“二次创作”行为著作权合理使用认定的经济分析范式

Adapting Economic Analysis of Fair Use to Secondary Use

在社交媒体所带来的商业模式中,传播“二次创作”所生成的新作品已经成为一种互联网平台新的收益来源,并由此产生了长视频和短视频市场之间的收益分配争议。与此同时,移动互联网所带来的技术便利,也使网络用户充分借助他人作品进行自由表达的期望获得了理论上的支撑,使转换性使用得以逐步替代合理使用,在司法实践中扩大了目的转换的积极意义,最终造成合理使用判定标准可预期性的丧失。为了在法教义学层面提高合理使用在判定“二次创作”行为时的稳定性,有必要回归传统的经济分析路径,一方面可以获取从“伯尔尼公约”到域外司法裁判经验的解释学积累,从中梳理出合理使用在应对历次传播技术挑战时的核心要素;另一方面可以围绕现行规范中的“三步检验法”来正确解释著作权限制与例外制度中的“介绍、评论和说明”条款,为“二次创作”的合法性认定提供更为准确的学理解读。

Boosting by the social media and its business model,new works created by secondary use have become a new source of revenue for internet platforms and authors,and individuals are encouraged by the social media to engage with content posted by other users to share the contents that created by other users in a public forum.In this case,Market for short videos that contained pieces from audiovisual works are running independently of market for audiovisual work,which caused conflicts between copyright owners and users.When Individuals are encouraged to engage with content posted by other users to share and debate their opinions in social media,and assume that content posted on the Internet is inherently free for the taking,content creators insist that they should control over the reproduction and distribution of their works.A direct result of this debate,comes to a large increase in copyright infringement lawsuits brought by professional content creators against the end users of their copyrighted content.Meanwhile,Transformative use is frequently adopted by courts to affirm this trend.The U.S.Supreme Court first endorsed the transformative use term in its 1994 Campbell v.Acuff-Rose Music,Inc.decision.Since then,lower courts in the U.S.and European countries have increasingly utilized the transformative use and Similar concepts in case law.Whether use of a copyrighted work is "transformative" has become a central question within the fair use test.The transformative use inquiry has gained momentum in case after case.But the unpredictable interpretation of transformative use makes it more difficult to judge the legitimacy of secondary use.It leaves a very subjective and artistic determination to persons trained primarily in the law.In orders to clarify the confusion of transformative use,the U.S.Supreme Court handed down its decision in The Andy Warhol Foundation for the Visual Arts,Inc.v Goldsmith case in 2023,which recosidered whether the use is of a commercial nature.In China,transformative use also has been applied by the courts without legal foundation,and fair use in China's copyright system has been deeply affected by hybrid models from the U.S.and European countries.A better understanding of these hybrid models will not only help us develop greater appreciation for copyright reform but will also enable us to reexamine our existing copyright system and thereby explore whether and how that system can be further modernized.At a broader level,such analysis will further help us develop better insights into global law reform that is based on paradigmatic U.S.models.Therefore,fair use standard should be reconsidered for secondary use,and economic analysis should be seen as the right way to interpret fair use,due to the long-time accumulation of judicial precedents.Moreover,economic analysis can help create a stabilize interpretation of Article 24(2) of copyright law.From the aspect of literal interpretation,the transformation under the statutory fair use category of " appropriate quotation from a published work in one's own work for the purposes of introduction of,or comment on,a work,or demonstration of a point " can be concluded as two situations.First,the fair use situation for "introduction of,or comment on,a work" is intended to re-exploit the new values for the original work,therefore allows users attaching their own commentaries on others ' work freely.Second,the fair use situation for "demonstration of a point" is intended to create new works using the original work.Under this circumstance,users quote the original work as the material or argument for creating new works.As a result,courts should be reforming transformative use to reinvigorate economical statutory factors,particularly the inquiry into the impact of the use on the potential markets for or value of the copied work.