Michael Birnhack (Tel Aviv University)


My current copyright-related research is about fairness in copyright law, or the lack thereof, and more specifically, fair use on the local and global levels. The discussion throughout the day included much talk about business models and monetization. It was quite a commodified language. I am afraid that fairness was absent from the conversation. I strongly believe in fairness: we need to inject fairness into our copyright law discussion.

We need to inject fairness into our copyright law discussion.

One such place through which we can add fairness, is the limitations and exceptions to copyright law. Fair use has the power to inject fairness into copyright law. In recent years, Israeli law switched from the British fair dealing defence to the American fair use defence, while at the same time tightening enforcement and expanding the bundle of rights. Obviously, the reincarnation of the main exception to copyright–fair use–is crucial for Israeli law, but I think it also provides an interesting case study for other countries.

Fair use has the power to inject fairness into copyright law.

Fair Use is the ‘sine qua non’ of copyright law, to rephrase Justice O’Connor’s famous statement in the American Feist case. Fair use and many of the themes discussed today and CREATE’s projects converge at this focal point. Fair use serves as an internal balancing mechanism, within copyright law, between current and future authors and their creative works. It is also an external balancing mechanism, between copyright and freedom of expression. In times of vast new expressive opportunities, namely a global digital environment, both copyright and free speech are central to democratic societies.

I would like to suggest one item to CREATE’s agenda, in fact it was discussed in the previous panel, and that is globalisation. Globalisation works differently in different places. I would love to see CREATE coordinate a global research on the cultural balance of countries: which country imports and which exports cultural content, what kinds of contents, and why. There are various factors here that play an important role: the size of the economy, language barriers, cultural differences, different legal cultures of free speech, differences in the legal environment surrounding copyright law, and some differences within the law.

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