“I have previously expressed my views that Parliament should expand the existing fair dealing exceptions in the Act in certain special cases, where justified, rather than delegating important decisions affecting the public interest to the courts.”

But what happens in the interim period – i.e. there is an “untested” use that Parliament has not yet considered? The very fact you talk about “special cases”, means you do feel that the list of specific “fair uses” cannot be all encompassing ex-ante – even though some of those uses are justifiably “fair”. This means that until such time parliament acts, the presumption is that that *every* use that is not *already* marked as a “special exception” is NOT “fair use” and therefore an illegal violation of copyright. This is a bizarre position to take. Therein lies the problem.

I certainly agree that “uncertainty” is not good and the more “clear” guidance on what is fair and what is not “fair use” is required. But your method is not the way to go about it. The best way would be to have “special cases” constantly updated by parliament in order to eliminate legal ambiguity, but ALSO allow general fair use determinations by the courts (based on the 4 factor test), until parliament takes a view that contradicts with the courts, in which case the laws can effectively be adjusted retroactively.

The benefit of the method I propose is that it would allow more certainty in terms of what uses are fair, but also not crush innovative untested ideas that don’t fit neatly into the specially carved out exceptions.

I’m not sure I understand your argument that fair use is a chill on innovation. Assume you remove the fair use provisions from U.S. copyright law, then it is certain whatever use your startup was proposing would be infringement. There would be absolutely no possibility of using works in the way the startup is proposing. It seems better, in my opinion, that there be a possibility that a use is fair rather than being absolutely certain it is infringing. Presumably, if the startup was willing to create a business based on this use, then it sees that use and the technology that enables it as having some value.

The obvious retort is licensing. In a Coase-compliant world, this is always good argument; in the real world it is much less so. First, what are the chances a startup is ever going to be able to negotiate favorable terms from large content companies? Second, there is always the possibility that rights owners will want to veto innovative ways to consume works – history is almost unanimous is baring this out.

Ex ante certainty is not always workable or desirable. Certainly, with constitutions, ambiguity is necessary and good. While lawyers, lobbyist and activists are prone to be captured by their clients or causes, we must always remember that copyright laws, like constitutions, are striving for balance. No one is entitled to any particular business model or revenue stream, regardless of whether you’re a rights owner or a user. With technology and new uses evolving at the clip they do, it would be wise to leave in some flexibility for the law to adapt to changing circumstances. Parliament does not move fast – how many years has copyright reform been in the works?

As a sidenote, thank you Barry for the interesting journal articles in your comments.

I am a Canadian writer and I do not endorse the wildly over-reaching, absolutist statements made in the position paper signed by (among others), SOCAN, the Crime Writers Association of Canada, and so on.

These groups advertise themselves as representing the constituencies reflected in their names, but in fact, there is little real evidence that the majority of (in these cases) Canadian recording artists, writers or other creative content artists, would agree with the highly American-oriented view of “intellectual property protection” that you seem to be promoting, if the facts on both sides of the issue were honestly related to them.

In summary, sir, “you don’t speak for me”. It is very frustrating to hear someone constantly representing himself as so doing, when in fact our philosophies are so at variance with each other.

Some academics have taken the view that the U.S. fair use system can be interpreted in such a way to be in compliance with the three-step test, arguing that the U.S. system is a ―special case. The question of whether the United States has ever tested its fair use regime to Berne also remains a matter of debate. When the United States acceded to Berne in 1988, both the House and the Senate took the position that Berne was not self-executing, meaning that the application of the treaty to the United States was limited to that in the implementing legislation: U.S., ―House Statement on the Berne Convention Implementation Act of 1988‖, Congressional Record (Daily Ed.), October 12, 1988 at PAGE H10095. Respected scholars have concluded that since none of the acts of legislation implementing Berne or TRIPS alters fair use, the United States may have relied on the international law principle to allow it to ―reserve matters relating to fair use to the sovereign control of the United States. In the American context, this option may have been the only feasible outcome to avoid the chaos that would have resulted from a wholesale conversion of the fair use standard to a foreign model: Dan L. Burk, Julie E. Cohen, ―Fair Use Infrastructures for Rights Management Systems― (2001) 15 Harvard Journal of Law & Technology 41 at 77. The realpolitik view is that given US dominance in international copyright matters it is highly unlikely that the Dispute Settlement Body of the WTO would ever declare the US fair use provision to be incompatible with TRIPS. See footnote 73 of the Joint Submission which deals with this point in more detail.

1.Thanks, Barry, for quoting my article. However, the link you put in is to my Copyright and Technology blog’s home page, not the actual article on Fair Use. The actual article is available at: http://copyrightandtechnology.com/2010/02/19/thoughts-on-fair-use/.

2. As a naive south-of-the-border guy, I would be interested to know who is proposing to add “four principles” based Fair Use into Canadian law. Is it the entertainment industry? Leftist legal academics or advocacy groups analogous to Public Knowledge in the US? I gather from this article that actual content creators are not in favor. I find that so much can be determined by simply understanding where the lobbying is coming from. For example, the Public Knowledge proposal, and the Copyright Alliance response to it, that you cite are prime exemplars of the above. Public Knowledge is best considered as copyleft academia’s Washington DC branch office. The Copyright Alliance is a lobbying group representing a cross-section of media industry interests. Both have vested interests in keeping Fair Use vague and incomprehensible to non-experts.

3. To Mr. Alleyne: To understand how Fair Use chills innovation in the US., read the entire article I wrote (link above). Briefly: I am a consultant who works with (among others) startups. They sometimes consider doing things with copyrighted content that someone with expensive lawyers (i.e., a media company) might consider to be a copyright violation while someone else (the startup company) might consider to be Fair Use. Given that it’s a startup company with limited funds and nervous investors, the usual outcome is that they just give up and don’t even try. That’s a chill on innovation. Users should absolutely have rights — notice that nowhere in the above discussion of interests behind proposed changes to copyright law are the interests of regular people represented — but my point is that flexibility is the wrong direction. Specificity is what’s needed, which is the diametric opposite of flexibility. That way not only do you get to drive the car, you will know what the speed limit is so that you can make your own choice about how fast to drive with knowledge of your risk of getting a speeding ticket. The way it is now, the speed limit is something that you have to hire a lawyer to get a court to decide, after you’ve already driven your car on the road.

My point is that not a single government is actually making this accusation. The Americans themselves, who are the biggest trumpeters of treaty obligations these days are making no noises about changing this. This must mean that they consider themselves to be compliant. And others do as well. Why else would no one be demanding they change their laws. Heck look at the grief we get for having not changed out laws to confirm to WIPO after 10 years. Its been over 20 since the Americans supposedly did ratify Burne. Did they ratify it or not?

I guess my basic point is this. If you are going to argue that we can’t adopt ‘fair use’ because it would violate our treaty obligations, should you not also (and even more vocally) be arguing for the US to drop fair use? Should not our ratification of WIPO and continued participation in ACTA be contingent on the Americans, making the necessary changes in their laws to be compliant with Berne? I mean WIPO uses Berne as a base.