Academic journal article Denver Journal of International Law and Policy

Laugh, and the Whole World ... Scowls at You? A Defense of the United States' Fair Use Exception for Parody under TRIPs

Academic journal article Denver Journal of International Law and Policy

Laugh, and the Whole World ... Scowls at You? A Defense of the United States' Fair Use Exception for Parody under TRIPs

Article excerpt

INTRODUCTION

Though copyright protection in the United States is derived from the First Article of the Constitution and is governed by statutes enacted by Congress under that grant of power, (1) its limitations have more ambiguous origins. Often dichotomized as internal and external, (2) copyright limitations attempt to craft a compromise between the financial incentive to create, which is secured by granting authors the exclusive right to profit from their work, and the First Amendment free speech rights of others to comment on, disseminate, and otherwise use these copyrighted works. (3) Internal limitations, such as the idea-expression dichotomy and the requirement that works be original and in a fixed medium, derive from the Copyright Clause itself and define what can be protected. (4) External limitations, including those incorporated into copyright legislation, are imposed by other areas of law and policy and immunize from liability uses that would otherwise be considered infringements. (5)

One such external limitation is the fair use doctrine. In the United States, fair use is attributed to free speech principles found in the First Amendment (6) and, despite its recent codification in the Copyright Act, remains a common law equitable doctrine that judges apply on a fact-specific, case-by-case basis. (7) Consequently, the types of uses protected are not specifically named or enumerated, but are instead determined by considering several factors. While some types of fair use are rather well recognized, others remain controversial. (8) Recently, the status of parody as a fair use has been the subject of much controversy, both domestically and abroad. (9)

The European Community ("EC") has, on at least two occasions, expressed concern that the United States' fair use doctrine immunizes from liability uses that unjustifiably infringe authors' rights. (10) The EC has specifically argued that the exception made for parodies under the fair use doctrine is not confined to "special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder," (11) as required by international agreements on copyright law. (12) While the United States has defended the fair use doctrine and its protection of parodies as complying with such agreements, some commentators have noted that, in doing so, the United States has relied on a "less than accurate depiction of the fair use doctrine and how it operates in domestic courts." (13) Commentators have further concluded that the fair use protections afforded to parodies in the United States would not survive a direct challenge under Article 13 of the General Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPs"). (14)

This Article argues that while there is certainly some variance between the exceptions to copyright protection recognized in the United States and those recognized by the international community, the particular charges the EC has leveled at the United States are unwarranted and their concerns misplaced. This Article further argues that, at least as it has been enunciated by the United States Supreme Court ("Supreme Court"), the fair use doctrine regarding parodic uses does not conflict with the legitimate interests enshrined in TRIPs. What it does provide, and what may seem foreign to some in the international community, is traditional free speech protections. These protections prohibit copyright owners from removing from the public discourse speech that adversely affects the value of their property only to the extent that it is critical of that property. Such protection is necessary to ensure that the "marketplace of ideas" remains open and competitive, that copyright law continues to balance the financial incentives of authors to create and the rights of others to comment, and that copyright does not revert to its nefarious origins as a form of censorship. …

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