Study On The Fair Use System Of Moral Rights

According to traditional Civil Law countries,moral right is regarded as an extension of author's personality.In essence,it is a personal right,which can't be transferred or inherited even applied into fair use.Influenced by this concept,few countries'Copyright Law has set up the fair use system of moral rights around the world.With the development of digital technology,moral rights has facing severe challenges.About the fair use system of moral rights,there are two completely different views held in academia.This article aims at explaining application basis of the fair use system of moral rights,and verify it's legitimacy on such basis,by revealing the due-nature(both personality and property).In this paper,the author has examined legislation of the fair use system of moral rights in the two law systems,and analyzed the theoretical and realistic dilemma of constructing the fair use system of moral rights in China.Based upon above analysis,the author has come up with legislative proposal.This article is separated into four parts:The first part elaborated theoretical basis of the fair use system of moral rights.This part examines the two totally different views about the fair use system of moral rights in international and domestic academic circle,and uncover the essence of moral rights.This part focused on the two different ideas,which is positive and negative theory.From the two different theories,the author drew a conclusion that the key whether fair use system is suitable for moral rights lied in applicative basis.And then,from the difference between moral rights and rights of personality and identity,proved the statement that "the essence of moral right is personal rights" defied logic explanation.Besides the distinction of features between property rights and moral rights,testified the conclusion that "the essence of moral rights is property rights" needs to be further confirmed.Finally,the author paid much emphasis on analyzing the property attribute of the rights of publication,authorship,alternation and integrity,and revealed the moral rights has dual nature of both personality and property.Therefore,applicative basis was provided for fair use system.The second part demonstrated the legitimacy of the fair use system of moral rights.From two perspectives of theory and economy,the author expounded it's legitimacy.As for the aspect of theory,the fair use system conforms to the balance concept of CopyrightLaw,and conforms to the essence of moral rights.In terms of the aspect of economy,the fair use system of moral rights is the best model in response to the challenges from digital technology,in favor of saving transaction costs.The third part have probed into legislation status of the fair use system of moral rights in the two law systems and International Convention.The author analyzed the different attitudes about the fair use system of moral rights within Common Law countries and Civil Law countries,and had a systematical understanding of the legislation about fair use system of moral rights around the world.The fourth part analyzed the dilemma in constructing the fair use system of moral rights in China,and the author had come up with legist speculation.In this part the treble predicament was under analysis.In author's opinion,should be adopted in China legislation model of factors doctrine combined with rules doctrine.Meanwhile applicability of elastic clause should be taken into comprehensive consideration from the following aspects:the intention of use,the character of the product works,the way of use and the outcomes of use.