Research On The Application Of "Transformative Use" In The Judgment Of Fair Use

When the twelve kinds of rights restrictions stipulated in the copyright law of China can’t adapt to the changing social practice,Some scholars advocate the introduction of the four elements proposed in section 107 of the copyright law of the United States and the theory of "transformative use" as the judgment standard of fair use to help deal with the problems caused by new works and new use behaviors derived from the development of science and technology Right infringement.In judicial practice,relying on the opinions on giving full play to the judicial function of intellectual property rights,promoting the great development and prosperity of socialist culture and promoting the independent and coordinated development of economy issued by the Supreme People’s court in 2011(hereinafter referred to as the opinions),the court has constantly tried the feasibility of this proposition.In recent years,the representative case is case of "Meng Huan Xi You ".Starting from the court judgment of "Meng Huan Xi You" case,this paper mainly focuses on whether "transformative use" can be the dominant factor in the four elements of fair use judgment in the United States,and how to correctly use this judgment standard in judicial practice.After putting forward the problems and listing the specific disputes in the introduction,this paper sets the main body into three chapters to study the above problems.The first part is the introduction of the background,which briefly introduces the current situation of fair use judgment and the contents of "transformative use".At the same time,through the time sequence,this paper discusses the origin,formal proposal and development of the rule of reasonable use and the theory of "transformative use",and provides the basic material for the later discussion.The second part puts forward the legal issues that this paper mainly studies,that is,the problems faced when using the theory of "transformative use" and the judgment standard of the fair use,including the uncertainty of the connotation of "transformative use" and the relationship between it and other elements of the judgment rule of the fair use.The second chapter is the key chapter of this paper,which answers the questions raised in the first chapter.This chapter is divided into two parts.The first part discusses in detail why "transformative use" can be the dominant factor in the judgment of reasonable use.In order to answer this question,this part demonstrates from two aspects: one is that "transformative use" conforms to the utilitarian copyright concept and the value pursuit of relevant public policies;the other is that the uncertainty of "transformative use" is reasonable,and its own uncertainty can be effectively reduced by clarifying the definition of "transformative use".The second part is to analyze the connotation of the four elements proposed in section 107 of the U.S.Copyright Act,and then think that in the element of "the purpose and character of the use",the element of "transformative use" should be the first,and the elements of "commerciality" and "subjective malice" should be the second.Compared with the factor of potential market or value,the factor of "transformative use" is more suitable to become the dominant factor of the judgment standard of the fair use.At the same time,"the nature of the copyrighted work" and "the amount and substantiality of the portion used in relation to the copyrighted work as a whole " should be used as the auxiliary elements of the judgment standard of the fair use.Finally,the paper puts forward the judgment standard of the fair use,which is based on the reader’s perspective,including only the "transformative use" of "purposeful transformation" as the dominant factor,and "the effect of the use upon the potential market for or value of the copyrighted work","the nature of the copyrighted work","the amount and substantiality of the portion used in relation to the copyrighted work as a whole" as the main auxiliary factors.The content of the third chapter is mainly about how to correctly apply the standard of fair use proposed by the copyright act of the United States,that is,the so-called four element standard,after the introduction of the theory of "transformative use".This chapter first discusses the copyright attribute of live game and the problems encountered in its fair use.Then,with the help of the above conclusions,the paper analyzes and judges the fair use of live game by using the judgment standard of fair use and the theory of "transformative use".Finally,through the analysis of the "Meng Huan Xi You" case,the paper analyzes the mistakes in the judgment of the court,and further clarifies the idea of "transformative use" in the judicial application.