Fair Use and Its Politics – At Home and Abroad

The manuscript explores how U.S. fair use – a “standard” in a world of statutory copyright rules – has become an arena of ideological struggle over IP policy.
At the international level, this debate frequently plays out in terms of how 17 U.S.C. 107 complies with or fails the “three-step test” of Berne and TRIPS. This manuscript reasons that asking whether section 107 complies with the three-step test is asking the wrong question: section 107 structure is not an exception – it is a mechanism to establish particular exceptions. When the fair use doctrine works properly, it produces discrete de facto exceptions, such as parody following Campbell or intermediate copying in the software context following Sega and Connectix. Section 107 is almost certainly ‘compliant’ with the three-step test; it is particular applications of the doctrine that might attacked in the future as failing the three step test.
The manuscript also describes how fair use has proliferated – in different permutations – to other jurisdictions, including Singapore, South Korea Sri Lanka, and Israel, as well as to more recent international agreements.

Justin Hughes

Loyola-LA Legal Studies Paper

2015

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