Fair use opponents and skeptics often question whether an open standard that relies on judicial application is compatible with international treaty obligations. In my view, outside the European Union, there is no merit in that contention. This post is my first attempt to clarify why there is no conflict between fair use and international copyright law.
Copyright is international
Since 1886, national copyright laws have been regulated by international agreements. In the era of globalization it is not surprising that copyright law is now covered by a multitude of overlapping international, regional and bilateral agreements.
The foundational international agreement concerning copyright law is the Berne Convention for the Protection of Literary and Artistic Works of 1886. The Berne Convention has been revised many times and is now supplemented by a host of international trade agreements including the TRIPs Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) (part of the WTO framework), the WIPO Copyright Treaty and various regional (e.g., NAFTA) and bilateral free trade agreements (e.g., the Australia-US FTA). These agreements provide for mutual recognition of copyrights and establish minimum standards for copyright protection.
Questioning Fair Use
Fair use opponents and skeptics often question whether an open standard that relies on judicial application is compatible with the so-called “three step test” for limitations and exceptions contained in Berne and many subsequent agreements.
The Berne convention first came into being in 1886, but prior to 1967 the rights guaranteed by the convention were expressed quite specifically – one article dealt with works “published in the newspapers or periodicals”, another dealt with the “the exclusive right of authorizing the reproduction and public representation of their works by cinematography.” (Article 9 and Article 14). In 1967 the members of the Berne Convention adopted a very broadly expressed reproduction right in Article 9(1) that states simply:
“Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.”
As a counterweight to this omnibus reproduction right, the new Article 9(2) provided:
“It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
Those who doubt the legitimacy of fair use under the Berne Convention argue that fair use is too broad and uncertain and is thus not properly confined to “certain special cases” as Article 9(2) requires. In my view, this argument falls somewhere along the continuum between misguided and mischievous. Fair use is fundamentally consistent with the three step test as a matter of international law; moreover, so long as the U.S. retains the fair use doctrine, no other country could seriously be challenged for its adoption of fair use as a matter of international politics. This second proposition is so obvious that I will confine the remainder of my observations to the more interesting legal question.
The three step test is broadly applicable standard, consider …
1. Drafting History
The drafting history of Berne Article 9(2) reveals that it was not intended as a rigid prohibition on limitations and exceptions to copyright, but rather as an abstract open formula capable of encompassing a wide range of exceptions. (See generally, Martin Senftleben, Copyright, Limitations, and the Three-Step Test: Analysis of the Three-Step Test in International and EC Copyright Law, Kluwer Law International, 2004.) Martin Senftleben has made a detailed study of the history of the three step test, beginning with its adoption in 1967. Senftleben’s research shows that an early draft of 9(2) used the language “in certain particular cases where the reproduction is not contrary to the legitimate interests of the author.” This text was modified at the suggestion of the United Kingdom delegation to the now familiar language — “in certain special cases where the reproduction does not unreasonably prejudice the legitimate interests of the authors.”
Although fair dealing in the U.K. by the late 1960’s was arguably narrower than fair use in the U.S., it was nonetheless an abstract standard (applied to particular circumstances) requiring judicial application and development. It is inconceivable that the U.K. intended to abandon fair dealing when it suggested that limitations and exceptions be limited to “certain special cases”. Read as a single sentence, Article 9(2) is a general statement that does as much to enable limitations and exceptions as it does to confine them. As is so often the case in international agreements, this generality was necessary in order to reconcile the many different types of exceptions various nations had already adopted.
2. Subsequent International Agreements
Since the Berne Convention, several different versions of the three step test have been incorporated into international agreements such as TRIPs, the WIPO Copyright treaty, NAFTA and U.S. Free Trade Agreements with Australia, Bahrain, Chile, Jordan, Morocco, Singapore, and South Korea.
In some ways this proliferation seems to confuse the question of how the standard should be interpreted, but in other ways it is also clarifying. Admittedly, variations on the exact text of the three step test are confusing. Article 13 of the TRIPs Agreement of 1994 (part of the World Trade Organization) contains a version of the three step test which tacks the language Berne except that rather than “permit[ing] reproduction in certain special cases”, TRIPs instructs member nations to “confine” any limitations and exceptions to “certain special cases”. TRIPs also changes Berne’s reference to “the author” to “the right holder”. These transformations are repeated in Article 10 of the WIPO Copyright Treaty of 1996. TRIPs also contains a slightly different three step test for trademark law and another for patent law but the drafting history offers no explanation as to the motivation or significance of these subtle differences. (See, Annette Kur, Oceans, Islands, and Inland Water- How much Room for Exceptions and Limitations under the Three-step Test?)
