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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  YW recast, transformed, or adapted.” 75 In that case, the creation of a derivative work should be at least some evidence of transformativeness. 76 But in Ty, Inc. v. Publications International, the court acknowledged that the photographs of toys are “at the very least… derivative works,” but later found that, without much analysis, they are not transformative. 77 Despite this possible confusion and inconsistency, it is still better than equating the transformative use factor with the fourth factor, and considering the market effect factor twice and discounting the first factor of the nature of the defendant’s use, which may have a dire consequence of overly emphasizing the initial author’s rights and interests. In addition, focusing on the nature of the new work has other advantages in the changing information environment, “if” applied separately as a policy consideration. When the transformative use is interpreted to mean adding something new to the information environment, not only limited to information market but including non- commercial space, this factor could function to achieve what the market effect factor did not effectively deal with. The market effect factor basically assumes a stagnant market including that for derivative works. But the digital technology generates more and more possibilities of creating a new, different market or space for different products and activities. More and more products or activities that may or may not influence the current or potential market of the initial work evoke new, unprecedent desires, interests, and actions, which again may or may not lead to new markets for profits. That is why Benkler suggests that focusing on creativity and transformative nature of a work based on a borrowing is of particular importance in the context of digital media. 78 A work can be substantially transformative so that it is not a derivative work nor does it share the market of the initial work in any way, but creates something new. And the transformative use factor can be used to encompass the possibility of creating a new, different market or space for different products and activities. In that sense, transformative use factor could function as something different from market effect factor or derivative work analysis. Digital media has many different characteristics from traditional media. One of the significant characteristics involves the plasticity and interactivity of the media. 79 75 17 U.S.C. § 101 (1994); Bunker, supra note 46, at 11. 76 Id. at 11. 77 81 F. Supp. 2d 899 (N.D. Ill. 2000), at 902. 78 Benkler, supra note 44, at 678. 79 Id.; Nicholas Negroponte, B EING D IGITA L (1994).

Authors: Woo, Jisuk.
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background image
YW
recast, transformed, or adapted.”
75
In that case, the creation of a derivative work should
be at least some evidence of transformativeness.
76
But in Ty, Inc. v. Publications
International, the court acknowledged that the photographs of toys are “at the very
least… derivative works,” but later found that, without much analysis, they are not
transformative.
77
Despite this possible confusion and inconsistency, it is still better than
equating the transformative use factor with the fourth factor, and considering the market
effect factor twice and discounting the first factor of the nature of the defendant’s use,
which may have a dire consequence of overly emphasizing the initial author’s rights and
interests.
In addition, focusing on the nature of the new work has other advantages in the
changing information environment, “if” applied separately as a policy consideration.
When the transformative use is interpreted to mean adding something new to the
information environment, not only limited to information market but including non-
commercial space, this factor could function to achieve what the market effect factor did
not effectively deal with. The market effect factor basically assumes a stagnant market
including that for derivative works. But the digital technology generates more and more
possibilities of creating a new, different market or space for different products and
activities. More and more products or activities that may or may not influence the
current or potential market of the initial work evoke new, unprecedent desires, interests,
and actions, which again may or may not lead to new markets for profits. That is why
Benkler suggests that focusing on creativity and transformative nature of a work based
on a borrowing is of particular importance in the context of digital media.
78
A work can
be substantially transformative so that it is not a derivative work nor does it share the
market of the initial work in any way, but creates something new. And the
transformative use factor can be used to encompass the possibility of creating a new,
different market or space for different products and activities. In that sense,
transformative use factor could function as something different from market effect
factor or derivative work analysis.
Digital media has many different characteristics from traditional media. One of
the significant characteristics involves the plasticity and interactivity of the media.
79
75
17 U.S.C. § 101 (1994); Bunker, supra note 46, at 11.
76
Id. at 11.
77
81 F. Supp. 2d 899 (N.D. Ill. 2000), at 902.
78
Benkler, supra note 44, at 678.
79
Id.; Nicholas Negroponte, B
EING
D
IGITA
L (1994).


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