Universalizing Copyright Fair Use: to Copy, or Not to Copy?

• Publication year: 2022

Universalizing Copyright Fair Use: To Copy, or Not to Copy?

Taysir Awad
Georgetown University Law Center, jwt74222@uga.edu

Universalizing Copyright Fair Use: To Copy, or Not to Copy?

Cover Page Footnote

S.J.D. Candidate, 2023, Georgetown University Law Center. My thanks to Abdelmajid Awad for the inspiration, Anupam Chander for his massive contribution to this article, Madhavi Sunder, Justin Tilghman, and the JIPL's Editorial Board for the efforts devoted to this article.

This article is available in Journal of Intellectual Property Law: https://digitalcommons.law.uga.edu/jipl/vol30/iss1/2

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Awad: Universalizing Copyright Fair Use

UNIVERSALIZING COPYRIGHT FAIR USE: TO COPY, OR NOT TO COPY?

Taysir Awad^*

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TABLE OF CONTENTS

I. INTRODUCTION...................................................................................................3

II. BACKGROUND.....................................................................................................8

III. THE CAPABILITIES APPROACH TO DEVELOPMENT....................................21

A. ACCESS TO KNOWLEDGE............................................................................24

1. Stringent Copyright Application Frustrates Access to Knowledge 24
2. Fair Use is Better Equipped to Foster Knowledge and Information.........................................................................................26
3. Educational Fair Use as Applied by Courts...................................32

B. TECHNOLOGICAL INNOVATION................................................................36

1. Stringent Copyright Application Neglects Innovative Technologies.......................................................................................37
2. Fair Use is More Responsive to New Technologies....................39
3. Technological Fair Use as Applied by Courts...............................42

C. ENHANCING CREATIVE PRODUCTION....................................................43

1. Stringent Copyright Application Inhibits Creative Production .. 44
2. Fair Use Enables Others to Commodify Existing Works...........46
3. Productive Fair Use as Applied by Courts.....................................50

D. CLOSING REMARKS.....................................................................................53

IV. CONCLUSION......................................................................................................53

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I. INTRODUCTION

In the past couple of decades, we have witnessed a universal shift from closed list catalogues, such as fair dealing, to the fair use doctrine.¹ What initially began as an opaque common law doctrine in the courts of the United States of America spread throughout the international community with increasing speed.² The first two countries to transplant the doctrine were Israel and South Korea, in 1993 and 2006.³ Canada, Malaysia, the Philippines, Liberia, Taiwan, Sri Lanka, Kenya, and Singapore would soon follow.⁴ Recently, Ecuador became the first South American country to employ "uso justo" (fair use) through the enactment of Código Orgánico de la Economía Social de los Conocimientos, Creatividad e Innovación (Code of the Social Economy of Knowledge, Creativity, and Innovation).⁵ Chinese and Canadian courts have tacitly embraced the fair use doctrine, albeit these nations have not codified the doctrine.⁶ South Africa is currently taking steps towards adoption.⁷ Australia and New Zealand have flirted with the idea of importing the fair use doctrine on numerous occasions.⁸ What explains the

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movement towards fair use in countries around the world? Strangely enough, the home jurisdiction of fair use has proven remarkably antagonistic to this movement.⁹ In fact, the U.S. has conspicuously stigmatized the movement, using its annual Special 301 Report as a tactical reprisal to deter other nations from adopting the doctrine.¹⁰ Why, if the U.S. originated fair use, does it abhor the doctrine elsewhere?

Fair dealing is a copyright exception that was first introduced in England to prevent courts from imposing "manacles [on] science."¹¹ It permits the use of copyrighted material for a purpose explicitly listed in the act without prior permission.¹² Some countries inherited the fair dealing doctrine from the British Empire, while others voluntarily adopted the doctrine.¹³ Those countries who have refrained from adopting the fair dealing doctrine have carved out a similar type of closed list catalogue.¹⁴ Ultimately, these exceptions are mutually limited to "certain special cases" in compliance with the Berne Convention's three-step test.¹⁵

Prior to the end of the 20th century, the only aberration to the closed list catalogue regime was the fair use doctrine.¹⁶ Fair use, a progeny of fair dealing,

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permits the use of copyrighted material under certain circumstances without permission.¹⁷ The list of permissible uses in § 107 of the Copyright Act of 1976, however, is illustrative, whereas fair dealing is exclusive. Similar to the U.S., courts in England had wide discretion in determining what constituted fair dealing.¹⁸ But, this changed with enacting the Imperial Act of 1911.¹⁹ In contrast, § 107 of the Copyright Act of 1976 is "intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way."²⁰ As a result, fair use sustains its flexible character, which enables courts to effectively weigh each case based on its merit.

