Monday, February 26, 2007

Fair Use, Israel, and the IIPA

The February 12, 2007 International Intellectual Property Alliance 2007 Special 301 Report contains detailed discussions of which countries throughout the world have been naughty and which have been nice (excluding of course the U.S. which is the nicest of all). One country's treatment bears pointing out, Israel. The Knesset is in the process of passing a number of amendments to its copyright law - an amalgam of laws going back to the extension, in 1924, of the British Copyright Act of 1911 during the British Mandate over ארץ ישראל (The most recent amendment took effect on November 3, 2002). Israel is a member of the Universal Copyright Convention and the Berne Convention. The current effort is intended both to modernize aspects of Israeli copyright law and to implement other international obligations.

What caught my eye in the discussion of Israel (found here) is on pages 70-71, entitled "Proposed Application of U.S.-Type 'Fair Use' Factors." This refers to the Knesset's expected adoption of a provision modeled very closely on Section 107 of title 17. One might expect that an effort by a foreign government to adopt a rather singular aspect of U.S. copyright law would be met with praise. Not so, when it comes to the non-proprietary side of the constitutional ledger. Here are the IIPA's words in full:

At the outset, we note that Section 19(a) attempts to adopt the U.S. 'fair use' test by stating that 'fair dealing with the creation is allowed, among others, for the following purposes: self study, research...." Section 19(b) includes a list of factors that are similar to those in place in the United States and the explanatory notes clarify the intention to enact a non-exclusive list of purposes, which would allow enough flexibility to the courts in determining whether a particular use is 'fair.' We understand there may already be agreement to adopt the draft, and we register our concern that the result of this change could result in considerable case law interpretation in Israel on 'fair dealing' being thrown out in favor of as yet undeveloped factors in Section 19(b). By contrast, in markets like the U.S., which employs very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of 'fair use.' There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction of these factors, rather than relying on Section 19(a), which sets out the long-established 'fair dealing' principle, followed by specific exceptions dealing with certain special cases (Section 19-32, but see comments below). Finally, if the factors in Section 18(b) are to be ultimately adopted, Section 19(b)(1) especially needs to be amended to properly narrow the scope of the 'fair use' inquiry:

(b) In order to examine the fairness of a use of the creation for the purposes of this paragraph, the following shall be considered:
(1) The aim of the use and its type, including whether the use is of a commercial nature or is for non-profit educational purposes.

These remarks should lead to debate in U.S. circles: the concern that Israeli judges can't handle the doctrine or that the Israeli population will see adoption of fair use as a "free ticket to copy" is not borne out by any empirical evidence, nor by any references justifying such concerns (e.g., prior decisions of Israeli courts), nor of course by the proposed statutory language, which directs judges to look at the traditional four factors, including the effect of the use on the market for the copyrighted work.

The IIPA's preferences are for (1) the existing law, which contains a narrower set of enumerated exceptions or (2) the above amendment, which is designed to "properly narrow the scope of the 'fair use' inquiry." That proposed amendment (the bold portion) would add language taken from Section 107(1): "including whether the use is of a commercial nature or is for non-profit educational purposes."

That language, added at the 11th hour to Section 107 of title 17 as a sop to educators led to years of confusion in U.S. courts, ultimately to the Sony presumptions ("every commercial use is presumptively unfair;" "every commercial use presumptively results in harm to the market"), and years and years of rigid, mis-directed case law, corrected ultimately in the 2 Live Crew case. Adopting that language in the Israeli statute would result in the adoption of the one part of Section 107 that has failed miserably, and might lead plaintiffs in Israel to argue things like "commercial use bad," but "non-profit educational use maybe good, under some circumstances." It is unclear how the IIPA sees its amendment working in practice, but how could reference to commercial versus non-profit educational uses narrow anything by itself unless commercial uses are painted as the bad guys? That approach, it must be noted is strongly contrary to existing U.S. law, pace Justice Souter's quote from Samuel Johnson that "No man but a blockhead ever wrote, except for money."

The unusual aspect of all this of course, is a U.S. trade organization lobbying the Office of United States Trade Representative to lobby a foreign government not to adopt a critical part of U.S. copyright law.


Morris Rosenthal said...

the concern that Israeli judges can't handle the doctrine or that the Israeli population will see adoption of fair use as a "free ticket to copy" is not borne out by any empirical evidence

I can't comment on the Israeli judiciary, but I can understand the concerns of the legislature that fair use may be seen as a broad license by Israelis. Beating the system is the national pastime, from tag-team shopping to get an advanced spot in the grocery line to arguing every parking ticket with "I was only stopping for a minute and my brother-in-law is the Chief of Police."

I did have a run-in with the current application of copyright law in Israel a few years ago. A professor in the US who knew I was doing research at the National Library asked me to make a photo copy of a Master's Thesis for her. I asked the librarian if I could take the thesis to the copying room (the library is based on stacks requests and reader's rooms) and was given permission, in return for ID. When I brought back the thesis and put the large stack of paper next to it, the librarian was horrified, and told me it's forbidden to copy large amounts.

I advanced the argument that it was for scholarly use, but that didn't make an impression. I tried the argument that anybody who's written a thesis on 19th Haskalah literature would be thrilled to know anybody was making a copy of it, but that didn't carry as much weight as the fact the money was already spent. In the end, she let me leave with it, with the clear admonition that I was a law breaker.

William Patry said...

Thanks, Morris for your comment and story. The concern at issue has not been expressed by the Knesset, which seems confident that fair use is the way to go; rather, the concern has been expressed by a U.S. trade association. Your experience with the librarian would seem to point toward trusting the Knesset since the librarian at least attempted to enforce the copyright law as she saw it.

Kim said...

This sounds familiar.

When the Australian government published an issues paper considering whether Australia should adopt some kind of fair use exception, the IIPA were very careful to avoid that question, and argued that any support for fair use outside the US was based on a complete misunderstanding of how it worked.

They very carefully, and diplomatically, stated that 'The health and future prospects of this industry sector, and the livelihoods of millions of employees in or affiliated with that sector, depend to an unsurpassed extent upon the quality of copyright laws in those countries and their vigorous enforcement. In our experience, countries can succeed in these goals whether the limitations on copyright protection in their law take the form of specific exceptions; or of more general non-exhaustive provisions such as fair use or fair dealing; or, as current Australian law can accurately be described, a hybrid approach. All these approaches have their virtues and defects, but we believe that any of these systems can be successful in keeping the rights of copyright owners sufficiently strong while accommodating the legitimate interests of copyright users.'

William Patry said...

Thanks Kim:

Diplomacy is indeed a nuanced task, and when it becomes apparent that it isn't working the mask comes off.