Study On Transformative Use

"Transformative use" is a judgment factor in fair use of copyright law in USA,which is derived from the theory of law and is quoted and developed by case law.Although"transformative use" has only been applied in cases for approximately 20 years,it exhibits a trend of rapid expansion and even the phenomenon that the Judge excessively relies on the standard.Exploring the internal causes of this development trend and explaining this phenomenon can provide inspiration and reference for the legislation of our country's fair use system.This paper attempts to clarify the essential attributes of transformative use based on historical investigation,normative analysis,and functional analysis as well as advise on how China's copyright law should draw on experience of the transformative use through the investigation of its operation effect and the reflection of the theoretical question.There are six chapters in the thesis.Chapter ? Historical Survey of the "transformative use".Fair use system originated from the British judicial precedent of the discussion of fair abridged standard and the transformative judgment is embodied at different levels in many cases.Fair use is provided by Justice Story in Folsom v.Marsh in 1841,which began life as a judge-made defense to copyright infringement,is now codified in the 1976 Copyright Act as one of the most important limits on the monopoly of copyright owners over the use of their copyrighted expression.In that case,Universal City Studios,Inc.v.Sony Corp.of America,the U.S.Supreme Court reversed the Ninth Circuit,in part based upon the Ninth Circuit's insistence that fair uses must be productive.Six years after Sony,in a widely cited Harvard Law Review article,Judge Pierre N.Leval argued for the importance of considering"transformative use",a synonym for productive use,in fair use analysis.Judge Leval's ideas proved quite influential in the Supreme Court's 1994 decision in Campbell v.Acuff-Rose Music,Inc.In the wake of Campbell,it seems fair to assert that fair use analysis has been "transformed." Judge Leval's "transformative use" notion appears prominently not only in the analysis of the first factor(purpose and character of use),where it is viewed as,if not indispensable,highly auspicious,but in factors three and four as well.The development of "transformative use" indicates that it is the judge's initiative norm.Chapter ? The normative attributes of "transformative use".The understanding of"transformative use" should be based on its normative attributes,which includes three aspects:semantic analysis,value analysis,and effectiveness analysis.In terms of semantics,"transformative use" demonstates the characteristics of hollowing out,and the specific meaning depends on the context provided by specific cases.However,with regard to the property of value,"transformative use" has a clear,utilitarian ethics.On the basis of the effect of judicial application."transformative use" has influences outweighing other factors of fair use.Thus,"transformative use" in the judicial practice shows properties of moralized general clauses.Chapter ? The System function of "transformative use".The further understanding of the general properties of "transformative use" should be understood from the perspective of judges.In cases about fair use,Judges' decisions require copyright laws to provide scope of protection for copyrights,tort identification standards,and the constituent elements of fair use,which are the prerequisites for the decisions made.The USA copyright law adopts the mode of "a bundle of right" for exclusive right,making the scope of copyright broad and expansible in character,making it difficult for the defendant to be exempted from infringement.In the determination of copyright infringement,"the possibility of contact" is in fact conducive to strengthening the exclusivity of the previous works,while "substantial similarity" is the direct consequence of the expansion of the scope of copyright protection,and the doctrine of liability fixation of copyright infringement does not exert any positive effect on the free use of copyright works.Compared to the rigidity of the scope of copyright protection and the rules of infringement cognizance,fair use is an important role in constructing the dynamic balance of copyright in the context of the rapid development of technology.Therefore,the Judge should have the right of discretion,and "transformative use" can limit the abuse of judicial discretion.Chapter ? The operational effect of "transformative use".The system of fair use directly reflects the utilitarian position of copyright,but to give full play to the system of fair use to promote the functions of copyright public policy purposes,judicial intervention needs to be involved.With the help of "transformative use",the judge has become a real public policy maker,directly affecting copyright-related science and technology policy,cultural policy and industrial policy.In terms of science and technology,the use of copy-reliant technologies for copyright works obtain exemption from infringement due to its transformability,which is in accord with the public policy promoting the development of information technology.In the aspect of culture,the appropriation of the copyright works in the postmodern art also obtains exemption of infringement owing to the transformability,which in fact suits the cultural policy of Multiculturalism.In the field of industrial development,the excavation of the Big Data era also enjoys infringement exemption using copyright works due to its transformability,which is in fact conducive to the development of Big Data industry.The judicial practice of the United States shows that the introduction of "transformative use" is conducive to adopting the fair use of the law to resolve the the copyright-law plight that scientific and technological,cultural,and industrial developments are facing.Chapter ? The debate of the theory of "transformative use".For the judgment standard of fair use,which is set the article 107 of USA copyright law,critics believe that it does not have theoretical consistency and cannot increase predictability in its judicial application.But in recent years,empirical research shows that the introduction of"transformative use" makes the judicial application of justice more coherent,greatly improving the predictability of the verdict.Certainly,there is also uncertainties about definitions of "transformative use" as well as inconsistencies with judicial application.Scholars thus put forward suggestions including introducing the standard of the auxiliary judgment,switching the perspectives of interpretation,and limiting the applicable conditions.This paper argues that the theoretical questions and improvement suggestions for "transformative use" are a representation of the view of "legal certainty",but"transformative use" of the general terms is no doubt a paradox.Chapter ? The enlightenment and lessons from "transformative use".The cause and general-clause nature of "transformative use" are of great significance for the improvement of the fair use for the third revision of copyright law of China.The revision of the copyright law in China should set overcoming the predicament of modernization as the goal,and the establishment of fair use of the general terms is the irreplaceable solution.On the one hand,the "transformative use" of general clause has can overcome the lag of the copyright law.On the other hand,it grants judges the right of discretion which can influence public policies.Based on the Enlightenment of "transformative use","enhancing the use value of works" should be the core content of the fair use of general clause in China,following the two principles of "special clause is priority" and "three step test is more effective".In a word,it is a revolutionary change for China copyright law to construct the general clause of fair use.