Today, the International Center for Law & Economics released a white paper, co-authored by Executive Director Geoffrey Manne and Senior Fellow Julian Morris, entitled Dangerous Exception: The detrimental effects of including “fair use” copyright exceptions in free trade agreements.
Dangerous Exception explores the relationship between copyright, creativity and economic development in a networked global marketplace. In particular, it examines the evidence for and against mandating a U.S.-style fair use exception to copyright via free trade agreements like the Trans-Pacific Partnership (TPP), and through “fast-track” trade promotion authority (TPA).
In the context of these ongoing trade negotiations, some organizations have been advocating for the inclusion of dramatically expanded copyright exceptions in place of more limited language requiring that such exceptions conform to the “three-step test” implemented by the 1994 TRIPs Agreement.
The paper argues that if broad fair use exceptions are infused into trade agreements they could increase piracy and discourage artistic creation and innovation — especially in nations without a strong legal tradition implementing such provisions.
The expansion of digital networks across borders, combined with historically weak copyright enforcement in many nations, poses a major challenge to a broadened fair use exception. The modern digital economy calls for appropriate, but limited, copyright exceptions — not their expansion.
The white paper is available here. For some of our previous work on related issues, see:
Amicus Brief of ICLE and CEI in ABC, Inc., et al. v. Aereo, Inc., U.S. Supreme Court
Regulating Innovation: Competition Policy and Patent Law Under Uncertainty, by Geoffrey Manne & Joshua Wright
Incentivising research and development for the diseases of poverty, by Julian Morris, Philip Stevens & Alec van Gelder
Copyright Reform, Can Free Marketeers Agree on Copyright?, CEI panel discussion with Geoffrey Manne and others
How the Court’s “looks-like-cable-tv” test in Aereo protects the cloud and Why the Supreme Court’s Aereo decision protects creators without endangering the cloud, by Geoffrey Manne, Ben Sperry & Ryan Radia
Just Trade: The moral imperative of eliminating barriers to trade, by Julian Morris
Permissionless innovation does not mean no contracts required, by Geoffrey Manne