Why a fair use exception is probably not such a good idea

TobiasThis month, iCommons’ resident copyright columnist, Tobias Schonwetter, explains what troubles him about the fair use doctrine and why the doctrine is less user-friendly than commonly assumed.

At a recent conference in the Caribbean, I was given the opportunity to express some of my views on copyright-related matters. Naturally, a lively discussion took place and subsequently a number of people approached me to share their ideas and opinions with me. It was during one of these talks that an Asian delegate told me that his country was about to replace the present set of specific copyright limitations and exceptions with a so-called fair use provision.

In a nutshell, fair use is a copyright exception in the US Copyright Act which allows the reproduction of an otherwise copyrighted work without the copyright-holder’s consent in certain circumstances. The exception is fundamentally based on the belief that not all copying should be banned in order to facilitate socially important endeavours. In this way, fair use safeguards (among other things) the fundamental right to free speech and freedom of expression, which is widely recognized as one of the most fundamental principles in a civil society.

The utilisation of a fair use provision instead of specific exceptions is a popular demand from user rights activists and campaigners for the public domain these days - and the Asian delegate had clearly assumed that I was part of this category after what I had said at the conference. Consequently, he was astonished and terrified when I told him that I would not necessarily recommend such a move for reasons which I am going to explain below.

In the days following our discussion, I often recalled the conversation and eventually spent a good deal of the remaining conference time discussing this issue with a variety of people. In the course of these conversations, I learned two things. Firstly, the fair use doctrine is often confused with the concept of fair dealing ‘ a related set of copyright exceptions contained in the Copyright Acts of numerous Commonwealth legislations. Secondly, a general tendency exists to glorify the concept of fair use ‘ regardless of its considerable disadvantages.

So, first of all, the concepts of fair dealing and fair use are not synonymous, they are, actually, analogous! Both concepts share, without a doubt, the same fundamental idea of permitting uses of copyrighted works which are considered fair. However, the concept of fair use is, in general, much broader since it is not confined to specific purposes ‘ for example research, (private) study, criticism, review and news reporting. Furthermore, some of the uses permitted under the concept of fair dealing only pertain to certain kinds of protected works. By contrast, the fair use doctrine applies to all kinds of protected works.

In a way, both concepts could be described as converse due to the fact that under the fair dealing concept, the types of permitted uses are regulated by law and the courts are required to derive certain principles from these kinds of uses. Yet, under the fair use doctrine the principles for permitted uses are specified and it is left to the courts to determine certain kinds of uses. More precisely, four non-exclusive factors are to be considered under section 107 of the US Copyright Act to determine whether or not a particular action qualifies as fair use: the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market.

The fact that fair use is phrased in such an open-ended manner is often called the doctrine’s biggest advantage since it allows an extremely flexible application of the provision, especially when it comes to new kinds of uses (such as the Internet) which lawmakers could not anticipate. However, in my opinion this advantage is, at the same time, the doctrine’s crucial downside: the flexibility comes with the price of considerable uncertainty.

It is for this reason that the doctrine has been described as the most troublesome doctrine in American copyright law by courts in the United States itself. Respected scholars have complained that nobody really knows what fair use is and the doctrine has been repeatedly derided as among the most hopelessly vague of legal standards. On closer examination, fair use turns out to be exceptionally user-unfriendly rather than user-friendly - what kind of help does a provision offer with such a blurred area of application? The bottom line is that the concept of fair use relies on the willingness and financial ability of users to test the boundaries of the doctrine through costly court battles.

In addition, doubts have been raised as to the compliance of the fair use provision with the most important international instrument to validate the legitimacy of national copyright exceptions and limitations ‘ known as the three-step test. This test can be found in most of the relevant copyright treaties such as the 1886 Berne Convention, the TRIPs Agreement, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The test’s first step is of particular importance here as it stipulates that national copyright exceptions and limitations must be confined to ‘certain special cases’. Quite obviously, both the indeterminacy and breadth of the fair use provision are potentially in conflict with the requirement of (legal) certainty laid down in the first step of the three-step test.

Having said all this, the fairly long history of the fair use doctrine in US copyright law has, of course, produced a considerable amount of case law in this regard. These cases have helped somewhat to clarify what fair use means in the United States. Moreover, several fair use guidelines have been issued in order to achieve additional certainty. For this reason the international requirement of legal certainty might, after all, be met by the United States’ fair use provision. Yet, such interpretation tools simply do not exist in any country currently considering the introduction of a fair use provision.

