All Academic, Inc. Research Logo

Info/CitationFAQResearchAll Academic Inc.
Document

Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  X\ outweighs the harm to society of reducing the incentive to create new works. 59 Otherwise, the incentive to create new works itself would have been the goal, rather than tool, of copyright law, and the principle of productive use or transformative use would not have been needed in addition to the fourth factor of market effects. Because the application of transformative use to later lower court decisions after Campbell is redundant with the application of fourth factor, discussions in the courts tended to focus even more on protecting initial author’s rights and profits. This may seriously skew the copyright balance, which was the underlying rationale for including the fair use doctrine in the copyright system. Inclusion in, and Confusion with, the First Factor of the Purpose of Use Although Campbell introduced the transformative use discussion within the four-factor analysis, it was applied in addition to the four-factor analysis -- the more transformative the work is, the less important are the four factors. Thus, the transformative use was not explicitly incorporated in the first factor analysis, but was rather an additional consideration of the policy goal of copyright. But later courts have begun importing into their application of the first factor – the purpose and character of the use – a concern with productive use or transformative use, by questioning whether the defendant transformed the copied material in producing a new work. Incorporating the transformative use concern in the first factor analysis itself may not be problematic, but employing it as a part of the two-prong analysis – the 1 st prong is whether the use is commercial or not and the second prong is whether the use has transformed the initial work or not, seems to twist the result of the fair use analysis. For example, the district court in American Geographical Union v. Texaco in dealing with the first factor, found that photocopying of the scientific and medical journals for use of researchers of a corporation was not fair use, because the use was not transformative although the use was for research. 60 In Weissman v. Freeman, the use of a nuclear medicine educational syllabus is not fair use because it was not transformative, even though the purpose was for teaching. 61 Focusing on the productive nature of the defendant’s creation of the new work in these cases lead to disfavoring socially beneficial nonproductive uses. 62 59 Lape, supra note 30, at 678. 60 Texaco, supra note 31. 61 Weissman, supra note 31. 62 Lape, supra note 30, at 715.

Authors: Woo, Jisuk.
first   previous   Page 15 of 28   next   last



background image
X\
outweighs the harm to society of reducing the incentive to create new works.
59
Otherwise, the incentive to create new works itself would have been the goal, rather
than tool, of copyright law, and the principle of productive use or transformative use
would not have been needed in addition to the fourth factor of market effects. Because
the application of transformative use to later lower court decisions after Campbell is
redundant with the application of fourth factor, discussions in the courts tended to focus
even more on protecting initial author’s rights and profits. This may seriously skew the
copyright balance, which was the underlying rationale for including the fair use doctrine
in the copyright system.
Inclusion in, and Confusion with, the First Factor of the Purpose of Use
Although Campbell introduced the transformative use discussion within the
four-factor analysis, it was applied in addition to the four-factor analysis -- the more
transformative the work is, the less important are the four factors. Thus, the
transformative use was not explicitly incorporated in the first factor analysis, but was
rather an additional consideration of the policy goal of copyright. But later courts have
begun importing into their application of the first factor – the purpose and character of
the use – a concern with productive use or transformative use, by questioning whether
the defendant transformed the copied material in producing a new work. Incorporating
the transformative use concern in the first factor analysis itself may not be problematic,
but employing it as a part of the two-prong analysis – the 1
st
prong is whether the use is
commercial or not and the second prong is whether the use has transformed the initial
work or not, seems to twist the result of the fair use analysis. For example, the district
court in American Geographical Union v. Texaco in dealing with the first factor, found
that photocopying of the scientific and medical journals for use of researchers of a
corporation was not fair use, because the use was not transformative although the use
was for research.
60
In Weissman v. Freeman, the use of a nuclear medicine educational
syllabus is not fair use because it was not transformative, even though the purpose was
for teaching.
61
Focusing on the productive nature of the defendant’s creation of the new
work in these cases lead to disfavoring socially beneficial nonproductive uses.
62
59
Lape, supra note 30, at 678.
60
Texaco, supra note 31.
61
Weissman, supra note 31.
62
Lape, supra note 30, at 715.


Convention
Submission, Review, and Scheduling! All Academic Convention can help with all of your abstract management needs and many more. Contact us today for a quote!
Submission - Custom fields, multiple submission types, tracks, audio visual, multiple upload formats, automatic conversion to pdf.
Review - Peer Review, Bulk reviewer assignment, bulk emails, ranking, z-score statistics, and multiple worksheets!
Reports - Many standard and custom reports generated while you wait. Print programs with participant indexes, event grids, and more!
Scheduling - Flexible and convenient grid scheduling within rooms and buildings. Conflict checking and advanced filtering.
Communication - Bulk email tools to help your administrators send reminders and responses. Use form letters, a message center, and much more!
Management - Search tools, duplicate people management, editing tools, submission transfers, many tools to manage a variety of conference management headaches!
Click here for more information.

first   previous   Page 15 of 28   next   last

©2012 All Academic, Inc.