A Study On Fair Use Of Audiovisual Works

Audiovisual works, which consists of audible or silent continuous frames, includes film works, television works, video works, flash, MV, and so on. Audiovisual works, as the object of the copyright protection, is a kind of compound type art works. Audiovisual works is mainly used for consumption and entertainment; as a result, special rules should be set when using them without license and payment. This thesis, with audiovisual works as its object, specifically analyzes the problems exist in the fair use of existing audiovisual works, as well as the new difficulties about the judgment standard for the fair use of audiovisual works under the conditions of triple play, and then seek a shortcut to solve the problem and explore proper rules for the fair use of audiovisual works. This thesis put forward three elements--"productive use; non-competitive use; non-censure of technique use"--as the judgment standard for the fair use of audiovisual works, elaborate in detail the applicable rules and valuable significance of the three elements, and then come up with several suggestions for improving China’s fair use system of audiovisual works, in an attempt to be beneficial to the construction of the system. The discuss of the fair use of audiovisual works in this paper mainly consists of three parts:The first part describes the fair use policy of existing audiovisual works; The second part analyzes the problems of the existing applicable rules, especially the difficulties encountered in today’s era background; The last part proposes solutions to those problems.Firstly, define the concept of audiovisual works, in order to define the object discussed in this article; and then introduces the concept and the legislative model of the fair use system, in order to understand the basic information of the fair use system of audiovisual works; finally, specifically discuss the existing applicable rules of fair use, namely the three test methods in International Conventions, four inspection standards in the United States, and the applicable situations specifically enumerated in the national legislations of every country. Create a pretext for the following discuss of the limitations existing in the available applicable rules by providing the introduction and analysis for the available judgment standard for the fair use.The second part discusses in detail the problems of the existing judgment standard for the fair use of audiovisual works. The main limitations exist in the judgment standard for the fair use of audiovisual works are:Firstly, the "private use" element is devoid, for it has become a reality that the acquisition and use of works does not require controlling the copy, thus the function that the copyright proprietary right controls works is now weakened, in addition, in the third draft revision of Copyright Law in our country, the personal use of audiovisual works has been deleted. Secondly, the reference quantitative criteria is stiff and misleading, it is difficult to distinguish between "reference" and "review", the reference quantitative criteria often overlook the creative imitation, there must be appropriate reasons for not "telling the source or origin" in audiovisual works. Thirdly, the parody conflicts with the fair use system. The reference of parody is always massive and substantial, the behavior of parody, however, is a special form of reviews that did not cause unreasonable damage, and should be used as a reasonable situation. Finally, analyze the difficulties of fair use system of audiovisual works under the conditions of triple play. The mutual merge of telecommunications network, radio and television networks, and Internet ablates the original boundary of film and television communication industries, changes the right of communication of audiovisual works, and expands the freedom of acquisition to works. The triple play aggravates not only the plight of the private use of audiovisual works, but also the identification difficulty of market damage.The third part comes to the conclusion, proposing "productive use factor; non-competitive use factor; non-censure of technique use factor" should be used as judgment standard for the fair use of audiovisual works and demonstrating the legitimacy and reasonability of the three elements. By analyzing the specific concepts and applicable rules of the three elements, demonstrate that the three elements are the best criterion to overcome the factors of intended use and the defects of reference quantitative criteria, as well as the most direct and nuclear element to test "unreasonable prejudice" and "conflict with the normal exploitation of works", and then introduce the non-censure of technique use factor to deal with the copyright issues generated from technology. As to the perfection of legislation on fair use system, it is recommended that the three elements should be written to the copyright law as terms of principle, and used as judicial applicable rules to judge the fair use of audiovisual works.