The Construction Of "Two-level System" Of Copyright Fair Use Identification In China

Fair use is considered as "the most troubling issue in the whole of copyright law"by the US courts.In the study of copyright,it is even called a worldwide problem by scholars of America Japan and other countries.By comparing and analyzing the two legislative models of the current world,this paper tried to construct a two-level system of fair use identification.The first part of this paper briefly introduces the current provisions of international treaties on the "fair use system".As the international treaties are the benchmark and guidance for countries to establish their fair use system.The second part of this paper makes a comparative analysis of the main legislative technology paths of the current "fair use system",namely,by analyzes the advantages and disadvantages of the legislative model of "enumerations" represented by Germany and Japan,and the legislative model of "enumerations and generalist" represented by the United States.In addition,this paper discusses the legislative status,existing problems and reasons of China's fair use system,and provides a background reference in line with the actual national conditions for the "two-level" fair use identification system proposed below.The third part of this paper tries to explain the concept of the two-level system of the fair use in China by exploring the scientific definition of fair use.In the fourth part of this paper,the first step of the first level of the "two-level system" of the fair use judgment is discussed,namely,whether the use behavior conforms to the type of fair use specified in the current law,and comments on the relevant existing provisions and gives suggestions for modification.The fifth part discusses whether the user has fulfilled the general obligation stipulated by law and the special obligation of digital works under the network environment,on the basis of satisfying the first step.The sixth part discusses when the specific cases is differ from that of the typical type of cases set by the current law,which is difficult to directly applied in the case to determine the typical types,or belong to the current law to clear situation,in accordance with the copyright law spirit of rational use of other circumstances,needs to be considered into the second level judgment factor and the judgment method.This hierarchical and systematic identification system is conducive to overcoming the arbitrariness and dissimilarity of the application of "reasonable use system" by different courts in judicial practice.Beneficial to case study;this saves energy and avoids missing elements that should be examined.