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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  Y[ that is not likely to be possible by any pre-existing ways, and thus the public benefit is clearly enhanced by this kind of use, we may be able to call this kind of use “transformative.” The characteristics of digital materials cut both ways for the applicability and usefulness of the transformative use doctrine. The technology of plasticity and interactivity provides opportunities for users of information to become creators of a new work by taking, borrowing, cutting, pasting, editing, and adding. Users are now active participants in the process of dissemination and production of knowledge and information. 92 What the courts and even critical scholars of the transformative use principle have missed is the fact that the creativity in the use of works of authorship becomes critical in digital environment. The relationship between the author and user is not only blurred, but the ways in which value is generated and the public obtains the benefit the information are transformed, in a way that the creativity in the use itself should be recognized. This poses a great challenge to the interpretation of the precedents. For example, Justice Blackmun’s dissent opinion in Sony that the consumer’s ordinary use cannot be considered productive use is directly opposed considering these active and interactive users. But the reality of the changing environment suggests that without acknowledging the creativity and tranformativeness that occurs in the process of the use of information itself, the copyright law lags behind, vainly trying to protect that which does not any more help to promote the progress of science and useful arts. More “creation” of works of authorship is not any more critical nor essential in the progress of science and useful arts, because there is already so much information out there. Now dissemination, access, and allowing diverse, creative use of existing works of authorship for users’ personal purposes, by allowing customization, personalization, and further communication becomes more and more important for public well-being and happiness compared to more production of works. When the ways in which are changing in the interactive, digital environment, acknowledging the creativity and transformativeness of more active participants and their new ways of interacting, new ways of living, new ways of seeking happiness should be an important consideration in interpreting and applying the transformative use principle. The transformative use should be interpreted to encompass more access, more usability, more personalization, more freedom to use and do with the existing works, more communication, building more relationships using the works of authorship. 92 Benkler, supra note 44, at 678.

Authors: Woo, Jisuk.
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background image
Y[
that is not likely to be possible by any pre-existing ways, and thus the public benefit is
clearly enhanced by this kind of use, we may be able to call this kind of use
“transformative.”
The characteristics of digital materials cut both ways for the applicability and
usefulness of the transformative use doctrine. The technology of plasticity and
interactivity provides opportunities for users of information to become creators of a new
work by taking, borrowing, cutting, pasting, editing, and adding. Users are now active
participants in the process of dissemination and production of knowledge and
information.
92
What the courts and even critical scholars of the transformative use
principle have missed is the fact that the creativity in the use of works of authorship
becomes critical in digital environment. The relationship between the author and user is
not only blurred, but the ways in which value is generated and the public obtains the
benefit the information are transformed, in a way that the creativity in the use itself
should be recognized.
This poses a great challenge to the interpretation of the precedents. For example,
Justice Blackmun’s dissent opinion in Sony that the consumer’s ordinary use cannot be
considered productive use is directly opposed considering these active and interactive
users. But the reality of the changing environment suggests that without acknowledging
the creativity and tranformativeness that occurs in the process of the use of information
itself, the copyright law lags behind, vainly trying to protect that which does not any
more help to promote the progress of science and useful arts. More “creation” of works
of authorship is not any more critical nor essential in the progress of science and useful
arts, because there is already so much information out there. Now dissemination, access,
and allowing diverse, creative use of existing works of authorship for users’ personal
purposes, by allowing customization, personalization, and further communication
becomes more and more important for public well-being and happiness compared to
more production of works. When the ways in which are changing in the interactive,
digital environment, acknowledging the creativity and transformativeness of more
active participants and their new ways of interacting, new ways of living, new ways of
seeking happiness should be an important consideration in interpreting and applying the
transformative use principle. The transformative use should be interpreted to encompass
more access, more usability, more personalization, more freedom to use and do with the
existing works, more communication, building more relationships using the works of
authorship.
92
Benkler, supra note 44, at 678.


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