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 which lawmakers of any country could pass new legal rights for uses of copyrighted works, as long as they properly weigh these three factors. In practice however, it has proven to be a regime that does more to restrain legislatures from enacting new protections against copyright restrictions, thereby protecting the rights of authors over the interests of society and the general public. Recognizing this, a group of renowned copyright academics released a declaration in 2008 urging policymakers to ensure that their interpretation of the test is balanced, ensuring that public benefits are properly weighed against commercial interests.

Though having such a framework is better than having no language acknowledging the interests of the users and other creators, a restrictive application of the three-step test could restrict fair use and other rights to protect innovation and access to knowledge. As it stands alone, the three-step test remains a vague and largely untested regime that is still very much open to legal interpretation. However, when it's paired with other copyright restrictions, enforcement mechanisms, and political realities, there is a threat that it will be used to stifle new rights for the public.

The TPP's Threats to Fair Use

The U.S. Trade Representative (USTR) first announced that it would include an exceptions and limitations framework in the TPP back in 2012, and they made much fanfare about the fact that it was extending fair use-like rights to the rest of the world. But when we saw the initial language through a leak shortly thereafter, we found that it was too weak to encourage broader adoption of fair use around the world. The version of the three-step test that the USTR was proposing was the most restrictive version of the framework, applying to all exceptions and limitations (not just reproductions) and that it should consider "the legitimate interests of the right holder" (not just the author's).

In early drafts, there was a proposal by several TPP countries to have existing exceptions and limitations to copyright extend to the "digital environment"—meaning, the Internet. This is kind of language that would have been hugely helpful for countries to have copyright rules updated for the 21st century. For example, one of the main issues in the case of a student who could face a prison sentence for sharing an academic paper online is that the national copyright rules, specifically exceptions to copyright for education and research papers, had never been updated for the Internet age. Unfortunately however, the proposal was ultimately removed from the agreement entirely.

Much like everything else in copyright policymaking, the weakening of public interest considerations in the TPP was a direct result of aggressive lobbying by the content industry. This was most pronounced when Hollywood groups pushed back hard against the USTR for revisiting some of these provisions ahead of one of the final rounds of TPP negotiations.

While there is still room for lawmakers to point to the three-step test language and justify passing some badly needed reforms, also troublesome is how the provision sits within the context of the other copyright rules elsewhere in the agreement. There's the provision on whether signatory nations' laws should balance the needs of rightsholders and the public interest. The language says that countries only "shall endeavor" to achieve a balance in their copyright rules. This could have been a strict requirement that lawmakers consider the interests between creators and rightsholders on the one hand, and the general public on the other and could have been used by lawmakers to codify fair use or other strong user rights protections. The final language is much weaker, and therefore is much less useful for those who fight for more balance in copyright at the domestic level.

In the Investment chapter of the TPP are investor-state rules which empower corporations to challenge national laws and rules that undermine their investments and profits. The TPP broadens the definition of investment to include intellectual property. This threatens to pave the way for companies to allege that even rules creating new affirmative rights for people to use creative works could be targeted by an investor-state challenge and essentially be deemed an expropriation of the companies' investments by the government.

What could that mean in practice? In the U.S. that could mean a new court ruling extends the scope of fair use, perhaps by finding that copyrighted works could be used in a personal video in more cases than we previously understood. In theory, the foreign company that sued the person for the "unauthorized" use of their copyrighted work could challenge the court ruling itself, under the TPP's investor-state rules, and point to the three-step test to claim that the national ruling undermined their investment in their copyrights.

The same, of course, also applies to other countries. Australia has already been sued by a company that claimed the country's plain cigarette packaging laws interfered with its trade mark rights. There is every likelihood that a similar lawsuit could be brought by a foreign investor claiming that a country's reforms to its copyright law undermine the value of the investor's copyright works.

Conclusion

The TPP highlights a major challenge in the movement to create more robust, flexible safeguards for users, educators, students, authors, and the rest of the public to use copyrighted works in various important ways. While the language in the TPP does not explicitly constrain signatory countries from enacting fair use in the future, the agreement as a whole does almost nothing to guarantee that lawmakers will be compelled to enact it in their countries. This has happened even while the need for fair use has become increasingly urgent as we increasingly experience and use creative works through digital devices and platforms.

Policymakers need to recognize how vital fair use is for the Internet given how restrictive and lengthy copyright has become. Instead of approaching fair use and other flexible exceptions and limitations to copyright as an afterthought in their policymaking, we cannot let such an important safeguard for free expression, innovation, and access to knowledge and culture become neglected by international law.

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This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.