William Fisher on fair use compared with other countries' approaches: transcript

Key points

• Israel and Singapore have fair use provisions resembling US section 107; Israel omits commercial character and lets the Minister of Justice set regulations, while Singapore adds a factor on obtaining the work at a reasonable price.
• The enumerated exceptions approach, used in the EU and China, has legislators list all permitted unauthorized uses in advance.
• Uses such as plagiarism detection services that passed under US fair use would be hard to justify under the EU list.
• Hybrid systems, found in the UK, Canada, Australia, New Zealand and Taiwan, require fitting an enumerated category and also satisfying factors, sometimes with credit to the source.
• Fair use is usually called a standard and enumerated exceptions a rule, but EU member states can build in judicial discretion, and Canadian courts have stretched fair dealing.
• US fair use does not state the goal of copyright, so judges must decide it themselves and disagree, making it worse than a true standard.

Chapters

1. 0:24Fair use compared with approaches abroad
2. 0:58Fair use variants in Israel and Singapore
3. 3:27Enumerated exceptions in the EU and China
4. 6:51Hybrid models and the attribution requirement
5. 9:07Rules versus standards
6. 12:07Why the rules-versus-standards framing falls short

Full transcript

0:24In this final segment of the lecture, I will briefly juxtapose the US Fair Use Doctrine with a few strategies adopted outside the United States. Which of the available strategies makes the most sense is currently hotly debated. Many countries, for example, the United Kingdom, Japan, and Australia, are currently reviewing their laws in this area. So the legal landscape may shift soon. In the meantime, you can and should form your own opinions concerning which of the approaches I'll describe is optimal.

0:58A few countries other than the United States have adopted general exceptions to the rights of copyright owners that resemble the fair use doctrine in the United States. Copyright law of Israel, for example, now contains a provision that closely echoes section 107 of the US statute. As you can see, it adopts the same ad hoc, open-ended approach as is used in the US, and indeed employs more or less the same four factors. The Israeli provision does, however, deviate from the US approach in two respects.

1:32First, as you can see, it omits any reference to the commercial character of the defendant's use, tacitly following the lead of the US courts that, in recent years, have, as we've seen, increasingly demoted the commercial use sub-factor. Second, the final section of the Israeli provision empowers the Minister of Justice to, quote, make regulations prescribing conditions under which a use shall be deemed a fair use, close quote. Thus far, apparently, the Israeli government has not exercised this power, but it offers an intriguing possible way in which the unpredictability of fair use might be mitigated.

2:12The copyright law of Singapore contains a similar provision. Factors A, B, C, and D once again echo, as you can see, the components of fair use in the United States. But factor E is new. The instruction to consider, quote, the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price, close quote, presumably will have the effect of limiting the availability of fair use somewhat. Because it would weaken the position of defendants who could have obtained a license from the plaintiff, but refused to do so.

2:49This provision might also put pressure on copyright owners to collaborate in the organization of a system, like the Copyright Clearance Center in the United States, designed to facilitate licensing. The net effect would be roughly analogous to a compulsory licensing system of the sort we have previously considered in this series of lectures. A recent study by Roya Gaffelli and Benjamin Gilbert of the impact of the adoption of this approach on the economy of Singapore is broadly encouraging.

3:27As we can see, these three variants of fair use in the United States, Israel, and Singapore are not identical, but they share a basic approach. give judges considerable power to decide, after considering various factors, whether a given putatively infringing activity should be privileged. Radically different is the so-called enumerated exceptions approach. The central principle of this strategy is that instead of conferring on courts responsibility to assess on an ad hoc basis defendants' assertions that they should be excused for making unauthorized uses of copyrighted works, the legislature should anticipate and provide an advance for all circumstances in which unauthorized uses should be permitted.

4:15This approach has been adopted in a much larger set of countries than fair use. It reigns in the European Union, for example. As you can see, Article 5 of the EU's Information Society Directive employs this approach. It identifies one exception that member countries must adopt and a long list of exceptions, specifically to the right of reproduction and the right to communicate or make works available to the public that member countries may adopt. The list is exhaustive, meaning member countries are not obliged to recognize all of them, but they may adopt a subset, but they may not recognize more.

4:57And they may not adopt open-ended discretionary standards like the US or Israeli approaches. Many of the activities that, as we have seen, escape liability in the United States on fair use grounds are dealt with in specific provisions in the EU's list. For example, parity here in item 3 . But other things, such as copying student essays, verbatim, for the purpose of running a plagiarism detection service that have been able to pass muster under fair use in the United States are likely too new or idiosyncratic to have been anticipated in 2001, and thus would be hard to justify under the EU's approach.

5:46China, as you can see, adopts the same general strategy. Article 22 of China's copyright law contains a long list of enumerated exceptions, although shorter than the EU list. Some items are not surprising. For example, the ninth exception for, quote, gratuitous live performances of a published work, for which no fees are charged to the public, nor payments are made to performers, echoes a provision of the US statute. But others are more striking.

6:16For example, the tenth exception, which privileges copying, drawing, photographing, or video recording of a work of art put up or displayed in an outdoor public space. That provision is, at least on its face, much broader than any analogous exception in either the United States or the EU. Also remarkably expansive is the privilege to translate, quote, a published work of a Chinese citizen or legal entity from Han language into minority national languages for publication and distribution in the country.