If there was ever any doubt as to the flexibility of the three step test framework, that doubt should have been dispelled by Agreed Statement Concerning Article 10 WIPO Copyright Treaty. That statement reads in part:
It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.
3. State practice
The initial three step test was adopted before the U.S. joined the Berne Convention (this only happened in 1989). The U.S. made a number of changes to its law to fit into the Berne framework, principally concerning notice and registration requirements. The fair use doctrine does not appear to have been considered as an obstacle to Berne compliance at the time and it is hard to imagine that the U.S. would have agreed to the convention if it believed that such a central aspect of its copyright law was not Berne compatible. It is even harder to imagine that the U.S. would actively promote the incorporation of a three step test into TRIPs in 1994, the WCT in 1996 and FTAs with Australia, Bahrain, Chile, Jordan, Morocco, Singapore, and South Korea if the fair use doctrine really presented a fundamental conflict.
How should the three step test be applied?
The three-step test is an open-ended norm. There is nothing in the history or text of Berne, TRIPs or the WIPO Copyright Treaty that indicates any intention to abandon common law adjudication for limitations and exceptions. Even the one WTO panel decision that is frequently cited for a restrictive view of the words “certain special cases” also notes: “However, there is no need to identify explicitly each and every possible situation to which the exception could apply, provided that the scope of the exception is known and particularised. This guarantees a sufficient degree of legal certainty.” (Panel Rep. of 15 June 2000, United States-Article 110 (5) of the US Copyright Act, WT/DS160/R. at 6.108)
In a complex world, rules are not the only path to certainty.
In a fair use system, the contours of limitations and exceptions to exclusive rights are developed through adjudication – as the jurisprudence matures, the degree of legal certainty increases. Rule-based limitations and exceptions are quite vulnerable to technological rigidity and their application can hinge on arcane debates over taxonomy – these features can make rules perennially uncertain.
What does it mean to be special?
Like the fair use doctrine itself, the three step test about harm and justification. The three step test allows members to create their own limitations and exceptions to copyright so long as the limitation does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author (Berne Article 9(2)). These requirements are preceded in Berne by the words “in certain special cases”, but these words are as much descriptive as they are limiting. Copyright exceptions that do not conflict normal exploitation and do not unreasonably prejudice the legitimate interests of the author are not the norm, they are “special cases.”
Consider the implications of reprinting a novel. Ordinarily copyright law gives the novelist the exclusive right to reproduce her own work and this exclusive right is the means by which profit is obtained – she can sell that right, or sell copies of the work – this potential profit is the incentive that urges her to write the novel in the first place. Usually, a law that allows others to copy the novel without permission directly challenges the novelists control over her work and her ability to monetize her creation. But there are cases where copying should be allowed because it does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author – in the classic printing-press paradigm of copyright law these cases are unusual, some would even say “special”. In the printing press paradigm, justified exceptions allowing wholesale reproduction would be rare. In the digital age justified exceptions to the reproduction right are not quite as rare, but they are still “special” in the relevant sense. Many private uses, many uses already where access has already been paid for, de minimus uses, fractional uses for socially beneficial purposes and non-expressive uses should all readily be seen as special.
Recasting 107 in the language of Berne
To understand the consistency of fair use with the three step test, consider how the former doctrine can be reformulated in the language of the latter. There is nothing magical or sacrosanct about the particular language that the U.S. used to try to codify fair use in 1976. A Berne compliant fair use provision could just as well read:
“… the fair use of a copyrighted work in certain special cases, such as news reporting, quotation, commentary, criticism and analysis, scholarly research, is not infringement. In determining whether a use is a fair use a court shall consider: (1) whether the use conflicts with a normal exploitation of the work and thus tends to substitute for the work of the copyright owner; (2) whether the use is likely to prejudice the legitimate copyright interests of the copyright owner to a degree that is unreasonable in light of the purpose and nature of the use; and (3) whether the extent of the use is reasonable in light of the purpose and nature of the use.”
Countries like Australia that are currently considering the adoption of their own fair use doctrine should not be deterred by an imaginary conflict between fair use and international copyright law.