Reflections On Introducing "Elasticity" Reasonable Use System Into China 's Copyright Law

The Copyright Fair Use in Copyright Law has been the focus of controversy, in 2011 the third revision of the Copyright Law is started, in the draft, the original list of 12 type provisions in the copyright fair use has made changes, increasing a general requirement, this article will through this general requirement of the Copyright Law to reflect the "flexible" fair use system. Analysis the advantages and disadvantages of "flexible" fair use system, and according to this, made better legislative proposals for the copyright fair use.The author cites a large number of cases in this article to make an example, and summarizes the legislation of the different countries. Hoping to reveal the system more clearer, and by thinking of the case of developed countries, combined with China’s actual situation, put forward our own legislative proposals. The full text is divided into four parts, the first part is to overview the copyright fair use, conclude the concept of the origin and rationale of copyright fair use; the second part describes the background of the third draft amendments of the copyright law, including the current Environmental impact of copyright fair use system, our original legislative model problems and learn from foreign legislation; and the third part is to analyzes the advantages and disadvantages of the "flexible" fair use system, including the values of the "flexible" fair use system and the possible problems in the practices; the fourth part is the legislative proposals on the rational use of the copyright system, proposed changes in the legislative approach and adopt the structure of the legislative, combine the principle of legislative and the three factors of the rules.The first part is to overview the copyright fair use. Only a basic understanding of the study make in-depth research possible. This section describes three aspects of the copyright fair use. Including the concept of fair use, the origin of the fair use system, the theoretical basis of the fair use system. An introduction to the origin of the system is reasonable because it can make the historical changes of copyright fair use more clearly and see the historical features about the fair use system setting under external pressure, the introduction of the theoretical basis for the introduction of rational use the transaction cost theory of law and economics, is to provide for the rational use of a new perspective, so as to legislative recommendations mentioned theoretical foundation.The second part introduces the background of the third modification of the Copyright Law. The starting point of this paper is the "elasticity" of the fair use system, to study this rule, we must firstly understand their background. This part of the background from three aspects were introduced, The first is their own problems of China’s closed-end legislative model. The second is a series of new problems due to the current network environment. The third is the introduction of developed countries legislation. The third part is not only the background of the draft amending, but also the realistic basis of the legislative advices proposed by author.The third section describes the pros and cons of "flexible" fair use system. This section is divided into three areas, one is the introduction of the "elasticity" fair use system. Two is the practical value of the "elasticity" fair use system. Three is the problem of the "flexibility" fair use system. In the third aspect we find that the principles provided will result in the right of the judge is too large, and by comparing the different foreign judicial environment, concluded that in our country giving too much judicial discretion is not suitable.The fourth part describes the legislative proposal on the copyright fair use system. This section presents the new structure of the legislation, and accordingly divided into three aspects, the first is the system should adhere to the principle of balance of interests. The second is the factors needed to judge. The third is the explicit rules that needed to add. In the second part,we has done a thorough analysis about the four-factor, pointed out when introducing the problems that needed attention, and give two other factors that needed consider.