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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  YX Digitization means that all information, including text, audio, and video content, can be used in any order and be rearranged at will. Digital content can be transformed for use in another medium - for example, from text to voice or vice versa. 80 Works in digital form can be easily added, deleted, edited, or otherwise modified and manipulated. On the Internet, derivative work products with a large array of differing degrees of added creativity will be produced and transmitted. Digital information, unconstrained by packaging, becomes a continuing process. 81 New works that have never existed before, and new markets for new consumers are continuously created. In such a circumstance, focusing on the fourth factor of market effects or market substitutes would deny most of derivative works that are created by the digital technology, because the market structure is finely divided that even a derivative work that appeals to a very narrow segment of the market can nevertheless be commercially viable, and thus constitutes commercial substitute for the initial work. 82 The current fair use analysis, especially the fourth factor of market effects assumes relatively stable markets for relatively unchanging products and consumers. Therefore, so far the copyright system successfully attempted to reasonably protect the market for the initial work even within the fair use doctrine that is designed to provide limitations in the initial author’s rights. But digital technology rocks this rather stable market situation, and when the market effect factor is strictly applied, the very production of new kinds of works and newly created markets and consumers may be seriously stifled. The shift of a focus on the creative or transformative nature of a new, derivative works, in that sense, may be a welcome tool for maintaining the balance of copyright system and establishing copyright’s purpose of public benefit, while being open to yet-to-be-known ways of using and creating works of authorship. In retrospect, it seems that what actually happened after Campbell is rather opposite to the expectation that Benkler has optimistically envisioned. In the courts after Campbell, the transformative use was incorporated as part of the first factor analysis and interpreted as an additional requirement that the defendant’s must prove to prevail on a fair use defense. This occurred because the transformative use was narrowly interpreted pursuant to the Campbell case’s factual situation, which involves a secondary author’s creation of a new, commercial work, even to the cases where the end user’s use of the 80 Robert H. Anderson, Tora K. Bikson, Sally Ann Law, & Bridger M. Mitchell, U NIVERSAL A CCESS TO E- MAIL : F EASIBILITY AND S OCIETAL I MPLICATIONS 96 (RAND). I 81 John Perry Barlow, The Economy of Ideas, WIRED 2.03, at 9. 82 Benkler, supra note 44, at 679.

Authors: Woo, Jisuk.
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YX
Digitization means that all information, including text, audio, and video content, can be
used in any order and be rearranged at will. Digital content can be transformed for use
in another medium - for example, from text to voice or vice versa.
80
Works in digital
form can be easily added, deleted, edited, or otherwise modified and manipulated. On
the Internet, derivative work products with a large array of differing degrees of added
creativity will be produced and transmitted. Digital information, unconstrained by
packaging, becomes a continuing process.
81
New works that have never existed before,
and new markets for new consumers are continuously created. In such a circumstance,
focusing on the fourth factor of market effects or market substitutes would deny most of
derivative works that are created by the digital technology, because the market structure
is finely divided that even a derivative work that appeals to a very narrow segment of
the market can nevertheless be commercially viable, and thus constitutes commercial
substitute for the initial work.
82
The current fair use analysis, especially the fourth
factor of market effects assumes relatively stable markets for relatively unchanging
products and consumers. Therefore, so far the copyright system successfully attempted
to reasonably protect the market for the initial work even within the fair use doctrine
that is designed to provide limitations in the initial author’s rights. But digital
technology rocks this rather stable market situation, and when the market effect factor is
strictly applied, the very production of new kinds of works and newly created markets
and consumers may be seriously stifled. The shift of a focus on the creative or
transformative nature of a new, derivative works, in that sense, may be a welcome tool
for maintaining the balance of copyright system and establishing copyright’s purpose of
public benefit, while being open to yet-to-be-known ways of using and creating works
of authorship.
In retrospect, it seems that what actually happened after Campbell is rather
opposite to the expectation that Benkler has optimistically envisioned. In the courts after
Campbell, the transformative use was incorporated as part of the first factor analysis and
interpreted as an additional requirement that the defendant’s must prove to prevail on a
fair use defense. This occurred because the transformative use was narrowly interpreted
pursuant to the Campbell case’s factual situation, which involves a secondary author’s
creation of a new, commercial work, even to the cases where the end user’s use of the
80
Robert H. Anderson, Tora K. Bikson, Sally Ann Law, & Bridger M. Mitchell, U
NIVERSAL
A
CCESS TO
E-
MAIL
: F
EASIBILITY AND
S
OCIETAL
I
MPLICATIONS
96 (RAND). I
81
John Perry Barlow, The Economy of Ideas, WIRED 2.03, at 9.
82
Benkler, supra note 44, at 679.


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