Research On The Fair Use Of Fan Works

Fan works of legal research are mainly secondary works based on original works.Fan works have flourished in recent years,on the one hand,with the continuous advancement of science and technology and the increasing development of the Internet,fan works have been transformed from being spread in a certain range of niche cultural circles to a cultural type of work created on online platforms and rapidly spreading and developing;On the other hand,fan works are secondary creations that are informal in form and content,especially in recent years,some pop culture elements have been substituted into the creation,which has attracted widespread attention and support from the public,prompting more people to actively participate in fan creation,and its content and form have continued to innovate over time,and fan culture has developed rapidly.At the same time,the fan work itself relies on the original work,and it is more likely to have legal rights conflicts and other copyright problems with the copyright owner of the original work,especially if the fan work uses some elements of the original work for secondary creation.The infringement dispute between the two has caused widespread controversy.ln most cases,fan authors will defend themselves on the grounds that their actions constitute fair use,and the fair use of fan works has become one of the points of contention.This article consists of four main chapters.The first chapter aims to clarify the basic concept and nature of fan works and their related copyright conflicts,so as to facilitate the analysis of the fair use of fan works later.This article defines fan works from the perspective of legal infringement.It is considered that a fan work is a work that uses certain elements of the original work or prototype to be recreated without the permission of the right holder,so as to determine the characteristics it contains that are different from other works.Regarding the types of fan works,there is no uniformity in theory,and the classification that has received more recognition is derivative fan works and non-derivative fan works according to the degree of originality,which also plays an important role in the legal analysis of fan works.At the same time,through the discussion of copyright conflicts related to fan works,this paper leads to an analysis of the fair use of original works by fan works.The second chapter of the "three-step test" combined with the relevant legal provisions of our country,how to determine the fair use of fan works.According to China’s legal normative system and combined with relevant practical cases,the content of the "three-step test" is analyzed one by one,and trial ideas suitable for China’s national conditions are proposed.This article argues that it is necessary to analyze whether the fanwork can meet the specific circumstances under the premise of ensuring that the fanwork does not harm the potential value and interests reasonably expected by the owner of the original work,and at the same time does not cause damage to the legitimate interests of the owner of the original work.When it does not meet the fair use conditions stipulated by the laws of our country,then according to the judicial policy of the Supreme People’s Court,further analyze the fair use of fan works by combining the two inspection standards of "three-step test"and "four-element standard".The third chapter of this article focuses on whether fan works can constitute fair use under the "four elements standard" of fair use in the United States.By analyzing the impact of each element on the fair use of fan works,and listing the transformative factors in the first element,"purpose and nature of use",this factor is explained to illustrate the important impact of this factor on fan works.This article argues that the determination of fair use of fan works,the two elements of "purpose and nature of use" and "impact on the potential market and value of the original work" occupy a relatively important position in this test.In particular,when considering the "purpose and nature of use",whether the fan work has a strongly transformative purpose for a large proportion of the trade-off,and if it meets the transformative,the fan work and the original work do not have a substitute effect,and therefore do not affect the original work market.ln this case,even if there are other factors that are detrimental to fair use,such as commercial use,the use of a large proportion of the entire work,and the use of the work is protected by copyright law,it may be determined to be fair use after comprehensive consideration.The fourth section of this article puts forward suggestions for improving the rules for determining the fair use of fan works.This paper holds that it is necessary to construct a two-track fair use system based on "three-step test" and "four-element standard";The "transformative" of the common law system is also helpful to judge the fair use of secondary works,including fan works,and China can appropriately introduce this concept to improve the legal system;In addition,the development of fan works not only needs to improve the fair use system,but also may require the laws of our country to balance the interests of all parties,especially the legal rights of the copyright owner and the public interest of the society,the pre-licensed Creative Commons license agreement can avoid both in advance and also reduces copyright disputes.