Research On The Fair Use Of User-Generated Content

With the rapid development of Web 2.0 technology and China's Internet industry,numbers of Internet platforms have emerged that focus on User-Generated Content(UGC).Seeing from the development trend of Web 3.0 technology and the growing popularity of mobile Internet,new forms of UGC will continue to emerge in the future.In the past,the level of intellectual property protection concerning the UGC platform review and law enforcement was not high,resulting in some User-Generated Content which violated others right being uploaded to the UGC platform.But in the past two years,with large numbers of Chinese Internet platform companies went to the United States or Hong Kong for listing,how to regulate User-Generated Content has become an urgent problem.In legislative level,regulations on this issue are currently limited to the statutory exceptions in the Copyright Law and the abstract judgment standards in the Implementing Regulations of the Copyright Law.The adoption of the model ofenumerated legislation simplifies the application of law by the court,but it's not flexible enough to cope with the new types of exceptions that need to be covered by changes in social and technological conditions in a timely manner,and it also makes it impossible for courts to refine the legislative value as the basis for interpretation based on abstract judgment rules.Jurisprudence cannot unite the refereeing standards,which makes users lose the judgement of whether the content they create constitutes a fair use of the original work,thus hindered the creation.Many countries have made legislative changes to adapt to the development of the Internet and the continuous updating of user habits to protect the rights of user creators.The expansion of legal restrictions on the rights of original copyright owners based on specific purposes has also become a trend of global intellectual property protection.If we do not draw on advanced systems in the field of extraterritorial intellectual property,while simply increasing the level of enforcement on the basis of existing legislation,we will likely make the contradiction of intellectual property law encouraging original authors to create in a way that restricts the creation of others bigger,which will hinder the development of related industries.In order to avoid the above situation,it is particularly important to establish a clear definition of the legal status of UGC and a clear boundary of the legitimacy of user creators.For this reason,the jurisprudence made by the courts based on transformative use also occurred in judicial practice.On the contrary,the development of the US entertainment industry has started earlier,and their development of UGC's fair use doctrine is of great significance to China.Since the case of Folsom v.Marsh that established fair use,US courts have gradually established rules in the judicature to determine whether constituting fair use by analyzing four elements.The U.S.court also introduced the "transformative use" standard through in Campbell,which is to examine whether new works have added new content in the analysis or changed the original works with new expressions,meanings.The "transformative use" standard developed the fair use.In practice,the United States courts also determined that original copyright owner subjective requirements for fair use should be considered when defending their rights.In the field of private autonomy,the UGC platform has also established UGC rules incooperation with copyright owners.The application of the fair use has been gradually improved.This article adopts a comparative method.Firstly,it analyzes the development of User-Generated Content in recent years.By comparing the differences between China and the United States,it is proposed that China should consider the introduction of the transformative use and float it into our existing intellectual property protection legal system by interpretation.In addition,in order to balance the conflict of interest between the author of the user-generated content,the original copyright owner,and the Internet platform,the author also suggests adding a “fairness analysis”,that is,fully considering the business model of the Internet platform involved in the specific case to protect the legitimate rights and interests of the original copyright owner while taking innovation and market fairness into account.