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Re-defining the 'Transformative Use' of Copyrighted Works: Toward a Fair US Standard in the Digital Environment
Unformatted Document Text:  ` factor shows the Court’s focus on economic consequences of copying. It compares between copying of a news broadcast and of a motion picture, between copying to prepare lecture notes and to broaden personal understanding, all of which may or may not involve the creation of a secondary work. But the Supreme Court does recognize the circumstances that the use of no productive purpose such as mere convenience of time- shifting may still result in a comparable benefit by increased viewer access. 24 The Supreme Court’s rationale for not wholly relying on the productive versus non- productive distinction seems to show its uneasiness with adopting the Ninth Circuit’s position to openly acknowledge the creation of secondary work. The dissent’s position is stronger. Justice Blackmun’s discussion of the productive use not only focuses on the creation of a new work, but even assumes that any ordinary use is non-productive use. 25 He uses an example that no author could create a new work if he were first required to repeat the research of every author who had gone before him, and in a case of a scholar’s work, the fair use doctrine acts as a form of a subsidy to permit the second author to make limited use of the first author’s work for the public good. 26 He also argues that the examples in the statute itself such as “criticism, comment, news reporting, teaching, .. scholarship, or research” is a productive use, resulting in some added benefit to the public beyond that produced by the first author’s work. He finally states that “I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use,” 27 and that “there is (then) no need whatsoever to provide the ordinary user with a fair use subsidy at the author’s expense.” 28 Thus, according to the Sony dissent, an ordinary use cannot be a productive use, and increasing access to television programming is an attempt to stretch the doctrine of fair use. 29 It is Justice Blackmun’s view that the Sony Court attempted to stretch the doctrine of fair use as to permit unfettered use of this new technology in order to increase access to television programming. Interestingly, despite the Supreme Court’s avoidance of relying on the 24 Id. at footnote 40. 25 Id. dissent at 476. 26 Id. 27 Id. dissent at 478-479. 28 Id. dissent at 480. 29 Id. dissent at 480-481.

Authors: Woo, Jisuk.
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`
factor shows the Court’s focus on economic consequences of copying. It compares
between copying of a news broadcast and of a motion picture, between copying to
prepare lecture notes and to broaden personal understanding, all of which may or may
not involve the creation of a secondary work. But the Supreme Court does recognize the
circumstances that the use of no productive purpose such as mere convenience of time-
shifting may still result in a comparable benefit by increased viewer access.
24
The
Supreme Court’s rationale for not wholly relying on the productive versus non-
productive distinction seems to show its uneasiness with adopting the Ninth Circuit’s
position to openly acknowledge the creation of secondary work.
The dissent’s position is stronger. Justice Blackmun’s discussion of the
productive use not only focuses on the creation of a new work, but even assumes that
any ordinary use is non-productive use.
25
He uses an example that no author could
create a new work if he were first required to repeat the research of every author who
had gone before him, and in a case of a scholar’s work, the fair use doctrine acts as a
form of a subsidy to permit the second author to make limited use of the first author’s
work for the public good.
26
He also argues that the examples in the statute itself such as
“criticism, comment, news reporting, teaching, .. scholarship, or research” is a
productive use, resulting in some added benefit to the public beyond that produced by
the first author’s work. He finally states that “I am aware of no case in which the
reproduction of a copyrighted work for the sole benefit of the user has been held to be
fair use,”
27
and that “there is (then) no need whatsoever to provide the ordinary user
with a fair use subsidy at the author’s expense.”
28
Thus, according to the Sony dissent,
an ordinary use cannot be a productive use, and increasing access to television
programming is an attempt to stretch the doctrine of fair use.
29
It is Justice Blackmun’s
view that the Sony Court attempted to stretch the doctrine of fair use as to permit
unfettered use of this new technology in order to increase access to television
programming.
Interestingly, despite the Supreme Court’s avoidance of relying on the
24
Id. at footnote 40.
25
Id. dissent at 476.
26
Id.
27
Id. dissent at 478-479.
28
Id. dissent at 480.
29
Id. dissent at 480-481.


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