Research On Fair Use Institution Of Expressions Of Folklore In Copyright Protection

Expressions of folklore is unable to determine the original composers, which is created by a social group(nation or region) in the process of the history and the long-term practice..Expressions of folklore gradually formed through the generations,and long term evolution with regional features, reflecting the group characteristic of literature and art,and can be replicated in the form of tangible results in intelligence achievements.In 1990, China promulgated the "copyright law",which clearly defined thar expressions of folklore protected by copyright, the specific protection measures shall be formulated separately by the State Council. Expressions of folklore is the source of literary and artistic creation,which is necessary to be protected, but if we protect it excessively,it will not be conducive to the dissemination of expressions of folklore.Moreover,it will suffocate expressions of folklore on a life of its own over time. Therefore,in the expressions of folklore's copyright protection, fair use is very important. But due to the expressions of folklore and art have characters which is different from general copyright works, so it is one of focus that can not be neglected in the process of developing the Expressions of Folklore Copyright Protection Regulation.Fair use of the expressions of folklore, in essence, is a kind of restrictions on the right, which can be regarded as a folk literary and artistic works copyright person other than the right. Therefore, we should for the fair use of the works of expressions of folklore and art anti restriction, prevent rights too put no boundary. The works of expressions of folklore and art of the fair use of anti restriction, interests contradiction between human rights, disseminators and users, to solve the unity of interests among the realization of important system. From the purpose of use, is used influence on the works of expressions of folklore and art of human rights nature of works, the use of the work of level, behavior and whether it is conducive to the five aspects: the inheritance and development of folkliterary and art works are defined, in order to achieve the balance of interests should be.In the academic circles of our country, on the fair use of expressions of folklore has been controversial, from content to form various scholars have their own views,and unable to decide which is right. The debate mainly focuses on the following questions: Whether to set up the fair use rules of expressions of folk? How to use fair use rules provisions?Provisions shall be made in which model ? The views of various scholars were analysis,and combines the characteristic of expressions of folklore, the expressions of folklore of the fair use of the provisions, the authorship protection of folk literary and artistic works in the fair use rule has carried on the induction and the summary, and expressions of folklore in our country to fair use of the development of the system put forward the following suggestions: Firstly, the expressions of folklore and fair use of our country's legislative mode from "closed enumeration type" into "semi closed"; secondly, the identification of expressions of folklore as fair use should be carried out five aspects to consider. Including the use purpose recognition should be objective consideration is justified, and not only rely on "whether is non-profit purposes use" standard to judge; for using the identification of the degree, consider to make use of expressions of folklore and art to from the two aspects of "quantity" and "quality" identify;the rights to use of the expressions of folklore; and use behavior of various factors of the comprehensive consideration. Thirdly, through the analysis of the theory of the fair use of the expressions of folklore in our country, put forward for expressions of folklore in our country reasonable terms of use the lists and to reveal the provision model in terms of design recommendations.