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.