Niva Elkin-Koren & Neil Weinstock Netanel

Volume 72, Issue 4, 1121-1182

The fair use privilege of United States copyright law long stood virtually alone among national copyright laws in providing a flexible, open-ended copyright exception. Most countries’ copyright statutes set out a list of narrowly defined exceptions to copyright owners’ exclusive rights. By contract, U.S. fair use doctrine empowers courts to carve out an exception for an otherwise infringing use after weighing a set of equitable factors on a case-by-case basis.

In the face of rapid technological change in cultural production and distribution, however, the last couple decades have witnessed widespread interest in adopting fair use in other countries. Thus far, the fair use model has been adopted in a dozen countries and considered by copyright law revision commissions in several others. Yet, ironically, U.S. copyright industries—motion picture studios, record labels, music publishers, and print publishers— and, in some instances, U.S. government representatives have steadfastly opposed the transplanting of U.S. fair use to other countries. They argue, principally, that, while fair use works reasonably well in the United States, foreign courts that lack the 150 years of U.S. fair use precedent would likely apply the fair use exception in a chaotic, libertine manner, thus seriously undermining copyright protection.

This Article tests the credibility of that blanket U.S. opposition. In so doing, we present the first comprehensive study of how courts have actually applied fair use in a country outside the United States. We report the results of our study of the first decade of fair use case law in Israel, which enacted a fair use exception as part of its copyright law revision in 2007. We also compare Israeli fair use doctrine with that of the United States, drawing on parallel empirical studies of U.S. fair use case law.

Our study plausibly supports two general conclusions of relevance to the global debate about fair use. First, our findings counter the sweeping claim, advanced by fair use opponents, that the adoption of fair use outside the United States will inevitably open the floodgates to massive uncompensated copying and dissemination of authors’ creative expression. We find that, in fact, Israeli courts have been far less receptive to fair use defenses than have U.S. courts. Far from seeing fair use as a “free ticket to copy,” Israeli courts actually ruled against fair use at a far greater rate than did their American counterparts during the ten-year period of our study.

Second, our case study suggests that in one respect U.S. copyright industries raise a valid point: local courts will, indeed, develop distinct versions of fair use doctrine in line with their local jurisprudence and national policies.