Study On The Rule Of Transformative Use In Copyright Fair Use System

The fair use system originated from the judicial practice of Britain,which focuses on the balance between copyright and public interest.The United States transplanted and developed it,forming the judgment rule of "four factors of fair use".The transformative use rule originates from the first judgment factor "purpose and nature of use",and gradually develops into an alternative rule of the fair use system,which expresses the connotation of allowing the original works to be used in a new way,with a new purpose or with a new value.The transformative use rules are quite related to the fair use system.If an act constitutes the transformative use,it is likely to constitute the fair use.Both of them have the same function in solving market failure and subsidizing public interest,and the transformative use rules reveal the transformative nature of the fair use system.The legislative mode of the closed enumeration "three-step test method" of the fair use system in our country pays too much attention to the protection of the copyrights,neglects the consideration of the public interests,which is easy to cause the imbalance of the rights and fails to achieve the legislative purpose of encouraging the creation and dissemination of excellent works in the copyright law.Many scholars in China have advocated the introduction of the transformative use rule.Atthe same time,there have been disputes about the way to introduce the rule,the elements of the rule and the difference between the rule and deductive use.In the judicial practice,the existing judgments that refer to transformative use rule indicate the necessity and current situation of introducing transformative use rule in our country,and highlight the lack of legal provisions and guidance cases in China,as well as the unclear concept and constituent elements,which eventually leads to the different judgments of different courts in the same case.Therefore,it is necessary to establish the relevant legal system centered on the transformative use rule.The status of the U.S.transformative use rule in the fair use system shows a change from expansion to restriction,and it is no longer the only judgment factor.Germany and China belong to the same civil law system countries.The legal concept of "free use" gets rid of the limitation of statutory enumeration,and gives full affirmation and application to the transformative use.Moreover,the rules of transformative use are consistent with statutory enumeration.China should draw lessons from the experience of the United States and Germany,stipulate the transformative use rule in the legal system,clarify its constituent elements,and limit the scope of transformative use with other factors,especially market factors.When establishing the transformative use rule in our country,we should first form general clauses: "do not affect the normal use of the work" and "have to reasonably damage the legitimate interests of thecopyrights owners" to initially form the protection of the original work,so as to limit the scope of the exercise of the judge's discretion.Secondly,on the basis of listing and expanding the legal situation in the copyright law(Revised Draft for examination),the open rules centered on the transformative use are added,and then the other factors of the reasonable use rule are taken as the auxiliary judgment of the transformative use,especially the market's screening function for the transformative use.Finally,in the judicial practice,we should pay attention to the reasonable distribution of the burden of proof and break the judicial prejudice of traditional presumption of guilt.The above-mentioned ways of introducing transformative use rule can improve the reasonable use system in China,promote the steady development of copyright restrictions in China,and finally achieve a reasonable balance between copyrights and public interests.