X`
new work made possible by the defendant’s use of the initial work, emphasizing indirect
public benefit achieved by the promoted creativity and a better information environment,
or to mean defendant’s use of the work itself and how creative that use can be,
emphasizing direct public benefit by individual users’ welfare. Both approaches to
achieve the public benefit, indirect or direct, should be recognized if the purpose of
copyright system is to be achieved. The current ways of interpreting and applying the
transformative use, however, seems to either focus on the private interests of the initial
author’s rights or the indirect public benefit achieved by the defendant’s use of the
initial work to transform it and create a new work out of the use. Critical scholars have
suggested shifting of the focus of transformative use from the market effect and the
initial author’s right to the dissemination of and access to the existing works of
authorship. In addition, I argue for interpreting and applying the rule as one that governs
the purpose of use, as the term itself suggests, and in a way that encompasses creative
and unprecedented activities of users with different kinds of new works. The following
ways of re-defining the concept of transformative use seems to be useful in the process.
Using the Rule As a Separate Policy Consideration
(Better Responding to Changing Markets and Information Environments)
When transformative use factor solely asks whether the purportedly infringing
work adversely affects the market for sale of the initial work, it functions as a redundant
factor with the fourth one of market effects. But when transformative use factor asks
whether the new work significantly adds to the universe of information available to
society, it begins to function as an additional consideration to enhance the public benefit,
which is the goal of copyright. Some courts, by focusing on the nature of the new work,
that is, the transformativeness of the newly created work, actually apply the
tranformative use an additional fifth factor in fair use analysis. The “nature of the
infringing work” seems to have been introduced in such a framework. This approach
may be subject to criticism of turning the fair use analysis to a normative analysis, by
delegating to courts to decide what constitutes a transformed work and what kind of
work deserves fair use defense.
74
Bunker points out that courts show very little analysis
and little consistency in what constitutes transformative use, due to confusion with
derivative work, which, by statutory definition, “any form… in which a work may be
74
Id. at 9-16.
Convention