Study On The Judgment Method And Its Improving Of Copyright Fair Use

The method of judging the fair use of copyright refers to how to judge whether an act constitutes a reasonable use in accordance with the provisions of the law.At present,there are many researches on the theoretical basis of the fair use system of copyright,the legislative model of the fair use system of copyright and the judgment criteria in China’s intellectual property circles.However,there are relatively few studies on how to judge the rational use under different legislative modes.It is even rarer to summarize and detailed the confusion of the rational use of judgment method in China’s judicial practice from the perspective of law application.China’s system of fair use of copyright is the result of foreign law transplantation,but it is not well absorbed the spiritual value in the process of importing.There are certain problems in both legislation and judicial application,especially in judicial practice,China’s judgment on the rational use of copyright is extremely confusing.In order to improve the judgment method of the fair use of copyright,this paper first defines the judgment method of the fair use of copyright system,then analyses the problems of the judgment method of the fair use of copyright in our judicial practice,and finally demonstrates how to solve these problems.In addition to the introduction,this paper can be divided into five parts:The first part is the definition of the judgment method of fair use of copyright.This part first elaborates the connotation of the judgment method of fair use.Secondly,it introduces two important factors that influence the judgment method of fair use of copyright,namely,the legislative mode of fair use of copyright and the judgment standard of fair use of copyright.The legislative mode of fair use of copyright determines the scope of fair use of copyright and the judgment standard of fair use of copyright,and the judgment standard of fair use of copyright conversely affects the scope of fair use of copyright.The second part introduces the problems existing in the judgment method of fair use of copyright in our country,including the problems of legislation and judicature.This part firstly elaborates the current situation and existing problems of the legislation on the rational use of copyright in China;secondly,it summarizes and concluds some cases in judicial practice in recent years,in which "whether to constitute the rational use of copyright" is one of the main controversial focuses,and draws the problem that the scope and standard of judging therational use of copyright are not uniform in judicial practice in China,and the causes of this problem are also analyzed and discussed.The third part introduces the three legislative modes of the United States,the European Union and South Korea,and analyses the judgment methods of fair use of copyright under these three legislative modes.The purpose of this part is to make preparations for perfecting the legislative mode of our country by comparing and analyzing different legislative modes:the rule-based legislative mode of fair use of copyright in our country is too rigid to adapt to the development of our society;the factor-based legislative mode has too much flexibility in stipulating the rational use system and our country does not have the cultural background and institutional soil suitable for its existence.The legislative mode of combining factor doctrine with rule doctrine has the advantages of both factor doctrine and rule doctrine,which is more suitable for our social background and legal system.The fourth part,on the premise of summing up the previous three parts,puts forward how to improve the judgment method of the fair use system of copyright in our country.Firstly,this paper argues that,in order to improve the judgment method of fair use of copyright in our country,we should first expand the scope of fair use of copyright system,and the most important thing is to change the closed legislative model and establish a semi-open legislative model.Secondly,it expounds the reasons for introducing the criterion of factor judgment to China.Finally,this paper puts forward the legislative reconstruction of the method of rational judgment of copyright in our country.The author believes that the system of fair use of copyright in our country is suitable to adopt the legislative mode of "rule +element + principle",but three problems should be paid attention to when legislating: first,the principle should precede the rule;second,the rule should be as detailed and explicit as possible;third,the relationship between "rule" and "standard" should be defined.