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.

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