The Application And Enlightenment Of The "Transformative Use" Rule

The "transformative use" originates from the theoretical doctrine,but has gradually been invoked and developed into judicial practice in the United States.It has become the rule of judgment for the fair use of the U.S.copyright law.Although the introduction of “transformative use” just has a history of twenty years,it has become more and more decisive in the cases.The US jurisprudence in recent years shows that the connotations of “purpose transformative use” and “content transformative use” have all been expanded to different degrees: any identifiable secondary use act that is different from the original creation purpose may be identified as "transformative use";the works that only intervene "content transformative use" but not "purpose transformative use" has also been supported by court.This makes the right of derivative work right that should have been enjoyed by the copyright owners of the original works to be challenged severely.There are also more and more disputes regarding the “transformative use” rules in the legal academic community.This article points that the judgment on "whether it is transformative use" should start from the two aspects of "form" and "essence"."Formal" judgments include both "element" and "structure".The "essential" judgment mainly refers to the "purpose" and "function" of secondary use.In the later works,the elements or structures of the original works have been converted,or the elements and structures have been converted at the same time,which satisfies theform requirements of “transformative use”.By transforming the elements and structure of the original work,new purposes and functions are achieved,which constitutes an essential transformation of the original work.The judgment on “how much to be transformative” mainly depends on the quantitative analysis of secondary use.The analysis focuses on whether the elements of the transformation are "critical elements" and whether they meet the "principle of proportionality" in quantity.Although China's copyright law does not include "transformative use" rules,judicial practice begun to introduce this concept to solve specific problems.More remarkably,under continuous development of new technologies and new thinking,the “enumeration” legislative model currently adopted by China is likely to result in“mummification”,and it is difficult to cope with the repetitive secondary use.The copyright law and related judicial interpretations need to be updated and improved urgently.Now,“transformative use" is undoubtedly an effective tool to solve the problem with regard to the fair use of works in the Internet era.Therefore,on the one hand,we should clarify the definition of fair use and reveal the "transformation"nature of "fair use." On the other hand,the Supreme Court should promptly divide the new fair use boundary through judicial interpretation and guiding cases based on new cultural concepts,new technological advances,and new industrial development needs,so as to make up for the closeness,abstractness,and lag of legislation,and to maintain the unity of the referee standards,to meet the expectations of the parties and the public for the stability and predictability of the application of intellectual property laws.This article is divided into four chapters to discuss the "transformative use" rule in details.The first chapter introduces the background,concept,type and establishment process of "transformative use" in combination with US jurisprudence.At the same time,it gives a detailed introduction to the connotation expansion of“transformative use” at this stage,and under the case,make a brief summary to the two most controversial issues appearing in the application of the “transformative use”—“transformative use” and “fair use” "," "transformative use" and "the infringement of the derivative work right ".The second chapter starts with the analysis of law and economics,and answers the controversial issues related to "transformative use" and “fair use." By analyzing the viewpoints of Calabrecsi and Melamed's "legal power",the essence of copyright trading rules is elaborated,and the rationale economic reasons behind the free fair use are given,that is,the essence of "transformative use".At the same time,through the deep analysis of Leval's article on "The Standard of Fair Use",the essential functions of the "transformative use" are explored;its advantages in judicial practice are elaborated.In the third chapter,based on the theoretical analysis,we put forward the applicable standards of "transformative use",and answered the questions about the distinction between "transformative use" and "the infringement of derivative work right",clarifying the criteria on the issues of "whether it is transformative" and "to what extent it is transformative",also from a qualitative analysis and a quantitative analysis to explain what "transformative use" can be regarded as fair use rather than the infringement of derivative work right.In the fourth chapter,we make endeavors to analyze the current legislative model and judicial experience in China,and explore the necessity and possibility of introducing "transformative use" into our country's legislative system.In addition,this chapter also gives the author's modest views on the improvement of legal provisions.