Research On The Application Of Transformational Use In The Judgment Of Fair Use Of Copyright

The development of society and technology has caused great impact on our copyright fair use system.According to the existing concrete enumerations,it is often difficult to make a reasonable determination of new use behaviors in judicial practices.Therefore,some Chinese courts turn their eyes to the transformational rules of use,which originated from the American judicial practice,and take them as the basis of reasoning.However,as a written law country,judges applied transformational use when the law did not provide for it.Therefore,it is necessary to investigate the conversion use in order to determine whether to introduce conversion use to provide a legitimate basis for the application of our courts.Transformational use is a guiding rule to solve the confusion of judicial practice caused by the over-abstraction of the four elements of fair use.It tries to start from the utilitarian value goal of copyright law and provide a relatively stable expectation for the judgment of fair use.From the perspective of semantic and judicial practice,the types of conversion include purposive conversion,content conversion and both cases,but considering the conflict between pure conversion to content and the deductive right enjoyed by the right holder and the attitude towards it in judicial practice,pure conversion to content cannot constitute conversion.Considering the identity of the subject,knowledge structure and practicability and other factors,it is a reasonable way to judge the existence of conversion to examine whether the use behavior constitutes the transformational use of the original work from the perspective of rational audience.In terms of logic,conversion use is neither sufficient nor necessary to constitute fair use.Behaviors that constitute conversion use may not constitute fair use,and behaviors that do not constitute conversion use may not constitute fair use.Based on the investigation of transformational use and the revision of the Copyright Law in 2020,the introduction of transformational use should be based on the existing fair use clause in China,including the behaviors conforming to transformational use through the interpretation of the appropriate citation clause,and delimit the boundary through the last two steps of the three-step test.Therefore,the fair use system can adapt to the development of technology and expand its scope without damaging the incentive mechanism set up by copyright law for the right holder,so as to achieve an effective balance between personal interests and social public interests.