Study On The Connotation And Application Of Transformative Use

The rule of transformative use has a big significance in the judgment of fair use and has been praised highly by American judges for a long time.Transformative use conforms to the purpose of copyright law to promote the development of scientific and cultural undertakings and to balance the private and public interests.It also conforms to the essence of fair use system.As the development of The Times,the technology develops rapidly,with the various copyright infringement disputes arising.The use of transformation conforms to the trend of rapid expansion of legal types of fair use,which guarantees the emergence of new use behaviors.The closed enumeration mode is adopted in the copyright law of China,which cannot adapt to the copyright infringement disputes caused by the rapid development of new technology.Although China’s copyright enforcement regulations adopt the international three-step inspection method to deal with the judgment of fair use of the new use behavior,the result is not ideal.Many scholars believe that,from the perspective of legal status,the implementation regulations of the copyright law of the People’s Republic of China is obviously less effective than the copyright law of the People’s Republic of China.The application of the three-step test method is based on the premise that the use behavior is one of the twelve legal types.In the sense of results,the three-step test is a redefinition of the enumeration of fair use.Due to the inherent defects in Chinese legislation,judges often fall into the awkward position of being unable to rely on when trying new use cases.In order to ensure the rationality of the argumentation process,some judges look for a breakthrough from the extraterritorial experience and introduce the rule of transformative use to judge whether the tort against constitutes fair use.Based on the superiority of transformational use and the urgent demand of the current situation in China,the theory of transformational use has great research value.In this paper,the connotation of the transformation using the starting point for research,in the use of academic field and practice field transformation theory for reference or not after the debate,emphatically probes into the transformation using the specific applicable questions and clarification,explores the existing situation of legislation andjudicial practice in China for predicament and put forward corresponding Suggestions,so as to provide reference for transplantation in our country transformation using rules.The first chapter mainly uses the historical research method and the comparative research method to study the connotation of transformative use.It consists of two sections: the first section is a historical investigation of transformative use,and the first section shows the legislative provisions of the four elements of fair use in the United States.With regard to fair use,the legislative technique used in the United States is a hybrid model of limited enumeration and general pockets.Then,it briefly introduces the discussion of judge Leval,who put forward the concept of transformative use for the first time.Finally,the author analyzes in detail the cause of the classic case-Campbell case,the basis of the judge’s hearing and the important influence of the case on the theory of transformative.The second section summarizes the types of transformative use after studying a large amount of literature and gives examples one by one.American scholars classify transformative use into appropriation use,introduction use,public interest protection use and knowledge improvement use.Some scholars in our country divide transformative use into content transformation,purpose transformation and function transformation.There is also a correlation between the two different classification standards at home and abroad.Section 3 explores the relationship between transformative use and appropriate references.After pointing out that some judges in China are biased in equating the concept of transformative use with that of proper citation,the author tries to discuss the connection and difference between the two.The second chapter mainly uses induction to sort out the views of the academic community on the use of transplantation-conversion.Among them,most scholars are in favor of transplantation-conversion,and only a few scholars vote against it.The second section is an analysis of the necessity of the introduction of transformative use in China,which also implies that the author agrees with the viewpoint of transplanting transformative use.The third and fourth chapters are the core parts of the article,which summarize the problems and clarify the application of the transformative usage rules.First,it is necessary to clarify the relation between transformative use and deductivebehavior.Transformative use is neither a sufficient condition nor a necessary condition for deductive works,both of which belong to different sections,and their respective positions are also different.Second,as for the identification standard of clear transformative use,it needs to be determined comprehensively by the fixed audiences who have a certain understanding of the field of the works involved,from the perspective of ordinary rational people,and in combination with whether there is transformative use and the degree of transformative use.Third,about the transformation using the position in the rational use of,should determine the transformation using the key position in the rational use,but transformation of use is not reasonable to use the only identified elements,should be combined with other third,we need to have a comprehensive judgment,special circumstances should also consider other factors such as the public interest.Finally,at the end of the paper,the research background of the theory of transformative use is reiterated,and two Suggestions for the application of transformative use in China are put forward.First of all,at the legislative level,we should add the backstop clause in the fair use clause of copyright law,introduce four elements into the judicial interpretation to restrict it,and emphasize the status and applicable method of transformative use in the four elements of fair use.Secondly,at the judicial level,the advantages of the case guidance system are given play to,and the well-proved guidance cases are released to guide the judicial practice.