Study On The Transformative Use In Fair Use

Judge Pierre Leval first proposed “Transformative use” in his Toward a Fair Use Standard, published in Harvard Law Review in 1990. Transformative use is one that, compared to the original creation, adds something new, with a further purpose or different character. In America, While judicial application of the fair use doctrine is often regarded as highly fact-specific and uncertain, courts routinely frame their fair use decisions in terms of four non-exhaustive statutory factors. These factors are(1) the purpose and character of the defendant’s use,(2) the nature of the copyrighted work,(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and(4) the effect of the use upon the potential market for, or value of, the copyrighted work. The first fair use factor includes whether such use is of a commercial nature or is for nonprofit educational purpose. Thus, transformative use is just one element of the first fair use factor.Different from other countries in the world, America choose fair use as the tool to balance between the rights and interests of originator and the public interests. American copyright law does not tell judges what kinds of using other’s copyrighted work are allowed. It just sets forth a general provision as a guide, which contains four important factors that each case should take into consideration. Judge should take comprehensive consideration of these four factors case by case. No one factor is decisive in determining whether a user’s using other’s copyrighted work without permission could be considered as fair use. However case law show that the fist fair use factor become the most impactful factor in fair use.China does not have fair use and transformative use in our copyright system. We itemize every concrete situation that could be deemed as non-infringement of copyright. However such legislation mode leads to in-adapt to economic and technological development. Some usage of work, like parody and making thumbnail, will be condemned as copyright infringement just for the copyright law’s no specific provisions, which is ridicules for these usages do no harm to author’s right while improve the world’s possessions and promote the technical progress, all social agents benefit from the using result. Such legislative defects will wrongly hinder the public accessing previous works fairly; this is a kind of restricting freedom of speech. It is the time to make a change.This article is trying to study the transformative use, and suggest introducing transformative use into our legislation premising construction our copyright law. So that to establish a better copyright system.This article is organized as follows:Chapter one is an introduction to transformative use, including haw transformative use concept arose, root of the concept and the first judicial application of the concept, to give an overview of the transformative use. The core of this chapter is to discuss the legitimacy of the transformative use. The legitimacy of the transformative use is derived from the purpose of legislation of copyright law. Transformative use is a method to achieve the purpose of the copyright law, which is to motivate individuals to create more works and achieve the ultimate goal of accelerating the progress of science, art and social public interests. Transformative uses are protected by the fair use doctrine because they lead to the creation of new works that do not substitute for the author’s original expression. Another point is to emphasize the fact that transformative use is not an independent standard of fair use, but rather an element of the first fair use factor. Without reference to other three fair use factors, focus on transformative use will result to expand or narrow the copyright’s boundary. Therefore it is a cautious and meticulous job to find balance between author’s rights and public interest.Chapter two and three plan to study the applying rules of transformative use, which is the basis of introduction transformative use into Chinese copyright law. This chapter is divided into three parts: the relationship between transformative use and other three fair use factors; the relationship between transformative use and commercial use in the first fair use factor; what kind of behavior can be deemed as transformative use. First, according to many cases, a transformative use is inclined to be deemed as fair use, but it is not necessarily. Second, the first fair use factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." The case law under the first factor is dominated by two considerations: whether the use is transformative and whether the use is commercial. According to the Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., the first factor turns primarily on "whether and to what extent the new work is ’transformative.’" The reason of this transformation is that transformative use show the nature of copyright law, which is its goal to motivate individuals to create more works and achieve the ultimate goal of accelerating the progress of science, art and social public interests, while commercial use has nothing related to this goal. Third, derivative use has has nothing to do with transformative use. It is easy to make two mistakes: a. only derivative use could constitute transformative use; b. as long as a usage is derivative use, it is necessarily transformative use. But they are totally in different levels. Derivative use focuses on add new expressions on the basis of original work’s expressions, if a derivative work obtain big market success, it is because the ordinal work is success. Transformative use focuses on whether the original work has a totally different purpose or function in new work. Exact copy could constitute transformative use in certain circumstances. And even a transformative use may be copyright infringement if the other three fair use factors are very vicious negative for users.Chapter four is to give the advice of how to reconstruct our copyright system and how to apply transformative use test in China. It is suitable for China to introduce fair use and transformative use test, because there is a judicial guidance that advocate judges to use four fair use factors in theirs trial practice, and they did do so. It is better to save existing specific provision, at the same time stipulates a save clause and a general rule namely fair use. And then use transformative use test to help decide the first fair use factor. When apply transformative use test in judging, the judges should remember that transformative use is not a decisive rule; do not confuse transformative use and derivative use, they are two issues; even commercial use could be deemed transformative use and fair use. Keep in mind: transformative use is not a safe harbor for infringer.