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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  Z RE-DEFINING THE “TRANSFORMATIVE USE” OF COPYRIGHTED WORKS: TOWARD A FAIR USE STANDARD IN DIGITAL ENVIRONMENT Copyright law has faced great challenge with the development of information technology, especially the digital media. History of copyright law in relation to the development of information technology and communication modes suggests that modern copyright laws are a product of a particular information media, that is, the printing technology. 1 Many of the technologically challenged copyright cases in courts reflect not only conflicting interests among stakeholders such as the music industry, Internet service providers, software programmers and users, but also the ever more increasing tension between the role of laws and the development of information technology. The ease of copying and distribution triggered various efforts to expand copyright law and to strengthen the enforcement of copyrights. At the same time, critical scholars are disturbed by these efforts and suggest different ways that laws of cyberspace may or should develop. For example, there are quite of few scholars who are favorable to preserving the public domain. Benkler and Cohen argue for the public’s right to speak and express views freely, by now expanding copyright for digital works. 2 Lessig argued that the code, the Internet’s architecture, which once had transcended the strictures of ordinary law, will now end the creativity and innovation. 3 Pessimistically viewing that law, not technology, has won and stifled the growth of creativity in the internet, Lessig asks for limiting certain intellectual property rights. 4 Vaidhyanathan, viewing that copyright is policy rather than property, argues that copyright is not only unnecessary, but also it is potentially destructive to creativity. He notes that the fair use doctrine in copyright statute shows that copyright system has always been somewhat 1 See Ethan Katsh, T HE E LECTRONIC M EDIA AND THE T RANSFORMATION OF THE L AW (1989); Edward Ploman & L. Clark Hamilton, C OPYRIGHT (1980). 2 Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 NYU L. R EV . 354 (1999); Julie Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 C ONN . L. R EV . 981 (1996). 3 Lawrence Lessig, C ODE AND O THER L AWS OF C YBERSPACE (1999). 4 Lawrence Lessig, T HE F UTURE OF I DEAS : T HE F ATE OF THE C OMMONS IN A C ONNECTED W ORLD (2001).

Authors: Woo, Jisuk.
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Z
RE-DEFINING THE “TRANSFORMATIVE USE” OF COPYRIGHTED
WORKS:
TOWARD A FAIR USE STANDARD IN DIGITAL ENVIRONMENT
Copyright law has faced great challenge with the development of information
technology, especially the digital media. History of copyright law in relation to the
development of information technology and communication modes suggests that
modern copyright laws are a product of a particular information media, that is, the
printing technology.
1
Many of the technologically challenged copyright cases in courts
reflect not only conflicting interests among stakeholders such as the music industry,
Internet service providers, software programmers and users, but also the ever more
increasing tension between the role of laws and the development of information
technology.
The ease of copying and distribution triggered various efforts to expand
copyright law and to strengthen the enforcement of copyrights. At the same time,
critical scholars are disturbed by these efforts and suggest different ways that laws of
cyberspace may or should develop. For example, there are quite of few scholars who are
favorable to preserving the public domain. Benkler and Cohen argue for the public’s
right to speak and express views freely, by now expanding copyright for digital works.
2
Lessig argued that the code, the Internet’s architecture, which once had transcended the
strictures of ordinary law, will now end the creativity and innovation.
3
Pessimistically
viewing that law, not technology, has won and stifled the growth of creativity in the
internet, Lessig asks for limiting certain intellectual property rights.
4
Vaidhyanathan,
viewing that copyright is policy rather than property, argues that copyright is not only
unnecessary, but also it is potentially destructive to creativity. He notes that the fair use
doctrine in copyright statute shows that copyright system has always been somewhat
1
See Ethan Katsh, T
HE
E
LECTRONIC
M
EDIA AND THE
T
RANSFORMATION OF THE
L
AW
(1989); Edward
Ploman & L. Clark Hamilton, C
OPYRIGHT
(1980).
2
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the
Public Domain, 74 NYU L. R
EV
. 354 (1999); Julie Cohen, A Right to Read Anonymously: A Closer Look
at “Copyright Management” in Cyberspace, 28 C
ONN
. L. R
EV
. 981 (1996).
3
Lawrence Lessig, C
ODE AND
O
THER
L
AWS OF
C
YBERSPACE
(1999).
4
Lawrence Lessig, T
HE
F
UTURE OF
I
DEAS
: T
HE
F
ATE OF THE
C
OMMONS IN A
C
ONNECTED
W
ORLD
(2001).


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