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

This 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.

This entry was posted on Monday, May 7th, 2007 at 9:00 09 and is filed under iCommons, Copyright and access. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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

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