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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  YY initial work was in issue. As a result, the transformative use factor focuses on the industry rather social utility of the use. 83 Next I suggest a new way of applying the transformative use rule as a part of the first factor, the nature of the purpose of use. Acknowledging Creativity and Tranformativeness in the Use and Individuals Users (Responding to Active, Diverse Users) In the fair use analysis after Campbell, courts often incorporated the transformative use rule to the first factor of the purpose of use, as an additional requirement to produce a new kind of work. The result was the expansion of the protection of initial author’s rights and limited room for fair use of copyrighted works. But the difference between the “creation” of a transformed work or “transformation of the work” and “transformative use” should be noted. Courts have been reluctant to conclude that access outweighs copyright’s incentives scheme, when the use is ordinary consumer use rather than potential secondary author’s use. 84 It seems to reflect the information environment when the modern copyright law has evolved, i.e., the printing press. In the circumstances where more works there are in the information environment, the more benefits the public would get, copyright law’s incentive system naturally focuses on the creation of new works of authorship. That is why the modern copyright laws are structured in a way that provides incentives to authors so that more works can be created. But the characteristics of digital technology and computer networks change the value of information that is based on its meaningfulness. 85 As the production and dissemination of information rapidly expand, points of view and authority can provide users useful guidance. Information on the Internet might be infinite and unbounded, but it’s limited by the amount of human attention. 86 People’s presence, time, and attention become more valuable. In the case of business information, value results from interpretation and analysis by people, which depends on the specific efforts and skill of 83 Lape, supra note 30, at 723; Bunker, supra note 46, at 23. 84 Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. OF C HICAGO L. R EV . 263, 286-287 (2002). 85 Barlow, supra note 81. 86 Esther Dyson, Intellectual Property On the Net, Release 1.0., at 13.

Authors: Woo, Jisuk.
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background image
YY
initial work was in issue. As a result, the transformative use factor focuses on the
industry rather social utility of the use.
83
Next I suggest a new way of applying the
transformative use rule as a part of the first factor, the nature of the purpose of use.
Acknowledging Creativity and Tranformativeness in the Use and Individuals Users
(Responding to Active, Diverse Users)
In the fair use analysis after Campbell, courts often incorporated the
transformative use rule to the first factor of the purpose of use, as an additional
requirement to produce a new kind of work. The result was the expansion of the
protection of initial author’s rights and limited room for fair use of copyrighted works.
But the difference between the “creation” of a transformed work or “transformation of
the work” and “transformative use” should be noted. Courts have been reluctant to
conclude that access outweighs copyright’s incentives scheme, when the use is ordinary
consumer use rather than potential secondary author’s use.
84
It seems to reflect the
information environment when the modern copyright law has evolved, i.e., the printing
press. In the circumstances where more works there are in the information environment,
the more benefits the public would get, copyright law’s incentive system naturally
focuses on the creation of new works of authorship. That is why the modern copyright
laws are structured in a way that provides incentives to authors so that more works can
be created.
But the characteristics of digital technology and computer networks change the
value of information that is based on its meaningfulness.
85
As the production and
dissemination of information rapidly expand, points of view and authority can provide
users useful guidance. Information on the Internet might be infinite and unbounded, but
it’s limited by the amount of human attention.
86
People’s presence, time, and attention
become more valuable. In the case of business information, value results from
interpretation and analysis by people, which depends on the specific efforts and skill of
83
Lape, supra note 30, at 723; Bunker, supra note 46, at 23.
84
Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of
Digital Technology, 69 U.
OF
C
HICAGO
L. R
EV
. 263, 286-287 (2002).
85
Barlow, supra note 81.
86
Esther Dyson, Intellectual Property On the Net, Release 1.0., at 13.


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