| 英文摘要 |
Fair use doctrine has generated various discussions. However, Federal courts and the academics have only focused on the analysis of the first factor. The fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, has been neglected for a long time. The disregard of the fourth factor delves into our research question of this paper: how do we analyze the fourth factor of the fair use doctrine? To answer this question, we developed a game-theoretic model and formed a two-step framework to analyze the fourth factor. The first step is the market analysis in that we argue if the originator and the user are in the same market to compete, then we must move further to the next step of the analysis. If not, then how the user utilizes the works of the originator has no relation to the originator. The second step is the cost analysis in which we analyze whether the cost of reproductive use is lower than the cost of transformative use. If the answer is yes, the user would be assumed to have strong incentives to continuously copy the originator’s works and would negatively impact the originator’s market. If the answer is no, the user would have incentives to shift to use the originator’s works in the transformative way. Furthermore, the impacts of transformative use to the originator depends on whether cost of transformative use could be continuously lower than the original cost of creation. If the answer is yes, the user would be assumed to impact the originator’s market negatively. If the answer is no, the transformative use by the user would be assumed to have little impact to the originator’s market. |
