The Intrinsic Logic And Legal Application Of Fair Use System

The Discussion of this article stems from the following two issues: the errors of public interest defense to claim fair use of copyright and the intrinsic difficulty of the rule application of fair use. Regarding these two questions, this article throughout carries on the dialectical analysis from these two angles: the intrinsic legislation principle and external legal rules of the fair use system, stressed its own unique historical development logic and the basic principles of the fair use system to form the interest-balancing principle characteristic to the fair use system; meanwhile, it clarifies its basic principle it should be , its hidden content and the logic of the system through reflecting the fair use rules of the United States; furthermore, considering with the problems of the theory and practice of the fair use system in our country, it suggests that we should establish a comprehensive thinking and system model to judge the fair use so as to reach the correct application of the fair use system. The article is divided into five parts in total.The introduction part begins as breakthrough point with the case that the Associated Press sued the news blog Drudge Retort, thus to propose that, under the internet technology ,the fair use system faces the new challenges on legislative concept and the rule application. It mainly puts forward the following two questions. Firstly, whether the public interest could be taken as a copyright infringement defense so as to claim fair use? Secondly, whether the case can be applied to fair use criterion of the Copyright Law of United States to claim fair use?Chapter one discusses from two angles of intrinsic unification about the interest-balancing principle and the rule application and gives a detailed analysis on the case involved the difficulties of rule application of fair use of the United States. Begin with the significance of the fair use system as copyright restraint system, it points out that the restraint system and the copyright protection system constitutes the whole system of copyright law which is the unity of the balance between protection and restriction of interests. It discusses the inherent relationship among the fair use system, the copyright law and the interest-balancing principle, expounds that the legislative principle of fair use system lies in the interest-balancing principle, and analyzes in detail the order construction of copyright law under the conflict and balance between the private interests of copyright and the public interest of free access to the work. On this basis, it introduces the rule of fair use constructed under this legislation concept. By analyzing the case The Associated Press v. news blog Drudge Retort as material, it discusses the inherent difficulties of application of the four judging criteria of fair use rules of the United States, and further analyzes the relationship from the dialectical point of view between this inherent difficulties and the interest-balancing principle as its legislation concept.Chapter Two aims at the questions issued in Chapter One, points out that the error of the public interest defense is caused by the misunderstanding of the full meaning of coordination of the interest-balancing principle of fair use system ,by failing to understand the nature of fair use system, and by emphasizing too much on restriction of private interests of copyright. So it splits the specific and internal united relationship between private interests and public interests in the fair use system so as to regard the public interests and private interests against each other and discusses their relationship abstractly rather than analyzing in the specific history of fair use. So this part is firstly to clarify the inherent logic of the interest-balancing principle of the fair use system, pointing out that the ultimate purpose of copyright law is the protection but not the restriction of the rights. Although the fair use system has the role to restrict the private interests of copyright, the fair use system aims to construct the fair and equal order of copyright law by restricting everybody's interests based on the interest-balancing principle. The internal logic of the fair use system reflects as the inherent unity between protection and restriction of private rights of copyright. Meanwhile, the protection of the private interests of the copyright owner is also the inherent requirement of the public interests to construct the order of the balance of interests of the copyright law and promote the social development. Thus, private interests and public interests are not diametrically converse, the public interest defense can not serve as a defense to copyright infringement to claim fair use. Based on analysis of the inherent interest logic of the interest-balancing principle of fair use system, to form a new understanding of the implicit internal logic through the criteria for judging the fair use, it points out that the fair use system under the interest-balancing principle has the nature of protection of copyright with the significance beyond the restrictive nature. Then it discusses comprehensively the inherent premises of rule application of fair use under the logic about the system content of fair use, which is the unity of protection and restriction.Based on the discussion of the first two parts, Chapter Three is to reflect and evaluate the legislation concept of the interest-balancing principle and the mode of thinking and legislation about the rule application of fair use in copyright law on the basis of the principle. Firstly it discusses the rationality and limitation of the interest-balancing principle. The public interest defense and inherent difficulty of application of the fair use system are two major issues for interpretation and application of fair use, which in the final analysis are caused by one-sided understanding of the legislation concept of the interest-balancing principle. The existing interest-balancing principle hasn't grasped the dynamic principle from the historical development of the interest-balancing principle, so that the principle is restricted to the abstract value judgment and split the internal unity between the private interests and public interests. Thus, people are used to make the public interest defense as a defense in a tort seeming to have the moral legitimacy and neglect the integrity of content of the interest-balancing principle of fair use. Followed by a discussion of China's scholarly research of the interest-balancing principle and the problems of Rules Doctrine Legislative Model of fair use and its rule application, the academic system on theoretical research of fair use devotes to make it as a note, and always stresses the abstract balance between private interests and public interests, without in-depth analysis of the practical interests of fair use system. Compared to Factors Doctrine Legislative Model of the United States, the Rules Doctrine Legislative Model tries to make rules of fair use more typed and more concrete to overcome the abstraction of Factors Doctrine Legislative Model. However, on the contrary, it creates uncertainty on the rule application. It fails to make several judging criteria more explicit in the rules of fair use; furthermore, it will blur the internal logic of judgment of the fair use. On this basis, the article further notes that the reason of the errors of public interest defense and the rule application is to interpret the relationships of the interest-balancing principle and the nature of fair use system in the copyright law system with one-sided way of thinking. Therefore, we should construct the complete mode of thinking to judge the fair use and grasp the inherent development logic and inherent principles of the fair use system so as to interpret the interest logic of the interest-balancing principle and the complete system content of the rule of fair use. In the deconstruction of the internal logic and the premises of the fair use system, the construction of the complete mode of thinking of fair use will help us to re-examine the legislative model of fair use. At the end, the article points out that the construction of the complete mode of thinking to judge fair use requires to learn from rationality of Factor Doctrine Legislative Model of the United States .We should make the basic criteria for judging fair use reflected in the typed and specific descriptions of the fair use so as to overcome the inherent contradictions and one-sidedness of Rule Doctrine Legislative Model and construct a complete fair use system reflecting its inherent logic and premises of application.The conclusion further points out the inherent relationship between the interest-balancing principle and the rules of fair use, summarizes the basic research ideas the article insists on, and stresses the dialectical understanding of the fair use system's own interest-balancing principle. And under this research idea, it makes a brief summary of the fundamental causes of the errors of public interest defense and the difficulties of rule application, and a summary of inherent relationship of interest logic and the nature of protection of copyright beyond the restriction significance. At last, it further points out that the construction of the complete mode of thinking and system model is the requirements for reflecting the internal logic of the fair use system and for rule application of fair use system correctly.