Research On Transformative Use Test

The core of copyright law is to provide full protection for copyright owners.But this protection degree should also fit the purpose of the law to promote knowledge and technological progress,and the fair use doctrine is an effective way to achieve this goal and balance interests.Fair use is the exception of copyright.There exist three models of fair use rule:closed mode,half-open and open model.And the United States adopted an open model,which is established by referring to four factors.Transformative use is derived from the first factor.With the expansion of connotation and scope,transformative use plays a vital role for the judging of the fair use.There is even a phenomenon that judges excessively depend on this factor,which has caused some disputes and controversies.Currently,with the development of digital technology and the rise of emerging industries,many new use forms have emerged,such as parody,appropriation,thumbnail,digital library,online game broadcast,etc.This not only completely changes the way of expression,utilization,preservation and dissemination of works,but also impacts the scope of rights protection,posing a great challenge to the copyright system.Learning from the American transformative test,we can respond to the current judicial problems in time,and meet the demand of current technology development and interest balance.The applicable conditions and fields of transformative use are clarified through historical investigation,literature analysis and case analysis in this paper,so as to proposal for copyright law according to transformative use.The main body of this paper is divided into four parts,which are discussed from the following aspects" "introduction of transformative use"," the status and nature of transformative use","application field of transformative use","enlightenment and lesson of transformative use".The first part clarifies the concept of transformative use and analyzes the value of the factor,including promoting knowledge and technological progress,promoting the balance of interests,and resolving the conflict between copyright protection,freedom of expression and freedom of information.Then the history of transformative use is analyzed.The second part discusses the status and nature of the standard.Transformative use is an important criterion in fair use judgment.And it includes the transformative purpose and the transformative context.The commercial factor has little influence on the fair use determination.And through the case study of recognition and exclusion conditions of transformative use;Transformative use plays an important role in the determination of fair use.The more transformative the second use is,the less important the other criterions become,including commercial purpose.However,transformative use is not a decisive point in determining the availability of the fair use exemptions.In addition,this test is the basis of the exception of copyright rights and the defenses in infringement litigation,but it is not the judgment standard of copyright infringement.In view of the controversy of transformative use,although this factor has the characteristics of uncertainty,it still has the consistency rule in the application.It can distinguish derivative works from fair use works by correctly defining the transformative purpose,and it is helpful to delineate the potential market boundary in the market effect factor.The third part discusses the application field of transformative use.Literary and artistic works usually have a low extent of transformative,and even if they are intended for satire and criticism,they need to be judged by other factors.The use of information retrieval,with the function of providing information retrieval tools,is highly transformative and promotes social benefits,and is easy to be judged as fair use;The transformative degree of game video needs to be judged by combining game type and video type.The fourth part summarizes the current situation of China's fair use system,and proposal for copyright law according to transformative use.In terms of legislation,the general provisions including fair use should be added.In judicial application,the judgment of transformative purpose should be strengthened,and the choice of judgment perspective should be paid more attention to.And other general principles should be combined to improve the judicial practice of fair use in China.