Toward The Transformative Use Of Works

Transformative use is in a contradictory situation in China.Its definition is full of controversial.Meanwhile,the fair use system in China is unsound and there is great room for improvement.It is of great theoretical and practical significance to fill the system gap and find a suitable standard of transformative use test,so as to release the advantage and function of the test.In view of this,this paper takes "transformational use" as the research object,and attempts to resolve the problem through transformative use analysis and application.In addition to the introduction,this paper is divided into five parts,about 160,000 words.Part I provides an introduction to the transformative use test.“Transformative use”,as an method of the fair use determination,was created by Judge Pierre N.Leval in 1990.Prior to this,it could be found in the early use of “fair abridgment” or productive use.According to Leval,fair use,as part of the design of the copyright law system,is justified by catering to the utilitarian goal,which is to stimulate creativity for public illumination.Leval believed,fair use rules can be uniform and rational.And the transformative use is the core factor that qualifying fair use.The question of justification turns primarily on whether,and to what extent,the challenged use is transformative.The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.A quotation of copyrighted material that merely supersede the objects of the original is unlikely to past the test.If the secondary use adds value to the original,--if the quoted matter is used as raw material,transformed in the creation of new information,new aesthetics,new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.In American judicial practices,the criteria of the transformative use conclude the content-purpose transformative use,and the functional transformative use.The transformational use test has changed people’s idea and view of fair use,and become a dispositive factor of fair use determinationPart II is the reconstruction of transformational use test.In order to activate the power and function of the transformational use test,it is necessary to make a logical arrangement and interpretation of its internal operating mechanism.Transformative use includes the dual attributes of “work transformation” and “market transformation”.Once the secondary use qualify the transformative use,it means that the secondary use is transformed at “work” and“market”.The transformation of work plays a dominant and decisive role in market transformation.Whether the market is transformed or not is the result of the judgment of the transformational use,not the reason.This attribute leads to an impure commodity market which is defined by the nature of work.The three current standards of transformational use test have obvious defects: the content-transformative works overlap with the derivative works;the purpose-transformative standard is unclear,and the functional test falls into circular argument.In order to resolve the circular argument,we must abandon the empirical analysis based on the market that the copyright owner intends to exploit or occupy,and adopt the normative analysis based on the original function of the work to define the copyright market.The market in which the works have the original function,whether developed or not,should be left to the copyright owners to maintain their creative incentives,while the market in which the secondary work has changed the original function,whether developed or not,should be left to the society to protect the public interest.The original function standard is intended to make the transformative use test work effectively.The original function of works points to the spiritual content and its corresponding commodity function.The function of the materials of work used depends on the new work as whole,the demand of target consumers and the direct function of commodities.In judging whether the original function of the work has been changed or not,the derivative factor is the result rather than the reason,the theme of work is only a reference factor rather than an decisive one,and the context reconstruction is unrelated to the functional transformation.The original function standard will resolve the definitional problems and is more practicable and feasible regarding fair use judgment compared with the public interest standard and the market impact standard based on the theory of market failure.The work-market transformation examination of the original function standard is consistent with the principle of balance of interests in the fair use of copyright in the two legal systems,which could be in furtherance of prosperity and development of science and culture in the whole society without harming the incentive mechanism.Part III discusses the application of the transformative use test in the legitimate fair use types.Although transformational use was not proposed until 1990,its rationale is rooted in many types of legitimate fair use types.The first category is the fair use of text-transformation,including appropriate citing,incidental use,official use and comparative advertising.Appropriate citing is the most common transformative use.In the commentary,the original material serves as the "introduction" and "reason" to elicit the reviewer’s point of view.In parody,the original work is the “target” of parody in assist of the parodist to make a mockery or criticism of the original one from the perspective of "the others".In the incidental use,the work is only the background material of the news report.Based on the news report goal,the copyrighted images and sounds incidentally captured in the process of filming should be permissible to use.In the official use,the copyrightable materials are the integral part of the official narrative system,playing the role of source of information.However,not all official uses have the functional transformation qualities.In the true comparative advertising,the cited works may qualify the functional transformation.The second category is the fair use of text and data mining(TDM),which includes thumbnails,snapshots,plagiarism detection,text searching and snippet view,etc.TDM digitizes works and makes them as the original sample for data mining,retrieval,and analysis.The original function of works are suppressed and change into the support of supplication of specific information searching.Part IV analyzes the application of transformative use test in new types of use.Live video game,video commentary and appropriation art regarding the use of works are surrounded by lots of controversary in recent years.The application of the original functional standard helps to provide a clear perspective for their legitimacy.As an important part of electronic game merchandise,the original function of video game screen is to provide interactive game experience,which is different from that of works created by virtue of an analogous method of film production.Live video game gives consumers a sense of game playing.The function of the live video game screen is independent from the other contents in the live room,which has maintain the original function.If the function of the commentary video is to condense and present the synopsis of the plot through the lens editing,or to introduce and display to the domestic audience the plot of the films and televisions which has not been introduced or shown,the video commentary do not qualify for fair use for the original function of the work has not been changed.If the commentary video aims at explaining and commenting on the films and televisions that have been shown or are being shown in China,instead of showing the plot outline of the film and televisions,it may play a new function and constitute a transformational use.The deconstruction,destruction or reconstruction of context in the appropriation is not a presupposed or promised mode in our country’s fair use system.Appropriation art,which involves appropriating single source of work,commercial music videos,meme,and fan videos,are incline to be sentenced of copyright infringement,unless it constitutes the quality of parody or critical criticism.Part V addresses the improvement of the fair use system in our country by virtue of transformative use test.China has introduced the last two steps of the three step test of Berne Convention for the Protection of Literary and Artistic Works into Copyright Law as a further qualification of statutory fair use and a general rule for judging new types of fair use.The three-step test,which aims to justify the existing reasonable use types in member countries and provide broad legislative guidance,is of great ambiguity and wide interpretation space.In order to resolve this dilemma,we should introduce the transformational use test to construct the fair use system systematically.The legitimate cases of fair use can be modified and improved based on the original functional standard as following: 1.For appropriate citation clauses,the "introductory" reference shall be deleted,the closed type of reference shall be replaced by the open type,and the degree of reference shall not be further limited.2.For the incidental use clause,the applicable circumstances can be appropriately relaxed,and the applicable scenarios,principles,restrictions,etc.can be refined.3.If it is necessary to standardize the official use clause and the non-transformative use clause,the separate legislation can be explored.4.In the judicial interpretation of snapshot and thumbnail,the condition of "substantial replacement" shall be deleted and regard it as the judgment of fair use.Finally,we should strengthen the legal research related to TDM and explore the establishment of a set of rules for the use of TDM works in line with the national conditions and market environment.