Research On The Fair Use Of Emoticons

In the Internet age,stickers have been produced and developed rapidly.They are widely used in network communication with great influence and value,but they may also involve copyright infringement.Using specific elements of existing stickers for secondary creation is a common form of new stickers creation.Since the re-creation of a series of stickers is highly dependent on the original ones,and the commercial value of stickers is constantly increasing,the issue of whether stickers constitute copyright infringement has aroused great controversy.From the author's point of view,from the legislative purpose of promoting the development and prosperity of culture and science,the re-created stickers that meet certain requirements constitute a fair use of the original ones,which doesn't constitute infringement.The nature of the use of stickers in original works has a significant impact on the formation and development of the sticker industry.Taking the case of Huang Haixing sues Jinan Lianding Trade co.,LTD.,Zhejiang Tmall network co.,LTD.as an example,aiming to clarify the copyright legal relationship contained in stickers,to analyze the proper usage of the sticker.Based on the analysis of the pattern of judging the fairl use of the authority system state and the copyright system state,combining with the current situation of the fair use system in China,the fair use of four elements is determined as the criterion to analyze the fair use of the re-created stickers.In addition to the introduction and summary,this paper is divided into four parts.The first part introduces the case of Huang Haixing sues Jinan Lianding Trade Co.,Ltd.and Zhejiang Tmall Network Co.,Ltd.,clarifies the focus of the dispute and raises the copyright issue of whether the re-created stickers constitute a fair use of the original works.In this case,the plaintiff Huang Haixing used the character image of "Baymax" from "Big Hero 6" to make stickers neither got the permission of Disney Company,which is the copyright owner of "Big Hero 6",nor paid the corresponding fees to Disney Company.If the use constitutes a fair use of the works,there is no infringement,while the infringement is committed if it can not constitute a fair use.Therefore,we should start with the judgment pattern of fair use,analyze the fair use of the re-created stickers.In the second part,the analysis of the copyright of stickers is the premise and basis for the study of the reasonable usage of stickers.This part takes the production method as the standard and classifies stickers into original,other people's works,and re-created,discusses the copyright by different classifications.By comparing the two original judgment methods of differentiable difference method and common audiences test method,analyzing the copyright of stickers,it is concluded that the original series of stickers are original and belong to works.Under certain conditions,the re-created series of stickers possess certain originality and belong to deductive works,which meet the conditions of composing works in the sense of copyright law and should be subjected to National Copyright Law.The third part studies the pattern of fair use and analyzes the pattern of fair use in countries with author rights system and countries with copyright system.Among them,the country of authorship system uses the "copyright exception" pattern,which is exhaustive enumerated in the form of legislation,and is not applicable to reasonable use in cases where there is no clear stipulation in the law.Copyright system countries uses the "fair use" model and the "fair dealing" model.The fair use criterion adopts relatively loose and open rules.It mainly relies on the judges to use the general criteria of reasonable use to judge whether the use of works by the users in specific cases constitutes reasonable use.This criterion gives the judges sufficient discretion space.In judge practice,judges continuously explore and summarize reasonable use factor,in order to improve the rational use of judgment standard.Considering the current situation of fair use rules in China,it is decided to use four elements of fair use to analyze the problem of fair use of stickers.The fourth part analyzes the reasonable usage of the re-created series of stickers by using the four elements of reasonable usage,and studies the fair use of stickers.With regard to the purpose of fair use,the phrase "the purpose of fair use" is more inclusive and generalizable.The influence on the original work is the influence on the potential market or value of the copyrighted work.The analysis of the extend of works usage,which constitutes the elements of fair use,should start from both essence and quantity.In the end,the conclusion is drawn that under which certain circumstances the re-created series of stickers constitute a reasonable usage.