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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  X] Consequently, certain uses are likely to become newly disadvantaged in the fair use analysis due to the consideration of a productive/transforamtive use factor, including such uses as photocopying for research and education, news publishing, dissemination of information through Internet, amateur music performances. 63 This result threatens to skew the balance the fair use doctrine attempts to achieve. As used as an additional requirement for the defendants, the principle of transformative use not only directly contradicts the rational and philosophy that included the fair use doctrine in the copyright system, but also is not consistent with the definition and intention of the first factor. If it was to be included in the first factor analysis, the question should have clearly focused on the purpose of “use” of the defendants and how transformative or productive that use is, which could include various ways of using the initial work from the perspective of the users. But the recent cases rather consider the “transformed” nature of the resulting work of authorship or the creation of a new work, skewing the focus of analysis to the nature of the secondary “work” or the “creation” from “use.” Therefore, the transformative use principle should be applied either in a way that was applied in Campbell case, as an additional consideration that touches upon the policy concerns for a situation where the defendant is not an end user but a subsequent, future creator of a new work, or in a way that incorporates the transformative nature of the “use” itself in the first factor analysis. Transforming the first factor analysis by introducing the concept of transformative use in this way would provide a useful guidance for the general fair use analysis, as well as for analysis of the digital works, which will be discussed later in detail. Transformativeness in the Production of Work Rather Than the Use of Work In Campbell, by stating that “the goal of copyright is generally furthered by the creation of tranformative works,” the Court expresses more concern about the creation of new works rather than the end users’ use. The Court’s position is that the more transformative the “new work,” rather than the “use,” other factors are less significant. Thus, if the “work” rather than “use” is transformative, other factors have less force. This confusion of the transformativeness of the work with transformativeness of the use is the reason behind later disagreements among the courts and scholars, and the reason why the transformative use factor which has great potential to provide guidance to fair use cases regarding many, including digital, works of authorship proved so far less 63 Id.

Authors: Woo, Jisuk.
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background image
X]
Consequently, certain uses are likely to become newly disadvantaged in the fair use
analysis due to the consideration of a productive/transforamtive use factor, including
such uses as photocopying for research and education, news publishing, dissemination
of information through Internet, amateur music performances.
63
This result threatens to
skew the balance the fair use doctrine attempts to achieve.
As used as an additional requirement for the defendants, the principle of
transformative use not only directly contradicts the rational and philosophy that
included the fair use doctrine in the copyright system, but also is not consistent with the
definition and intention of the first factor. If it was to be included in the first factor
analysis, the question should have clearly focused on the purpose of “use” of the
defendants and how transformative or productive that use is, which could include
various ways of using the initial work from the perspective of the users. But the recent
cases rather consider the “transformed” nature of the resulting work of authorship or the
creation of a new work, skewing the focus of analysis to the nature of the secondary
“work” or the “creation” from “use.” Therefore, the transformative use principle should
be applied either in a way that was applied in Campbell case, as an additional
consideration that touches upon the policy concerns for a situation where the defendant
is not an end user but a subsequent, future creator of a new work, or in a way that
incorporates the transformative nature of the “use” itself in the first factor analysis.
Transforming the first factor analysis by introducing the concept of transformative use
in this way would provide a useful guidance for the general fair use analysis, as well as
for analysis of the digital works, which will be discussed later in detail.
Transformativeness in the Production of Work Rather Than the Use of Work
In Campbell, by stating that “the goal of copyright is generally furthered by the
creation of tranformative works,” the Court expresses more concern about the creation
of new works rather than the end users’ use. The Court’s position is that the more
transformative the “new work,” rather than the “use,” other factors are less significant.
Thus, if the “work” rather than “use” is transformative, other factors have less force.
This confusion of the transformativeness of the work with transformativeness of the use
is the reason behind later disagreements among the courts and scholars, and the reason
why the transformative use factor which has great potential to provide guidance to fair
use cases regarding many, including digital, works of authorship proved so far less
63
Id.


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