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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  XY not clear whether the Campbell Court treated the transformative use factor as a part of the first factor, the purpose and character of use, or as a separate additional factor to be considered in relation to the statutory four factors. The notion of transformative use was introduced in discussing the first factor in the opinion, but at the same time, the Court’s opinion focuses not on market effects, nor on commercial purposes, but on the creative relationship between the infringed work and the infringing work. 44 The Campbell’s notion of transformativeness may thus be interpreted as an attempt to directly touch upon the fundamental goal of copyright in addition to doctrinal analyses of the four separate factors. But the ways in which the transformative use was interpreted and applied in later cases take many shifts and turns, which will be discussed in the following section. TRANSFORMATIVE USE RULE AND THE TRANSFORMATION OF FAIR USE ANALYSIS After Campbell, a legal scholar Benkler had proposed that the transformative use principle could be an important basis for fair use analysis of digital works of authorship that are characterized by the plasticity and processibility. 45 But other scholars have criticized that fair use analysis in lower courts became monolithic and was transformed to give advantage to copyright owners. 46 This chapter examines drawbacks and misapplications in the concept of the transformative use, in order to understand legal confusion and disagreements before suggesting a new approach to interpret and use this concept in the future. Ambiguous Relationship with the Market Effect Factor (And its resulting emphasis on the initial author’s profit) Courts seem to consider the productive use or the transformative use factor in relation to the market effect analysis rather than separately. This tendency is not only incorrect as a matter of legal doctrine, but has a serious effect of emphasizing the 44 Yochai Benkler, R ULES OF THE R OAD FOR THE I NFORMATION S UPERHIGHWAY : E LECTRONIC C OMMUNICATION AND THE L AW 677 (1996 & 1997 Supp). 45 Id. 46 Lape, supra note 30, Matthew D. Bunker, Eroding Fair Use: The “Transformative” Use Doctrine After Campbell, 7 C OMMUNICATION L AW AND P OLICY 1 (2002).

Authors: Woo, Jisuk.
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background image
XY
not clear whether the Campbell Court treated the transformative use factor as a part of
the first factor, the purpose and character of use, or as a separate additional factor to be
considered in relation to the statutory four factors. The notion of transformative use was
introduced in discussing the first factor in the opinion, but at the same time, the Court’s
opinion focuses not on market effects, nor on commercial purposes, but on the creative
relationship between the infringed work and the infringing work.
44
The Campbell’s
notion of transformativeness may thus be interpreted as an attempt to directly touch
upon the fundamental goal of copyright in addition to doctrinal analyses of the four
separate factors. But the ways in which the transformative use was interpreted and
applied in later cases take many shifts and turns, which will be discussed in the
following section.
TRANSFORMATIVE USE RULE AND THE TRANSFORMATION OF FAIR
USE ANALYSIS
After Campbell, a legal scholar Benkler had proposed that the transformative
use principle could be an important basis for fair use analysis of digital works of
authorship that are characterized by the plasticity and processibility.
45
But other
scholars have criticized that fair use analysis in lower courts became monolithic and
was transformed to give advantage to copyright owners.
46
This chapter examines
drawbacks and misapplications in the concept of the transformative use, in order to
understand legal confusion and disagreements before suggesting a new approach to
interpret and use this concept in the future.
Ambiguous Relationship with the Market Effect Factor (And its resulting emphasis
on the initial author’s profit)
Courts seem to consider the productive use or the transformative use factor in
relation to the market effect analysis rather than separately. This tendency is not only
incorrect as a matter of legal doctrine, but has a serious effect of emphasizing the
44
Yochai Benkler, R
ULES OF THE
R
OAD FOR THE
I
NFORMATION
S
UPERHIGHWAY
: E
LECTRONIC
C
OMMUNICATION AND THE
L
AW
677 (1996 & 1997 Supp).
45
Id.
46
Lape, supra note 30, Matthew D. Bunker, Eroding Fair Use: The “Transformative” Use Doctrine
After Campbell, 7 C
OMMUNICATION
L
AW AND
P
OLICY
1 (2002).


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