Toward an International Fair Use Doctrine

The heightened levels of intellectual property protection afforded by the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) ostensibly mirror the strength of U.S. intellectual property laws and reflect a national commitment to secure global benefits of intellectual property enforcement for U.S. domestic inventors and creators. TRIPS and its progeny have lent legitimacy to domestic aggrandizement of owners' rights as witnessed recently by the domestic implementation of the WIPO Copyright Treaty and the WIPO Performances and Phonographs Treaty. International treaties of this genre increasingly are the justification for changes to domestic intellectual property law and policy. Some of these changes dilute existing domestic intellectual property policy and threaten specific doctrines that have served to promote the U.S. constitutional vision of "progress in science and the useful arts." In this Article, Professor Okediji examines the validity of U.S. arguments that the fair use doctrine is consistent with international obligations, and concludes that U.S. trading partners are correct to suggest that the fair use doctrine does not survive TRIPS. She argues that certain principles of public international law may imply that TRIPS supports a generous public interest principle such as the fair use doctrine, but that explicit provision for the doctrine is needed nonetheless. Professor Okediji suggests that such a provision would help preserve the integrity of U.S. copyright policy, accommodate the distinct welfare goals of international copyright law and the free trade system, and serve as a tool to prevent further erosion of the public interest in a global market, which is governed largely by international protectionist regimes and by domestic regimes that are increasingly shifting to favor owners.