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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  ] judicially stated copyright doctrines that are designed to address this issue. One is the provision that the monopoly right is not regarded as a natural or absolute right, and it may be conferred only “for limited times.” Another is the rule that copyright does not protect ideas but only a particular expression of ideas. 10 One of the most important rules that limit the copyright protection to reflect the basic goal of copyright law is the fair use doctrine, which balances the individual’s claim to her work against the public’s right to make the most beneficial use of the work. The concept of fair use is given statutory recognition in section 107 of the 1976 Copyright Act, which provides that “the fair use of a copyrighted work… is not an infringement of copyright.” 11 When a copyrighted work is used for purposes such as criticism, comment, reporting, teaching, research, or for otherwise fair purposes, that use would not infringe the author’s rights. 12 The statute states that in determining whether the use made of a work in any particular case is a fair use, the following four factors shall be considered: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. 13 Users of copyrighted work often use the fair use as an affirmative defense of their activities, but Judge Leval warns that the fair use should not be considered the exception to copyright, but that its function is integral to objectives and necessary to the overall design of the copyright system. 14 Despite the importance of the doctrine in copyright system, the exact definition of the concept of fair use has not emerged 10 17 U.S.C. section 102 (b) states that in no case copyright protection for an original work of authorship extend to any idea, procedure, process, etc. 11 17 U.S.C. section 107. 12 Id. 13 Id. Courts differ in interpreting and applying these four factors, and oftentimes give different weight to each factor. 14 Pierre N. Leval, Toward a Fair Use Standard, 103 H ARV . L. R EV . 1105, 1110 (1990).

Authors: Woo, Jisuk.
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]
judicially stated copyright doctrines that are designed to address this issue. One is the
provision that the monopoly right is not regarded as a natural or absolute right, and it
may be conferred only “for limited times.” Another is the rule that copyright does not
protect ideas but only a particular expression of ideas.
10
One of the most important rules that limit the copyright protection to reflect the
basic goal of copyright law is the fair use doctrine, which balances the individual’s
claim to her work against the public’s right to make the most beneficial use of the work.
The concept of fair use is given statutory recognition in section 107 of the 1976
Copyright Act, which provides that “the fair use of a copyrighted work… is not an
infringement of copyright.”
11
When a copyrighted work is used for purposes such as
criticism, comment, reporting, teaching, research, or for otherwise fair purposes, that
use would not infringe the author’s rights.
12
The statute states that in determining
whether the use made of a work in any particular case is a fair use, the following four
factors shall be considered:
1. the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted
work.
13
Users of copyrighted work often use the fair use as an affirmative defense of their
activities, but Judge Leval warns that the fair use should not be considered the
exception to copyright, but that its function is integral to objectives and necessary to
the overall design of the copyright system.
14
Despite the importance of the doctrine
in copyright system, the exact definition of the concept of fair use has not emerged
10
17 U.S.C. section 102 (b) states that in no case copyright protection for an original work of authorship
extend to any idea, procedure, process, etc.
11
17 U.S.C. section 107.
12
Id.
13
Id. Courts differ in interpreting and applying these four factors, and oftentimes give different weight to
each factor.
14
Pierre N. Leval, Toward a Fair Use Standard, 103 H
ARV
. L. R
EV
. 1105, 1110 (1990).


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