Reflection On The Fair Use System of Copyright

1. Implication

The so-called fair use system refers to a kind of cultural creation or dissemination behavior that others quote and learn from the published works of the author in good faith for a certain purpose within a certain range and in a certain procedure without their consent, and do not pay any remuneration. It can be seen that the connotation of the fair use system is very broad, which not only involves the creator, the copyright owner and the subjects of cultural use and dissemination, but also has clear conditions for use. Performance:

1.1. The motivation and purpose of rational use must be for personal learning, research and appreciation; Explain, evaluate or use it for the dissemination of knowledge, education and scientific research, or for the public interest, as well as for charity in specific areas and for specific groups, and it is non-commercial and cannot have any profit-making behavior.

1.2. Works for reasonable use must be published works. No matter the length of time, the breadth of the field and the form of publication, as long as the work has been made public to an unspecified majority of people, there is the possibility of reasonable use; If there is no published work, there is no reasonable use.

1.3. Reasonable use requires neither the consent of the author nor any remuneration to the copyright owner. In general, the use of the copyright owner’s work requires the consent of the author, and the amount of remuneration is determined according to the scope and purpose of the use of the work.

1.4. In the reasonable use of any work, the name of the author, the source of the work, and the way of using the work are quotation or reference. No matter which form of use, it must be accurately marked. This is not only the affirmation of the value of the works, but also the respect for the author’s personality.

 

2. Characteristics

2.1. Fair use is a restriction on copyright and a sacrifice made by the author for social interests. Such use can only be carried out under the circumstances expressly listed in the law, otherwise it will directly constitute infringement.

2.2. Fair use is an exception to the principle of intellectual property. As an exclusive right, copyright is exclusive. Anyone must obtain the consent of the copyright owner before using the works protected by copyright, while fair use as an exception does not need the consent of the copyright owner.

2.3. There is no need to pay remuneration for reasonable use. Intellectual property is a property right. Except for the special provisions of the law on reasonable use, any other form of use, including legal license, must pay remuneration to the obligee.

2.4. Fair use is an authorized norm in the copyright law. That is, the parties can use it reasonably under the circumstances stipulated by the law; You can also give up this right and use the work according to the general procedures, and obtain the license of the copyright owner and pay fees. The law has no mandatory provisions on this. For example, China’s copyright law stipulates that for personal study, research or appreciation, the published works of others are used, and a small amount of published works of others are translated and copied for school teaching, scientific research, public welfare and charities. It can be used reasonably without the permission of the copyright owner and without paying remuneration. Other countries and international organizations have also made similar provisions, such as Article 30 of the Japanese copyright law, which stipulates that users are allowed to copy various works such as books, films, music scores, etc. for personal or familial use and within a limited range of the same kind. Article 28 of the UK Copyright Act; Literary, dramatic, musical or artistic works may be used for research or private learning purposes.

In 1841, American judge Joseph story made a systematic and incisive exposition on fair use in the judgment of Folsom v. marsh case. Namely:

A The nature and purpose of use. The purpose of using others’ works is to promote the leap of science and culture and benefit the public. Their new works must pay creative intellectual labor, not simple excerpts;

1. B. The quantity and value of the work, a large number of references to the original or the essence of the original, cannot be considered appropriate;
2. C. The influence procedure of quoting the original work on market sales and existence value, because the sales market reduces its income, and even replaces the original work. Therefore, its economic consequences must be considered.

Under the influence of judge Joseph story, the French courts further developed and deepened the fair use rules from British case law, which are shown as follows:;

1. Quoting others’ works without any explanation or evaluation is just a simple copy, which cannot be regarded as reasonable use;
2. A large number of quotations from other people’s works shall not be for profit-making motives and purposes that are detrimental to the value of the original work or the sales market;
3. Reasonable use is limited to the use of other people’s work materials, and cannot use the conceptual style and structure in others’ creation.

The legal connotation of fair use system is very profound, and it is precisely because it has such a rich legal basis that it has played an unquantifiable role in the use, dissemination and innovation of human culture.

 

3. Western countries’ legislative concept of fair use system

Although both are “fair use” of copyright, from the analysis of the legislative background of China and the west at that time, they are different due to the environment and related concepts. There are great differences in the legislation of the fair use system of copyright.

The legislative practice of fair use in western countries: due to the differences in legal culture, different countries of the same legal system also have differences in the establishment concept, legislative and judicial practice of the fair use system of copyright. The following article will take the fair use system of copyright in the United States as an example.

