| With the advent of Web 2.0,great changes have taken place in the creation and communication environment of works.User generated content has become one of the typical categories of works created in the network environment.User generated content refers to the creative content created and disseminated by non professional network users in the network environment.In these creative contents,there are a large number of secondary works created by using existing works.According to the provisions of the copyright law of China,the second creation shall be permitted and paid by the existing copyright owner.In practice,due to the high cost of licensing and the fact that most users have no commercial purpose when creating,few users start to create user generated content after obtaining the permission of the copyright owner.And in practice,there are a large number of cases in which the secondary works infringe upon the personal rights and property rights of the copyright owners of the existing works.However,due to the rigid judgment standard of reasonable use and the aggravation of interest imbalance in the network environment,the infringement of user generated content is becoming more and more serious and difficult to solve.In view of this,this paper intends to study whether the use of existing works constitutes a reasonable use in the process of user generated content,clarify the behavior nature of users’ use of existing works,and put forward legal suggestions for the reasonable use of existing works in the process of user generated content in China.The full text is divided into three parts: introduction,text and conclusion,of which the text is divided into four chaptersThe first chapter describes the concept of user generated content and the current judicial situation.The user,generation and content in user generated content are explained respectively,and then recombined.Finally,its connotation is summed up as creative content created and disseminated by non professional network users in the network environment.It includes original works created without using others’ works and secondary works created with others’ works.By studying the current judicial situation of user generated content in China,it is found that the failure of the existing adjustment methods and the absence of new adjustment methods lead to the frequent occurrence of different judgments in the same case in judicial practice.The second chapter analyzes the application dilemma of user generated content under the reasonable use system from the internal system level.While protecting the legal rights of the copyright owner,the copyright law requires the copyright owner to transfer part of the use value of the work,which is embodied in the reasonable use system.The use of user generated content for existing works can be determined as reasonable by using the open legislative mode in foreign countries,such as "three-step test" and "four elements" judgment method.However,the standard of reasonable use in the copyright law of our country is rigid,which clearly stipulates the specific situation of reasonable use,and in the specific situation,there is no relevant provision of user generated content for the use of existing works.Therefore,the secondary works in user generated content are difficult to be protected by reasonable use.In addition,under the network environment,the legal rights exercise space of the copyright owner is expanded to the network space,while the scope of the rights transferred by the copyright owner that can be used by the opposite party has not been increased correspondingly,resulting in the weakening of the reasonable use system.The imbalance of interests between the private interests and the public interests of copyright owners has intensified.The third chapter has its legitimacy to include the use of user generated content into the rational use of existing works.First of all,the value of user generated content itself cannot be underestimated.User generated content brings economic benefits to users and promotes the business development of Internet related enterprises.In addition,user generated content is a tool for the public to exercise the right of freedom of expression,to promote the public to actively participate in cultural innovation,realize self-worth,and ultimately promote the prosperity and development of cultural industry.Secondly,in the network environment,the rights of copyright owners are expanding,while the rights transferred by copyright owners to the public have not increased correspondingly.It leads to the imbalance of interests between the copyright owner and the public.The rational use system is to maintain the balance of interests between the two.Therefore,in order to achieve the purpose of interest balance,the second creation behavior in user generated content can be identified as reasonable use.At the same time,it can also solve the market failure problem that the positive externality of works caused by Interest Imbalance cannot be internalized through the copyright licensing system.Finally,it is not only reasonable in theory,but also feasible in practice to define the use behavior of user generated content as reasonable use.The use of user generated content for existing works is consistent with the purpose and nature of transformative use,and it is feasible to use transformative use to explain the use behavior of user generated content for existing works.The fourth chapter puts forward legal suggestions for the reasonable use of user generated content to existing works.Different methods are adopted to regulate non-commercial user generated content and commercial user generated content.The situation of "personal use" in China’s fair use system is consistent with the creation of user generated content without commercial purpose.Therefore,it can expand the scope of application of "personal use" in China’s reasonable use,including the creation and dissemination of non-commercial user generated content,and stipulate the user’s obligation to indicate the source and use the works from legitimate sources in this case.In addition,the commercial user generated content can be explained by the use of conversion,but its scope of application should be limited by "not affecting the normal use of the work" and "having to reasonably damage the legitimate interests of the copyright owner" in Article 21 of the regulations for the implementation of the copyright law of China.In the draft Copyright Law published on April 30,2020,the two restrictive provisions on reasonable use in Article 21 of the regulations for the implementation of the copyright law are included in the body of the copyright law. |
