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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_ of hard work in gathering of the facts. 70 Bunker argues that in the same vein, hard work or the absence of hard work by a putative user should be irrelevant in a fair use determination, and the issue of the public good should control the analysis. 71 The rationale behind the commercial use factor analysis of Napster, that the users should not have gained nor saved any economic value from the use for their use to be considered a fair use, also implies a moral judgment against users’ benefits. He suggests that a way to make the public benefit a key variable in fair use analysis is to acknowledge the value of dissemination of works and ideas in addition to the activities of individual fair user. 72 Bunker’s emphasis on the value of the dissemination of new works and ideas is a pertinent one, but the benefit of the public at large cannot be achieved without paying adequate attention to the individual users’ activities. Therefore, the benefits may multiply if we succeed in encouraging not only the broad dissemination of new works but also diverse and creative ways of using and doing with the new works. This article attempts to speculate the ways in which potential, creative ways of individuals’ uses may be acknowledged by re-defining the concept of transformative “use.” SUGGESTIONS FOR THE APPLICATION OF TRANSFORMATIVE USE (INCLUDING TO DIGITAL WORKS - NAPSTER) The tranformative use rule itself as well as the ways in which it was interpreted and applied in lower courts have been criticized. Does it mean that we should discard the transformative use rule? Bunker suggested that the overemphasis on transformative use is incorrect as a matter of legal doctrine and harmful to the public interest, and called for a de-emphasized and clarified version of the doctrine. 73 However, the transformative use rule has a great potential to become a pertinent and useful guideline for fair use analysis, according to the way it is interpreted and applied. The focus in interpreting the transformative use may be either the private right of the initial author (to make a derivative work and profit from it) or the public benefit. To achieve the public benefit again, the transformative use may be interpreted either to mean the creation of a 70 499 U.S. 340 (1991). Feist Publications v. Rural Telephone Service Co. 111 S. Ct. 1282, 1296 (1991), finding that copying names, towns, and telephone numbers from the plaintiff’s white pages did not infringe because effort cannot substitute for originality and no originality was taken. 71 Bunker, supra note 46, at 23. 72 Id. 73 Id. at 24.

Authors: Woo, Jisuk.
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X_
of hard work in gathering of the facts.
70
Bunker argues that in the same vein, hard work
or the absence of hard work by a putative user should be irrelevant in a fair use
determination, and the issue of the public good should control the analysis.
71
The
rationale behind the commercial use factor analysis of Napster, that the users should not
have gained nor saved any economic value from the use for their use to be considered a
fair use, also implies a moral judgment against users’ benefits. He suggests that a way to
make the public benefit a key variable in fair use analysis is to acknowledge the value of
dissemination of works and ideas in addition to the activities of individual fair user.
72
Bunker’s emphasis on the value of the dissemination of new works and ideas is a
pertinent one, but the benefit of the public at large cannot be achieved without paying
adequate attention to the individual users’ activities. Therefore, the benefits may
multiply if we succeed in encouraging not only the broad dissemination of new works
but also diverse and creative ways of using and doing with the new works. This article
attempts to speculate the ways in which potential, creative ways of individuals’ uses
may be acknowledged by re-defining the concept of transformative “use.”
SUGGESTIONS FOR THE APPLICATION OF TRANSFORMATIVE USE
(INCLUDING TO DIGITAL WORKS - NAPSTER)
The tranformative use rule itself as well as the ways in which it was interpreted
and applied in lower courts have been criticized. Does it mean that we should discard
the transformative use rule? Bunker suggested that the overemphasis on transformative
use is incorrect as a matter of legal doctrine and harmful to the public interest, and
called for a de-emphasized and clarified version of the doctrine.
73
However, the
transformative use rule has a great potential to become a pertinent and useful guideline
for fair use analysis, according to the way it is interpreted and applied. The focus in
interpreting the transformative use may be either the private right of the initial author (to
make a derivative work and profit from it) or the public benefit. To achieve the public
benefit again, the transformative use may be interpreted either to mean the creation of a
70
499 U.S. 340 (1991). Feist Publications v. Rural Telephone Service Co. 111 S. Ct. 1282, 1296 (1991),
finding that copying names, towns, and telephone numbers from the plaintiff’s white pages did not
infringe because effort cannot substitute for originality and no originality was taken.
71
Bunker, supra note 46, at 23.
72
Id.
73
Id. at 24.


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