A Probe To The Fair Use System Of Copyright Under Network Environment

This paper presents detailed understanding about the fair use of copyright under network (namely necessity and importance) and the judging standard of fair use under network in China. In three parts of the paper, economic analyses, comparative analyses, analyses of case, the deduction inference analyses and other methods are used.In the first part it mainly expounds the impact and influence of the development of network environment on the fair use system of the traditional copyright. Firstly, the issues are raised from the different spots of internet works and network copyright between traditional copyright in concepts and characteristics under network environment. Especially, the impact of network on the appropriation and region of copyright make us give a new view of the copyright system which is suitable for the development of network. Then the paper gives the balance-oriented adjustment function of the fair use system. Starting from the concepts, characteristics, nature, original intention of the fair use system, the paper affirms progressively the constant innovation of technology in recent 200 years, and provides the description of the traditional adjustment function. At the end of this part, the paper describes the impact and challenges of the newly-developed products and technology under the network environment covering network music, computer software, digital library, on-line education etc. on the fair use of copyright system with necessary resolutions centering on interests balance between the creators and the users. The Second part analyzes and demonstrates the necessity for fair use adjustment of copyright under network as the focus together with the last part. It appears that the fair use of copyright is receiving more and more limitation from related jurisdiction and agreements in this sector, resulting in the question: is the fair use system in network necessary? Comparing the fair use of copyright system with other network copyright limitation system (for example franchise, anti-monopoly legislation, network ethics) and analyzing issues including franchise has to give consideration to fair use, anti- monopoly legislation can hardly give solutions to questions in private law and morale seems to be much beyond the normal standards etc., this part gives the conclusion that fair use of copyright system under network is quite necessary. And the necessity and significance of copyright fair use under network is further described from the view of the law philosophy and economic significance, the combination of copyright fair use with the unique nature of internet to be seemingly'open and free with the theory of "Theory and Expression Dichotomy" in copyright protection.The third part gives the access to a perfect system of the fair use of copyright in network focusing on the judging standard. The conclusion to have a judging standard derives from the uncertainty of the legislations about the expanding, narrowing of the scope in fair using. Then this part gives several legislations and standards in this sector at home and abroad with the affirmation of the "four factor standard" of American Copyright Law (Article 107). And the writer gives the standard in China basing on: using purpose, the nature of the works used, degree being used and the influence of the used works with the "proper purpose", "bon fide", "the specific identity of the user" as the reference. The paper also gives the using standards to balance the interests of the creators, the disseminators and the users. At the end of the this part, the paper provides the supplementary standard of the copyright fair use in America which is helpful in China with the conclusion that the copyright fair use system will yield best benefits no matter how the internet will develop and the development of the system will surely promote the prosperity of internet development.