So what is the conclusion based on my remarks? Well, numerous countries have opted for the inclusion of long lists of specific copyright exceptions and limitations instead of the utilisation of a general fair use provision. Clearly, this approach better elucidates users about what is permitted and what is not, and is therefore more in line with the requirements of the three-step test. At the same time, however, it lacks flexibility as it is left to the lawmakers to introduce new specific exceptions if, for instance, technological progress necessitates an adjustment in this regard. Legislative responses can be stunningly slow at times and the result is that common practices such as copying a piece of music from a legally purchased CD onto an iPod remain illegal in many countries to this day. In addition, it stands to reason that a closed list approach tends to eventually result in fewer exceptions than the open-ended concept of fair use. After all, it becomes obvious that neither approach is without drawbacks. Consequently, a strict adherence to only one approach is not going to produce satisfactory results.

For this reason I suggest a combination of both the closed-list approach and the fair use approach. In my opinion it is crucial to include as many specific copyright exceptions and limitations as possible and necessary, into national copyright laws for the sake of legal certainty and in order to protect users from costly legal battles. In this context it is advisable to utilise fair dealing provisions for certain specific uses.

Yet, in addition to these provisions a subsidiary fair use provision could prove useful, especially as a means to bridge a time gap between de facto changes and the legislative response in this regard ‘ but only as long as the compatibility of the concept of fair use with the three-step test has not been answered in the negative by a relevant authority, for example a WTO Dispute Resolution panel. Australia substantially amended its Copyright Act at the beginning of this year; and while the Act remains (with respect) a rather tedious read with a dubious structure when it comes to exceptions and limitations, it is now arguably one of the most progressive pieces of copyright legislation in the world. The introduction of a fair use provision was vigorously demanded during the consultation progress but, interestingly, the lawmaker eventually refrained from replacing the previous system of fair dealing provisions and numerous other exceptions and limitations with a fair use provision. Instead, the lawmaker did what I am suggesting here and simply added a more open-ended subsidiary provision to the Act that is somewhat akin to a fair use provision ‘ albeit confined to uses by libraries, archives, educational institutions and persons with disabilities.

iCommons Ltd. is not a law firm and does not provide legal services. Legal information and comment provided by contributors is solely the opinion of the contributor. Since iCommons is not providing legal advice through this website, you should not rely upon any information contained herein for any purpose without seeking legal advice from a duly licensed attorney competent to practice law in your jurisdiction.

6199 Responses to “Why a fair use exception is probably not such a good idea”

  1. hrfcvggyhh Says:

    clip long movie porn

  2. lfwuoknnlt Says:

    hardcore lesbian pron

  3. hoqilqjyqr Says:

    women fucking two guys

  4. uqlfthcwsi Says:

    video de sexo con perros gratis

  5. zgkbtzgypo Says:

    mixing caffine with ephedra

  6. xhduxiombn Says:

    tight body sex

  7. tjbirngrko Says:

    free spank then fuck mpegs

  8. pihnynvilg Says:

    amateur big porn tit

  9. qsnlviqgsr Says:

    beautiful nude girl

  10. shwfqyxgby Says:

    natural ambience serial

  11. yjmfhphsxn Says:

    summer camp sex nude girls

  12. zcjjbeybpj Says:

    zoloft problems heart and

  13. tkriylwnfa Says:

    side effects of stopping xanax

  14. xuyqvxjwri Says:

    leela nude pics futurama

  15. akbnwchxvu Says:

    the paris hilton sex video

  16. tjylkwqjpm Says:

    high on prescription drugs

  17. ptyfqbyqzt Says:

    sex sue talking

  18. oxsundfkcq Says:

    big orgasm nude web girl

  19. bvhievlrrk Says:

    bus movie school sex

  20. mhgpokmawg Says:

    free porn movie clips fat

  21. dnuvuwfuet Says:

    bush george monkey porn search

  22. ikkrwynaoo Says:

    free drug games

  23. guoguhpekx Says:

    celebrex levitra nexium propecia renova valtrex viagra

  24. iignkzpcbn Says:

    buy zanaflex online

  25. ufxihjkhsu Says:

    msn photo sex video

  26. otygcsbzao Says:

    free windows media black sex videos

  27. nklgcmfmnt Says:

    acyclovir book de guest pregnancy site

  28. dpnodsvnyq Says:

    free catgirl adult sites

  29. jepsakclsj Says:

    fat naked women pics

  30. zeaufoprdd Says:

    amoxicillin augmentin clavulanic acid reaction

  31. bhgdbjdvqn Says:

    unlock code for waynes work out for rebel strip poker

  32. dynyjejocx Says:

    big white ass sex

  33. bierrfoxom Says:

