infoJustice

Yu, Peter K., Fair Use and Its Global Paradigm Evolution (July 2, 2018). University of Illinois Law Review, Vol. 2019, Forthcoming.

Abstract: Legal paradigms change in response to political, economic, social, cultural and technological conditions. While these paradigms have moved from developed to developing countries, they rarely move in the opposite direction. Nevertheless, some transplants from developed countries do involve legal paradigms that align well with the needs, interests, conditions and priorities of developing countries. A case in point is the transplant of the fair use model in U.S. copyright law, which has attracted considerable debate, research and policy attention in the past few decades.

Because legal literature has thus far underanalyzed the transplant of the U.S. fair use model, this article devotes its analysis to fair use transplants. It begins by reviewing the literature concerning paradigm shift, in particular Thomas Kuhn’s seminal work. The article then documents a growing trend toward the worldwide adoption of the U.S. fair use model and a countertrend toward the retention of the status quo. The juxtaposition of these two trends explain why jurisdictions that set out to transplant the U.S. fair use model ended up adopting a hybrid system.

The second half of this article interrogates the different primary causes behind such a paradigm evolution. While many possible factors exist within and outside the legal system, the discussion focuses on those relating to intellectual property law, international and comparative law, and the legislative process. The article concludes with recommendations concerning future efforts to broaden copyright limitations and exceptions in the United States and across the world. Specifically, it outlines six courses of actions that seek to improve these reform efforts. It further identifies three modalities of evolution that can help tailor the transplanted fair use paradigm to local needs, interests, conditions and priorities.

Full paper at SSRN: https://ssrn.com/abstract=3206464