[A2k] William Patry: Fair Use, the Three-Step Test, and the Counter-Reformation

[Manon Ress]

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[ Picked text/plain from multipart/alternative ]
Excellent and useful blog by William Patry, [Senior Copyright Counsel,
Google Inc. Formerly copyright counsel to the U.S. House of
Representatives, Committee on the Judiciary, formerly Policy Planning
Advisor to the Register of Copyrights, formerly Law Professor,
Benjamin N. Cardozo School of Law; author of numerous treatises and
articles (including one on fair use with Judge Richard Posner),
including the new 7 volume treatise on "Patry on Copyright". The views
in this blog are strictly mine and should not be attributed to Google
Inc.] on the 3-step test.

Manon


QUOTE

The Patry Copyright Blog:  Fair Use, the Three-Step Test, and the
Counter-Reformation

There is a counter-reformation movement afoot in the world of
copyright. The purpose of the movement is to chill the willingness of
countries to enact fair use or liberal fair dealing provisions
designed to genuinely further innovation and creativity, rather than,
as is currently the case, merely to give lip service to those concepts
as the scope of copyright is expanded to were-rabbit size.

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.
end of quote

Read the blog here: http://williampatry.blogspot.com/2008/04/fair-use-three=
-step-test-and-european.html

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Manon Anne Ress
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Il vaut mieux remuer une question, sans la d=E9cider, que la d=E9cider,
sans la remuer.
Pens=E9es, essais, maximes et correspondance de J. Joubert  p.249
http://visualiseur.bnf.fr/Visualiseur?Destination=3DGallica&O=3DNUMM-88671
Translation: It is better to debate a question without settling it
than to settle a question without debating it