Study On The Rule Of Transformative Use In Copyright Fair Use System

The fair use system is an important system for the copyright law to balance the interests of copyright owners and the public.At present,the regulations on fair use after the newly revised Copyright Law,still adopt a closed statutory enumeration model.However,with the development of new technologies and new industries,the way of using works is constantly updated,the limited list of fair use types is not enough to protect the public’s access to and use of works,which is not conducive to the realization of the legislative purpose of China’s Copyright Law.In the judicial practice of our country,parties and judges frequently cited the "transformative use" theory of USA to analyze whether new types of use constitute fair use.However,in our country’s legislation,there is no "transformative use" provision.Judges have made breakthroughs in the limited list of fair use types stipulated by the law.In fact,there is no basis in the law and there are some misunderstandings in the application of transformative use.In order to clarify whether and how we can learn from the "transformative use" theory,it is necessary to correctly understand the American system of transformative use.This paper introduces the origin,development of transformative use and the problems,in conjunction with judicial cases,that have occurred in the process of applying transformative use in the United States in recent years.Because the legitimacy of transformative use is based on the copyright concept with utilitarianism as the core,the function of transformative use has clarified its positioning and identification standards in fair use.In combination with the current status and problems of the application of transformative use in our country’s judicial practice,it is proposed that the system of fair use should be reconstructed by adding typical exceptions,miscellaneous provisions and general clauses,and attention should be paid to the recognition of transformative use in fair use in judicial practice.The key is to clarify the criteria for transformative use and comprehensively consider the four elements to determine fair use.It is also necessary to refine the adjudication rules and unify the standards of adjudication through judicial interpretations and guiding cases.