A Study On Copyright Fair Use Of User-Generated Content

User-generated content refers to a series of creative content which is created and openly posted on the online platforms by non-professional online users,including single-element products such as images,videos,audios,texts etc.and other multi-element products remixed by the above products.Parody,audio and video,fan fiction etc.are all different forms of user-generated content.One of the most important creative techniques is remixing,which creates a new online product by mixing different works together through certain editing methods.In the age of network,the use and dissemination of a large number of user-generated content(unauthorized secondary creation)is suspected of infringing copyright.Though meanwhile,such user-generated content has the possibility of fair use because it relates to huge public interests and besides that,it is quite creative itself.In order to solve the copyright dilemma of user-generated content,one way is to reform the licensing system and curb the unauthorized using behavior;the other way is to incorporate certain qualified user-generated content into the fair use system to give it legitimacy so that they can escape from the dilemma of infringement.However,it doesn’t work well through the former way in reality,and the failure of the licensing system remains.In essence,even if licensing system can eliminate the market failure caused by excessive transaction cost,the other kind of market failure still exists,because it doesn’t help to internalize the decentralized external benefits caused by the use of copyrighted works.By exerting the right-restricting function of fair use system,it offers a legal outlet for the new culture products representing public interests,such as user-generated content,and it can also alleviate the imbalance between copyright and public interests and promote the prosperity of the culture market.The root cause of user-generated content’s copyright dilemma is the interest imbalance due to the expansion of copyright and the weakening of the right-restriction system.So incorporating user-generated content into the fair use system is consistent with the legislative purpose and scope of application of the system,it can also make the most of user-generated content to help protect the public free speech and the cultural innovation.At present,the mainstream paths for the international community to bring user-generated content into fair use system is setting new fair use clause and expanding the interpretation of element-standard system.The legislative model of “generality principle + disclosure clause” adopted by China’s new copyright law provides good institutional conditions for incorporating user-generated content into the fair use system.Based on China’s specific national conditions and relevant international experience,we should choose the path of setting the new fair use clause for user-generated content.In general,the incorporating of user-generated content should adhere to the idea of “judiciary first and legislature follow-up”,that is,the judiciary determines the user-generated content that meets the principle of fair use system under comprehensive consideration of the general rules,and then the legislator timely classifies the user-generated content and stipulates it in the corresponding laws and administrative regulations.In order to break through its own limitations and conform to the development of the times,our current fair use system still needs self-improving.The general principle learning from three-step method should be further embodied due to its ambiguity,and the theoretical connotation and judicial practice experience of the four-element standard and trans-formative use can provide reference for enhancing its operability.Because the fair use system doesn’t naturally exclude commercial use of copyrighted works,our fair use system should accept and recognize the commercial use of user-generated content under certain circumstances to adapt to the development of commercial society.