Study On The Problem Of Transformative Use Incopyright Fair Use

As a system created in the judicial practice,"transformative use" is rooted in the four elements of fair use in the United States.After many years of theoretical and practical tests since its introduction,it has become increasingly important and has gradually become the core of the judgment of fair use.The flexibility and vitality of "transformative use" well balance the interests of creators,users,and industrial development.It is consistent with the value pursuit of copyright law to safeguard public interests and should be introduced into China’s trial practice as an important judgment element for fair use,so as to make up for the lack of fair use of closed legislation in our country and solve the problem of fair use determination brought about by the development of science and technology and culture.In specific cases,the court shall judge the transformation and degree of use behavior from the perspective of the ordinary rational observer and draw on the classification methods of transformative use of purpose,transformative use of content,and transformative use of both content and purpose to clarify the expression and identification criteria of "transformative use" in different categories.The legislative design must respond to the actual needs of the development of science and technology and culture.In the amendment of the Copyright Law of China,it is possible to open the gap in the fair use of closed legislation by adding a bottom-up clause,creating space for the application of the "transformative use" theory.The "three-step test" method should be stipulated as a general clause to strictly limit its applicable boundary and special provisions on "transformative use" should also be improved.At the same time,in judicial practice,we should clearly define the positioning of "transformative use",integrating the spirit of the rules into our country’s fair use by perfecting the supporting judicial interpretation and guiding cases.Through the above-mentioned positive interaction of legislation and justice,the function of "transformative use" can be fully leveraged,showing its strong vitality in the fair use system.