In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an international fair use doctrine, the concept has escaped its disfavored status as a U.S. peculiarity and achieved instead some traction in international legal circles. This change is likely a reaction to legal and technological developments that have shifted the copyright balance to favor the property rights of copyright-holders over the free expression rights of content users. This conclusion is significant for both groups of rights holders. Users now have unprecedented opportunities to push the international copyright balance toward freedom of expression through expanding legal notions of the public interest. Copyright-holders meanwhile are in a complicated position. If they insist on an economic protectionist international copyright regime in the short term, they might ultimately win a copyright balance so devoid of free expression as to yield a dearth of creativity and diversity. Or they might ultimately face a backlash that pushes the copyright balance to reckless exception from copyright-holder rights. In the end, the Okediji thesis remains vital. It is in the best interests of government, business, and consumers to exploit present legal and technological circumstances to press for the introduction into domestic legal regimes, if not into the international system, of a well crafted public-interest doctrine that cuts across the now common array of context-dependent copyright exceptions.
Richard J. Peltz, Global Warming Trend? The Creeping Indulgence of Fair Use in International Copyright Law, 17 Tex. Intell. Prop. L. J. 267 (2009).