Research On Localization Of Transformative Use Rules Of Works

With the progress of science and technology,there are many new works using behaviors in China,such as "user-generated content","web page snapshot","text and data mining",which have been widely discussed.These behaviors do not belong to the legal situation of fair use clauses,resulting in confusion in the judgment of judicial practice in China.This can be solved by referring to the path of transformative use rules of works.The rule of transformative use of works is the product of the development of American judicial practice,and its core lies in judging whether the secondary creation uses the original works,achieves different functions and purposes from the original works,and produces new expressions,new meanings or new information.With flexibility,the rules of transformative use of works can better adapt to the development of digital technology,and gradually become the core rules of fair use judgment in the United States.Based on the basic theory of transformative rules of use,this paper tries to analyse the development trend of transformative rules of use,and put forward specific suggestions on localization in combination with the difficulties of judicial application in China.The concept of transformative use rules of works was put forward by Judge Level in his article "On Fair Use Standards",which was first applied in the Campbell case.In the application process,transformative use rules develop two types: expressive transformative use and functional transformative use.Expressive transformative use mainly includes usage behavior types such as parody irony,misappropriation of art and "user-created content",while functional transformative use mainly includes usage behavior types based on information retrieval,duplicate checking software,text and data mining.In the process of application,the rules of transformative use of works are easily confused with the concepts of "appropriate citation" and "deductive use",so it is necessary to compare the related concepts.The development of transformative use rules of works has gone through two stages.The first stage is the expansion stage,which is reflected in the expansion of the applicable scope of transformative use rules and occupies the core position of fair use judgment.The second stage is the restriction stage.The definition standard of transformative use is vague,which is easy to be confused with deductive right.Therefore,we begin to re-examine the relationship between transformative use rules and fair use.In judicial practice,we pay more attention to the purpose transformation and the role of other factors.The rules of transformative use of works have also been applied in our judicial practice.The applicable cases of this rule in China can be divided into three categories:commentary,live game and information retrieval.However,there are some difficulties in the localization application of this rule in China,such as no source basis,different understanding of the definition standard of transformative use and unclear understanding of its position in the judgment of fair use.After the third revision of China’s Copyright Law,two types of transformative use can be added to relevant laws or administrative regulations.One is to add the use of other people’s published works for the purpose of parody;Secondly,for the purpose of scientific research and non-profit data analysis,other people’s published works should be used in text and data mining technology.As far as the path of transformational use rules entering our country is concerned,it can also be introduced by expanding the interpretation of the "appropriate citation" clause and the "three-step test method".At the same time,in our judicial practice,we can construct the transformative cause to constitute the elements of usage rules,it is necessary to clarify that transformative usage rules play an important role in the judgment of fair use,but they are not absolute,and it is still necessary to comprehensively judge the nature of usage behavior in combination with other elements.