Theoretical Analysis And Applicable Standards Of "Transformative Use" In Copyright Law

Since the arrival of the web2.0 era in 2004,especially the emergence of the media,a large number of new works have appeared in the field of copyright in China.These new works may use pre-existing works.Is this behavior a fair use or a violation of the original?The copyright of the copyright owner of the work is still being discussed a lot.China's legislation is still at a relatively blank stage.The "Copyright Law of the People's Republic of China(Revised Draft for Draft Review)" has changed the content of Article 22 of the Fair Use Provisions in China's current copyright law,but it still does not seem to solve the problems in judicial practice in China.The long-term practice process of US copyright law summarizes the theory of "transformative use" to solve the new type of problems that cannot be solved by fair use.The emergence and development of "transformative use" has gone through several stages.From its establishment to its misunderstanding and its development,it has formed the "transformative use" theory in American practice today.Because the theory was developed through judicial practice,there are still many controversies in theory.The biggest controversy is how it is positioned for fair use,how it should be distinguished from deductive behavior,and its application in China.problem.The position of "transformative use" in fair use,the dispute lies in the conflict between practice and theory."Convertible use" is often taken as a necessary condition for fair use in practice,while the theoretical community believes that "convertible use" is a sufficient condition for "fair use".The second controversy is how to distinguish between "conductive use" and "deductive action" if they are both a second creation of existing works.The third dispute is how to apply “conversion use” in the country.Theoretical analysis of "transformative use" can be divided into institutional functions and social value functions.It should be a sufficient condition rather than a necessary condition for "fair use",and it has an overlapping relationship with "deductive behavior".For its application,both qualitative and quantitative analysis should be performed.However,qualitative analysis is given priority,followed by quantitative analysis.Specific to China's legal system,determine the application of "transformative use" in our country,analyze the current status of our country's legislation and judicial status,understand the feasibility of incorporating it into China's legislation,and then carry out legislative reforms,changing theclosed enumeration clause to The open-ended clauses and judicial interpretations were introduced to avoid some judges' inadequate study of the theory of "transformative use" and insufficient practical experience in the practice of judicial error in the United States.