Research On "Appropriate Quotation" In Copyright Law

There is no doubt that the quotation is very important to the creation.The quotation is the intermediate link of the creation,which is concerned with the application of the original works and the generation of new works.Appropriate quotation is the act of utilization of works which is authorized by not only the copyright law of our country but also the copyright laws of other countries and districts.The educational circles have different viewpoints on how to judge the quotation and what kind of quotation is appropriate because of the diversity of the quotation forms and the complexity of the quotation contents.It is too mechanical and rigid to judge whether the quotation is appropriate or not according to the quantity and quality of quotation in our judicial tradition.This kind of recognition method is not the understanding tool in the methodological sense,which can hardly make a reasonable and logic explanation of the appropriate quotation.Both of the enclosed legislation model of the appropriate quotation system in our country and the “three-step test” which has the universal significance to determine the rational use have not played the proper role.In addition,because of the impact of the public participatory culture derived from the new technologies,the cognition and the judgment method should be improved.The“transformative use” rules which has the nature of analysis tools may provide the new perspectives to the appropriate quotation.Except the introduction and the conclusion,the paper includes the following five parts:The first part teases out the historical origin of the appropriate quotation,interprets the related legal terms which are easily confused with the appropriate quotation contrastively and then define the exact meaning of the appropriate quotation.The appropriate quotation is not only conflict with the free expression but also promote mutually.The contradictory relation between them insures the liberalization and diversification of the expression.The second part of the article analyzes how to judge the appropriate quotation in the juridical practice of china.Traditionally,the inspect of the quotation quantity and quotation quality was controversial,especially on the analysis of the quotation quality which still exists the problem that the analysis objects are unclear.Due to the legislation model of the fair use system in china,the defective “three-step test” exists big limitations on the judgement of the “appropriate”.The second part also introspects whether the “unavoidable”should be regarded as the necessary conditions for judging whether the quotation is appropriate.As to the nature of the quoted works,the mainstream view advocates that the quoted works are the published works,which is also the regulation of china’s copyright law.The third part introduces the methods which are adopted by the American justice in judging the appropriate quotation.Because the United States adopts the Factors legislation model in prescribing the fair use system and maintains that the situations which are similar with the meaning of the appropriate quotation should be regarded as the rational use,so that there does not exist the legal term of the “appropriate quotation”.The “four-factors test” and the “transformative use” rules are the standards and the analysis tools for judging whether the using behaviors of some works are the fair use or not.The fourth part reshapes the recognized standard of the appropriate quotation again.This paper regards the “transformative use” rules as the tools for judging the appropriate quotation,shifts the focus of the judgment to the cognition of the new value of new works,reshapes the recognized standard of the appropriate quotation.Due to the convertibility of the appropriate quotation,the “non-commercial” can no longer be a stumbling block for determining the quotation purposes.At the same time,parody,as a special form of appropriate quotation,also obtains the reasonable explanation because of its transformative characteristics.Under the background of public participatory culture,the connotation of“transformative use” rules expands unceasingly,also contributed to the flexible understanding of the appropriate quotation,provides vast space for the freedom of expression.The fifth part is about the application and development of the recognized standard of the appropriate quotation in the practice of our country.The judicial policy advice of China’s Supreme Court has absorbed the “four-factors test”,and applied the “four-factors test” and the “transformative use” rules in practical cases.The provisions of the appropriate quotation in the “manuscript” of the copyright law are more scientific and reasonable,accorded with the connotation of the “transformative use” rules.The “manuscript” changed the enclosed legislation model of the fair use to the double-deck legislation models which includes the enumeration model and the open type,took into account both the stability and flexibility of the fair use system.