Abstract
Copyright norms are inherently global in nature because they are based on intangible things. The digitally enabled cross-border transfer of knowledge further emphasizes the global nature of copyright norms. This study analyzes changes in key copyright case law, particularly in the United States, the country with which we have the closest trade relations and which has a significant impact on our copyright norms. The findings are as follows First, there is a concern that the ideology of copyright protection is being expanded to protect investments. Copyright is not a system designed to protect “investment”. Investment does not necessarily lead to creation, which is not protected by copyright. However, advances in digital technology are gradually transforming the copyright system into an investment protection mechanism. The recognition of inappropriate exclusive rights for investments is prudent because it may restrict the creative freedom (freedom of expression) of ordinary citizens rather than encourage human creation.
Second, there is still a lack of clarity on how the exclusive rights of reproduction, distribution, exhibition, and public performance should be reconciled with the environment of digital technologies such as NFTs and links, and some case law has diluted the essential meaning of copyright by allowing excessive linking, which only adds to the lack of clarity.
Third, the digital application of fair use jurisprudence has seen the rise over the past two decades of, among other things, exemptions for “transformative use”. However, it can be criticized that any unreasonable expansion of the purpose of use, such as “to create a new product”, is considered “transformative use”. It is no exaggeration to say that both the Google Books case and the Oracle case were justified by the expansion of transformative use. On the other hand, most of the fair use decisions, including the Oracle decision, expand the jurisprudence of fair use by denying “expressive use”. This tends to shift the burden of denying the copyrightability of the used portion to the fair use exemption. The fourth criterion of fair use, the impact on potential market value, also overstretches the definition of “potential market”.
Second, there is still a lack of clarity on how the exclusive rights of reproduction, distribution, exhibition, and public performance should be reconciled with the environment of digital technologies such as NFTs and links, and some case law has diluted the essential meaning of copyright by allowing excessive linking, which only adds to the lack of clarity.
Third, the digital application of fair use jurisprudence has seen the rise over the past two decades of, among other things, exemptions for “transformative use”. However, it can be criticized that any unreasonable expansion of the purpose of use, such as “to create a new product”, is considered “transformative use”. It is no exaggeration to say that both the Google Books case and the Oracle case were justified by the expansion of transformative use. On the other hand, most of the fair use decisions, including the Oracle decision, expand the jurisprudence of fair use by denying “expressive use”. This tends to shift the burden of denying the copyrightability of the used portion to the fair use exemption. The fourth criterion of fair use, the impact on potential market value, also overstretches the definition of “potential market”.
| Translated title of the contribution | A Study on the Issues and challenges for copyright norms in digital transformation — Focused on U.S. case law — |
|---|---|
| Original language | Korean |
| Pages (from-to) | 173-217 |
| Number of pages | 45 |
| Journal | 미국헌법연구 |
| Volume | 35 |
| Issue number | 1 |
| State | Published - 2024 |