A Study On The Judicial Application Of The "Appropriate Quotation" Clause In Copyright Law

"Appropriate quote" is a kind of use situation of fair use in our country’s copyright,and its corresponding clause is the only clause in the fair use that is related to encouraging creation.As our country adopts a closed enumeration legislative model for fair use,emerging cultural industries such as User Generated Content(UGC),the use of video of the game,secondary creation and other issues related to fair use all rely on "appropriate quote" clauses.In recent years,related studies have mostly started from the perspective of interest balance,or analyzed the limitations and expansion of fair use from the market perspective,and proposed a variety of ways to improve.Unfortunately,the current research is mostly based on case studies and lacks a macro grasp of the overall application of the clauses.This article collects and summarizes the cases in order to conduct a general analysis of the judicial practice of"appropriate quote" clauses from a macro perspective,and then find problems Analyze the problem and try to solve the problem.This article collects and digitizes cases related to "appropriate quote" from China Judgment Documents Network from 2010 to 2020,categorizes the court’s judgment reasons,and applies different discretionary standards and breakthrough applications in the process of applying "appropriate quote" clauses.Focus on the problem to be studied.This article first sorts out the relevant concepts and basic theories of the "appropriate citation" clause,distinguishes the concept of "appropriate quote" from copying and adaptation,and clarifies the position and position of the "appropriate quote" clause in the fair use.The second is the presentation and analysis of case data.Through descriptive statistics and binary logistic regression data analysis methods,it focuses on the analysis of inconsistent judgment standards,low defense success rate,and breakthrough application in the court’s case trial process.Through the analysis of the case,the author found that due to the vagueness of the clauses,the judges had large differences on the statutory judgment standards during the trial of the case,and even introduced non-statutory judgment standards such as commercial use and necessity.The most notable thing is that judges will introduce the American element judgment method to make comprehensive judgments in the process of hearing cases.Scholars call it a breakthrough application.The judge’s breakthrough application undermines the predictability of justice to a certain extent.Through case analysis,it can be found that the judge’s breakthrough application has a strong purpose:in order to determine the establishment of"appropriate quote".The judge’s breakthrough application reflects to a certain extent the rigidity of appropriate citation clauses.In the end,this article draws on the relevant legislation outside the territory,proposes to appropriately expand the purpose of citation,and introduce conversion use to explain the appropriateness.At the same time,in order to deal with the large-scale commercial rights protection phenomenon in citation cases,we can try to introduce minor use exceptions to grant infringement exemptions to cases that have minimal infringement damage,no subjective malice,and do not involve the personal rights of the copyright,and reduce low-quality commercial rights protection the waste of judicial resources caused by the case.