In recent years, tech powerhouses and conglomerates have commended the fair use doctrine and have advocated for its universality.²¹ For example, Yahoo! states that "[u]nder [a fair dealing] copyright regime, very many socially useful and economically beneficial technological innovations would simply have no breathing space to emerge. They would be blocked at the first post by a copyright regime that is insufficiently flexible to accommodate technological innovation."²² Thus, many countries have surmised that their laws were inferior to those in the U.S. For instance, David Cameron, former Prime Minister of the United Kingdom, stated, "[the U.S. has] what are called 'fair-use' provisions, which some people believe gives companies more breathing space to create new products and services. . . . I want to encourage the sort of creative innovation that exists in America."²³ To the contrary, other shifts have been instigated endogenously through the judiciary (e.g., Israel, Canada, China).²⁴

In any matter, there was a common perception that fair use entailed some type of development. After thoroughly examining the postulations set forth by

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the judiciary and special committees of the aforementioned nations, fair use's development can be narrowed down to three dimensions: access to knowledge, responsiveness to innovative technologies, and enhancement of creative production. This Article will examine the ambit of the U.S. trajectory and assess whether fair use is better equipped than its foreign counterparts and variants with regard to these three dimensions of development. The Article will additionally provide useful guidance to other jurisdictions that are considering the transplantation, namely South Africa.²⁵

Although some have drawn opaque associations between the implementation of fair use and increases in the gross domestic product ("GDP"),²⁶ this research adopts the Nobel Prize-winning theory of development, the capabilities approach, to evaluate whether fair use meets these expectations. Developed by Amartya Sen and Martha Nussbaum, the capabilities approach deviates from the conventional metric of development, economic growth.²⁷ Development, in this sense, means enabling individuals to participate, inter alia, socially, economically, and politically through the enhancement of human capabilities and freedoms.²⁸ The late Mahbub ul Haq stated, "[t]he real wealth of a nation is its people. And the purpose of development is to create an enabling environment for people to enjoy long, healthy, and creative lives."²⁹

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Scholars such as Julie Cohen,³⁰ Margaret Chon,³¹ Madhavi Sunder,³² and Anupam Chander³³ have laid out normative accounts of intellectual property laws grounded on the capabilities approach. The central claim of this Article is that fair use intrinsically aligns copyright law with the capabilities approach and is better equipped than its foreign counterparts with regard to this objective. Therefore, this Article observes the extant state of copyright limitations and exceptions globally and optimizes the best available framework, using the capabilities approach as a gauge.

This Article proceeds as follows. Part I is divided into two sections. In section one, this Article will elucidate fair use, fair dealing, and discrete exceptions. The Article will then briefly explain the history and function of each doctrine, differentiating them from one another. Section two delves into the history of fair use transposition across the globe. Here, the Article will examine the rationale behind each case and, thus, conclude that each nation has found that fair use promotes some type of development. These developments are then narrowed down to three separate yet intersecting dimensions. Each dimension enhances human capabilities in some way or form: access to knowledge, responsiveness to innovative technologies, and enhancement of creative production. Neil Netanel highlights fair use's role in promoting democratic and political participation.³⁴ Although political participation is a preponderant freedom emphasized by both Sen and Nussbaum,³⁵ this Article will exclusively weigh the viability of the postulations set forth by the courts and committees of the aforementioned nations, and political participation falls out of the ambit. Part II is divided into three sections. Each section examines the viability of each capability that fair use allegedly promotes. First, the Article will explain how copyrights restrain the capability of discussion...