Media giants start whisper campaign to kill Fair Use

William Patry, the Google lawyer who formerly worked for the US Register of Copyrights, has a blog-post in which he outs a global anti-Fair-Use "whisper campaign" orchestrated by the big entertainment companies. The big media companies are trying to convince the world's governments that the USA's statutory exceptions to copyright (embodied in Fair Use) are so broad that they violate the centuries-old Berne Convention, a widely adopted copyright treaty. Berne is extremely rigid, and what's more, it's nearly impossible to update, since any amendments to it require signatures from all the governments that have signed it since the 1800s. Further, accession to Berne is a condition of many other trade agreements, so many countries are required to adopt Berne laws.

If the entertainment giants can convince the world's governments that Fair Use violates Berne, it might mean that the US will be forced by a trade court to eliminate it in favor of something far more restrictive.

The counter-reformation movement is presently at the stage of a whispering campaign, in which ministries in countries are told that fair use (and by extension possible liberal fair dealing provisions) violate the "three-step" test. And who wants to violate the three-step after all? The appeal by counter-reformation forces to external and abstract concepts like the three-step test is a time-worn tactic: when you can't win on the merits, shift the debate elsewhere to grounds on which you think you can win. Given that few ministry officials are experts in copyright law, much less arcana like the three-step test, these appeals -- made by those who claim to be such experts -- can be effective. They shouldn't be. National governments should make policy decisions based on the merits of the proposals, free from such scare tactics. The three-step test is not a bar to a single proposal of which I am aware.

The biggest of the three-step scare tactics is that Section 107 of the U.S. Copyright Act is incompatible with the test. Baloney. WIPO and European copyright experts testified before the U.S. Congress during the hearings on U.S. adherence to Berne, hearings that spanned four years: 1985, 1986, 1987, and 1988: there was no lack of time or opportunity to raise any concerns. Congress even went to Geneva and convened a round table discussion there on November 25 and 26, 1987 with WIPO and European copyright experts, the sole purpose of which was to determine which parts of U.S. law needed to be amended to permit Berne adherence. Not once at this round table or during four years of hearings were the words "fair use" ever raised by a foreign expert who appeared before Congress nor did any domestic witness (of whom there were many dozens) consider there to be a potential problem. (A transcript of the round table is reproduced in the House Hearings: "Berne Convention Implementation Act of 1987, Serial No. 50, 100th Congress, 1st & 2d sessions 1135- 1213(1987, 1988)). I can say from direct experience of having been involved in these efforts at the Copyright Office that I never heard a single European expert claim there was a compatibility issue with fair use.

Link (via /.)


  1. the US will be forced by a trade court to eliminate it in favor of something far more restrictive

    Well, no worries then. As the Antiguan gambling and Canadian softwood lumber cases have shown, then US eliminates treaty-banned practices by doing nothing then saying they’ve moved into line.

  2. Someone writes a book called “Boing Boing” and uses the contents of this site for material without compensating you. How do you respond?

  3. @3: Someone posts a ridiculous loaded hypothetical that’s totally unrelated to the post: what do you do? Dismiss the hypothetical and ignore the straw-man

  4. (post lost to sign-in/wrong text message)

    Suppose the bad guys win. Utterly. What scenarios ensue?

  5. @6: Fair use was encoded by Congress based on a finding in a federal court in Folsom v. Marsh. This finding based fair use on common law. Congress is free to change the law at will, but the case would likely then again move through the court system. I think it would be difficult for fair use opponents to ward off the First Amendment arguments, especially at the Supreme Court level.

  6. Killing fair use would be the most effective measure I can think of for the media conglomerates to destroy what’s left of Americans’ respect for the concept of copyright.

  7. I don’t think this is about eliminating fair use in America (though the MAFIAA undoubtedly get hard-ons thinking about the possibility), but rather about ensuring that countries that have been forced to adopt DMCA-style laws by the WIPO treaty and are now looking at adopting fair-use-like doctrines to counterbalance them don’t do so.

  8. This is typically outrageous misinformation by the major media corporations lobbying groups. The Berne Convention is a declaration of human rights. It is to protect people from, among other things, slavery. Thank God it can’t be changed easily!

    Copyright, at least in the rest of the world, is a human right. It’s about artists being rewarded for their contribution to society. The Berne Convention said that artists cannot have their ideas and creations stolen from them by publishers. Of course, in the USA, copyright has been turned on it’s head and is about protecting corporations who steal artists rights.

    Is the US in violation of the Berne Convention? Damn straight it is. Because US law allows corporations to steal copyright from creators (particularly in audio/visual media). But don’t expect the lawyers for the big corporations to talk about that. (For more information go to:

    Fair use is also a human right. There is nothing in the Berne Convention against it. This is like a magician waving one hand to distract you from what the other is doing. I wouldn’t be surprised if half the purpose of this whispering campaign is to try to convince people that the Berne Convention is somehow a bad thing. There is a reason the US didn’t sign it until the late 1980’s (long after just about every other democracy and modern government had). They didn’t, and still don’t, want artists to have any rights. And they are willing to lie, cheat and steal to make sure that doesn’t happen.

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