Abstract:
Generally a transformative work is one that imbues the original “with a further purpose or different character, altering the first with new expression, meaning, or message”. Given that the wording of the first statutory factor of fair dealing in section 35(2)(a) of the Singapore Copyright Act is identical to section 107 of the US Copyright Act, and that three other statutory factors are also similar, this article argues that the transformative use doctrine in US law is highly persuasive in the Singapore context. It further postulates that transformativeness not only occupies the core of the fair use/fair dealing doctrine but also reduces the importance of all other factors, such that the more transformative the new work, the less significant the other factors will be. It demonstrates through an examination of judicial decisions involving transformative use in contemporary art that a contextual transformation may be sufficient to qualify as a “change in purpose or character” that weighs in favour of fair use. Therefore when a transformation occurs through “repurposing” or “recharacterising”, as reasonably perceived by the audience to which the secondary work is directed, the first statutory factor of fair use/fair dealing, whether in the US or Singapore, should weigh in favour of the defendant secondary user.