    generic picture valium

  34. otlmdkhtor Says:

    lesbian black orgasm

  35. kgfjswtopv Says:

    card email sexy valentine

  36. znghgokxtm Says:

    buy link online html sildenafil sildenafilx pill nomaki jp

  37. svlbhyhnly Says:

    mature naked housewives

  38. opqkmagxhw Says:

    cialis viagra comparison

  39. ydvoydisgo Says:

    forum hot sex wife

  40. hahddutsda Says:

    xanax users

  41. wgcdoytczh Says:

    funny image sexy

  42. yzbxppjtej Says:

    book buy com guest saul site tramadol

  43. kvosgwepjr Says:

    cheap online viagra

  44. jkwmpiqlgb Says:

    free irish slot machines

  45. raeezhyvdy Says:

    swimming pool sex nude blond

  46. rnhqemhssh Says:

    transsexual ass

  47. lrkxkszvay Says:

    beast and the beauty sex

  48. tdhagatsqk Says:

    cheap levitra pill rxpricebusters com tramadol zyrtec

  49. xhhggdbxdg Says:

    women sucking means dicks

  50. prdokrxyxr Says:

    live sex video feed

  51. npbzzibhuz Says:

    miss india sex

  52. fdzexydbxt Says:

    celeb free nude pics

  53. nihoekbabt Says:

    free erotic vore picture stories

  54. bpqerclecn Says:

    how to use intelligent roulette system

  55. azwitnqddn Says:

    huge fucking ass

  56. iaukcajnhq Says:

    g string bikini porno

  57. nmhcqvfwnc Says:

    book cheap com guest myron site tramadol

  58. kwoceovddj Says:

    texas holden poker rooms

  59. dvbzcpbjlf Says:

    big booty huge tits free movies

  60. rzntsuwwki Says:

    amoxicillin baby book guest jp site

  61. wkqcmkhokn Says:

    banner banner banners com sexy

  62. hjcjpyuhjy Says:

    nude christian wives naked

  63. uvuepjbydd Says:

    free adult porn movie links

  64. kxstcebfsl Says:

    sex positions while pregnant

  65. ojakupwqxf Says:

    book cherry com guest online order phentermine site

  66. cwnivzvbgo Says:

    buy sildenafil citrate

  67. nbvydqvejw Says:

    agent agent cruise operator specialist tour travel travel

  68. mmqazatwjx Says:

    ruff virgin sex

  69. xuggnajapn Says:

    wholesale poker tables

  70. qtrwboudvb Says:

    5 dollar sportsbook gambling

  71. ngvevgvsmr Says:

    nude pictures of gay boys

  72. bcmdxoexjj Says:

    hot latina lesbian sex

  73. ltrgawjnsl Says:

    gay bike leather

  74. oguxpggviv Says:

    male european models clothed

  75. jlcgfkktpi Says:

    chinese sex herbs

  76. cdqpemhbny Says:

    sorting and recombination of genes in sexual reproduction

  77. stxqudvrva Says:

    celebrity pussy porn

  78. roselszarh Says:

    naked tall men

  79. poqfvbsjfg Says:

    free male strippers

  80. asicemrfya Says:

    duquesne university pharmacy

  81. vanvsceiom Says:

    women and men swimming nude

  82. jzetrtcsej Says:

    sexy girls chatting

  83. mohiwbeidf Says:

    ultram hydrocodone

  84. ifyswjnycn Says:

    hot muscular gay guys

  85. ahibsqugbk Says:

    cash casino free instant

  86. amadiwvbvk Says:

    lesbian sex between student and teacher

  87. csdniwbpic Says:

    japanese girl lesbian

  88. cuvqlunvog Says:

    stories written by male sex slaves

  89. erdvukvpfz Says:

    find local partner sex

  90. ezuqcblige Says:

    free party poker download

  91. vtltilowtr Says:

    xxx hot lesbian sex videos

  92. dmhzmwwykp Says:

    sexually transmitted infection

  93. qhbbjxolle Says:

    spanking male

  94. fottfnvqjl Says:

    can you get pregnant from anal sex if seamon hits you vagina

  95. vflwutytjx Says:

    morning after pill pa

  96. vbscunyugq Says:

    movie porn russian

  97. bhwpyauvun Says:

    download free kelly r sex tape

  98. jkcczzkhkg Says:

    imperial palace hotel and casino biloxi ms

  99. qdcvudlewr Says:

    gay slave in search of master for wetsex

  100. emkpklebxt Says:

    monoamine oxidase inhibitor lexapro

  101. zimecjrhbh Says:

