Research On The Criteria For Determining The Fair Use Of Portraits

The system of fair use of portraits was first stipulated in China’s Civil Code,which is a major legislative progress.The purpose of the fair use system is to balance the interests of all parties and is the embodiment of the balanced spirit of the Civil Code.However,the system also faces the problem of inconsistent identification standards in practice,in response to this problem,the theoretical community has been committed to learning and introducing relevant Western institutional experience,and the more operational practical identification standards are slightly neglected to discuss.With the improvement of the system of fair use of portraits in the Civil Code,although some problems have been solved,some new problems have also emerged,such as how to understand some ambiguous words such as "necessary scope" and "inevitable".This paper will analyze and improve the criteria for determining the fair use system,and collect and analyze judicial cases and literature,combined with relevant legislative materials.This article is mainly divided into three parts,the first part is the basic theory of fair use of portraits,mainly introduces the basic concept of fair use of portrait rights,and further clarifies the concept of fair use system by comparing fair use with licensed use and infringing use.The value of fair use is analyzed to explain why a fair use system is provided for in China’s laws.From the perspective of public interest value and balanced interest value,the fair use system is the boundary of the rights of portrait rights holders,and the establishment of a fair use system can prevent private obstruction of public rights forms,and realize the balance of interests between citizens’ right to know and portrait protection of portrait rights holders.The second part analyzes the current situation of China’s portrait fair use system and finds the key problems of the current system.First of all,semi-closed legislation cannot cover all fair use scenarios,and the law intends to cover all the situations of fair use of portraits through exhaustive enumeration,but this legislative model is too rigid and prone to the situation that it is impossible to directly apply the legal provisions.Second,the criteria for determining the fair use of portraits are missing.The fair use determination standard first appeared in the field of copyright,and the lack of a unified determination standard can easily lead to differences between judges in trial practice,and there are cases of different judgments in the same case,affecting the balance of interests of the fair use system and reducing the authority and stability of the law.The third part mainly writes that by drawing on the relevant provisions of copyright,this article believes that the elements of identification should be included in the reference,mainly including whether the actor’s use of the portrait is in the public interest,whether the actor’s use of the portrait is of a commercial nature,the impact of the actor’s use of the portrait on the user,and the necessity of the actor’s use of the portrait.Consider the elements of the determination of the fair use of portraits from all aspects of the angle,and strive to provide practical reference for judicial practice.The last part combines the elements of determination with specific provisions,further defines and clarifies specific provisions,allows judges to further understand the essence of the provisions,and facilitates flexible application in trial work.