Research On The Judicial Application Of The Transformative Use Of Works

Fair use,as a system that restricts the rights of copyright holders in copyright law,can effectively balance the interests of copyright holders,users,and the public.However,with the emergence of new technologies and the advent of the digital age,the use of works has gradually changed from simple text copying or quoting to satirical imitation,full-text scanning,thumbnail pictures and so on,which makes China's current Legal regulations and judgment standards and methods seem to be inadequate in the face of these new uses.The United States has gradually summarized and figured out in its judicial practice to judge whether secondary use constitutes fair use from the perspective of transformative use.This method is worthy of analysis and reference in China.At present,in China,transformative use is gradually included in the consideration of judging fair use.However,due to the fact that transformativel use has not been clearly defined and standardized in China,many problems have been encountered during the application of case trials in China.Difficulties,therefore,this article attempts to analyze the applicable dilemma of conversion use in China on the premise of affirming the introduction of conversion use in China's judicial practice and propose corresponding solutions to these problems.The content of this paper is divided into four parts,respectively explaining the concept,type and function of transformative use,the relationship between transformative use and fair use,the practical difficulties encountered in the judicial practice of our country,and how to analyze and solve these problems.First of all,combined the development trajectory and motivation of transformative use to clarify the concept,type,and function of transformative use,and provides a certain theoretical support for the criteria for transformative use.Secondly,it analyzes the relationship between transformative use and fair use.Transformative use is an important factor in the fair use judgment standard,but it is not the only and absolute factor.It has a close relationship with each element of the fair use judgment.It does not constitute a transformative use and does not belong to fair use.Thirdly,based on the theoretical analysis of the first two parts,and combined with the cases in which the court of our country applies transformativel use to judge the fair use of works,from which the practical dilemma of transformative use in China's judicial practice is extracted,such as "transitionality" vagueness of judgment standards,confusion between transformative use and deductive use,and appropriate citations;etc.Finally,based on the copyright and fair use system as the theoretical basis,and proposes corresponding solutions to the above-mentioned practical dilemmas,such as clarifying the judgment standards and methods for transformative use,it is necessary to pay attention to both the judgment of transformative and the level of transformation;Clarify the relationship between transformative use and deductive use,appropriate citations,and a rational approach to the similarities and differences between the two.Only by clarifying the theoretical basis and practical dilemma of transformative use and proposing operable solutions,can transformative use be better applied in China's judicial practice,give full play to its own role,and then encourage creativity and promote society the prosperity of science and culture.