| Fair use doctrine is easily controversial and difficult to judge.Owning to the coming of the network, fair use doctrine becomes moretroublesome. Our existing copyright law has provided some provisionsfor the fair use doctrine, but the network has challenged with the doctrineboth in the legislation and in the justice practice. Moreover, our academehas got rare authoritative achievement in the field of study on tradictionalfair use doctrine, and apparently there is much longer way for the studyon the fair use for the network to go. However, U.S. has got much moreachievement either in the legislation or in the academe study, thanks toits earlier coming of the network. Therefore, the paper tries to expatiatethe fair use for the network in America from different points at length,meanwhile, to analyze the fair use in our country, and then to show whatwe could learn from the American fair use doctrine for the network aftercomparison. Firstly, in the very beginning, the paper summarizes thestudy on the fair use for the network in the academe in America andChina. Secondly, the paper approaches the history of the fair use inAmerican and Chinese legislation and the related regulations in theinternational treaties, thus, it lays groundwork for the followingdiscussion. Thirdly, the paper discusses the common points of the fair usedoctrine for the network in the two countries from the points of legalvalue, culture elements, economic elements and the special provisions.And then it compares the fair use doctrines for the network in the twocountries from different points, such as the underlying content of the fairuse doctrine,the requirement for "the purpose and character of the use","the nature of the copyrighted work", "the unpublished work", the effectof the use upon the potential market for or value of the copyrighted work". Apparently, the development of our fair use doctrine for the networkcopyright seems to be a little child who just learns to walk, while thedoctrine in America has developed to be a young people. With the impactof the network technology, our legislation for the fair use for the networkcopyright should base on our realistic situation, and learn from thesuccessful experiences in other countries, so that it makes our legislationadvance. For the above-mentioned reasons, the writer attempts to putforward some suggestions for our legislation in the last according to theAmerican experiences, and hopes to make our fair use doctrine for thenetwork copyright more perfect. |
