Aug 042017

[Originally published in South Africa’s Business Day, Link] Over the past two weeks, I have been participating in a series of events and workshops explaining copyright “fair use” rights to South African stakeholders and officials. This week, Parliament has been hearing about fair use while it considers the Copyright Amendment Bill, part of which includes the introduction of a fair use right.

Rights management organisations, which collect royalties from schools, venues and other organisations that use copyrighted works, are up in arms. A collection of these organisations and foreign media companies such as Sony Pictures, calling itself the Copyright Alliance, has claimed that fair use means: Continue reading »

Mar 092017

Delivered March 8, 2017 at the Open Hearing that USTR conducted as part of the 2017 Special 301 Review

Thank you for the opportunity to testify at this hearing. My name is Mike Palmedo, and I work for American University Washington College of Law’s Program on Information Justice and Intellectual Property (PIJIP). We are an academic research program that promotes the public interest in IP policy. Much of my recent research at PIJIP has involved the comparison of copyright limitations in different countries, and the examination of outcomes associated with different copyright limitation structures. Continue reading »


Fair Use as a Tool for Reining In Foreign Judges?

 Posted by on October 21, 2016  Comments Off on Fair Use as a Tool for Reining In Foreign Judges?
Oct 212016

jband[Cross posted from Project Disco, Link] 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. Continue reading »


Changes Induced by Open-Ended Fair Use Clause: Korean Experiences

 Posted by on October 20, 2016  Comments Off on Changes Induced by Open-Ended Fair Use Clause: Korean Experiences
Oct 202016

heesobnamSouth Korea has a civil law tradition based on the modern European civil law systems.

The civil law tradition was one of the obstacles when civil societies and lawmakers tried to introduce flexible and open-ended fair use exceptions into the Korean Copyright Act (“KCA”) in 2005 and 2009. According to opposers, the fair use doctrine, developed under the rules of equity in common law countries such as the U.S., did not fit with the Korean civil law system. Continue reading »


R&D Spending and Patenting in the Technology Hardware Sector in Nations With and Without Fair Use

 Posted by on July 29, 2016  Comments Off on R&D Spending and Patenting in the Technology Hardware Sector in Nations With and Without Fair Use
Jul 292016

palmedoThis post uses two common indicators of innovation to see how the technology hardware sector compares in countries with and without fair use. It illustrates that research and development spending by firms in these industries has been higher in countries with fair use, controlling for other firm- and country-level factors. It then shows more patents have been granted to the technology sector in countries that have adopted fair use, relative to patents granted to firms in the same industries in other countries, controlling for other country-level factors. Continue reading »

Apr 182016

wcl-sydney-torontoIntellectual property scholars and researchers from prominent universities in the U.S., Canada and Australia have released a submission to the Australian Productivity Commission strongly criticizing a report by PriceWaterHouseCoopers (PWC) on the economics of fair use (PWC Report).”

According to the Academics’ Submission:

The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact. Continue reading »

Mar 042016

krista cox[Reposted from the Association of Research Libraries Policy Notes, Link (CC-BY)] On February 22–26, 136 organizations and numerous individuals participated in Fair Use/Fair Dealing Week 2016, an annual celebration of the important—and flexible—doctrines of fair use and fair dealing. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, Re:Create, and Wikimedia. Continue reading »


Why Do We Want Fair Use in Australia?

 Posted by on February 27, 2016  12 Responses »
Feb 272016

australia flag[Australian Digital Alliance, Link (CC-BY)]  This week is Fair Use Week/Fair Dealing Week, and initiative started by the Association of Research Libraries which celebrates the importance of flexible exceptions to copyright systems around the world.

So it seems like the perfect time to look again at the fair use debate in Australia. A few years ago the Australian Law Review Committee (ALRC) recommended that Australia adopt a fair use exception to replace its current fair dealing exceptions, as well as a number of other exceptions in our Copyright Act. The Productivity Commission is in the process of considering this recommendation, along with other potential changes to Australia’s IP system, and is due to report in August.

But what exactly was the ALRC recommending? Continue reading »

Jan 222016

butler150px(Cross posted from, Link] In October 2015 the Librarian of Congress issued an important new rule permitting faculty and staff creating MOOCs (massive open online courses) to copy short clips from video media protected by digital locks. The rule was the result of a petition brought by clinic students Mark Patrick and Sarah O’Connor on behalf of Peter Decherney, Professor of Cinema Studies and English at the University of Pennsylvania, the College Art Association (CAA), the International Communication Association (ICA), and the Society for Cinema and Media Studies (SCMS). The rule may be the first official acknowledgment that MOOC courses are appropriate venues for the fair use of copyrighted media, including video content. Continue reading »

Dec 022015

jbandIn 2012, I published a law review article where I argued that when a defendant engages in the type of activity permitted by a specific exception under the Copyright Act, but does not qualify for a technical reason, the court should give weight to the defendant’s substantial compliance with the exception when considering the first fair use factor (the purpose and character of the use).1 In adopting a specific exception, Congress recognized the strong public policy interest in permitting the use in cases meeting the exception’s requirements. Significantly, the same public policy interest still exists in cases where many, but not all, of the exceptions’ requirements are met. While the existence of a specific exception should not be dispositive of the fair use analysis, I argued that it should have a positive influence on the first fair use factor. Since then, both the Second Circuit and the Register of Copyrights have given substantial weight to specific exceptions in the context of consideration of the first fair use factor.

Click here for the full update (PDF).


Leval on Fair Use and Google Books: A Sketch of a Story

 Posted by on November 16, 2015  Comments Off on Leval on Fair Use and Google Books: A Sketch of a Story
Nov 162015

butler150px[Reposted from TechDirt, Link] Last Thursday, Judge Pierre N. Leval, a renowned fair use scholar and judge on the Second Circuit Court of Appeals in New York, delivered the Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property (you can watch the recording at that link) at the law school where I teach, the American University Washington College of Law (whew). “Lecture” doesn’t really do it justice, though; Leval may have spoken in front of a lectern at a law school, but what he said was hardly dry or academic. Instead, it was a bravura exercise in storytelling, which is fitting, as storytelling and narrative are some of Peter Jaszi’s favorite subjects, second only to fair use. Continue reading »


Judge Pierre A. Leval Speaks on Fair Use Cases at PIJIP’s Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property

 Posted by on November 13, 2015  Comments Off on Judge Pierre A. Leval Speaks on Fair Use Cases at PIJIP’s Fourth Annual Peter A. Jaszi Distinguished Lecture on Intellectual Property
Nov 132015

Pierre N. Leval - Judge, Court of Appeals, 2nd Circuit 7/99Last night at American University Washington College of Law, Judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit discussed the role of the fair use doctrine within the structure of copyright law. Judge Leval is responsible for introducing the concept of transformative use to United States fair use jurisprudence and his lecture provided an overview of the development of the doctrine to date. He is the author of the court’s opinion in Authors Guild Inc., et al. v. Google, Inc. (October 16, 2015) in which the court held that Google’s digitization of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. Judge Leval also authored Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990). Continue reading »