Research On The Transformative Rule Of Fair Use

The clarity of the copyright protection boundary is an important prerequisite for the copyright law to establish a balance of interests between the copyright owner and the public.With the widespread adoption of technical measures and the frequent occurrence of new types of copyright disputes,it continues to impact the stability of China’’s fair use system.The boundary of the copyright protection would be no longer clear like before.Reforming China’s fair use system has become a hot topic.Under the modernization requirements of China’s copyright law,the controversy over the fair use system legislation focuses on whether to increase its openness.The reason behind such disputes is actually the difference view of characteristics of the fair use systemIn this context,this article mainly discusses the issue of how to set up general clauses for China’s fair use system by introducing rules of transformative use within the framework of user rightsFair use is in accordance with the characteri stics of legal rights,that is,it has protective interests,freedom to use works,and statutory restrictions.As a legal right,it includes the right to contact and use.In the digital world,it is reasonable to add general terms to the fair use system.To establish a general terms,China should learn from the purpose-transformed use rules in the transformative use.In addition to the closed defects,China’s fair use system confuses the concepts of"commerciality" and "competitiveness".For those reason,the core value of the general terms to be established in our country should be "added value".Transformative-use rules are the result of American judges providing a clear interpretation path for fair use judgment,which can be divided into content-transformed and purpose-transformed,the content-transformed use rules can only cover judgments on expressive use,while purpose-transformed rules can cover expressive and non-expressive uses,and can also be free from commercial/non-commercial use restrictions.(1)First of all,purpose-transformed use rules examine the legitimacy of use behaviors,focusing on the value gains brought by the use of works to the whole society,it focuses on the use behavior itself and the process,and analyzes its contribution to the value gain,not just whether the use behavior produces a new work.By those above,it can cover the judgments on expressive use and non-expressive use behaviors.(2)Secondly,the distinctive feature of the purpose-transformed use rules are "transformative",and its core connotation is"added value".Through this rule judgment,it is possible to distinguish between"commercial" and "competitive",even a behavior has a certain commercial nature,and due to the transformation,its impact on the original work is supplementary rather than competition and substitution,then it has certain rationality.Therefore,saving the fair use judgments from the confusion caused by commercial/non-commercial standard.It can also give rationality to new style of use behaviors such as parody,digital libraries,etc.,which conforms to the development of new technologies and industries,and also limits the discretion of judges by their industrial policy preferencesIn summary,China’s path to building rules for transformative use is to clarify user’s rights—-to establish general terms-to introduce the core value of transformative uses.Taking the specific national conditions into account,in terms of legislation,China’s general terms of fair use should be a bottom-line clause with the connotation of transformative,as the last item in the fair use clause of the Copyright Law,that is,“other situations that increase value by the use of transformation”.In terms of judiciary,when making a judgment of wether whether a use behavior is a fair use,the general terms should be the last option.