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

A couple 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 disagree (see n.25), pointing out that civil law countries are perfectly capable of, and often do consult prior case law, not for precedent, but for its interpretive value.

In fact, civil law countries have long wrestled successfully with open-ended principles in international agreements. For example, copyright’s idea/expression dichotomy is similarly developed by common law, and yet we’ve inserted that into the TRIPS Agreement and the WIPO Copyright Treaty, both of which have numerous civil law signatories. If inserting principles interpreted through common law into trade agreements would cause the international IP system to grind to a halt, it would have happened twenty years ago.

The condescension towards the idea that countries can't figure out their own ways to apply fair use is really ridiculous. The US figured it out, and other countries can as well, even if they're civil law countries.

Schruers, in his post, takes on another ridiculous attack on putting fair use in trade agreements, this one proffered by Justin Hughes, who has been instrumental in trying to convince the government not to include fair use in trade agreements. In that argument, Hughes says that if fair use supporters really believe it gives an advantage to innovation, then we shouldn't want to export it in a trade agreement, because it's giving us an advantage:

If one believes that the fair use doctrine has been a central element in the innovation environment that has made Silicon Valley wildly successful, why would we want to promote other countries adopting a policy that, by this account, is a competitive advantage?

But, uh, doesn't that strike at the rationale for any and every free trade deal? For people who believe in free trade, we should want to export the tools that lead to greater innovation because it makes the overall pie much larger. Hughes argument is one against free trade, and he's bizarrely pushing it as a reason for why we should include this blatantly protectionist idea, by keeping it out of a supposed "free trade" agreement. The mind boggles.

But, really, what it all comes down to is this: the Supreme Court itself has repeatedly said that fair use is the "safety valve" that makes copyright law compatible with the First Amendment. Without it, copyright law would be illegal. Many of us, of course, believe that the valve is screwed way too tightly, and that it needs to be loosened, since free expression is regularly stymied by abusing current copyright law. But, either way, it should be clear that fair use is, without a doubt, a key element in any copyright regime. Without it, you have undermined free expression and enabled out and out censorship.

If the US is really trying to export its ideals in agreements like the TPP (and yes, the answer here may be that we are not), then it must include a mandate for fair use if it is going to include a mandate for copyright. The two have to go hand in hand or you are advocating for out and out censorship.

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