Non-commercial User-generated Content Fair Use Research

User-generated content means works created by internet users through a variety of means such as original creation,adaption,compilation and translation and uploaded on the internet through personal network accounts.A large number of these works is second-created on the basis of existing copyright works.The general behaviors of creating and transmitting these UGC works may constitute infringement on the copyright holders' the right of authorship,the right of modification,the right of keeping integrity of a work,the right of adaption,the right of performance and the right of network transmission.Some innovative measures such as collective license,creative commons and UGC principles under the present copyright system cannot solve the copyright infringement problems arising from user-generated content.The exclusive rights entitlement to the copyright holders is the consideration of the holders'promise on releasing parts of use value of the works.In copyright law,the "fair use"system is the manifestation of this kind of use value.However,under the influences of digital technology and internet,the scale of copyright has been extraordinarily expanded while the use value released by copyright holders has not increased.The interest balance in copyright law has been broken.The expansion of copyright and the contraction of fair use lead to the conflict between copyright law and the creation and transmission practice of user-generated content.User-generated content has positive externalities in encouraging cultural innovation and guaranteeing freedom of expression which advance the development of democratic and multi-cultural society.These positive externalities cannot be internalized via copyright license system,thus it is necessary to solve the market failure through fair use regulations to equalize the interest gained from the fair use extension by the general public and the interest gained from the expansion of copyright.Making use of existing copyright works to create and to transmit UGC works without commercial intent and benefit would not conflict with a normal exploitation of the work and would not unreasonable prejudice the legitimate interests of the right holder,qualifying the "three-steps test" on fair use.It is reasonable for non-commercial user-generated content to be included in fair use regulations.While the present fair use clause in Copyright Law of People's Republic of China includes"personal use","appropriate quotation" and "free performance" which can apply to the creation and transmission of UGC under liberal interpretations,this application may set up barriers on the understanding and the operation of law.Therefore,it is necessary to modify the present "personal use" in fair use clause to clarify the non-commercial creation and transmission of UGC by exploiting existing works constitute fair use on the condition that the user had reasonable grounds to believe the existing work is not infringing copyright and has indicated the sources.