Credit Where It's Due...

Prof. Peter Jaszi
July 4, 2010

Last month, Victoria A. Espinel, the new U.S. Intellectual Property Enforcement Coordinator, transmitted to President Obama and Congress the 2010 "Joint Strategic Plan on Intellectual Property Enforcement Coordination" -- the first report of its kind. Much of what is to be found in the 65-page document is fairly predictable -- a collection of data points on the damage piracy does to the U.S. economy, a list of high level strategic goals (an intergovernmental working group to combat counterfeits in U.S. procurement, more information sharing with rightsholders, better tracking and reporting of enforcement activities, for example). And a significant chunk of pages is devoted to detailing enforcement activities undertaken by various U.S. agencies in the last year. But scattered throughout are some more unexpected references. Thus, for example, "Improved Transparency in Intellectual Property Policy-Making and International Negotiations" (!) is listed (at p. 8) as an major strategic objective. This comes, of course, at precisely the moment at which the U.S. government (and others) are being challenged by civil society organizations for keeping their cards in the current negotiations toward ACTA (the proposed "Anti-Counterfeiting Trade Agreement") too close to the vest.

Especially notable -- and certainly unexpected -- is the attention that the report devotes to fair use (and other limitations and exceptions to copyright. Thus, for example, the Introduction, which lists reasons to support enhanced IP enforcement (beginning with "Growth of the U.S. economy, creation of jobs for American workers and support for U.S. exports" and "Promotion of innovation and security of America's comparative advantage in the global economy") concludes with an item that seems worth quoting at length:

Validation of rights as protected under our Constitution. Article I, Section 8 of the U.S. Constitution vests in the Congress the discretion to establish laws to promote science and artistic creativity 'by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' Over the last two centuries, our Founding Fathers have been proven right. One of the reasons that the U.S. is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate. By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it.

This ungrudging acknowledgment of the importance of fair use and cognate doctrines is unprecedented, to the best of my knowledge, in official U.S. pronouncements on the subject. Thus, for example, the 1995 "White Paper" on "Intellectual Property and the National Information Infrastructure" discussed included an extended (if somewhat inaccurate) account of fair use that never got around to suggesting why limits on copyright were of positive importance in innovation policy. Indeed (in a discussion at fn. 266) the White Paper goes so far as to characterize fair use as a "tax" on copyright owners? Not only does the new report acknowledge the doctrine's importance, but it backs up the point with citations to the Computer and Communications Industry Associates recent publication, "Fair Use in the U.S. Economy" (about which I blogged sometime ago) -- including that document's claim that "Exports of goods and services related to fair use industries increased by 41 percent from $179 billion in 2002 to $281 billion in 2007."

So the coordinator deserves respect for having given fair use the attention it deserves as a structurally important, innovation-promoting feature of U.S. copyright. Which, in turn, raises a question: If the fair use (and other copyright exceptions) work so well for the U.S., why aren't we promoting them in negotiations with trading partners. As we all know, the intellectual property provisions of various Free Trade Agreements into which the U.S. has entered with trading partners in recent years (for example, the U.S.-South Korea pact of 2007) speak to minimum standards for both substantive copyright protection and enforcement. And everything we know about the current drafts of ACTA suggest that its copyright provisions are similar, stressing enhanced protection for rightsholders but not mentioning public interest-orientation doctrines like fair use. Indeed, it is this characteristic of the ACTA draft that prompted a group of international experts who convened on June 23, 2010 to declare that (among other things), "ACTA would distort fundamental balances between the rights and interests of proprietors and users, including by introducing highly specific rights and remedies for rights holders without detailing correlative exceptions, limitations, and procedural safeguards for users."

What's up, then, with U.S. copyright diplomacy? Are we simply being hypocritical by pushing unbalanced copyright regimes on other states, while knowing that part of the secret of our global dominance in information commerce is our own dedication to offsetting owner's rights with pro-access doctrines like fair use? Or do we claim that international agreements should only address proprietary rights, not exceptions and limitations? The goal of transparency articulated in the Enforcement Coordinator's report calls would be well served by an explanation of the apparent anomaly.

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