3.1. Legislative background. The economic foundation and political core of western countries are very different from that of China. Due to the absolute protection of private rights, the fair use system is sometimes more like a balance of “unlimited private rights”. The purpose is to make “private rights limited” or “reasonable use of private rights”, that is, the exercise of private rights should not conflict with the law and social public welfare. However, with the gradual integration of the two legal systems, the most general values of law have further converged on a global scale. For example, China has begun to pay attention to the protection of private rights and the division of public and private rights, and the western countries represented by the United States have also increased their efforts to protect public interests. Therefore, with the trend of global convergence, all countries are seeking the optimal mode of fair use of copyright.

3.2. Legislation. In the history of legislation, the United States first introduced the fair use judgment rule, which has been widely recognized by all countries. Other countries either directly introduced it or applied it after appropriate modifications. When the United States revised the copyright act in 1976, it systematically stipulated “fair use” in the form of legislation. Its provisions on “reasonable use” are divided into two categories. The first category: general terms, that is, the reasonable use of copyrighted works for the purposes of criticism, comments, news reports, teaching, academic research, etc. Including the use of reproductions or phonograms, or any other means provided by law, does not belong to copyright infringement. The second category: other terms, including the reproduction of libraries and archives, the transfer of audio recordings by non-profit institutions, non-profit performances or exhibitions, some secondary broadcasts, temporary recordings, etc. Article 107 of the United States Copyright Law stipulates that in any particular case, the factors to be considered in determining whether the use of a work is reasonable should include:

3.2.1 Purpose and nature of use;

3.2.2. The nature of copyrighted works;

3.2.3.The number of parts used and the substance of the content compared with the whole copyrighted work;

3.2.4. The impact of such use on the potential market or value of copyrighted works.

As Mr. Xu Zhao said, these four standards have not successfully solved several abstract or specific puzzles involved in the “rationality” standard. For example, what is reasonable, the perspective of reasonable, and so on. Under the four seemingly clear criteria, more questions have indeed been raised for the theoretical or practical circles. But there is no doubt that these four standards are still great wisdom and inherited by all countries to this day.

 

Section II  Reflection on the Current Situation of the Fair Use System and Suggestions For Improvement

1.Reflection On the Current Situation of Fair Use System

It is undoubtedly promising to examine the fair use system with wise rationality and fair and just law, explore the spiritual essence of the fair use system, and further improve and perfect the fair use system. The system has been baptized and tempered for nearly 300 years, and has been recognized by almost all countries in the world. This is by no means accidental, but has its own internal value. Its rational value plays an important role in balancing the interests between copyright owners and cultural users and disseminators, promoting the development of social culture, scientific innovation, human cultural inheritance and so on. If we only establish the concept of copyright legislation with the author’s rights and interests as the core and theme, it is bound to prevent the dissemination and use of works, and human society will return to the dark ages of the middle ages and the ignorant ancient times. Both common law countries and civil law countries strive to promote the social function of cultural exchange when ensuring that copyright owners enjoy the primary rights and interests of their works. American scholar willian Party. The fair use system is called a rational principle of fairness, which has the concept of fairness and justice and is flexible without definition. Judging whether it is fair or not is generally from the perspective of social justice, taking people’s recognized values of right and wrong as the standard, including people’s fair and reasonable in recognized economic interests, the concept that fairness comes from morality, advocating fairness and rectifying favoritism, which is the spiritual value of jurisprudence.

It can be seen that justice, fairness and equality are the essence of the fair use system of copyright and the rationality of the fair use system. For example, when users and disseminators use other people’s works, they are far away from this rational value, which constitutes plagiarism of other people’s works, which is disrespect for the author’s personal interests and infringement of the author’s property interests. The development of the whole human society is the process of constantly pursuing the values of fairness, justice and equality. From the essence of Chinese and western law, both contain the content of fairness, justice and straightness. Therefore, the value of justice in the fair use system can be understood from these two aspects, and summarized as the basic principles or standards of the concept of justice. The so-called equality means equality and fairness, which means that everyone has an independent and equal legal personality and is equally protected by the law. At the same time, everyone acts according to the proper rules of conduct and is appropriately rewarded and punished, so as to realize the balance of interests between the subjects. Equality is the qualification criterion of the subject’s legal status, while fairness is the distribution criterion of the subject’s enjoyment of interests. The so-called positive, that is, humanity and public welfare, means taking social public interests and common interests as the starting point and destination of rational use. Fairness is not only the goal pursued by this system, but also the moral requirement of the subject’s will. The so-called straightness, that is, integrity and rationality, means that everyone’s behavior must meet the requirements of the legal behavior scale. The essential significance of the rational use system lies in that this system conforms to the truth and law, and rationality is the final basis for evaluating the just value of the rational use system.

