The Transformative Use Doctrine And Perfection Of The Fair Use System Of Copyright Law In China

In addition to the basic content of the rights that the copyright owners hold,there is also an important part of the copyright law which is fair use.It is a restriction on the rights of the copyright owners.It also embodies the balance of interests formed between copyright owners and users by legislation.International treaties stipulate that the members may prescribe a fair use system in their domestic laws,provided that such legislation can pass the Three-step Test.The choice of legislative model not only reflects the orientation of a country's legal value,but also affects the future judicial application of that country.As far as the current legislation is concerned,China has chosen a completely different legislative model from that of the United States.The United States adopted the fair use doctrine with the four factors,using the four factors of judgment combined with specific exceptions to analyze whether a specific use behavior constitutes fair use,in which transformative use is the the subfactor of the first factor.Its aims to analyze whether the secondary use is used in a new,productive manner or for a completely different purpose from the original,and whether the use adds sufficient new massage,meaning,information or value.transformative use was originally born to solve the problem that the factors of judgment of fair use are too vague to apply.With the adoption of transformative use by the Supreme Court and the frequent application by various courts,it has become the decisive factor in the currentfair use analysis.In our country,the closed legislative system is adopted,and all the twelve exceptions which meet the requirements of fair use are stipulated in the law.In the trial,the judge only needs to analyze whether the behavior of the secondary use conforms to the twelve kinds of situations.However,such a legislative model is facing the problem of lack of categorization.With the rapid development of technology,new forms of artistic expression and emerging industrial forms emerge one after another.The uses such as live games,fan fictions,collage art are challenging the current legislation.In judicial practice,in the face of the lack of flexibility of the law,the courts have to use transformative use doctrine on its own to judge the nature of secondary uses because there are no general provisions to use.But this will lead to inconsistent trials and unpersuasive results,and it also challenges to the legal theory.Therefore,it is urgent to amend the legislation of fair use in Copyright Law.In order to solve the problem mentioned above,this paper makes an in-depth study on the transformative use and tries to provide some suggestions for the revision of the future articles of law in our country.Based on the method of syllogism,this paper is divided into the following three parts:The first chapter puts forward the major premise that the system of transformative use is justified in our country.In the face of the dilemma faced by the current fair use system in China,it is legitimate to introduce the transformative use doctrine.First of all,transformative use in the United States after many years of practical testing,its birth to make up for the shortcomings of the four factors,was supported by academic theory and jurisprudence of the Supreme Court.And it has become the decisive analysis path of the four factors in the frequent application.If we can introduce the system into our law,we can enjoy the legislative and judicial experience of the United States for many years,and avoid the wrong path that America once took.Secondly,the value pursuit of transformative use can complement the theory of our country's law system and make our legislation serve more copyright objectives.Finally,transformative use can also help our country improve the system construction from many aspects.It not only embodies the essence of the balance ofcopyright law,but also can solve the problem of copyright market failure.In the aspect of system construction and judicial practice,it is also an important reference point of our country.In the second chapter,this paper constructs an applicable institutional model of transformative use,which is a minor premise in the text logic of this paper.In order to construct an ideal model,we should not only analyze the mature and reasonable experience of the transformative use system in the United States,but also consider abandoning the existing disadvantages and controversial parts of the system.After research,this paper thinks that although the theory of transformative use is divided into transformative purpose and transformative content,the transformative content has theoretical defects and can not be realized in practice,and it is possible to interfere with the boundary of derivative right.Therefore,when building applicable architectural patterns,we should abandon the type of transformative content and introduce only the transformative purpose to constitute transformative use.On this basis,this paper considers the current situation that the transformative use has become the decisive factor in the fair use analysis,with the the high strength of application of the courts.Once the courts think that the secondary uses have the transformative nature,they may not consider other factors.Thus there is possibility that the transformative use may replace other factors in American fair use system.It is therefore considered that four factors should also be introduced as a limitation to the scope of application when construct our ideal fair use model.It is necessary to attach importance to the analysis of transformative use,and we also should notice the importance of interaction of other factors,especially the fourth elements,the effect upon the potential market.The third chapter is the conclusion of this paper.According to the above two premises,the author puts forward some suggestions to improve the fair use system of our country by introducing transformative use.In the specific provisions,this paper holds that article 13 "other circumstances" should be added to the existing 12 exceptions as a base clause,so as to provide an entry point for the introduction of general clauses.Then the four factors are introduced to construct the general judgmentclause,in which the first factor is the transformative use which means only transformative purpose.It is the explanation basis of the purpose and nature of the secondary uses,and the rest are used as the auxiliary measuring factors used to limit the scope of application of transformative use.This kind of legislation not only accords with the legislative pattern and development trend of most countries and regions,but also can solve the problems faced by the existing legislation of our country.After completing the construction of specific legal articles,this paper also provides some guidance for the future judicial practice,including the comprehensive consideration of the four factors,as well as how to discern the multi-purpose and which should be the best cognizance perspective.