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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  \ transformative use as to mean the “creation” of transformative work or “work” that is transformed from the initial work rather than transformative “use.” Finally, the article will offer a perspective on a new way to interpret and apply the transformative use principle, that is more consistent with the copyright’s purpose and also encompassing of digital works of authorship, suggesting that the notion of creativity and transformativeness should be also applied to the users’ “use” of works of authorship as well as their subsequent “creation” of new works. THE GOAL OF COPYRIGHT AND THE FAIR USE DOCTRINE Modern copyright laws recognize the objectives of copyright law to be the well- being of society, which is achieved by encouraging creative intellectual activity of authors and artists who reap the rewards of their endeavors. The historic sources support this principle. The copyright clause of the U.S. Constitution provides that: Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 8 Thus, the remuneration to authors is seen not to be the ultimate goal of the Constitution, but a tool to establish an incentive for authors to create. The utilitarian purpose of copyright is expressed in the statement “to promote progress of science and useful arts…” This utilitarian purpose is also found in the original British copyright statute, the Statute of Anne of 1797, which is regarded as the first modern copyright statute. Its title states that it is “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors… during the Times therein mentioned.” 9 According to this utilitarian purpose of copyright law, monopoly protection of intellectual property and incentives to the authors should be provided only to the extent to which the production of future works of authorship or of other kinds of products is not stifled. Striking balance between providing exclusive right to the creators to stimulate authorship and limiting their monopoly right to prohibit stifling use and future creation of other works of authorship becomes an important issue. There are a few 8 U.S. Const. art. I, section 8. 9 Act for the Encouragement of Learning, 1709, 8 Anne, ch. 19.

Authors: Woo, Jisuk.
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\
transformative use as to mean the “creation” of transformative work or “work” that is
transformed from the initial work rather than transformative “use.” Finally, the article
will offer a perspective on a new way to interpret and apply the transformative use
principle, that is more consistent with the copyright’s purpose and also encompassing of
digital works of authorship, suggesting that the notion of creativity and
transformativeness should be also applied to the users’ “use” of works of authorship as
well as their subsequent “creation” of new works.
THE GOAL OF COPYRIGHT AND THE FAIR USE DOCTRINE
Modern copyright laws recognize the objectives of copyright law to be the well-
being of society, which is achieved by encouraging creative intellectual activity of
authors and artists who reap the rewards of their endeavors. The historic sources support
this principle. The copyright clause of the U.S. Constitution provides that:
Congress shall have Power … To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.
8
Thus, the remuneration to authors is seen not to be the ultimate goal of the
Constitution, but a tool to establish an incentive for authors to create. The utilitarian
purpose of copyright is expressed in the statement “to promote progress of science
and useful arts…” This utilitarian purpose is also found in the original British
copyright statute, the Statute of Anne of 1797, which is regarded as the first modern
copyright statute. Its title states that it is “An Act for the Encouragement of Learning,
by vesting the Copies of printed Books in the Authors… during the Times therein
mentioned.”
9
According to this utilitarian purpose of copyright law, monopoly protection of
intellectual property and incentives to the authors should be provided only to the extent
to which the production of future works of authorship or of other kinds of products is
not stifled. Striking balance between providing exclusive right to the creators to
stimulate authorship and limiting their monopoly right to prohibit stifling use and future
creation of other works of authorship becomes an important issue. There are a few
8
U.S. Const. art. I, section 8.
9
Act for the Encouragement of Learning, 1709, 8 Anne, ch. 19.


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