformations. The Statute of Anne 1710 in Britain is a mark of the beginning of the world copyright law. From since then, with the three big technological leaps, which are printing, broadcasting and digital technology, the copyright law has gone through three periods. From 1709 to the end of 19th century, it is the printing technology stage; the broadcasting technology stage is from the end of 19th century to 1970s, or from signing of the Berne Convention in 1886, until the last amending in 1971; from 70s of last centuiy, the electronic networks period is set up with the combination of the digital technology and internet technology. The traditional method to using copyright is using the printing and broadcasting technology as the media. In this dissertation, the problems of fair use of copyright in traditional circumstances and the new challenges and reformations in the context of digital network will be stated respectively.There are three sections and five chapters in the dissertation. The theory of the fundamental problems about fair use is stated in the first section. In the second section, the criteria of fairness are examined in traditional circumstances from the angle of cases. Then, the new challenges and reformations in the context of digital network are analyzed in the third section in terms of both practice and theory. In this dissertation, not only the theory and practice is well combined, but also the author's own points are put out about the reformation of the criteria of fair use in copyright using the comparing rese?rch method. Chapter one is an overview of "fair use" in copyright. The aim is to correctly understand this system in terms of civil law. The historical development, definition, constructive requirements, object, nature, legal principles and comparison with other constriction system about fair use will be stated respectively. The new points are as follow: first, with the characters of originality, invisibility, reliance on the subject and capable to be duplicated, the copyright is an exclusive right and its object is not the copyright work but the right of the owner. The use of the copyright reflects the social relationship between different people (the creator and the user), not between person and things. Second, fair use of copyright is redefined, which is in special circumstances, without the copyright owner's permission and with no payment, the use of other's copyright is fair, in condition that the names of the author and work are mentioned, and other rights of the copyright owner can not be infringed. Third, the nature of fair use is stated and it is pointed that fair use defined the limitation and scope of the copyright in opposite way.In chapter two, the legal value of fair use is analyzed. The aim of this chapter is mainly to examine the justice of fair use in terms of legal value analyses. Fair use system embodies not only the protection and pursuit to public interest, but also the respect and maintenance to private right, more important, it has balanced the public interest and private interest, and fulfilled construction of "individual-social two-way standard" value system in intellectual property field. The balance of interest is the theoretical basic of the fair use system and to balance the interests of the copyright owner and the public is the permanent subject of the copyright law, furthermore, is the very important value aim of the copyright law. Fair use system harmonizes and settles the conflicts among the work's creator, publisher and user, establishes the frame of balance, so neitlier will the copyright owner's right damage the public right to access to the work, nor will the insufficiency of protection of the copyright damage the owner's right. Now that the equity, which advocates the reasonable fairness and justice doctrine, is the basic nature of fair use, it embodies the fairness and justice about intellectual creation, the fair distribution of the social intellectual wealth, the separation about public and exclusive fields and the constriction and counter-constriction of the right.In chapter three, the criteria of fairness are examined in terms of practice with lots of cases. Both the similarities and differences between the fair use and infringement are pointed out. Moreover, the legislation of fair use in China is examined and it is pointed out that the criteria should apply the legislation of "principles plus elements and plus rules". The new points are as follows: firstly, the current defects about the criteria of fair use in the clause 22 of China Copyright Law and the suggestions of amendment have been stated. Secondly, the other situations of fair use excludes in clause 22, which have been determined in practice, include incidental use, comical imitation and revision. Thirdly, it is pointed out that the best legislation of criteria should be the "principle plus elements and plus rules". The principle means equity. The elements are the aims of use, the nature of the work, the extent of use and effect to the work. The rules are the specific acts that are more often to be happened and have already been seemed as the examples of fair use. Under this legislation, the nature of fair use is highlighted and it can be applied to all the complicated problems in practice. Thereafter, it is a comparatively identical legislation.The chapter four includes the challenges to fair use in the context of digital network, in order to state their impacts to this legal system. As can be seen, the development of copyright law is always closely related to the spread technology of the work and the variety of the way to use the work. The digital and network technology are changing the ways of using the work with which the new legislation is commenced. The new legislation and litigation have resulted in large reformation in fair use. The right of the owner has been expanded both in space and in object, however, the space of fair use is reduced by the protection of technology and the authorized contract of network, which bring unprecedented challenges to fair use.The chapter five is the reconstruction of fair use in the context of digital network, The network cannot be spread freely or be exclusively held by the copyright owner, otherwise the balance existed between the right owner and user will be destroyed, which makes this issue more important. The new points are as follows: firstly, the guiding principle is that based in the equity doctrine, the user's right should be stressed. Secondly, those criteria of fairness in traditional situations that can be applied in new situations should be kept and then fair use of technique protection methods and authorized network contract are stated. Thirdly, there is the responding to fair use of the new using methods, such as browsing, coping, linkage and digital library.