Research On The Problem Of Work’s Transformative Use

With the development of the society and the progress of science and technology, the new forms of works of parodies and satires are constantly emerging in literature and art field. These works are mostly in the use of the original works on the basis of the contents or forms, and its prevalence has brought a series legal problems, especially within the scope of copyright law. And the legality of these works involve with transformative use and fair use of copyright works, therefore, it becomes very complex and difficult to determine. The question of transformative works is derived from the fair use system of copyright law and with the development of the judicial practice to further promote and perfect the construction of fair use system. Briefly, fair use is who can use others’ published works in the legal way,and without the permission of the copyright owner, and also need not to pay remuneration, and this kind of way does not constitute infringement. With the development of international treaties and agreements, fair use has been widely accepted and recognized. In the modern national copyright legislation, fair use is one of the very important content, and behind it was a profound legislative purpose and value. An overview of the main countries’ copyright fair use principle, mainly lies in the limits of the copyright owner’s proprietary rights to achieve balance with the interests of the public domain. Although in different countries, about the fair use of copyright on legislative and the name are different obviously. But under the background of the provisions of the international conventions and agreements, countries abide the Berne convention’s "three-step inspection standards" in different ways.In the United States, fair use system is developed and its four reference principle in article one hundred and seven of the copyright law has been a judge whether fair use or not. And in contrast, China’s copyright law, lack of the provisions of general principle, only provided 12 "rights restrictions" in article 22 in copyright law, is not a real sense of fair use. Also unable to cope with new problems in the judicial practice, and to really realize the legislative purpose of the copyright law. Especially in today, science and technology developed, cultural diversity, the use of copyright works beyond the fair use of copyright law explicitly listed in a specific way. And its new works such as parody works, has also become an indispensable part of public culture, for these works indiscriminate that copyright infringement is contrary to the purpose of balancing with interests and promote public welfare. Visible, backward system of rigid design cannot be effectively used in flexible judicial practice. In specific copyright infringement disputes, restrict provisions cannot cover all fair use situation, we still need to uphold the principle of case, judge whether the work suit fair use or not, we shall under the guidance of the principle and combined with the specific details of a case to make a judgment. America copyright law provides four elements of fair use, it solve the judicial practice of parody works which involved with the transformative use in a better way.From Sony case take the market as the center of the paradigm to Campbell case increase transformative use as the examination and judgment standard. The fair use of American copyright law along with the development of the practice continuously improved in order to better cope with the new problems. The fair use system in China can’t timely respond to the problem of such works with characteristics of transformation brings. What kinds of works is transformative use in copyright law, the level of transformation and the specific situation of the case are all the important factors that affect the fair use identified, this is far from the enclosed list can cope with. Even America’s relatively perfect and mature system of fair use in response to these new problems are changing at the same time. Therefore, analysis the fair use system of copyright law in the United States, has an important significance in construct our country’s fair use system of copyright law.