Research On The General Clause Of Fair Use Of Copyright

The new Copyright Law’s improvement of the fair use model has responded to social concerns to a certain extent.It is the original intention of legislators to improve the flexibility and application flexibility of fair use.However,the new law on fair use clauses is too cautious and conservative,that is,using "other circumstances stipulated by laws and administrative regulations" as a limited cover,and it cannot achieve the purpose of enhancing the flexibility of the system.In addition,when the new law incorporates the "three-step inspection method" as a principled provision,it introduces the provisions of limited coverage to form a formal general clause of fair use,but in essence it still does not change the closed-end fair use model of the current copyright law.It cannot achieve the due application benefits of the general terms,and at the same time it is easy to fall into confusion in judicial application.In view of this,the article intends to study the fair use model of the new law in order to improve the fair use system.The article is divided into four parts.The first part starts from the disputes over the retention and abolishment of the general terms of fair use in academic circles,analyzes the different viewpoints of the academic circles,and affirms that the general terms are the trend of fair use improvement.General clauses can give greater flexibility and openness to the fair use system,and provide referees with normative guidelines to cope with the ever-increasing demand for fair use under the impact of technology.The second part analyzes the fair use legislation in countries or regions that adopt the open mode and semi-open mode from the perspective of comparative law.The beneficial development experience gained in the development process of fair use in foreign countries or regions can be used reasonably for our country.The improvement of the model provides a path reference.The third part is based on our country’s legislation and judicial practice,and uses empirical analysis and case analysis to point out that my country’s legislation has not established the general clauses of fair use,but judicial practice has already broken through the specific circumstances enumerated in the law.The new law’s "three-step inspection method" and "other circumstances stipulated by laws and administrative regulations" constitute a reasonable use system model that is difficult to perform the functions of the general clauses and cannot maintain compliance with the needs of social development.The fourth part summarizes and integrates the existing legislative,judicial and theoretical viewpoints,and proposes that the "three-step test" has been confirmed by the new law in terms of the fair use definition standard,so it should be retained in the process of improving the general clauses.In my country’s judicial practice circles,after years of experience in judicial trials,it has been clear that the standard for fair use of judgments is the three-step test method,which can be combined with the three-step test method to form the general terms of fair use through open-ended regulations.At the same time,it is necessary to clarify that when perfecting the general terms,attention should be paid to distinguishing the different requirements of various factors that need to be considered when determining fair use.My country’s fair use system,with the help of open cover and principled regulations,can the general clauses show their due legal effect to the greatest extent,thereby creating greater application space and flexibility for fair use,and satisfying the development of new technologies for use behaviors.requirements.