The legal concept of fair use system is grand and profound. The spread of culture has played a great role in promoting human society from ignorance to civilization. The rational use system enables the general public to have equal opportunities to carry out the old and bring forth the new in culture. While constantly absorbing the wisdom achievements of predecessors, it also draws on the advanced cultural connotation of the same generation to create human spiritual food and serve the development of human society. In this regard, Paccl Gocdlstein, an American copyright scientist, believes that the purpose of reasonable use is not contradictory to the basic purpose of the copyright law, that is, to give full play to the use efficiency of copyright works to coordinate the relationship between the requirements of the public for the use of works and the claims of authors’ rights and interests. On the one hand, in order to ensure the realization of the author’s personal interests, the law stipulates that the author has the right to license others to use and charge transfer fees. On the other hand, in order to ensure the realization of the public interests, within a certain range, it allows him to use the copyright works without the consent of the author and without paying remuneration. It can be seen that the original intention of the fair use system is to constantly balance the interests of authors, society and other cultural users and communicators, and its fundamental purpose is to seek a legal concept of justice among many subjects.

 

2.Suggestions On Improving the Fair Use System

The copyright law takes the form of listing articles and stipulates the reasonable use system, which provides a certain legal basis for people to absorb and learn from advanced culture in the process of chemical creation. However, the main problems in adopting this legislative method to stipulate the scope of the fair use system are: too many clues and too abstract legal provisions, resulting in difficulties in the operation of judicial practice; And the way, scope and standard of regulation are not unified, which leads to the imbalance of rights and meanings between subjects. Due to the rapid development of modern science and technology, advanced technology is constantly applied to the use and dissemination of culture, which requires people to re-examine the fair use system and constantly improve its value connotation and regulation methods. Its purpose is not only to prevent the abuse of fair use, but also to give play to the legal concept of this system. Professor Herman Cohen jiejuram of the Netherlands believes that it has been proved that some licenses for free reproduction for the benefit of others constitute a complex obstacle to the practice of collecting copyright taxes worldwide, and should be cancelled. Yvonne Smith pointed out that whether individuals steal the author’s works at home or large organizations for profit, the behavior is the same, that is, illegal reproduction. The expert group meeting convened by UNESCO and the World Intellectual Property Organization in 1984 stated that if an isolated copy seems harmless, it may harm the legitimate interests of the author if accumulated.

In the report on Amending the Convention, the Stockholm Conference pointed out that if reproduction is considered to have damaged the normal use of the work, it should then examine whether reproduction infringes on the legitimate rights and interests of the author; Only when it does not harm the legitimate interests of the author, it is possible to use compulsory license or stipulate free use under certain special circumstances. Take photo copying for various purposes as an example. If a large number of copies are copied, it is not allowed, because it damages the legitimate interests of the author; If a considerable number of copies are used in industrial enterprises and reasonable remuneration is paid according to national laws, the legitimate interests of the author will be infringed; If the number of copies is small, especially in the case of personal use or ethnological research, it can be copied without the permission of the author and without payment. However, under the impact of modern science and technology, rational use has been abused, mainly because the technology of replication and dissemination has developed, and a large number of replication has become possible in a short time.

Therefore, we must comply with the trend of technological development of the times, integrate with the world rules, and closely examine and revise China’s fair use system. Researcher Xu Zhao hereby puts forward the following suggestions:

2.1. About the rational use of education and scientific research

China’s copyright law stipulates that published works of others can be used for teaching and scientific research. However, due to the development of modern scientific research departments, many profitable commercial scientific research departments have emerged. If such institutions are allowed to use published works of others, the interests of copyright owners will inevitably be damaged. Therefore, it needs to be clearly stipulated in this article, except for any commercial education and scientific research.

2.2. Reasonable use for personal purposes

In the fair use system, the use for personal purposes is the most comprehensive and common, but it is limited to personal use, and no commercial behavior is allowed. The two must be organically combined and cannot be neglected. Therefore, it is suggested to stipulate in the legislation that only non-commercial personal use can meet the requirements of reasonable use.

2.3. Reasonable use of free performances

Copyright has two meanings for free performance:

2.3. 1.Performance refers to the public reproduction of direct or indirect sounds, expressions and actions, such as music to be played, plays to be performed, and poems to be read;

2.3. 2.Free means that the above performances do not charge performers or the public. But at the same time, it must be further stipulated that it shall not be for any profit, including direct or indirect. For example, the free performances of companies and enterprises promoting products and services, even if they do not charge the audience, are not in line with reasonable use, and should be limited.

2.3. 3. As for the fair use of preserved versions, the copyright law stipulates that the use of published works of others by libraries, archives, art galleries, etc. for display or archiving purposes is fair use. However, it must be clear that libraries, archives and art galleries must be public welfare, and the number, scope and purpose of these public welfare units must be limited; Not for rent or sale. All these conditions must be met at the same time to meet the reasonable use.