Study On The General Clause Of Fair Use In Copyright Law

It is difficult to solve the new problems raised by the rapid development of society by adopting the closed model of fair use of copyright.The judicial situation of fair use dispute cases shows some problems,such as the legislation of fair use does not match the need of judicial trial,the lack of guidance for determining the fair use of copyright,and the standards of judgment are not uniform.According to the present situation of legislation and judicial practice on the fair use of copyright in our country,it is necessary to set up the general clause.The legislative and judicial experience of our country can provide guidance for setting up the general clause of fair use.The practice of the legislation of copyright provides some experience for the establishment of the general provision of fair use in copyright law,such as some special cases of fair use can be recognized by “the Copyright Law” and the other relevant law and administrative regulations and the legislation is more inclined to choose the three-step test as the judgment standard for fair use of copyright.And the court has accumulated a certain amount of trial experience with the three-step test as the standard of fair use of judgment.And they also proposes that the different requirements of the application of various factors should be noticed when setting up the general clause of fair use.Although the Revision Drafts of “the Copyright Law” responds to the requirement of improving the system of copyright fair use,there are still some shortcomings,such as the establishment of the save provision and the application of the whole general clause in this article.According to the summary of the existed practice and theory of the general clause of fair use,the system of the general clause may be regulated in the form of separating the save provision and the principle provision,and they play the role of the general clause together.That means the system of fair use may be regulated in the form of a list of special cases of fair use and an addition of a save provision,followed by a separate principle provision in the next paragraph of the same article.Based on the experience of copyright fair use's legislation and judicature and the requirement to consist with the international protection for intellectual property,the contents of the principle provision should refer to the three-step test.And it can adopt the expression of the general clause of fair use in the second edition and “the Revision Draft of the Amendment of the Copyright Law”.The discretion granted to the judge by the general clause of fair use should be limited,so the content of the save provision should refer to the provisions of other laws and administrative regulations which prescribe the special cases about fair use.Traditional interpretation and balancedinterpretation are two important interpretation methods of the three-step test,which can provide significant reference for our country to interpret the general clause of fair use,but they are not the interpretation that must be followed after the introduction of the three-step test of “the Copyright Law”.Referring to the two methods of interpretation of the three-step test,and combining with the national conditions of our country,the requirement of the first step of the three-step test in international treaties can be understood as that in the domestic copyright legislation,the specific cases of fair use should be relatively determined;the “normal exploitation” of works can be understood as the way in which works are already used when the copyright owner completes the work or the foreseeable use of works that had sufficient evidence to prove;and the interpretation of legitimate interests should include economic interests and non-economic interests.The content of principle provision in general clause can limit the content of specific provisions.When the provisions on copyright fair use are applied,the specific provisions shall be applied first,followed by the save provision,and finally limited by the principle provision.In addition,in order to improve the general clause of fair use in copyright law,the case guidance system should be noticed.