| As a factor of judging fair use under the US copyright law,transformative use theory plays an important role in fair use cases in the United States,and that plays a positive role in the judgment of new fair use cases in the digital era.Recently,with the development of information technology in China,some new business types and ways of using works have emerged,which have brought challenges to Chinese courts.Although there is no express provision in law,in response to judge the rationality of ways of using works in the digital era,transformative use theory has been used by some Chinese courts to remedy the problem of insufficient enumeration of Copyright Law.However,there is no uniform applicable rules until now.In November 2020,the third amendment draft of Copyright Law in China was formally passed.Article 24,paragraph 1,item(13)of the newly amended Copyright Law adds the "Miscellaneous Provision",which provides more chances of applying transformative use theory in China.Although transformative use theory is of positive significance for the judgment in new fair use cases,it is not explicitly stipulated in law in China.In order to avoid the abuse of transformative use theory,we need to clarify its concept and legal effect clearly in first.In order to solving the above problems,this paper aims to reasonably define the proper position of transformative use theory in the newly amended Copyright Law of China by analyzing the trial experience in Chinese courts,and studying the concept and status of the theory in US case law.This paper is divided into three chapters.The first chapter analyzes the judicial application of transformative use theory in China.Based on the analysis of the past and recent cases,this paper summarizes two problems in the application of transformative use theory in Chinese courts.First,the concept of transformative use theory is not clearly defined.For example,the lack of clear definition of the relationship between "content conversion","purpose conversion" and "transformative use" leads to the inconsistency of the applicable standard.Second,the legal effect of transformative use theory is not unified.Some courts have expanded the legal effect of transformative use theory in their judgments.Although some courts have restricted the application of transformative use theory through "market factors",they still lack the legal basis to accommodate the theory.The second chapter is the definition of the concept of transformative use theory in the newly amended Copyright Law of China.By studying the history of the transformative use theory in US case law,we can see that the US court’s determination of " transformative use theory" has gradually turned to "purpose conversion." Based on the trial experience and legal system in China,the utilitarian value of “purpose conversion” in promoting social and public interests is more in line with the legislative purpose of the Copyright Law of China.This paper also focuses on the analysis of how to determine the criteria of “purpose conversion”.The third chapter of this paper is to define the legal effect of transformative use theory in the newly amended Copyright Law of China.By analyzing transformative use theory in US copyright law,we can find that it has been gradually restricted by“the fourth factor” in Code 107 of US copyright law.In US.Transformative use theory is not the most important factor to judge fair use now.Combined with the newly passed Copyright Law of China,the transformative use theory should be interpreted in the Article 24,paragraph 1,item(2)of the newly amended Copyright Law,but the logical relationship between it and this article should be clarified.In addition,China’s judicial interpretation of the Right of Information Network Dissemination also provides a legal basis for the application of transformative use theory.Finally,combined with the first paragraph of Article 24 of the Copyright Law revised in 2020 in China,we can see that although the "Miscellaneous Provision" provides more space for Chinese courts to apply transformative use theory,its legal effect still should be limited by the "market factors" in the "three-step test",with the analysis of the theoretical interoperability between the “three-step test” and the transformative use theory. |
