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.

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.

Stan McCoy with the MPAA in Brussels (and formerly head of IP at USTR) made many of the standard arguments against the export of fair use. He argued inter alia that fair use was a common law approach inappropriate for civil law systems; other countries want certainty over flexibility; many countries have found fair use unnecessary; and fair use was a minority position, having been adopted only by a handful of countries other than the United States.

I replied that flexible exceptions were, in fact, necessary because legislatures could not respond quickly enough to the rapid technological change of the digital age. Also, if courts around the world were capable of applying the amorphous idea/expression dichotomy, surely they could apply factors concerning the fairness of a use. I pointed to the decision of the Court of Justice of the European Union (CJEU) in SAS v. World Programming concerning the protectability of interface specifications as an example.

Further, I referenced the earlier presentation at the conference of Lital Helman, a law professor in Israel, concerning the Israeli experience with adopting fair use. She noted that Israel inherited fair dealing from the British, and in the 1990s the courts were already applying it in a fair use manner. I noted that nearly 40 former Commonwealth countries, including India, have fair dealing, and thus there is a good platform for broader adoption of flexible exceptions.

I also stressed that fair use was essential not only to libraries and technology companies, but also artists. Picking up on several earlier speakers’ reference to Bob Dylan winning the Nobel Prize for Literature the day before, I underscored that Dylan exemplified the importance of exceptions and limitations to artists: his work is based on the appropriation of lyrics and melodies from other sources. Dylan once stated that when songwriting, “you make everything yours. We all do it.”

Columbia Law School Professor Jane Ginsburg, the panel’s moderator, then suggested that the fair use doctrine might serve as a means of preventing unprincipled decision-making by foreign courts. She observed that “open norms tend to bubble up” as courts try to reach the right result, and pointed to the CJEU’s communication to the public cases as an example. By treating linking as a communication to the public in the Svensson case, the CJEU had backed itself into a corner in the GS Media case, which involved a link to infringing content. To find a way to balance copyright with free expression, the CJEU came up with a proportionality test. Professor Ginsburg opined that proportionality was much “muddier” than fair use. In other words, Professor Ginsburg indicated that courts are going to find safety valves, and fair use is a better safety valve than the likely alternatives.

I agreed with Professor Ginsburg’s comment, and mentioned the Indian Supreme Court’s recent decision treating the photocopying of course packs as a fair dealing. I said that courts were going to find a way to reach what they consider to be a just result, so if we want to encourage the rule of law, we’re better off with a flexible framework such as fair use rather than ad hoc, unprincipled decisions.

David Carson, Head of the Copyright Policy Team at the Patent and Trademark Office, joked that I was saying that fair use was actually the conservative approach to rein foreign courts in, and I agreed wholeheartedly.  Watching courts grope forward with tests that are less clear than fair use has been instructive. Copyright law needs to find safety valves to permit socially desirable activities while penalizing infringers, and it is now apparent that they can a lot worse than adopting fair use.