CONTEXTS

Applied ResearchInternational Fair Use?Ascertaining the reach of fair use is difficult andleads to a complex analysis of competing interestsand domestic disagreements, even within a commonfoundation of U.S. law. Nevertheless, working withinone national legal structure allows those with competinginterests to argue within a framework that guides allparticipants, whatever their interest in supporting ordiminishing fair use access. But even within a commondomestic structure, U.S. law is not the only influenceon what may happen to intellectual products. Americantechnical communicators working in domestic venuesare still influenced by decisions in international law andwould likely benefit from an awareness of their possibleimpact.Conceptual Basis for Fair Use in International LawInternational law, based on treaties and agreementsamong international signatories, determines the legalinteractions of diverse international parties both atand sometimes across international boundaries. Toensure that intellectual products are globally accessibleand are traded to the advantage of internationalpartners, all countries’ needs must be accommodatedthrough negotiation. Achieving this goal increases thedifficulty of establishing feasible legal practice. That is,international partners must compromise the dictatesof their own diverse and sometimes contradictorylegal foundations to effectuate treaties and agreementsthat accommodate all nations and their varying legalstructures. As a result of negotiations to reach tradeagreements that manage the sale and distributionof intellectual products internationally, the ability tomoderate intellectual property interests on the basis ofthe U.S. doctrine of fair use—even domestically—hasbeen virtually eliminated.In practice, parties negotiating intellectual productregulations have supported goals in trade rather thanpromoting laws that enable democratic policy. Effortsto “harmonize” U.S. law to coincide with the legaltreatment of intellectual products in other countrieshave affected even U.S. law domestically, inhibitingthe goals of the Constitution’s intellectual propertyprovision and the fair use doctrine that supportsit. As Michael Birnhack points out, copyright hasbeen severely limited since the advent of the WorldTrade Organization (WTO) and the Agreementon Trade-Related Aspects of Intellectual PropertyRights (TRIPS), in which the “new copyright regimeis no longer a law of the public and for the public,but rather, a law of business, for businessmen andinvestors” (Birnhack, 2006, p. 492). Those who createproducts for the international market may find thislimitation advantageous, but technical communicatorsand other creative product developers who wish tomaintain the ability to interact within a humanisticallysupported democratic structure may find it importantto understand the benefits of introducing a fair useconceptual base in international intellectual propertylaw. U.S.-based technical communicators who areaccustomed to accessing copyrighted work as a basisfor speech could find that without a humanisticstructure for access in international intellectual propertyagreements, their ability to produce speech would belimited. For example, the ad for the film Naked Gun33 1/3, featuring a pregnant Leslie Nielsen in a poseparodying the Vanity Fair cover of a pregnant DemiMoore, would likely be prohibited. Where a U.S. courtfound the use supportable as speech, even though itwas commercial in nature, an international court wouldbe unlikely to support it. Technical communicatorsworking internationally without a fair use base mightfind their creativity restricted or, worse, their speechpotential curtailed.The Berne Convention and the TRIPSAgreementOn the WTO Web site, the Berne Convention isdefined as “a treaty, administered by WIPO [WorldIntellectual Property Organization], for the protectionof the rights of authors in their literary and artisticworks.” This treaty governs the treatment of itssignatories’ intellectual products across internationalborders. The TRIPS agreement, the Trade RelatedAspects of Intellectual Property Rights, effectuates theBerne Convention’s goals. Both Berne and TRIPS havebeen criticized by U.S. scholars for their lack of a fairuse structure, notwithstanding the minimal limitationson protection that are built into the agreements.322 Technical Communication l Volume 57, Number 3, August 2010