Fair use, by comparision

Fair use is a uniquely American concept, in spite of its recent inclusion in the national copyright laws of Japan and Israel.  In the US, after all, it is a common law doctrine that was developed by judges, intent on mitigating the most unfair applications of the copyright monopoly, for over 120 years before it was adopted in almost the exact terms in which it had been articulated by those judges, into section 107 of the 1976 Copyright Act.

When I spoke to the eIFL IP conference back in March, this history of fair use was in my mind as we discussed the flexibility that fair use offers versus the certainty offered by more specific exceptions for research and teaching found in the copyright laws of most other countries.  I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the US.

Now I have just finished reading an article by Duke Law Professor Jerome Reichman and Professor Ruth Okediji of the Univerisity of Minnesote Law School that has renewed and deepened these comparative reflections about fair use and international copyright law.  The paper, “Empowering Digitally Integrated Scientific Research: The Pivotal Role of Copyright Law’s Limitations and Exceptions,” is a sweeping discussion of the potential inhibition of science and international development caused by copyright law’s “one-way ratchet” in international fora, by which levels of protection keep getting increased while limitations and exceptions have been, until recently, largely ignored.  But I want to focus briefly on a small part of the discussion by Reichman and Okediji about the relationship of fair use to limitations and exceptions in the rest of the world.

The point I want to emphasis is fairly simple (probably because I have not fully digested the article yet).  It is simply that fair use and the “three-step test” used to evaluate limitations and exceptions under international agreements have something to teach each other.  The three step test, found in the Berne Convention in article 9.2 and in several other places in international IP agreements, says that limitations and exceptions adopted into national copyright laws should apply to “certain special cases,” not “conflict with normal exploitation” of a work, and not “unreasonably prejudice the legitimate interests” of a rights holder.  There has been a great deal of debate about how to interpret these terms and how to apply this test; the major content industries have latched onto its language to suggest that only the narrowest of exceptions can pass muster.

Reichman and Okediji suggest that the interpretation of the three-step test should proceed more in the way fair use is interpreted, as an equitable balancing test where there is no “score keeping” of the factors, nor must each factor favor the same side of a debate.  Instead, they argue, quoting the Max Planck Institute’s declaration on the subject, courts should weigh these three steps in light of the circumstances and the normative values that IP law tries to embody.  In short, they see the three-step test as an “equitable rule of reason,” as fair use has been called for years.

On the other hand, Reichman and Okediji also find a lesson for fair use in an examination of the three-step test.  One reason judges are sometimes reluctant to apply fair use in a given situation is that it is an “all or nothing” proposition.  If a work is fair use, the rights holder is not entitled to any compensation for the use.  As the authors see the three-step test, it suggests the lesson that sometimes a use may serve the public good to such a degree that, in the circumstances, no compensation is called for.  But they also recognize that there may be situations where the use should be allowed, but equitable compensation paid to the rights holder.  They suggest that situations in which the use serves a normative public good but also generates revenue, a rights holder could deserve compensation from those revenues.  Thus fair use would become a mechanism for imposing, in some circumstances, a compulsory license for a particular use rather than a free pass.

This is a fascinating suggestion, and one wonders whether judges could, or would, make this change to fair use without statutory amendment.  Congress specifically said, when it incorporated fair use into the law, that that doctrine was left free for further interpretation.  In any case, this is only one of a compelling series of points that Reichman and Okediji make about the relationship between copyright law and the progress of science around the world.