If You're Promoting Copyright Without Fair Use, You're Promoting Out And Out Censorship

A couple of weeks ago, we wrote about how the Sony email hack revealed the MPAA's true position on "fair use," which was that it was "extremely controversial," and the MPAA didn't want it included in various trade agreements. It was amazing to see some in our comments and on Twitter attack this concept, by arguing that "fair use" is really some sort of nutty code word for "piracy." Others, bizarrely, argued that pushing for fair use was some sort of "cultural imperialism" (as opposed to extending copyright and patent maximalism, which apparently has nothing to do with such cultural imperialism...). Geoffrey Manne jumped in with a (only slightly) less ridiculous critique, trotting out the usual talking points of copyright maximalists on why we can't have fair use in trade agreements (even if we can and do have extending copyright terms, enhancing copyright penalties, intermediary liability, and a variety of other things included in those agreements). First, he goes with the whole "fair use is piracy" ridiculousness:

Including such language in TPA would require U.S. negotiators to demand that trading partners enact U.S.-style fair use language. But as ICLE discussed in a recent White Paper, if broad, U.S.-style fair use exceptions are infused into trade agreements they could actually increase piracy and discourage artistic creation and innovation — particularly in nations without a strong legal tradition implementing such provisions.

This, frankly, is hogwash. There is no indication in any manner whatsoever that having fair use discourages artistic creation and innovation. That's simply ridiculous on its face. After all, the US currently does have one of the most permissive fair use systems (although it's still way too limited), and it's difficult to find anyone arguing that they're not creating because of all that fair use breaking out. Instead, we're in the golden age of creative content, with more people creating more content than ever before. The idea that fair use would suddenly scare people away from making content is so laughable that it really takes away any credibility Manne might have on the issue. Next, he argues that because of the TRIPs agreement, we already have fair use in our trade agreement, known as the "three step test." And, indeed, as we discussed back in 2012, the USTR, for the first time, did agree to include a reference to the "three step test" in the TPP. But (and this is the important part), the three step test is not about including fair use, or mandating or recommending fair use, rather it is entirely about limiting fair use. That's why the three step test opens with how members are limited in how they can implement fair use rights:

Members shall confine limitations or exceptions to exclusive rights to

1. certain special cases, which
2. do not conflict with a normal exploitation of the work and
3. do not unreasonably prejudice the legitimate interests of the right holder.

That's not fair use by any stretch of the imagination. That's seeking to keep fair use to a minimum. The next point is a really common one -- that was used to block fair use in the UK (and was also brought up in Australia when that country moved towards fair use last year) -- saying that because fair use in the US relies heavily on common law/case law, it's basically impossible to implement anywhere else. However, as Matt Schruers explains in a wonderful blog post over at the Disruptive Competition Project, that makes no sense at all:

Another argument that Manne offers against encouraging balanced copyright abroad is that civil law countries cannot interpret principles like Section 107-style fair use, which are informed by common law. Legal scholars may