Conversion Use And Typification Of Works

The essence of law is to balance all kinds of interest relationship,including the interests between individuals,as well as the interests of individuals and the public.The fair use system plays a role in balancing the interests of the individual and the public in the copyright law,leaving some space for the public interest while setting the boundary of copyright protection.Article 22 of China's Copyright Law lists 12 specific ways of fair use.However,due to the lack of principled regulations,China's fair use system is in a rigid predicament.With the rapid development of science and technology,it is impossible to meet the diverse needs of the growing social development.For new classification of cases and new problems that have emerged in society,some scholars and judges have turned their eyes to the United States and tried to introduce the theory of transformative use of the US fair use system.Transformative use is a special type of fair use system,which is of great significance to promote the development of science and art of copyright law.The introduction of transformative use in China's law has a certain necessity and feasibility.However,the problem that it is criticized is the lack of specific type division.Its features aggravate the unpredictability of the trial and are not conducive to the unification of judgment.Therefore,this paper intends to find out the problems in practice by analyzing the development process of transformational use.Secondly,based on its theoretical basis,this paper attempts to classify it into specific types according to China's judicial practice,so as to increase its applicability.Finally,on the basis of the foregoing,the author puts forward some legislative Suggestions on the transformational use in China.This paper consists of the following four parts:The first chapter discusses the development process of transformative use.Based on the background and positive functions of transformative use,the author thinks that transformative use itself is worth learning from.Although its abstract characteristics determine that it has a certain degree of ambiguity,but we cannot stop eating because of choking,directly deny it.It should be improved through the specific type division.The second chapter,starting from the theoretical basis of rational use system,discusses whether it constitutes the theoretical basis of transformative use.The new classification of cases needs copyright law to readjust the interests,and some work without permission should be protected by law.The two theories of interest balance and market failure establish the basis of value judgments for the behavior involving transformative use.The third chapter,combined with the specific classification of transformative use in China's judicial practice,studies the applicable path of,transformative use in China's law.After analyzing and summarizing,in the judicial practice of our country,the court confirms two classifications of transformative use:expressive transformative use and technical transformative use.Chapter four tries to construct the transformative use of law in China.Firstly,we should introduce fair use of general clauses.The current Copyright Law in China lacks general clause.The establishment of a general clause is to improve the internal needs of the system of fair use in our country,and conforms to the overall legislative trend of the world.It is also conducive to promoting the coordination of the whole legal system,because the transformative use is based on the general clause of American law.The author suggests introducing general clauses after Article 22 of the Copyright Law.Secondly,the concept of transformative use and its specific classification are established in judicial interpretation.When its theory and practice develop to full maturity,it is the best time to legislate.Finally,the author suggests that the supreme people's court issue guidance cases and lower courts refer to the application,so as to ensure the correct application of conversion use to the greatest extent.