Fair Using Of Sculpture Works In Outdoor Public Place

In the modern copyright law, allowing others to free use of the sculpture worksthat set or display in outdoor public place has been widely accepted. Our CopyrightLaw article22(10) also have this provision, but due to the ambiguity of the legislativeprovisions and the lack of criteria, making the judicial practicing uneven and thetheory also been controversy endlessly. Therefore, it is necessary to study this theory,so as to promote the perfection of legislation and guide the judge to settle dispute.The train of thought of this dissertation is: Starting at the problems that sometypical cases reflected then inductive analysis these problems and extracting thetheory from this. Base on the needs of judicial practicing in China, studying theforeign countries’ legislation and academic research, so as to promote and improvethis theory. The main content of this paper can be divided into four parts:The first part is about the juridical practice. Base on the analysis of the classiccases, such as "Dong young and fairy ","the wind of May " and so on; we can sum uptwo common focuses of these disputes: the first one is about copying; the second oneis about the further using with commercial purposes. However, different judges havedifferent view, so that different or even contrary verdicts have been made for thesesimilar cases.The second part is about academic analysis. At first, introducing the particularityof the sculpture works that have been set in public places as well as the legal attributesof the fair use. Then, focusing on the differences of opinion in the profiled copyingand the further using with commercial purposes. At last, conclusions are drawn on thebasis of the author in the study of world copyright law legislative provisions andjudicial practice in China need. The conclusions are: the behavior that reproducing thesculptures from the three-dimensional to the plane by photograph is copying in thesense of Copyright Law; But further using of these reproductions should meet certainconditions: legitimate purposes as the precondition, non-profit using in principles,incidental using for the exception.The third part studies the fair using of sculpture works in the light of comparativelaws. After studying the rules of fair use of the arts in copyright law of the UnitedStates, Germany, the UK, Japan, and Taiwan Province of China, we can make acomparative analysis on the methods and the scope of fair use. Buy this way, to provide certain reference in improving the fair use system for our country.The fourth part is about the reflection and reconstruction of the fair use. Afterreading verdicts of these relevant cases, we can find that most f courts cannot analyzereasons of the judgment adequately. The main reason is that our Copyright Law stilllack of criteria which can help judges to judge fair using or not. Therefore, the paperargues that, based on the consideration of the legislative purpose of modern copyrightlaw and the value of the fair use system, it is necessary to determine the " balance ofinterests " as a general judgment rule, and establish some specific element ofjudgment with the full consider of characteristics of sculpture works that been setoutdoor public places.