| In recent years,the new technology environment has exerted a great impact on judicial practice in dealing with the issue of fair use.Since China's rational use system is a “Regularism” legislative model,only 12 exceptions are exhaustively listed in Article 22 of the Copyright Law,so “snapshot”,“digital library”,“fan novel”,etc.these new use of the original work are often regarded as a “transformative use” and cannot be included in the “fair use” of the Chinese copyright law.In such circumstances,the court could not choose to break through the legislation to give a verdict.In practice,special circumstances beyond a certain number of laws have been identified as situations that constitute fair use and clearly apply the four elements of fair use,and some courts have even used it explicitly.The concept of “transformative use” is in the judgment,which has caused great controversy in all walks of life.It should be noted that while the emerging high-tech industries have promoted the vigorous development of the relevant markets such as China's copyright trading market and cultural communication market,they have also spawned many copyright disputes.After finishing the research by the author,it was found that the causes of the current copyright disputes mainly concentrated on three levels: 1.It was unnecessaryto say that this was the most basic and most prevalent piracy without the prior authorization of the copyright owner;2.The original copyright owner make the split of rights which lead to confusion caused by too many authorizations.The same copyright owner splits the copyright of the works and transfers them to multiple transferees.The competition for the later authorized products is fierce and the disputes are constantly inconsistent;3.The limitations of the law lead to the perpetrators.There is an ambiguous area of ??illegality of infringement,whether it is fair use,and therefore there is no clear legal basis for excluding from the scope of infringement.The limitations of the law and the actual needs are in conflict with each other.This is the focus of this article.However,despite the fact that the fair use system is an example of the international copyright legislation,there are still theoretical difficulties in the determination of “fairness” and difficulties in practice.Therefore,clarifying the concept of “ transformative use”,the definition of intrinsic value and the conditions for identification will play an extremely important positive role in determining disputes.Among the four factors stipulated by the United States “Copyright Law”,the court places the greatest emphasis on the purpose and nature of the use and the influence on the copyright work market.In the current judicial practice,whether there is “ transformative use” in “purpose of use” has become an object that must be analyzed and even analyzed in every fair use case.With the development of judicial practice,the nature of the commercialization of the original work in the later period is only one of the factors to be considered.It is no longer simply to use commercial and non-commercial as the sole criterion for judgement.Instead,it should use the degree of transformation.Fair use of judgment criteria.Even “transformative use” does not become the sole criterion for fair use judgment,but when the degree of transformation is higher,other relevant judgment factors,such as commercial use,are often considered to be detrimental to rational use.Its importance has weakened.When dealing with the same type of issues in China's judicial practice,it is essentially a reference to the US standard for the fair use of judgments.Therefore,it analyzes andstudies the attitudes and opinions of US courts and American scholars on the issue of“transformative use” and makes it clear that it is most suitable for the current judicial status in China.The applicable conditions of the “transformative use” are reference to our country's legislation and judicial practice cannot be ignored value significance.Therefore,this paper attempts to clarify the concept,connotation and application conditions of “transformative use”.By analyzing the judicial practice of American courts and the viewpoints of domestic and foreign academics on “transformative use”,this paper summarizes the merits of US judicial practice and tries to Typical case types are explored for their suitability.Specifically,this paper takes the new technology environment in China as its starting point and its ultimate goal.First,it analyzes and demonstrates the core legal issues of “transformative use” in U.S.copyright law one by one,attempting to clarify the basic connotations and standards of “transformative use”.,value measurement and the combination of rational use of the system to its dilemma including the definition of judgment criteria,and finally return to the Chinese legal system,combined with China's current situation of the current state of the new technology environmental litigation and needs,select a typical type of case for analysis of the Chinese legislation Reference and enlightenment.First of all,the thesis explains the themes of the paper,trying to explain the basic concepts of the important rule of “transformative use” and the legal issues involved:the development course of “dichotomy” to “transformative use” and the reasons for the transformation of “content” to “transformative purpose” and the basic value measurement are studied through a combination of case and scholar perspectives.The second chapter further analyzes the explanation dilemma mainly involved in the application of “transformative use” in US jurisprudence,including the problem of defining criteria for determining conditions: considering the legislative purpose and value measurement of the rational use system,within the scope of relevant works A hypothesis that simulates the reality of the common rational public rather than all the actual ordinary rational public as the basis for judgment;the determination of“transformative use” can constitute the conditions and causes of fair use: when an act of use constitutes “transformative use”,Judging the behavior from the side will not damage the potential market of the original author,because one of the main characteristics of “transformative use” is to generate new value,new purpose of use,and promote the legislative purpose of copyright law.achieve.Even if there is the second item “the nature of the copyrighted work”,the third item “substantially the quantity and content of the use” or the issue of the same commercial use,it will be properly ignored because it constitutes “transformative use” The role of use.The chapter 3,as the focus of this article,analyzes the application of“transformative use” in China.The current requirements of the new technology environment for rational use of the system and the current status of application: The contradiction between the number of new types of use behaviors and the use patterns generated by the new technology environment and the twelve exceptions stipulated in the pre-existing copyright law are the obstacles to judicial practice.The root cause.However,the author notices that the three cases that expressly use “transformative use”are all after the promulgation of the “Opinions” in 2011.The reason why the court chooses to directly apply the “transformative use” in the fair use system is because“ The Opinions clarify the rational use of the system and the contents of the four elements,which are conducive to guiding the application of the rules in judicial practice to solve specific problems.Most courts have explicitly analyzed the facts of the case with the four elements as a requirement in the judgment,and concluded that the defendant's use constitutes a “transformative use”.Moreover,China's research on“transformative use” has already begun to take shape,from the earliest research on the“Shantou case” and “transformation” to the later type research to the current legislative research.China already has the conditions for applying “transformative use”.Finally,the corresponding legislative proposals are given in the case that China's judicial practice has the conditions for the application of “transformative use”.First of all,it is suggested that the Supreme People's Court can publish some typical guidancecases that fully demonstrate the “transformative use” under the premise of a series of conditions,such as the increase in the number of relevant cases and the relative abundance of theoretical research;secondly,the author believes that if the courts are heavily involved in judgments,The use of one or more legal concepts that are not part of the official jurisprudence of the country,and are not provided for in the country's existing legal system,is not a good thing from a theoretical or judicial point of view,and may even be The judicial image has had a bad influence.Therefore,it is recommended that the concept of “transformative use” be reflected in relevant judicial interpretations of copyright law in a timely manner on the basis of a specific definition of the concept of “transformative use”,the standard of recognition,and the determination of the relationship of fair use.In addition,it is suggested that the preference of copyright legislation should be changed from closed to general applicability,and specific to “transformative use”.Do not be too restrictive in defining strict and clear criteria,but consider social costs and benefits in the process of integrating into the current legal system.The balance between them includes balancing the interests of the public,copyright holders,users,and the market. |
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