In civil law countries, exceptions to rights don't take the form of fair use, but rather statutory provisions that spell out the permitted conduct. This approach has some problems, though, principally rigidity: if something is not specifically enumerated, it is usually deemed excluded at least with respect to the provision in question. The U.S. has such provisions too, like Section 108, but then we also have the safety valve of Section 107. Fair use is designed to (but doesn't always in practice) provide the type of flexibility that specific exemptions don't. Even other common law countries, like the UK, Canada, and Australia, have migrated away from fair use and toward fair dealing and specific provisions. A current debate on Australia is over whether to have a mix of fair use or instead fair dealing and exemptions.
Many U.S. copyright buffs have an antipathy to the civil law approach, believing it too narrow, and in particular cases, it may be. But not always. Civil law countries tend to have more generous personal use exemptions, and a more consumer-oriented attitude. In the absence of such provisions here, we fall back on fair use, which would be fine if courts took seriously the doctrine as an integral part of our copyright scheme. The Mp3.com case for example is one example of an epoch failure. That failure still haunts us, and what made me recall this failure is a posting by Fred von Lohmann below:
For any who missed the Walmart - Warner Bros deal announcement -- now
it's official, they want us to pay again for a copy on an iPod. And
here I thought they were going to just roll out "Managed Copy" and
let us have our personal-use copies for free. Silly me. They keep
this up, and mainstream consumers are going to start getting angry...
Stealing Fair Use, Selling It Back to You
"Apparently, Hollywood believes that you should have to re-purchase
all your DVD movies a second time if you want to watch them on your
iPod." That's what I said last week, commenting on the Paramount v.
Load-N-Go lawsuit, in which Hollywood studios claimed that it is
illegal to rip a DVD to put on a personal video player (PVP), even if
you own the DVD.
Well, this week the other shoe dropped. According to an article in
the New York Times:
"Customers who buy the physical DVD of Warner Brothers¹ ³Superman
Returns² in a Wal-Mart store will have the option of downloading a
digital copy of the film to their portable devices for $1.97,
personal computer for $2.97, or both for $3.97."
So you buy the DVD, and if you want a copy on your PVP or computer,
you have to pay a second time. Despite the fact that you bought the
DVD, and you have a DVD drive in your computer that is perfectly
capable of making a personal-use copy. Imagine if the record labels
offered you this "deal" for every CD you bought -- pay us a few
dollars extra, and you can have a copy for your iPod. And a few more
dollars, if you want a copy on your computer, too!
This latest bitter fruit from Hollywood is brought to you by the
DMCA, which treats "protected" content (like the encrypted video on
DVDs), differently from "unprotected" content (like every audio and
video media format introduced before 1996). Thanks to the DMCA,
Hollywood believes fair use personal-use copies simply do not exist
when it comes to DVDs.
Given that the Copyright Office has refused [PDF, see p. 71-72] to
recognize any DMCA exemption for space-shifting, claiming that
putting a DVD you own on your iPod "is either infringing, or, even if
it were noninfringing, would be merely a convenience," (excuse me,
Copyright Office, that's a decision for a court to make) the ball is
now in Congress' court. Let's hope Congressman Rick Boucher is
listening and will reintroduce his DMCA reform bill first thing next