All Academic, Inc. Research Logo

Info/CitationFAQResearchAll Academic Inc.
Document

Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  ^ and courts have described the fair use doctrine as “the most troublesome in the whole law of copyright.” 15 Added to the existing ambiguity is the recent significant shift in fair use analyses, characterized by the focus on whether the use in question is “transformative,” which began after the United States Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc. 16 The concept of transformative use, or the productive use in other cases, influenced lower courts’ decisions and evoked scholarly debate. By analyzing how the transformative use and the productive use are developed, interpreted, and applied, this article attempts to explore some significant but less visible confusion regarding the concept of the fair use, and to untangle the reasons of disagreements. Much of the confusion in scholarly discussions and court cases seems to stem from not directly asking the fundamental question regarding the nature of “fair use” that promotes creativity and increases public benefit. Whether fair use doctrine should concern the end users’ use of a work as the essential justification of the use, or the potential author’s use of the materials and subsequent creation of a new intellectual result as the rationale for providing the doctrine, is not clear. Courts and scholars have reached agreements on whether the policy goal that is to be achieved by the fair use doctrine concerns the broad dissemination of intellectual works and widespread use by end users, or rather the creation of new intellectual works that is stimulated and made available by the use of copyrighted materials without the owner’s consent. This may depend on the facts of each case, but serious problem arises when a rule that was made to handle one type of facts is often used for the other type of facts. The following analysis of the development of the transformative rule is guided by this question. DEVELOPMENT OF THE TRANSFORMATIVE USE RULE Productive Use in Sony The first reported decision to use the term “productive use” was the Ninth Circuit’s opinion in Universal City Studios, Inc. v. Sony Corp. of America. 17 Most of the fair use analyses in courts, especially regarding the first factor of the purpose of use, focused on whether the work in question was used for commercial purpose or for nonprofit 15 Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (C.A.2 1939). 16 Campbell, supra note 7. 17 659 F.2d 963.

Authors: Woo, Jisuk.
first   previous   Page 7 of 28   next   last



background image
^
and courts have described the fair use doctrine as “the most troublesome in the whole
law of copyright.”
15
Added to the existing ambiguity is the recent significant shift in
fair use analyses, characterized by the focus on whether the use in question is
“transformative,” which began after the United States Supreme Court’s 1994
decision in Campbell v. Acuff-Rose Music, Inc.
16
The concept of transformative use,
or the productive use in other cases, influenced lower courts’ decisions and evoked
scholarly debate. By analyzing how the transformative use and the productive use are
developed, interpreted, and applied, this article attempts to explore some significant
but less visible confusion regarding the concept of the fair use, and to untangle the
reasons of disagreements.
Much of the confusion in scholarly discussions and court cases seems to stem
from not directly asking the fundamental question regarding the nature of “fair use” that
promotes creativity and increases public benefit. Whether fair use doctrine should
concern the end users’ use of a work as the essential justification of the use, or the
potential author’s use of the materials and subsequent creation of a new intellectual
result as the rationale for providing the doctrine, is not clear. Courts and scholars have
reached agreements on whether the policy goal that is to be achieved by the fair use
doctrine concerns the broad dissemination of intellectual works and widespread use by
end users, or rather the creation of new intellectual works that is stimulated and made
available by the use of copyrighted materials without the owner’s consent. This may
depend on the facts of each case, but serious problem arises when a rule that was made
to handle one type of facts is often used for the other type of facts. The following
analysis of the development of the transformative rule is guided by this question.
DEVELOPMENT OF THE TRANSFORMATIVE USE RULE
Productive Use in Sony
The first reported decision to use the term “productive use” was the Ninth Circuit’s
opinion in Universal City Studios, Inc. v. Sony Corp. of America.
17
Most of the fair use
analyses in courts, especially regarding the first factor of the purpose of use, focused on
whether the work in question was used for commercial purpose or for nonprofit
15
Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (C.A.2 1939).
16
Campbell, supra note 7.
17
659 F.2d 963.


Convention
Submission, Review, and Scheduling! All Academic Convention can help with all of your abstract management needs and many more. Contact us today for a quote!
Submission - Custom fields, multiple submission types, tracks, audio visual, multiple upload formats, automatic conversion to pdf.
Review - Peer Review, Bulk reviewer assignment, bulk emails, ranking, z-score statistics, and multiple worksheets!
Reports - Many standard and custom reports generated while you wait. Print programs with participant indexes, event grids, and more!
Scheduling - Flexible and convenient grid scheduling within rooms and buildings. Conflict checking and advanced filtering.
Communication - Bulk email tools to help your administrators send reminders and responses. Use form letters, a message center, and much more!
Management - Search tools, duplicate people management, editing tools, submission transfers, many tools to manage a variety of conference management headaches!
Click here for more information.

first   previous   Page 7 of 28   next   last

©2012 All Academic, Inc.