Content Owners Hope to Stop Fair Use Doctrine From Spreading Across Borders

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By Tamlin H. Bason  

April 28 — Content owners are becoming increasingly concerned that the fair use doctrine, codified in U.S. law under Section 107 of the Copyright Act, gives courts too much discretion in determining what is and is not infringing, resulting in a steady erosion of protected exclusive rights.

In a critical examination of the fair use doctrine that spanned across three Fordham IP Conference panels April 24-25, advocates for content owners suggested that the doctrine has been rapidly expanding in the United States in just the past 18 months. Specifically, fair use findings by U.S. courts in two mass digitalization cases and in an appropriation art case render the fair use doctrine virtually unrecognizable from what it looked like two decades ago.

“If we were operating under the fair use doctrine as it existed in 1993 then I would be perfectly happy,” David Carson, director of the International Federation of the Phonographic Industry, said. “My current take is that the discipline is gone now in U.S. courts with respect to fair use.” Carson accordingly cautioned other countries against importing the fair use doctrine without carefully considering whether it would serve rights holders' interests. Otherwise, the countries “may regret it after the fact,” Carson said.

Foreign Jurisdictions Eyeing Fair Use

Like the ongoing domestic review of the nation's copyright laws, many other countries are considering updating their copyright laws. For instance, Australia, certain European Union countries—the United Kingdom, Ireland and France—and Hong Kong are all taking a look at their copyright policies with an eye on making much-needed updates to streamline copyright policy for the digital age.

An April 25 panel titled “Copyright Revision Around the World” focused on these developments, featuring foreign and domestic stakeholders engaged in the review efforts.

Carson, who served as general counsel for the Copyright Office from 1997 until he took a position at London-based IFPI in 2012, said he was concerned that many jurisdictions appear to be fixating on the fair use doctrine and on expanding exceptions.

“The [Google Books] decision will have the effect of broad legislation, and that happening in a court setting is problematic.”—Terry Hart, Copyright Alliance

“In Europe we think the focus is a bit misplaced,” Carson said. “When we look at the copyright law we don't think the major problems are whether you need more exceptions. Rather, it is that the rights you have are impossible to enforce and that there is rampant infringement all around us.”

“We have also been focusing a lot on exceptions in our discussions in Australia,” Fiona Phillips of the Australian Copyright Council said of her country's copyright review efforts. “Another thing that I have been grappling with is the appropriateness of putting someone else's legal system into your domestic process without recognizing the nuances,” she said, referring to Australia's contemplation of creating a fair use exception to claims of copyright infringement.

In the United States, the nuances are actually a result of a complex and layered system that requires courts to balance the claimed infringing use against the fair use factors articulated in Section 107, 17 U.S.C. §107. Underpinning those factors, and often serving as a backdrop for the court's entire fair use analysis, is the First Amendment, which is itself a distinct American concept that would not necessarily be included in any importation of the fair use doctrine. But, even if a foreign jurisdiction could replicate the manner in which the doctrine has been used in the United States, it is not clear what, if any, impact the doctrine would make.

During the April 24 global review panel, Steven Tepp, president of Sentinel Worldwide, challenged the audience to “cite a case from a non-U.S. court where infringement was found, where it would not have been infringing under fair use.” None of the other panelists or any audience members came forward with such a case, suggesting, to Tepp at least, that there is simply no need for the doctrine to spread across borders.

Google Books Infringing in Europe?

The inverse of Tepp's question—whether an action that was deemed fair use by U.S. courts would be found infringing in other jurisdictions—yielded at least one result: Google Books. The district court's determination that Google's use of the full text of tens of millions of books for its online search function was noninfringing would certainly not have been reached in Europe, an audience member suggested.

During an April 24 panel on orphan works and mass digitalization, Tepp had suggested that the holding in Google Books, and the similar holding in the HathiTrust litigation, don't even necessarily align with U.S. copyright law.

“I think it is possible that at least one of those decisions will be overturned” by the Second Circuit Tepp said.

“It is aggressive copyright owners who are asking the court to legislate.”—Pamela Samuelson, University of California, Berkeley

During yet a third copyright panel, this one held April 24 to discuss fair use and free speech, Terry Hart of the Copyright Alliance said, “Google Books will set the stage for everything.” Hart's point was that the Second Circuit's ultimate resolution of whether Google's actions do or do not infringe will have far-reaching effects and will result in precedent that binds parties who are not involved in the litigation. “The decision will have the effect of broad legislation, and that happening in a court setting is problematic,” Hart said.

‘Aggressive Copyright Owners' Forcing Courts' Hands

Professor Pamela Samuelson of the University of California, Berkeley, who was a panelist with Hart during the fair use discussion, was quick to point out who she thought was driving the litigation.

“It is aggressive copyright owners who are asking the court to legislate,” Samuelson said. She noted that much of the existing fair use precedent, including Google Books and the Supreme Court's 1984 Betamaxdecision, is the result of content owners seeking to accomplish through litigation what they failed to get done through legislation. In those cases, “the courts were faced with novel infringement claims and they came up with rules” that would not stifle innovation or consumer rights, Samuelson said.

Fair Use: Too Flexible or Appropriate for Changing Tech?

Professor Bernt Hugenholtz of the University of Amsterdam said that the ability of U.S. courts to fashion rules that do not impede technology is one of the main reasons that other countries should consider adopting fair use.

“We need more flexibility in copyright in terms of exceptions and limitations in Europe,” Hugenholtz said during the April 24 fair use panel. “The accelerating pace of technological changes requires abstract legislation because legislatures simply cannot keep up with the changes.”

Hugehnoltz said that the problem was particularly acute in European Union countries since domestic laws must then be harmonized with EU laws, a process that can take more than 10 years. “That does not make detailed legislation that closely follows technology very workable,” he said.

But Carson, during the April 25 global copyright review discussion, said that the fair use doctrine in fact gives a court too much latitude to decide what is and is not infringing. Carson was specifically referencing a recent Second Circuit opinion that held that appropriation artist Richard Prince's works that were based on photographer Patrick Cariou's photographs of Rastafarians were transformative, and thus not infringing.

Carson noted that some of the photos that were found non-infringing were nearly identical to the originals, apart from the addition of a little bit of blue paint and the incorporation of other images, such as a guitar. Additionally, Prince's works were resized and so they were bigger than were Cariou's photographs, and Prince's appropriation art also fetched a much higher price than did the original images. Carson doubted that many copyright attorneys who practiced 20 years ago would, at the time, have considered Prince's art fair use.

Moreover, he noted that the court never identified how Prince's work transformed Cariou's photographs.

“The point is that fair use gives a court incredibly wide discretion to decide—for reasons that it may or may not reveal—what is and is not infringing,” Carson said.

“It is true that fair use has been given greater life in recent years and it is true also that fair use has evolved,” Samuelson said. “But I think that is what Congress intended in 1976” when it added Section 107 to the Copyright Act, she said.


To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com