Authors: Pamela Samuelson and Kathryn Hashimoto
Abstract: The compatibility of the U.S. fair use doctrine with international treaty norms has been questioned many times over the years by European and even American commentators. Does the fair use limitation on copyright’s exclusive rights comport with the “three-step test” that regulates the permissible scope of exceptions in national copyright laws under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works and in Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)? This test requires copyright exceptions to be for “certain special cases” and to neither interfere with “a normal exploitation” of protected works nor “unreasonably prejudice the legitimate interests” of authors and other rights holders. Those who doubt its compatibility mostly point to the generality of the U.S. fair use provision and its seeming case-by-case indeterminacy to argue its failure to pass the first step of the test.
This paper makes two main points in support of its thesis that the U.S. fair use limitation is indeed compatible with the three-step test. First, the U.S. fair use doctrine was accepted as consistent with the three-step test when the U.S. joined the Berne Convention in 1989. Its statutory embodiment recites several specific criteria that provide guidance to its interpretation, and the fair use caselaw has evolved to refine the types of special cases to which it applies, in accord with the first step of the test. Many functions served by the U.S. fair use doctrine are achieved elsewhere through specific exceptions. Because fair use cases carefully assess harms of challenged uses to markets for protected works and other legitimate interests, the fair use doctrine satisfies the second and third steps of the test. Second, the U.S. fair use doctrine has remained consistent with the three-step test since the U.S. agreed to abide by the TRIPS Agreement when it joined the World Trade Organization (WTO) in 1994. Several developments in recent years, including a proliferation of fair use and similar flexible copyright exceptions in the international arena and a fair-use-friendly provision in the Trans-Pacific Partnership agreement, signal a more receptive attitude internationally towards flexible, open-ended limits on copyright’s exclusive rights, particularly in light of extraordinary technological advancements in the digital age. These developments reinforce the paper’s conclusion that the U.S. fair use doctrine satisfies the TRIPS three-step test, notwithstanding certain recent criticisms.
While we agree that it is conceivable that a particular overbroad appellate court decision applying the fair use doctrine could be challenged, we argue that none of the recent critiques of fair use decisions is sound or put the U.S. in danger of not complying with its international obligations.
Citation: Samuelson, Pamela and Hashimoto, Kathryn, Is the U.S. Fair Use Doctrine Compatible with Berne and TRIPS Obligations? (August 7, 2018). Forthcoming,Tatiana Synodinou (ed.), Universalism or Pluralism in International Copyright Law (Kluwer Law International, Information Law Series).
Full text on SSRN: https://ssrn.com/abstract=3228052
