At a conference last week sponsored by Columbia Law School’s Kernochan Center for Law, Media, and the Arts, a panel I participated in considered an unexpected prospect: the copyright fair use doctrine as a mechanism for creating more certainty in international copyright law.
Balanced copyright proponents have long supported the “export” of fair use through trade agreements. If the United States was encouraging trading partners to adopt U.S. IP standards, those standards should include not only the higher protections provided by U.S. law (e.g., copyright term of life plus 70 and prohibitions on circumvention), but also our robust exceptions and limitations, such as fair use.
This advocacy contributed to the inclusion of Article 18.66 in the IP chapter of the Trans-Pacific Partnership Agreement. Article 18.66 provides that “each party shall endeavor to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions…, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” (See here for a detailed discussion of the development of this Article.)
Fair use, has its critics, however, including major content owners — notwithstanding their reliance on it as a defense when sued for copyright infringement in the United States. A common argument against fair use is that its flexibility produces too much uncertainty and encourages judges to run amok.
Yet a panel I participated in on “Fair Use and Other Exceptions” at the Kernochan Center’s conference last week, “Trading in IP: Copyright Treaties and International Trade Agreements,” stood the uncertainty argument on its head.