In European regulatory discourse as well as copyright research, there is a debate whether the US Fair Use model is better suited to deal with innovation in general and digital challenges in particular than the European system of exceptions. It makes sens to discuss the state of the art of research on Fair Use in the US and what we can learn in Europe.

In the course of a visit in Europe, Pamela Samuelson from UC Berkeley Law School & School of Information gave an interesting talk about “Fair Use in Europe? Lessons from the US and Open Questions”. Her main message could be summarized in two points: First, flexible regulation such as the US Fair Use clause is better suited to rapid technological changes than the comparably static system of exceptions and limitations in European copyright. To illustrate this point, Samuelson mentioned several innovations such as scholarly data-mining in Google Book Search (Ngram Viewer)* or Brewster Kale’s “Wayback Machine” that would have been much more difficult to realize without the Fair Use exemption.

Second, Samuelson explicitly did not recommend to get rid of or avoid specific exceptions all together; rather, keeping limitations and exceptions that provide legal certainty would be desirable even when introducing some form of fair-use-like clause into the European copyright system.

However, Samuelson also pointed to several European studies that demonstrate that Fair Use is not the only way of copying with the Internet challenges to copyright. The following is an excerpt of her slides (PDF):

  • Gower Commission Report in UK: need for exception for creative transformative uses such as user-generated content
  • Hargraeves Report in UK (PDF):  proposes an exception to accommodate future technological advances, plus specific one for nonconsumptive research
  • Wittem Group proposed EU © code:  numerous purpose-based specific exceptions, “or other analogous uses”
  • Hugenholtz & Senftleben (PDF):  adapt 3 step test as flexible exception
  • Weatherall Australian Digital Alliance report proposes a series of additional exceptions for online caching, web hosting, user-generated content & platforms, search engine operations, although she also argues for fair use

The workshop was organized jointly by Jeanette Hofmann from the Alexander von Humboldt Institute for Internet and Society and myself and held on May 7, 2012 in Berlin. A detailed but unstructured transcript of the workshop can be found at a public pad.


* The Ngram viewer allows to search for keywords in the whole corpus of books scanned by Google and provides the frequency of occurrences over time. For a nice application on this blog see “Intellectual Property vs. Public Domain: Mentions in the Google Books Corpus“.