Copyright Fair Use System Study

Fair use is the butter and bread of copy right, it always puzzles us since it was produced. The eternal dilemma of copyright law is to devide the limits between copyright holders and the starting point of free use of the works by the public, and the fair use doctrine is just about the boundary of devision to the above dilemma. For years people always ask what on earth is the ideal division of fair use, nobody can provide a perfect answer, but they never stop pursuing the ideal goal. It is just on the process of searching for "the answer of the riddle", the copyright system is continually improving to be perfect as close as possible. The total copyright law embodies a delicate balance, while fair use doctrine is but the essence of the balance.The primary objective of the system is to reward the labor of authors as well as to promote the progress of science and useful arts. It assures authors the right to their original expression, and encourages others to build freely upon the ideas and information conveyed by a work. Fair use doctrine has profund legal philosophy foundation, embodies fairness and justice, and possess a reasonable economic meaning. In short , it provides adequate banlance to encourage people to produce work for the benefit of the public, that is to give copyright holders an economic incentive to create works that ultimately benefit society as a whole. There are stipulations in explicit terms for fair use in our copyright law. But lots of imperfections still exists in legislation and justice. In view of this, the paper analyses the fair use system from different angles. Such as what is the fair use? how about its nature? which use on earth is "fair"? For these questions, there are detailed analysis in the article. The article explores to the fair use system from further step, that is, the theoretical analysis, the paper analyses fair use from the prespective of legal principle,legal philosophy,civil law and economics. Only analyses fair use from theoretical level, it can provide theoretical support for the construction and enrichment of fair use system. The author compares the different regulations in various countries, analyses the defect of fair use in our own country, and put forward the author's own legislative suggestions, and hopes to make the fair use system more perfect. The article groups into six parts: The first part (chapter one) introduces the derivation,evolution,and present condition of fair use. Fair use is a judically-created doctrine, it originated from British and made progress in America. The American1976 Copyright Act adopted fair use doctrine and the factors that courts had been using for determining whether or not a use was fair. Through the years, the concept has become a general rule and regulated by numerous countries. Althrough the legislative regulation differs from country to country, they all accept the importance and necessity of fair use, and related international convention regulates such doctrine as well. The second part (chapter two) involes the theoretical analysis for fair use. The author analyses fair use from the prespective of legal principle,legal philosophy,civil law and economics. Fair use doctrine embodies the essence spirit of fairness and justice, it balances the intellectual property interests of authors, publishers and copyright owners to encourage creation of original works and distribution to the public. It is the natural results of managing conflcting interests, give first rank to efficiency and pay attention to fairness to meet the requirements of market economy. The third party (chapter three) discusses the nature of fair use. About the legal character of fair use, there exist 3 different theories: some people view that fair use is a limitation on the exclusive rights of copyright holders; some people claim that fair use is merely a defense to a claim of copyright infringement, it excuses conduct that ordinarily would be infringement, but because of the existence of certain factors, the conduct is exempted; and others argue that fair use is a right that one has by law, nature or tradition, it is not dependent on being granted by someone else. The author weighs up these theories and indicates that the key point is not lay on the nature of fair use, but to measure the scope of rights. A proper scope of right on fair use doctrine should be made, torecognize between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. The forth part (chapter 4) introduces the judgement and importance of fair use. Fair use is significant important in differentiating infringement and eliminating differences and fault verdiction. Fair use is so hard to judge that it fails to provide effective guidance for the use of others' works today. It can often be difficult to determine whether or not a particular use is a fair use because there are no clear-cut rules for deciding fair use and there are no "automatic" classes of fair uses. For there is no quick rule or standard for, fair use is decided by a judge, on a case by case basis. Each case must be decided on the basis of its unique facts and circumstances, a court applies the factors and makes a determination on the particular facts of a given case, to determine whether a use is a "fair use". In this chapter the author discusses the judging standard of fair use and explain the realistic sense and practical value of this criterion. The fifth party (chapter five) is about comparative research. Fair use doctrine is an universal regulated system around the world. At the same time, differences do exist in stylistic layout ,guiding princi ple and detail rules amongs countries.This chapter compares the related regulations among different countries and international treaty, and analyses their differences and similarities. The sixth part (chapter six) eximanes the defect and enrichment of fair use doctrine in our own country. There are a lot of questions need to be clarified. By contrasting the differences regulations in various countries, this chapter analyses the defect and enrichment of "fair use"and illustrates real cases happened around the world, and furthermore advance the author's personal legislative suggestions.