Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression

• Author: Graham Reynolds
• Pages: 395-422

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  

Towards a Right to Engage in

the Fair Transformative Use of

Copyright-Protected Expression

Graham Reynolds*

A. INTRODUCTION

Networked dig ital technologies have given Canadians the op portunity to

engage with cult ure in a way that has never before been possible. Empow-

ered and inspired , individu als from Prince George to the Georgian Bay

to George Street are rejecting their former role as passive consumers of

culture in order to partic ipate in a continuing process of cultura l (re)cre-

ation, product ion, and dialogue. One way in which t hey are doing so i s

by e ngaging in the t ransformative use of existing expression, a type of

creative activ ity in which previously ex isting expression is reworked for a

new purpose, wit h new interpretations or with a new meaning.

* e author would li ke to thank the Found ation for Legal Res earch for their f‌ina ncial

assistanc e in the preparation of t his chapter.

 See Henry Jenki ns, Convergence Culture (New York: N YU Press, ); Henr y Jen-

kins, Fans, Blo ggers, and Gamers ( New York: NYU Press,  ).

 See Andrew Gowers, G owers Review of Intellectual Property (London: HM Treasur y,

) at , where it is noted t hat the purpose of t he transformat ive works exception

is to “enable creators t o rework material for a ne w purpose of wit h a new meaning.”

Many commentator s take the position t hat the starti ng point for the introduct ion

of the term “tr ansformative u se” is Judge Pierre’s Leva l’s article, “ Toward a Fair Use

Standard ” ()  Harv. L. Rev.  at  . Judge Leva l def‌ines the term “t rans-

formative use” as follows: “e use must be productive and must employ the quoted

matter in a di f‌ferent manner or for a di f‌ferent purpose from t he origina l. A quotation

of copyrig hted material t hat merely repackag es or republishes the or iginal is un likely

to pass the test; i n Justice Story’s words, it wou ld merely “supersede t he objects” of the

Graham Re ynolds

is type of creative activity did not originate with network ed digita l

technologies. Ind ividuals have been engaging in the t ransformative use of

existing expression for millennia. J. Harold Ellens has suggested that the

Book of Genesis is a rewrite of an “ancient Mesopotamian fertility story of

sex and seduction.” Chaucer rewrote Ovid. Pope rewrote Chaucer. Ale xan-

der Lindey states that Sha kespeare “commandeered everyth ing that suited

his purpose—Greek biography, Roman history, the tales of the Middle Ages,

long familiar anecdotes, old farces, the plays of his predecessors—and cast

them into forms popu lar in his day.” Contemporary Canadian artists Gor-

don Duggan , Brian Jungen, and D iana orneycroft, work ing in the genre

of appropriation art, transform existing expression into new works.

Transformative creativit y, however, although it did not originate with

networked digital technologies, has been “democratized” through their

use. Anyone w ith access to a computer, easily obta inable software, and

the internet c an now create, distribute, a nd enjoy transformative work s

such as mashups (songs made up of the combination of two or more

pre-ex isting sound record ings), machinima (f‌ilms made within video

origina l. If, on the other ha nd, the secondar y use adds value to the o riginal — if the

quoted matter is u sed as raw materia l, transforme d in the creation of new in forma-

tion, new aesthe tics, new insight s and understandi ngs — t his is the very t ype of

activity that the fair use doctr ine intends to protect for the enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the cha racter

of the origi nal author, proving a fa ct, or summar izing an idea arg ued in the origi nal in

order to defend or rebut it. e y also may include pa rody, symbolism, aes thetic declar -

ations, and in numerable other uses.” In Cam pbell v. Acuf‌f-Rose Mu sic, Inc.  U.S. ,

 (), the Supreme Cou rt of the United States st ated that a use is tra nsformative

if it “adds somethi ng new, with a furt her purpose or di f‌ferent character, a ltering the

f‌irst [work] with new e xpression, mean ing, or message.”

 J. Harold Ellens, Sex in the Bi ble (Westport: Pr aeger Publishers,  ) at .

 Michael A. Calabre se, Chaucer’s Ovidian Art s of Love (Gainesvil le: University Press o f

Florida,  ) at .

 Hayden Carruth , foreword in Stephen Berg, W ith Akhmatova at the black gate s

(Champaig n: University of Il linois Press, ) at i x.

 Alexander Lindey, Plagiarism and Originality (Westport: Gree nwood Press, ) at .

 See Yochai Benkle r, “From Consumers to Users: Shi fting the Deepe r Structures of

Regulat ion Toward Sustainable C ommons and User Access” ( -)  Fed.

Comm. L.J.  at  : “Technology now ma kes possible the atta inment of decen-

traliz ation and democrati zation by enabling s mall groups of const ituents and

individu als to become users — participant s in the production of thei r information

environment — rather than by li ghtly regulati ng concentrated commerci al mass

media to ma ke them better ser ve individual s conceived as passive cons umers.”

 See Graham Reynolds, “A Strok e of Genius or Copyri ght Infringement? M ashups

and Copyr ight in Canada”, () : SCR IPTed .