6:51In sum, there are two polar positions, the open-ended fair use approach pursued in the United States, and the enumerated exceptions approach pursued in the EU, China, and several other nations. In between these two sets of countries is another set that have adopted what might be described as hybrid models. Typically, such hybrid systems require a defendant first to show that his behavior falls into one of a list of enumerated potential exceptions.

7:23These tend to be more general than the type of specific exceptions found in the enumerated approach. But a defendant who is able to fit his activity into one of these boxes is still not home free. He must demonstrate that his conduct is also justified on the basis of a list of factors that are analogous to those employed in the United States. An extra element, sometimes found in such hybrid systems, It's a requirement that the defendant acknowledge that he is taking material from the plaintiff.

7:55In other words, that he give credit where credit is due. The result is to import into the fair dealing analysis a bit of the right of attribution that, as we've seen, more commonly is treated as a form of moral right. The United States, as yet, has no such requirement. and many defendants who have given the plaintiffs no credit whatsoever have successfully invoked the fair use defense in the United States. One of the many possible implications of the cultural theory we'll take up next week is a reconsideration of the US position on this point.

8:33In other words, the possibility of according greater recognition to the principle of attribution here in the fair use setting or in other settings. So where is this hybrid approach found? The United Kingdom, as you can see, currently employs such a system, although it may make some dramatic changes to its law soon. Canada does as well, although it too is considering further liberalization of its approach. Australia, New Zealand, and Taiwan have analogous setups.

9:07So return to the general question, which of these strategies is best? This issue is often addressed as if it were purely a question of optimal legal form. So conceived, the question of the optimal fair use approach is a variant of an age-old debate in legal theory. Fair use, the US system, is an example of a type of legal norm commonly known as a standard. Well, the enumerated exceptions approach is an example of a type of legal norm known, somewhat confusingly, as a rule.

9:45A standard within this literature is a norm that makes direct reference to policy objectives. For example, the best interests of the child in family law or the avoidance of unjust enrichment in contract law. And then leaves judges or other officials lots of discretion in deciding how best to accomplish those ends when resolving particular disputes. A rule, by contrast, constrains discretion. It requires judges or other officials to respond in a determinate way to specific sets of readily ascertainable variables.

10:24So for example, a norm that declared that only wise persons are eligible to be president of the United States would be a standard because it would require judges or other decision makers to make judgments concerning whether candidates are, all things considered, wise. By contrast, a norm that declared, as it does in the United States, that only persons over the age of 35 may be president is a rule because it leaves decision makers very little discretion.

10:57Standards and rules, it is widely believed, have characteristic advantages and disadvantages. For examples, standards are more flexible but also more unpredictable. Rules are more predictable and less conducive to corruption or bias, but they are also inevitably both under-inclusive and over-inclusive. In other words, they will fail to advance policy goals as precisely as well-administered standards. So which of the two types of norm is better?

11:33The standard answer is that it varies by context. Much of the current debate about what to do about fair use uses this same framework. Should we have more ruleness, i.e., move closer to the EU enumerated approach? Or should we have more standardness, i.e., move closer to the US fair use approach? Scholars who argue about the issue in these terms draw on many of the considerations that figure in the more general rule standards debate.

12:07But framing the issue in these terms misses two dimensions of the problem. First, the enumerated exceptions approach exemplified by the EU is less rule-like than it might appear. As Bert Hugenholtz and Martin Seflinben have shown in a recent paper, the Information Society Directive that we examined a few minutes ago permits more discretion than it might seem.

12:38Not only do countries enjoy latitude when incorporating elements of this list into their own laws, but they can and sometimes do formulate their national laws in ways that confer on judges some degree of discretion. For example, the Swedish Copyright Act, as Hugen-Holz points out, interprets provision 5.3d to permit the quotation of published works, quote, in accordance with proper usage and to the extent necessary for the purpose, close quote.

13:09That construction intentionally gives judges a fair amount of latitude when deciding whether a particular defendant has gone too far. Similarly, the Canadian courts have stretched the categories of their fair dealing system considerably, with the result that it operates in practice more like US fair use than it appears. In short, characterizing the choice among these systems as a choice between rules and standards is to some degree inaccurate. Second, and more fundamentally, on reflection, the US system is not so clearly a standard.

13:48A standard, you'll recall, identifies a policy goal and then gives judges discretion in advancing it. That's not really what the fair use doctrine in the United States does. Rather, it identifies some factors that judges should consider but doesn't tell the judges why those factors matter. The law does not, in other words, identify the substantive goal of the system as a whole. The result is that judges in the United States are forced to decide for themselves what copyright law should be trying to achieve.

14:24Maximize social welfare, reward authors fairly, protect personhood interests. As we've seen, all of those are possible aspirations for copyright law. Well, which one is your primary concern will make a big difference in how the statutory fair use factors are construed and applied. Judges in the United States disagree concerning the fundamental purposes of copyright. It should thus not be surprising that, as a result, they disagree concerning how fair use should be construed and applied.

15:01Seen this way, the current fair use doctrine in the United States is worse than a standard because it does not clearly articulate a normative criterion, a goal or a set of goals that judges, when deciding individual cases, should strive to promote. We ought to be able to do better than that. One possible route to a better regime will be considered in the next lecture.

Source and licence

Recording: File:William Fisher CopyrightX Lecture 9 3.webm by BerkmanCenter (2015-03-19), via Wikimedia Commons. Licence: CC BY 3.0.

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.