“二次創作”行為著作權合理使用認定的經濟分析範式

Adapting Economic Analysis of Fair Use to Secondary Use

在社交媒體所帶來的商業模式中，傳播“二次創作”所生成的新作品已經成為一種互聯網平台新的收益來源，並由此產生了長視頻和短視頻市場之間的收益分配爭議。與此同時，移動互聯網所帶來的技術便利，也使網絡用戶充分借助他人作品進行自由表達的期望獲得了理論上的支撐，使轉換性使用得以逐步替代合理使用，在司法實踐中擴大了目的轉換的積極意義，最終造成合理使用判定標準可預期性的喪失。為了在法教義學層面提高合理使用在判定“二次創作”行為時的穩定性，有必要回歸傳統的經濟分析路徑，一方面可以獲取從“伯爾尼公約”到域外司法裁判經驗的解釋學積累，從中梳理出合理使用在應對歷次傳播技術挑戰時的核心要素；另一方面可以圍繞現行規範中的“三步檢驗法”來正確解釋著作權限制與例外制度中的“介紹、評論和說明”條款，為“二次創作”的合法性認定提供更為準確的學理解讀。

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 reconsidered 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.