    6 pack abs male

  102. ruqyznyaix Says:

    violencia sexual

  103. pgkcpizpjp Says:

    live poker games

  104. lyikclyetx Says:

    ver video de porn gratis

  105. zgryhmmoqt Says:

    titty fucking lesbian

  106. yxmbqythbv Says:

    big dick shemale cock suckers

  107. btlysphpbq Says:

    black jack table odds

  108. lkfqmbxqas Says:

    anime gay rape

  109. wekzcbgifk Says:

    wwe sable nude video free

  110. fnkwhkliaa Says:

    best sex tips free

  111. dfgmjcfxte Says:

    world sex guide rochester

  112. poiqwjuagv Says:

    liquid zithromax for sale

  113. vfveshgqga Says:

    prozac its side effects

  114. veufymnuch Says:

    hot and sexy chat rooms

  115. xwrinnwfup Says:

    con mujeres porn tanga

  116. dcgngwluxy Says:

    which is worse for weight gain zoloft or lexapro

  117. zmoctbduel Says:

    gay teen boys video

  118. hhpgyzikwg Says:

    xxx spy sex

  119. dqwxblfiep Says:

    free sample sex video clips penatration

  120. mvhccundgi Says:

    asian sex movie gallery

  121. ahiqouuezu Says:

    little naked boys cocks

  122. txcitrbkln Says:

    coastie ret fantasy shemale sex vancouver wa

  123. ryrltujlmt Says:

    branded male slave branding slave

  124. ataxjdsccp Says:

    side effects pf zoloft 100mg

  125. ycfiaudfzx Says:

    actress johnston kennedy porn

  126. xvzezmqfug Says:

    russian porn veronika

  127. dtzjzfxzaw Says:

    cialis link online reltop net

  128. adtonxtpyi Says:

    human sex with horse

  129. uwulsubryi Says:

    free gay blowjob video

  130. vfonxhjhxr Says:

    diabetes patient education

  131. mvqipjfykw Says:

    very little gay boys

  132. ghmjqrakqj Says:

    ciara harris naked

  133. gnvkczmheg Says:

    internet gambling sites

  134. yeurlsinlh Says:

    plasmosoma

  135. zpppqetrei Says:

    male bdsm chastity

  136. qragomquxd Says:

    free no download sex game

  137. ukztgfajee Says:

    free brazilian porn pic

  138. dhghjyykew Says:

    chief financial officer certification

  139. ekgfohhggy Says:

    hazardous material removal specialist

  140. tmxijycrjk Says:

    dallas poker chips

  141. uiznlzdtqf Says:

    adult game sexy

  142. zdyayhyzjv Says:

    online no deposit bonus casinos

  143. eosqmanvqi Says:

    nco financial systems inc

  144. tugalcguki Says:

    what are the side effects of neurontin

  145. rosffowgip Says:

    lesbien porn movies

  146. amhowlqnis Says:

    arabic sex tv

  147. majslwcpyx Says:

    sm leather gay escorts

  148. kdwgfilpys Says:

    gay 18 cocks

  149. tiejhdpnko Says:

    free dirty gay spanking pics

  150. ivovuzitwt Says:

    free tit fuck porn video

  151. hwiwcxyfil Says:

    doctor boston pain management

  152. ynikmhwylt Says:

    kissing lesbian sexy video

  153. fuxygwrued Says:

    adult male masterbation

  154. skwujnalrs Says:

    free no credit card needed live sex chat

  155. vtpzcmtttj Says:

    wwwdigiprocouk free online slots

  156. daciqtewmh Says:

    ametrur nude photos

  157. atknvunxyx Says:

    dallas iowa news on drug busts

  158. rlmjwkapro Says:

    free porn videos with big cocks

  159. bwfjckhvxh Says:

    fucking hot chick

  160. btbjxkqity Says:

    la weight loss clinic program

  161. hqfjxpeuvv Says:

    amsterdam gay bdsm

  162. bazukejqcv Says:

    avi free pic porn

  163. jxmsmvwzfn Says:

    leather gay men

  164. pnodwkzgpr Says:

    slots bonus no download no registration free

  165. apczhbdlxx Says:

    breast enhancement methods pills

  166. nzmykitfvg Says:

    the socialists party

  167. bywsyuqoum Says:

    oriental table massage video sex

  168. xnertagxkp Says:

    adolecentes com de foto sexo

  169. pbmldmnsso Says:

    la weight loss clinic program

  170. wauzclvblh Says:

    approval prilosec otc

  171. scnxxoantj Says:

    amateur gay europe

  172. sylukjyofd Says:

    methadone chronic pain treatment

  173. ftzkvsdtjv Says:

