Campbell conference: Justin Hughes keynote

Closing Keynote Address: Justin Hughes
In a world of complex laws, like tax regulation, everyone likes the idea of a rule that’s both general and exculpatory—fun and safe because when you’re applying a multifactor test it’s very difficult to be clearly wrong. But fair use is also notorious because it’s a principal arena in the struggle between proponents and opponents of IP. The doctrine has an unstated and perhaps unconscious idea: the open ended possibility of the negation of copyright protection.  This is the source of fair use’s popularity among digerati and the source of the fear copyright owners have of fair use.
Don’t you mean an open-ended regulator of copyright protection where protection doesn’t advance the underlying purposes of ©?  No.  It’s a kill switch.  It’s not a device to withdraw © protection in all circumstances, at least not in a way we could make a policy decision about. It’s an iterative process, endless rollercoaster of expensive litigation. That’s what makes it a little bit scary but fun.
Many of us are concerned about how transformativeness has become so malleable, so dependent on what judge had for breakfast, that the twists and turns are getting quite wild. He thinks the doctrine will eventually sort this out, but wants to give a cautionary tale.
Where he doesn’t disagree necessarily w/result, but w/use of transformativeness: use of expert’s CV in legal case.  Consider SOFA Entertainment v. Dodger Productions: 7-second clip of the Ed Sullivan show introducing Four Seasons used in the musical Jersey Boys, projected onto the screen before the actors began performing. Court found transformation: used as biographical anchor and its biographical significance gave it new meaning, not just used for entertainment value. Clearly both works are works created and distributed/performed for their entertainment value.  Clip conveys mainly factual information about the group about to perform.  He doesn’t see any way you can say there’s a tremendous transformation: it was biographical/informational when it was originally broadcast.
Monge v. Maya district court is a poster child for transformativeness wandering the desert: four federal judges reached three different conclusions in a relatively simple case.  Monge, a Latina star, got discreetly married; a story ran about the marriage with photos. DCt granted sj on fair use; 9th Circuit reversed over a vigorous dissent.  The dct found it transformative: photos were used not in original context, documentation of wedding night, but rather at confirmation of the accompanying text challenging repeated denials of the marriage.  Ct of appeals found only marginally transformative.  There’s mere wordplay to say that photos are transformed from documentation of wedding to confirmation of text saying people are married.
Then there’s White v. West, which seemed to conclude that putting something in a comprehensive database is grounds for a transformative use.  WW Norton would never have to pay for a royalty again in its anthologies!  Thus he is concerned that recent jurisprudence on transformativeness is becoming unwieldy. Not saying that the decisions are wrong, just that they were achieved the wrong way.
Low protectionists may see this as a good thing and even call for further expansion of transformativeness. Lea Shaver: translation should be recognized as transformativeness. But that would conflict with Berne Art. 8. 
Berne 9(2)/Trips Art. 13 is the three step test.  WTO dispute resolution panels say we apply it as it reads, with three steps: (1) certain special cases, (2) no conflict w/ normal exploitation, (3) no unreasonable prejudice to legitimate interests of right holder.  Lunney’s unitary analysis is popular with academics in Europe who think current version is too restrictive. Interpreted this way, defenders of copyright see three-step test as lynchpin of copyright/critics see it as Darth Vader.
Is the American fair use doctrine as embodied in §107 compliant?  I have always thought the answer is yes. I still think the answer is yes, though I was initially too simplistic.  Back in 1988, on accession to Berne, there was a lively debate about compatibility of American copyright with Berne; we gave up formalities.  Then there was fair use.  In 1988, then general director of WIPO, identified formalities as the only real incompatibility with Berne, suggesting that fair use was no problem. Six years later, the WTO was created and TRIPS extended the three step test to all exceptions and limitations in ©.  Absolutely no diplomatic fuss over whether US law would be compliant.  In early days, a few countries questioned the US about fair use.  Standard US response: while §107 may appear indeterminate, carefully developed 150 years of case law assures that §107 meets the requirements of the three-step test. 
More countries have adopted provisions at least inspired by §107: Sri Lanka, Singapore, Israel, South Korea and the Philippines; arguably Uganda, and Canada is moving in that direction. Not sure whether it’s a good thing for developing countries.  Their local judicial institutions may not be developed enough to exercise a balanced application of the doctrine. Makes WTO challenge to §107 more difficult, politically and probably juridically. Vienna Convention on Treaties: a treaty shall be interpreted in good faith in accordance with ordinary meaning and in light of subsequent practice.
But Ginsburg and Besek raise legitimate issues.  §107 passes the test because it is not an exception to be judged under the three step test. It is a mechanism to establish exceptions.  When significant courts rule the same way, or when the SCt weighs in, the result is a pretty clear rule. A little exception: e.g., parody.  At least as clear as the codified parody exceptions that exist in other countries.  Sega v. Accolade/Sony v. Connectix: an exception has clearly been established for intermediary copying to produce a new work.  With fair use we entrust judges to craft new exceptions to our copyright law, just as the Chinese court can issue sweeping interpretations of IP laws if the People’s Congress doesn’t act. TRIPS doesn’t require national legislatures to write the rules (though Berne does). WPPT and Beijing treaties likewise just say it’s for the members to do; WCT has a weird straddle. 
But Ginsburg and Besek have a point.  A whopper of a fair use decision could trigger a challenge, and the case would be about that decision/that new exception in American copyright law. As-applied challenges are possible. A broad fair use application to foreign works could trigger that showdown. Many in Geneva think only a SCt decision could be subject to dispute, but others think that the court of appeals should also possibly allow WTO proceeding.  Could be brought by someone we’re always dragging to the WTO as retaliation (China).
At the domestic level, our judges should be cognizant of our treaty obligations, properly interpreted: Charming Betsy doctrine.  An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Congress regards IP treaties as non-self-executing—adamant about that w/Berne, TRIPS, and 1996 internet treaties. But many reasons related to separation of powers still exist to give effect to Charming Betsy: if a court believes that one interpretation “could” violate the three-step test, it should go with a different interpretation. 
Campbell: March 1994; TRIPS signed April 1994, effective Jan. 1995. We haven’t had a SCt fair use case since. Interface of foreign/domestic obligations will get more interesting over time.
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