디지털 미디어 저작권 판례에서의 변형적 이용 기준의 적용: 미국 연방항소법원의 기능론적 접근 사례를 중심으로

Transformative use is an important concept in determining whether the use of a copyrighted work is protected under the fair use doctrine. After Campbell case from which Federal Supreme Court defined the concept as adding value to the original copyrighted work by using it, transformative use has been applied with different meanings in the lower cases in the U.S. This study examines the transformative use analysis undertaken by the United States Court of Appeals for the Ninth Circuit in Kelly case and Perfect 10 case. Two cases adopted functional analysis focusing on the transformation of the purpose of use in determining whether the secondary use of internet visual search engine was transformative, denoting a significant departure from the transformative use test in Campbell. As a result of case analysis, courts held that the use of thumbnail images by a search engine was a transformative use. The decisions are based on the conception that the secondary use is in a different purpose from the original by improving the public access to information on the Internet and serves the goals of the copyright law to encourage the free flow of information. This study provides meaningful implications that the decisions of these cases expand the protected scope of fair use by expanding the concept of transformative use and encourage digital technological innovation on the Web contributing to the production and distribution of creative works, while resulting in reducing the protected area of copyright.