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Judicial snapshots and fair use theory

Michael Birnhack

Keywords: fair dealing; fair use; limitations and exceptions; legal transplant; judicial snapshot; Israel; copyright theory

Decision-makers and legislatures around the world have recently placed copyright limitations and exceptions on their agenda. The main reference point is the American fair use defence. The policy debates focus on the advantages and disadvantages to the content industries, intermediaries and users. Unfortunately, too often missing from this discussion is the underlying theory of the exceptions. The risk is that a foreign concept will be detached from its origin and transplanted within a different legal setting, without sufficient attention as to how it should be absorbed within the recipient legal body. Theory can fulfil the crucial function of enabling the successful absorption of the transplant.

The article strives to redirect us back to the theoretical avenue. It classifies fair use justifications in two categories: those that are internal to copyright law and those external thereto. These justifications should be read against the background of the overall conception of copyright law. The case study at stake is Israeli copyright law. Israel was the first common law country to shift from a British-based, relatively narrow rule of fair dealing defence to the American, open standard of fair use, in its 2007 Copyright Act. However, courts began the shift more than a decade before the legislation, inserting American considerations into the British statutory structure. In so doing, courts relied on a partial, slightly outdated version of fair use, in what I call a judicial snapshot. The result was two decades of incoherent and unstable doctrine. Accordingly, this article warns against the perils of un-theorized transplant.

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