2차적저작물로의 변형과 공정이용인 변형의 차이 - 표현형식의 변형과 이용목적의 변형 -

초록

The purpose of this article is to find out the test for distinguishing “transformative use” as a fair use of a copyrighted work from mere “transformation” as a preparation for a derivative work of the work. The test for the distinction is necessary because over- or under-interpretation of the terms might be able to make meaningless either fair use or right to prepare a derivative work, which, in turn, might result in breaking the balance between the dissemination and concentration of copyrighted information. This article tries to achieve the goal by analyzing federal supreme court and circuit court cases. One second circuit case, Castle Rock Entertainment v. Carol Publishing Group, mentioned the difference between “transforming an original work into a derivative work” and “using an original work for a transformative purpose.” The court said that mere transformation does not reach transformative use, while transformative use does not require transformation. Thus, mere transformation means altering manners or modes of expression, while transformative use means altering the purpose of the use. This article also proposes another test for distinguishing transformative use from mere transformation for the interpretation of the future fair use provision of Korea Copyright Act. This article proposes that the minimum range of transformative use can be the use of an original work that shows different ideas or feelings from those of the original work.

키워드