Research On Judicial Determination Of Fair Use Of Remixed Works

The development of new technology has promoted the prosperity of secondary creation.Especially in the Internet environment,digital technology has changed people’s traditional way of expression and creation,and people’s retrieval and utilization of information is more convenient,and remixed works are created by extracting,converting,and synthesizing previous works.Since the domestic and international legislation on remixed works has not clearly stipulated,the legal status of remixed works in our country is still unclear,and its protection or regulation is in a vacuum state.In recent years,with the increasing legal disputes caused by remixed works,people have begun to pay attention to the judicial recognition of remixed works.In view of the lack of clear regulations on remixed works in my country,judges usually cite fair use to determine when a remixed work infringement case occurs in practice.The current international standards for determining the fair use of remixed works include the "four elements of fair use in the United States","transformative use",and the "three-step test".As a member of the Berne Convention,my country has stipulated "limitation and exception clauses" under the "three-step test".This closed legislation is stable and predictable,but it is difficult to solve new types of remixed works.applicable issues.Combined with our country’s legislation and judicial practice,there are the following problems in my country’s judicial determination of the fair use of remixed works at this stage: First,the judicial determination standards are mixed.Due to the lack of a unified and clear identification standard,in judicial practice,the courts have "divided into their own affairs",and judges have chosen different interpretation paths based on their own subjective likes and dislikes,resulting in mixed and confusing identification standards for remixed works.Secondly,in my country’s limitations and exceptions clauses,there are problems in the application of personal use clauses and appropriate citation clauses to remixed works,which are reflected in: first,there are limitations in the application of personal use clauses.Generally speaking,personal use is based on the premise of "personal,non-public use and cannot be used for profit-making commercial activities",but the current network is convenient,it is difficult for remix creators to meet the requirements of "non-public use",and in In the rapidly developed commercial society,excluding the for-profit use of remixed works from fair use will inhibit the bursting of market economic vitality,so it is difficult for personal use terms to continue to apply in the field of remixed works.Second,it is difficult to define proper reference terms.On the one hand,because the legislation only stipulates its basic meaning and does not provide specific standards for proper citation,the ambiguity in legislation has brought a dilemma to the judiciary in our country;In addition,the reason why there is a dilemma in the judicial determination of remixed works in my country is that both the "personal use clause" and the "appropriate citation clause" should follow the rules of "must not affect the normal use of the work" and "have to reasonably damage the legality of the copyright owner" The two abstract principles of rights and interests,but these two abstract principles are relatively abstract and vague,and cannot provide clear guidelines for judges.Through comparative research on the judicial determination of fair use of foreign remixed works,and at the same time drawing on foreign judicial experience and combining with my country’s local national conditions,the main measures to improve the judicial determination of fair use of remixed works are as follows.First,take my country’s limitations and exceptions clause as the legal basis.As a country with statutory law,in the absence of express provisions in the law,my country shall not directly "use" and "mix and match" foreign standards for identification.Source basis,to clarify whether the remixed work constitutes fair use.Second,the introduction of transformative use to address applicable limitations.According to whether the remixed works have undergone a purposeful transformation of the previous works and the degree of transformation,it is also necessary to legalize those works that are beneficial to social interests through fair use.Third,judge based on the quality and quantity of citations.From the purpose of citation,the necessity of citation and the effect of citation,comprehensively examine the substantive degree of the use of the previous work,and at the same time stipulate that the new work cited cannot exceed a certain limit of the original work.Fourth,it is determined based on the existing market and the potential market of previous works.Judging the impact on the existing market of the prior work according to whether the damage exists objectively and whether the damage reaches a certain level;refines the judgment criteria for the potential market of the prior work,and considers it in combination with the purpose of use in the transformative use and the degree of transformation.