The Applicability Of The Transformative Use

Transformative Use is one that, employs the quoted matter in a different manner or for a different purpose from the original, and adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings. Judge N. Pierre Leval first proposed “Transformative Use” in his Toward a Fair Use Standard, published in Harvard Law Review in 1990. This is the very type of activity that the fair use doctrine intends to protect for the enrichment of society, and it is used to analyze the first factor of fair use---the purpose and character of the defendant’s use. Generally, if an action is Transformative Use, that it is highly possible fair use.The system of “Limitations and Exceptions” gives way to qualify the situation for fair use, although this makes the predictability of legislation, and to some extent, makes justice with a high degree of maneuverability; however, with the advancement of technology, appears to cover other circumstances in a given situation. At this point, since no open fallback provisions, and there is no corresponding judicial interpretation, resulting in the “fair use” of the judging process, there will be compliance with copyright legislation the purpose of the Act is classified as not to constitute “fair use” in the ranks. Transformative Use rigid rules can better avoid judgment questions, contribute to better judge whether a certain behavior in judicial practice “fair use”.This article is trying to study the applicability of the Transformative Use, and suggest introducing the four factors of fair use into our judicial interpretation during the editing of the Copyright Law. After accumulation of a certain amount of cases, we can introduce Transformative Use rule into act of law.This article is organized as follows:Chapter One focuses on the possibility of introducing Transformative Use rule into our country. This part is organized as following three aspects: first of all, the judicial practice of Fair Use is in predicament, second, there are the soil for introducing the Transformative Use rules, finally, the introduction of Transformative Use rules would be helpful to justify Fair Use. Among them, the predicament in practice mainly because of the rigid judgment rules and the absence of judicial interpretation. In fact, Chinese scholars has begun to study Transformative Use rule on this issue. Under current judicial practice, the judges also began to apply the "four factors of fair use". Transformative Use rules plays an important role for the judging of the first factor of the Fair Use, and the establishment of the first element or not is essential for the establishment of the Fair Use or not.Chapter Two focuses on the key components and common situations of Transformative Use rule. When discussing the key components, the emphasis are “the intended of use” and “the effect of use”. The former refers to difference to the original purpose of use, and the latter refers to a certain degree of transformation. The original purpose of use includes the convey the beauty of science, art, literature of the original work, and “the intended of use” should be different from them. While discussing “the effect of use”, we should also pay attention to classify different types of work, because the different types have different functions.Chapter Three focuses on the misunderstood of the relation between Transformative Use and Fair Use, and the relation of Transformative Use and Derivative Use. First, according to many cases, a Transformative Use is inclined to be deemed as Fair Use, but it is not necessarily. Second, Derivative Use 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.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. And then use Transformative Use test to help decide the first Fair Use factor.