Research On The Transformative Use Rule Of Copyright

Transformative use are product of American judicial practice.There is no related legislative origin,but as a new angle and method to deal with the problem of fair use of copyright,this rule has frequently appeared in our judicial practice.Through searching and combing,this paper found that by February 2023,there were 30 cases of disputes concerning " Transformative use" in Chinese court’s judgment documents,involving 51 judgment documents in total.Further study of the 51 judgment documents shows that the application of transformative use in Chinese judicial practice can be divided into three fields: art transformation,game/competition picture use and information retrieval.At present,there are still problems such as no applicable legal basis,confused definition and different understanding of its role in the judgment of fair use in China.In the new revision of the Copyright Law,"three-step test method" is introduced to define the "rationality" of the use of the works,and to increase the situation of fair use through laws and administrative regulations,which makes the transformative use rule of use have certain applicable soil,but the flexibility is not enough,and still can not deal with the current environment and requirements.In the case that it is not possible to revise the Copyright Law in a short time,this paper proposes to add some part of transformative use cases in the relevant administrative regulations and expand the interpretation of "appropriate reference".However,in the long run,it is necessary to set up the general clause of the test of fair use factors,take into account the conversion factors and market factors,and modify the guarantee clause to make the transformative use rules have more applicable space.