On The Transformative Use Of Copyrighted Work

Construction of fair use is an important content in copyright Law, however, how to judge fair use is uncertain in Copyright Law field, and this issue is still in controversial in academe. After the four elements of fair use has been wrote into the Article 107 of the Copyright Act in 1976, transformative use is the theory in terms of Judge Leval's practice with lots of cases, following the criteria of four factors being codified in U.S. Copyright law at 17 U.S.C.§107. Beginning with the history, Interpretation and improvement of transformative use theory, this dissertation analyze the defects about the criteria of fair use in China copyright law, and whether transformative use theory can be applied in our nation. Hope it helpful for the improvement about fair use in Chinese copyright Law.This dissertation reads as follows:The first part is to introduce history of transformative use. Transformative use theory comes from the famous case Sony Corp. of America, v. Universal City Studio, and Harper & Row Publishers, Inc. v. Nation Enterprises. "Time-shift" and the method of use and the viewpoint about unpublished works were the theories which came from these two cases. Judge Leval published his thesis in 1990, in which proposed transformative use. This theory was first used in Campbell v. Acuff-Rose Music, which not persisted in only considering the purpose of commercial or non-commercial. Since then transformative use have became the important theory in the criteria of fairness of U.S. Copyright law.The second part is the theoretical interpretation of transformative use. This section describes the theoretical framework of transformative use and how to use it in practice. Public interest is the purpose of legislation about copyright, and also it is the legitimacy of fair use. Under the premise that affirming positive significance from the transformative use to promoting the public interest, and combined with the four factors at 17 U.S.C.§107 -Only using works with transformative purpose of works the legitimacy and rationality. After a long time discussion in American copyright field, it is positive that unpublished work is able to be used in fair use; the quality and quantity of use and the impact on the works'market just as the auxiliary referenced factors of the first two factors. At the same time Judge Leval accentuate that it must excluding other unrelated criteria in order to avoid interferenceThe third part is the analyse of transformative use. Transformative use of has positive contribution in practice, but it is certain that because of some confusion in explaining the concepts of the theory, resulting that the lower courts regard the productive use as the whole content of transformative test about the use, which brought the public interest a very narrow connotation, thus impeding the development of society. For amending the theory, many scholars put forward on how to improving the transformative use in different opinions, for example, re-interpretation of what is creation in new, expanding the interpretation of the public interests, etc., in order to make the transformative use theory continue to glow with vitality in the new technological age.The fourth part is about the inspiration to our nation's fair use system from transformative fair, there are many areas for improvement in fair use of Chinese existing copyright law system. The traditional "rulism" legislation is fixed and rigid, and the judge in a lack of practice space for discretion in practice, although this is our long-standing legislative tradition. In the field of intellectual property, especially now in such a rapid technological development, the forms of using works are endless, the introduction of "factorism" of the legislative ideology allows us to face the emerging problems more inclusive and flexible. On the other hand, although China is a civil law country, it does not means that case law has no room to apply. First establishing the case instruction system has become the important task of the law field, and secondly, many countries and regions in Asia use the four factors for reference in the legislation, especially recently, Taiwan is also quite in-depth research and reference on the transformative use, which is also belongs to the civil law areas an has the similar social conditions to Chinese mainland. Meantime, the constitutional basis and public interest of transformative use also line with the legislative intent of copyright law of China, and actually in China signs of transformative use have appeared in trial practice.