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Welcome to the 3rd\u00a0Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication<\/a>! \u00a0We are proud to once again be hosting a week full of activities, celebrating Fair Use through expert posts, videos, \u201cFair Use Stories<\/a>,\u201d and a live panels on Tuesday Feb. 23rd, Wednesday, Feb. 24th, and Friday, February 26th. \u00a0For more information see\u00a0http:\/\/bit.ly\/fairuseweek16<\/a><\/em><\/p>\n We are delighted to kick off this year\u2019s celebration with a post by Kenneth D. Crews<\/a>.\u00a0 Crews is an internationally recognized expert on copyright, libraries, and fair use. \u00a0<\/em><\/p>\n <\/p>\n by Kenneth D. Crews<\/strong><\/p>\n Like so many scholars and commentators from the past and into the future, I have made the familiar observation that fair use is a distinctly American doctrine.\u00a0 We trace its origins principally to an 1841 court decision<\/a> handed down by the brilliant and influential Justice Joseph Story<\/a>.\u00a0 We repeat these chronicles<\/a> and adages because they are among the essentials of fair use doctrine.\u00a0 Fair use makes especially good sense in a legal system built on the adaptability of the common law and that fosters enterprise and creativity; Justice Story did articulate factors that are fundamental to our law today<\/a>.\u00a0 Indeed, I would dare say that fair use is not only about innovation, but it is also about diversity and business growth<\/a> \u2013 hallmarks of American society.<\/p>\n It may, therefore, be with a bit of pride and confidence that I watch fair use become an increasingly international doctrine. \u00a0I am not trying to jingoistically unveil an American rule for all the world.\u00a0 But I am comfortable in saying that flexibility in copyright law encourages creative scholarship, nurtures modern art, enables search engines for the web, and empowers teachers and students to pursue innovative teaching and learning.\u00a0 Fair use also has proven to be downright practical.\u00a0 It avoids an unduly strict reading of copyright in order to allow socially beneficial uses to prevail over often formalistic claims of copyright infringement.<\/p>\n The benefits of fair use have become increasingly vivid in an era of new technologies, diverse copyrighted works, unpredictable uses, and sometimes unstoppable pressure to experiment and explore.\u00a0 As a result, this distinctly American doctrine has been invited into the law of a growing list of countries.\u00a0 It has proven desirable, practical, and even necessary to get good things done.<\/p>\n In reality, fair use has a close foreign cousin, the doctrine of \u201cfair dealing,\u201d<\/a> long part of copyright law in the United Kingdom and in many former British colonies.\u00a0 Fair dealing has the virtues of flexibility, but it is often statutorily confined to specific applications such as research and education, so fair dealing would not likely sanction appropriation art or reverse engineering of software.\u00a0 Moreover, while the factors in the fair dealing statutes may be similar to the fair use factors, courts have not given them the robust interpretations we find under fair use.\u00a0 The more fluid application and scope \u2013 the \u201copen norms\u201d of fair use \u2013 continue their allure.<\/p>\n Bernt Hugenholz<\/a> and Martin Senftleben<\/a> have written brilliantly<\/a> on court rulings that have been handed down in recent years the European Union countries that do not have fair use, but where the courts strive to find some means to infuse flexibility into national copyright laws.\u00a0 Jonathan Band<\/a> and Jonathan Gerafi in 2013 compiled in an important report<\/a> the various fair dealing and fair use statutes found in dozens of countries.\u00a0 Their study makes clear that a surprising number of countries are enacting statutes embodying language essentially identical to the American statute on fair use.<\/p>\n Fair use takes other routes, too.\u00a0 The international nature of commerce and communication means that courts in one country often need to apply foreign law to decide cases, where events occur in multiple countries.\u00a0 A court in Paris<\/a>, for example, applied American fair use in a case against Google, although that ruling was overturned on appeal.\u00a0 But just last year, a British court heard testimony from US experts and handed down a detailed ruling<\/a> on fair use as applied to vintage videos of a Beatles concert<\/a>.\u00a0 Fair use, or some variation on it, is finding a home in diverse parts of the world.<\/p>\n That list is growing.\u00a0 As I have studied copyright around the world, I find an escalating desire for fair use in many countries.\u00a0 Not everyone will be enamored that fair use facilitates digitization for Google Books<\/a> and the appropriation art<\/a> of Richard Prince<\/a>.\u00a0 However, on a daily basis, fair use supports education, fosters business ingenuity, and opens technological enterprise.\u00a0 It offers much to like.<\/p>\n In June of last year, I completed a comprehensive study of copyright exceptions applicable to libraries and archives<\/a> for the World Intellectual Property Organization<\/a>.\u00a0 As I analyzed statutes from all 188 countries<\/a> that are members of WIPO, I kept watch for any indications of fair use or variations on the familiar four factors creeping into national law.\u00a0 Some of my findings on that score parallel the 2013 study by Band and Gerafi mentioned above.\u00a0 In the context of the WIPO study, however, the language and spirit of fair use became a vital complement to library statutes that are often limited to specific uses under detailed conditions.<\/p>\n Diverse countries such as Israel, Liberia, Philippines, South Korea, and Sri Lanka are adopting the fair use almost verbatim from the U.S. statute.\u00a0 A few countries go their own direction.\u00a0 Laos enacted copyright law recently in 2007, amended in 2011<\/a>, which includes a fair use reference (Article 111), but with sparse guidance from the statutory language.\u00a0 A few Latin American countries (Dominican Republic, Ecuador, Guatemala, and Honduras) have a statute labeled \u201cfair use,\u201d but the substance is based on the treaty language<\/a> of the \u201cthree-step test.\u201d<\/a>\u00a0 While bringing that treaty language into domestic legislation raises a host of concerns, the effort to infuse some flexibility into the statutory exceptions and find appropriate local meaning of fair use gives much to applaud<\/a>.<\/p>\n This quest for fair use around the world is no accident.\u00a0 It is demand.\u00a0 The demand is from public citizens who want to improve teaching and research.\u00a0 It is from business leaders who want to build innovative software and develop crucial databases.\u00a0 It is from publishers who need to include images and other materials in their new books and journals.\u00a0 As I have visited distant parts of the world to talk about copyright, fair use is almost certain to jump into the conversation.\u00a0 I have found myself in deep discussion of fair use possibilities in such places as Nepal, Armenia, Colombia, Ecuador, Finland, Azerbaijan, Nigeria, Kuwait, Uruguay, and many more destinations.<\/p>\n Fair Use Week may be a distinctly American holiday.\u00a0 It probably already involves shopping and costumes<\/a>.\u00a0 But recent events demonstrate that fair use and its celebrations are quickly becoming a worldwide movement.<\/p>\n <\/p>\n Kenneth D. Crews<\/a> is based in Los Angeles, where he is of counsel with the firm of Gipson Hoffman & Pancione<\/a> and represents universities, publishers, authors, research institutions, and many other clients on copyright and related matters.\u00a0 Dr. Crews is also a faculty member in the Munich Intellectual Property Law Center and at Columbia Law School, and he is the author of<\/em> Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions<\/a> (ALA, 3rd<\/sup> ed., 2012).<\/em><\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Welcome to the 3rd\u00a0Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication! \u00a0We are proud to once again be hosting a week full of activities, celebrating Fair Use through expert posts, videos, \u201cFair Use Stories,\u201d and a live panels on Tuesday Feb. 23rd, Wednesday, Feb. 24th, and Friday, February 26th. 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