    3 card poker tip

  174. urcxqcdunu Says:

    ultramegasquirt

  175. kbekncwrqk Says:

    privat sexkontakt

  176. pkeftvwbhx Says:

    asian street sex

  177. rvqrwvigsw Says:

    virtual porn pics

  178. xkgsnqgujb Says:

    pretty naked butts

  179. kbccrwxpkr Says:

    gay leather masters

  180. oibvvscihk Says:

    brad pitt naked in troy photos

  181. kncilrjswq Says:

    tv gay fetish links

  182. smsgvzmhoa Says:

    sexo na banheira pt

  183. wrgejmehkw Says:

    white zombie la sexorcisto

  184. ejnhrpollh Says:

    thick black sex galleries

  185. qatfzqfroh Says:

    young men sucking old cocks

  186. fosrvlavwb Says:

    kollywood sex

  187. zdtbqmkmkr Says:

    prevacid infant reflux

  188. fxfdkdfced Says:

    pics of britney spears with sex toys

  189. fxngosoerx Says:

    naked cheerleader in thongs

  190. tzkqolkhhm Says:

    free poker card games

  191. mgiyvdsrxo Says:

    male slave femdom

  192. ttmvewcjdo Says:

    gay bondage free

  193. smmayjiqvr Says:

    pussy male slaves

  194. zrfgxpzcgz Says:

    seminude male celebs

  195. qnxshqkjxg Says:

    herbalife products sale discount

  196. ibuxutdzal Says:

    sexy naked girl

  197. lclkkafhvi Says:

    bdsm gay humiliation

  198. thrjdogbqo Says:

    craps table casino

  199. bfqpvokyrq Says:

    free big dick sex movie

  200. aunwtttnyb Says:

    brandy taylor sex videos

  201. slgslocksz Says:

    flickr nude beach

  202. dazhhshayh Says:

    no membership sex video

  203. pkjokiucxd Says:

    vidios pornograficos

  204. bcqbftuldb Says:

    kem poker cards

  205. fhicfnrrgr Says:

    canada engine optimization search specialist

  206. qxlhovqoez Says:

    financial statement analysis for small business

  207. ibhutyzjqw Says:

    anna nicole smith penthouse nudes

  208. gxriupogjg Says:

    gay men fucking animals

  209. hqeatlwwby Says:

    blue manias teen nude

  210. kolwgnxhbc Says:

    sex psychology

  211. tpnhwrjuqe Says:

    carisoprodol link messageboard697199 aimoo com

  212. exwqbohljz Says:

    free bet casino

  213. wnzpbpxkqu Says:

    simpsons sex pic

  214. iyifjaqrqj Says:

    hardcore movie porn sex

  215. beqvqmdpec Says:

    free lesbian cheerleader movies

  216. kqecsvetdb Says:

    lesbian pussy riding

  217. vfslxracgx Says:

    football online gambling

  218. evafatzihp Says:

    name of a casino game that starts with bac

  219. dthbchmmeg Says:

    beautiful women porn

  220. kpjguwnvqp Says:

    what is male bondage

  221. nkhkbgfhrb Says:

    windows xp pro doesnt see my agp slot

  222. rdyrwbilxt Says:

    hot women fucking ugly men

  223. rxlskitpox Says:

    world series of poker xbox cheats

  224. fyhtezlcvl Says:

    free gay jacking man off porn

  225. rqcomyixhf Says:

    sexy clothing porn

  226. hngjlloewx Says:

    swimmer sex

  227. lvjstskkdd Says:

    emailsystems pornography usa

  228. wwzrgnflbw Says:

    tracy lords nude phots

  229. lfjaqvnvgo Says:

    pain management and costs

  230. udkakubfbr Says:

    sexy dares

  231. oehbbylwbx Says:

    boys fucking gay

  232. rvpcrlzwcq Says:

    video porno free

  233. kghjqbhmlq Says:

    alyce book com guest hydrocodone site vicodin

  234. qoxgomcfln Says:

    can you get pregnant on placebo birth control pill week

  235. wrebsihdeu Says:

    naked girls at tj partys

  236. lmojccrqke Says:

    free kama sutra sex position

  237. qszcmumutl Says:

    naked teen boy pic

  238. gkeoainsar Says:

    gay smoking fetish links

  239. skkyvgttib Says:

    keira knightley porn

  240. vayqmwmqiu Says:

    gay male escort bondage

  241. zhiobcegjl Says:

    free natural non nude

  242. zzjukkahkq Says:

    amateur pakistani pussy

  243. fzppoyfmhw Says: