Intellectual Property in Common Law and Civil Law
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Intellectual Property in Common Law and Civil Law

Edited by Toshiko Takenaka

Drawing together the views and experiences of scholars and lawyers from the United States, Europe and Asia, this book examines how different characteristics embedded in national IP systems stem from differences in the fundamental legal principles of the two traditions. It questions whether these elements are destined to remain diverged, and tries to identify common ground that might facilitate a form of harmonization.
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Chapter 8: The dragon and the white whale: Three steps test and fair use

Frédéric Pollaud-Dulian


When it comes to limitations of intellectual property rights, all national or international regulations contain more or less precise lists of exceptions, but many of the regulations complete their list with a moderative tool. This tool may be used to reinforce authors’ rights or to favor the interests of users or the public good. The three steps test and the principle of narrow interpretation on one side, and the American fair use provision of §107 of the Copyright Act of 1976 on the other side, illustrate these two different objectives and highlight an essential opposition between American copyright and authors’ rights countries, most notably the European Union. Professor Goldstein compared fair use with Moby Dick, the great white whale. If we have to refer to mythological animals, the triple test would be more akin to a benevolent dragon protecting the authors’ treasure from looting. We would like to show how different three steps test and fair use still remain in spite of the important effort to get them closer to what the international treaties amount to. These differences are not superficial ones. They are rooted in the very grounds of two conceptions of intellectual property. We will study the complex and conflicting relationship between American fair use and the three steps test as an interesting example of this persistent opposition.

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