Y_
a fair use analysis to encompass the notion of creativity in the users’ activities, which
seems to be proper in terms of linguistic interpretation and as a matter of law, could be a
modest first step. I am not arguing that every creative use or transformative use of a
copyrighted work should be considered a fair use. There would be many situations that
the user’s use of the work is transformative, but at the same time, commercial and
profitable, and thus the initial author’s market is seriously affected. In such a situation,
the other factors such as market effect and the purpose of use would balance out the fair
use analysis. What I suggest in this article is that the question of whether a use is so
creative that it enhances the social value in a way that is not likely to be possible, if it is
not allowed as a fair use, deserves to be at least one of the considerations in a fair use
inquiry. Now seems to be the time to shift our focus from markets and producers of
intellectual works to users and their activities.
Convention