Review on the judgment of transformativeness and the effect of the potential market in the U.S. cases

Abstract

It is known that fair use is generally judged by the four factors but the fair use practically depends on transformativeness and the effects of the use upon the potential market. In regard of a purpose of fair use that limits on copyright for the sake of the freedom of expression and public interest, it is desirable to allow fair use if the use of the work in a creative way damages to the copyright holder are not significant. However, it is criticized for unclear criteria of judging transformativeness and the effect on potential market, which can lead to inconsistent and unpredictable fair use.It is considered that the fair use was denied on the ground of the cases of Google Books and TVEyes that despite transformativeness accepted, the amount of the copyrighted work used and the effects of potential market are not effective. Although the Court acknowledged the search function and watch function of TVEyes as transformativeness, because TVEyes provided the entire work without changing original contents, it was determined that the purpose of the use of the work was the same as the original, and that it could deprive of Fox News potential market. The amount of work used affected a judgement of transformativeness. By being denied of the transformativeness, the fourth factor weighed against fair use and then fair use defence is not accepted. Also, despite the fact that the effect on the potential market is most significantly mentioned as a fundamental factor for fair use, the judgmental criteria somehow is ambiguous. That is because the transformativeness can reduce the possibility of replacing the potential market, the amount of work used too much can substitute the original market and the nature of the work can affects on the judgement of the effect on potential market. In case of widely accepting any potential market, a copyright holder is excessively allowed to control the right of their own in market, and thus the balance of interests between holders and users on fair use will be forfeited. When viewed in light of the purpose of copyright, the effect of the use upon the potential market depends on whether the use of original work would destroy the right of holders in primary market and it must be clearly proven how potential licensing revenues are impeded or worsen. To avoid that the four factors for fair use work together like circular logic, the social effects of the defendant s use of work should be finally reviewed in determining the fair use. Fair use is a comprehensive general requirement. Continuous research is needed to adequately embody the abstraction of the fair use law and to produce results that conform to social norms.