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.

*This is a guest blog post by Jonathan Band, policybandwidth*

The “balanced copyright” provision of the original Trans-Pacific Partnership (“TPP”) Agreement has been included in the successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), negotiated by the remaining TPP parties after the United States pulled out of the TPP. However, it appears that the U.S. government is opposing the provision’s inclusion in the North American Free Trade Agreement (“NAFTA”), currently under renegotiation. This is ironic given that the United States originally proposed inclusion of the provision, based on the U.S. fair use doctrine, in TPP. Thus, the eleven parties to the CPTPP now appear more dedicated to a U.S. legal principle than the United States itself.

TPP

Article 18.66 of the IP chapter of the TPP required each party to “endeavor to achieve an appropriate balance in its copyright and related rights systems.” This balance was to be achieved by means of limitations and exceptions that gave “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise disabled.”

The United States originally proposed this language during the July 2012 round of TPP negotiations in San Diego, CA. (See here for more detailed discussion of the development of Article 18.66.) The provision’s list of legitimate purposes was based on the list of purposes in 17 U.S.C. 107, which codifies the fair use doctrine. The U.S. explained that “[t]hese principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

Twelve countries, including the United States, signed the TPP on February 4, 2016. On January 23, 2017, the day after his inauguration, President Trump withdrew from the TPP, which had not yet come into effect.

CPTPP

The remaining eleven TPP parties—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam–agreed on a revised TPP on January 23, 2018. The new agreement, named the CPTPP, is largely the same as the TPP, except that the parties decided to suspend 20 provisions that had been demanded by the United States in the TPP. With respect to copyright, the parties suspended the provisions relating to copyright term, circumvention of technological protection measures, and safe harbors for Internet service providers. Significantly, the parties did not suspend the balanced copyright provision, even though it had originally been proposed by the United States. Thus, the eleven CPTPP countries have obligated themselves the endeavor to achieve an appropriate balance in the copyright systems.

NAFTA

Once President Trump announced that the United States would renegotiate NAFTA, it was assumed that the United States would use the TPP IP chapter as the template for the new NAFTA IP chapter since Mexico, Canada, and the United States had already agreed to that language in TPP and the TPP IP chapter reflected so many of the U.S. demands. Nonetheless, the copyright industries launched a lobbying campaign against incorporation of the “balanced copyright” and ISP safe harbor provisions.

The Copyright Alliance, for example, asserted that while it “believe[s] in a ‘balanced’ copyright system,” the “concept of ‘balance’ is actively being twisted and used as a vehicle for weakening copyright protections….” For this reason, it is “skeptical about including this type of language in a trade agreement.” Similarly, the Recording Industry Association of America (“RIAA”) argued that “efforts to export the American fair use exception are particularly troubling.” Accordingly, RIAA believed that the United States should not support “broad provisions that could diminish, or otherwise generate legal uncertainty with respect to, the three-step test.”

However, there is no evidence that the concept of balance is being twisted or that the export of fair use would lead to uncertainty or the weakening of copyright protection in a troubling manner. The example of Israel is instructive. Israel adopted a fair use provisions similar to 17 U.S.C. 107 in 2007. Since then, Israeli courts have applied fair use stringently. They have imposed a fifth factor not included in the statute: the defendant must provide attribution to the author. Moreover, Israeli courts have found fair use at a lower rate than U.S. courts. Thus, the Israeli courts’ implementation of fair use demonstrates that U.S. copyright owners have nothing to fear from the export of fair use. In any event, TPP article 18.66 does not require adoption of a fair use provision; it simply imposes an obligation to endeavor to achieve balance.

Balance as a Traditional Contour of U.S. Copyright Law

An even more unreasonable objection to a balanced copyright provision in NAFTA appeared in a letter to U.S. Trade Representative Robert Lighthizer, by twenty-five conservative organizations. These groups, which have no knowledge of the copyright system, urged the USTR “to reject calls for NAFTA to include ‘users’ rights,’ which was manifested in the Obama-era concept of copyright ‘balance.’”

Contrary to the letter’s suggestion, copyright balance is not an “Obama-era” concept. Rather, it is a principle the U.S. Supreme Court and courts of appeals articulated repeatedly long before the Obama Administration.

Thus, the Supreme Court in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989), observed that the Constitution’s intellectual property clause “itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’”

In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), the Supreme Court stated that “Congress has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or inventors in order to give the public appropriate access to their work product…[T]his task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other….”

In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005), the Supreme Court recognized that the copyright law maintained a “balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.” The Court noted that “[t]he more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.” Id.

The federal courts of appeals likewise have recognized the concept of copyright balance. The Second Circuit stated that “the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other hand, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992).

Similarly, the Fifth Circuit wrote that in the Copyright Act “Congress balanced the competing concerns of providing incentive to authors to create and of fostering competition in such creativity.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).

The Federal Circuit, referring to the Digital Millennium Copyright Act, a statute criticized in the December 18 letter, noted that in enacting the DMCA, “Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products.” Chamberlain Group v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The court observed that under the plaintiff’s interpretation, which would have “eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized.” Id.

It is curious that a group of conservative organizations would disparage users’ rights in favor of what the Supreme Court has described as a government granted monopoly. It is even more curious that these organizations would suggest that exceptions and limitations such as fair use “should be contracting, not expanding, in the digital age.” After all, the Supreme Court in Eldred v. Ashcroft, 537 U.S. 186, 219 (2003), explained that fair use is one of the “traditional contours of copyright protection that acts as “a built-in First Amendment accommodation[].” Surely these groups support the First Amendment—and that is what the concept of balanced copyright is all about.