The Murky Waters of International Copyright Law

Protecting Fair Use from the Trans-Pacific Partnership

Copyright is too often used to stifle speech and restrict common sense uses of creative works, from books, to films, textbooks, images, and music. That's why we need exceptions and limitations to copyright, to serve as a safety valve against these kinds of abuse. Fair use is the most robust framework to permit uses of copyrighted material without permission from the creator or rightsholders. The United States is particularly known for having a strong, court-tested fair use regime, enabling all kinds of uses and innovation to thrive on the Internet.

Even though it has been so critical in the U.S. however, fair use is not strictly integrated into international law—nor, for that matter, any of the trade agreements the U.S. itself has negotiated with other countries. Most relevantly, the Trans-Pacific Partnership (TPP) trade agreement carries a framework for governments to enact exceptions and limitations in their laws. That could be enough to justify the introduction of fair use in all the participating countries, but it's far from a straightforward obligation unlike any of the pro-rightsholder restrictions that the agreement contains otherwise.

So this is a quick overview of how fair use is enshrined in international law. Besides the content industry blocking user-oriented reforms to copyright on all fronts, we will look at the TPP as an example of how global copyright agreements can hold countries back from enacting strong, flexible protections for our rights to use and modify creative works.

Expansion of Fair Use Around the World

Fair use was originally a common-law doctrine in the U.S.—meaning it was a right formulated through court precedent until it was formally incorporated into U.S. law in 1976. The U.S. version of fair use outlines some purposes that are explicitly allowed, such as for commentary, criticism, and parody. It also empowers federal judges to weigh four factors about the given use of a copyrighted work to determine whether it's protected speech: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market.

Over time, a body of case law and established norms have been built in the U.S. to clarify the legality of some uses, such as educational purposes and quotation of copyrighted works and the transformative use of works in new technologies. The latter purpose became vital for countless Internet services and platforms, such as search engines that scan and index online content to display to users.

As fair use proved to be fundamental to free speech and the digital economy in the United States, several countries followed suit. Countries such as Malaysia, Singapore, Israel, Canada, and South Korea have enacted their own versions of flexible exceptions and limitations to copyright. While others such as Australia, South Africa, Ireland, and the European Union are in the midst of reviewing their copyright rules and are considering the adoption of their own fair use-like regimes.

Amid these national discussions on expanding fair use is the debate about whether a flexible system of copyright exceptions and limitations complies with existing international law. When South Korea amended its laws in 2012, a major point of contention was whether the introduction of fair use there would fall out of line with obligations under the Berne Convention or its trade agreement with the United States. Specifically, the question was whether South Korea's version of fair use was consistent with the "three-step test."

The Three Step Test Explained in Simple Terms

The three-step test is in broad terms similar to the four factor test of “fair use”; it is a set of criteria that copyright exceptions and limitations must satisfy, intended to represent a fair balance of interests between creators and rightsholders and the interests of the public. It first originated in the 1967 revision of the Berne Convention but it has appeared in almost all international agreements on copyright since. The language and application differs from agreement to agreement, but they all contain the three basic parts: that the exception to the (copyright) rule must be 1) limited to "certain special cases," 2) that they do not "conflict with the normal exploitation of the work", and 3) do not "unreasonably prejudice the legitimate interests" of the author or right holder. While the first iteration from 1967 only applied to the right of reproduction and to the legitimate interest of the author, the modern version of three-step test has expanded to apply to all new exceptions and limitations to copyright and covers the "right holder" rather than, simply, the author.

Like fair use, the three-step test ought to be a flexible standard by whic