Abstract：In the environment of digital network, the increasing prosperity of remixed creative production and the insufficiency of copyright system form a sharp contrast. The fine deconstruction and reasonable regulation of the remixed creative production has posed problems to the scholars. However, compared with the positive situation of seriously studying and considering amending copyright law to regulate remixed creative production in other countries or regions, the theoretical research and practical preparation in China are insufficient.
This paper attempts to solve the following three problems. In the aspect of deconstructing remixed creative production, the paper reveals the essence from three dimensions by discriminating the similarities and differences among the remixed creative production, adaptation and compilation. In terms of the comprehensive ideas, though using the content of the previous works, it has changed the comprehensive ideas, such as thoughts, feelings, opinions, positions or methods. As far as the constituent elements are concerned, it creates new elements, such as texts, numbers, symbols, colors, light rays, notes or graphics, which constitute the substance of new works. In the form of expression, the creator uses his or her own wisdom to organically combine and express the contents including the previous works and the new elements according to the new rules and order.
Regarding the legal controversy caused by the remixed creative production, it is based on the author's personality and still adheres to the principle of dichotomy of thought and expression. It doesn't shake the legitimacy of the copyright system. We can't simply classify the remixed creative production as legitimate or infringement act, but we should distinguish them as purely remixed creative production of public materials, 12 cases of remixed creative production in compliance with Article 22 of China's Copyright Law as well as other cases of remixed creative production. It can be judged from four elements whether remixed creative production is legitimate: the purpose and characteristics of the use, the nature of copyright works, used parts in proportion to previous works and substantive conditions, the impact of the use on the potential market or value of the previous works.
In response to and regulation of remixed creative production, we should bring it into the evaluation field of copyright law, and take into account the forward-looking legislation in the step-by-step and classified approach. First of all, we should amend the system of fair use, by introducing ″four factor judgment method″ of the United States to regulate nonprofit acts of remixed creative production. Secondly, the legal license should be extended to permit the remixed use of published works without the permission of the copyright owner, but the corresponding royalties should be paid. Finally, we can adopt the voluntary licensing mode to regulate the acts of remixed creative production which is not applicable to fair use or legal license.
The innovations of this paper are as follows. First of all, for the first time it reveals in China the essence of the remixed creative production from three dimensions: the comprehensive idea, constituent elements and the form of expression. It puts forward that the remixed creative production is ″different from the traditional creation methods such as adaptation and compilation, involving the dual changes in the comprehensive idea and expression of the previous works and the organic combination of the new elements″. Then the paper proposes a step-by-step, classified processing method, including ″revising the fair use system, expanding the situation of legal license, and the mode of voluntary license″. Last but not the least, it clarifies many legal disputes such as whether or not to subvert the legitimacy of copyright system.
引用本文:
黄云平. 论混编创作行为的实质与规制[J]. 浙江大学学报(人文社会科学版), 2018, 4(5): 205-214.
Huang Yunping. Essence and Regulation of Remixed Creation. JOURNAL OF ZHEJIANG UNIVERSITY, 2018, 4(5): 205-214.
