On The Legal Role Of "Transformative Use" In Judging The Fair Use

In the context of Copyright Law of The People's Republic of China,a closed legislative model is adopted for the fair use,but this model has been difficult to cope with new cases brought about by social development.Under these realistic challenges,some courts have introduced transformative use as the dominant recognition rule for fair use,thereby expanding the scope of fair use.It is reasonable to introduce transformative use into the fair use system of copyright,but transformative use should not be used as the dominant recognition rule for fair use.From the perspective of creative transformative use and functional transformative use,by combing market failure,public interest theory,"market factors","proportional factors",China's fair use recognition rules,and "three-step test",the analysis shows that transformative use is neither a sufficient condition nor a necessary condition for fair use recognition rules.In judicial practice,the content transformative use does not have higher legitimacy and rationality than the general copyright infringement,and therefore it cannot be used as a reference factor for determining fair use.The purpose transformative use or function transformative use make the original work as the material,they do not take advantage of the original purpose or function of the work,and it meets the needs of balancing the copyright owner and the public interest and solving the market failures,therefore,they can be used as a reference factor for determining fair use.