Fair Use as Free Speech Fundamental: How Copyright Law Creates a Conflict Between International Intellectual Property and Human Rights Treaties

Copyright law grants individuals monopoly over a particular kernel of expression, whereas the right to freedom of expression theoretically grants others the right to use that same kernel of expression. In this sense, the right to freedom of expression conflicts with copyright law. This Note argues that a flexible, open-norm copyright exception like the U.S. fair use doctrine provides a free speech safety valve that is essential in resolving the conflict and is thus a necessary component of the right to freedom of expression protected by treaties such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Therefore, countries that lack such a flexible copyright exception may be in violation of those treaties. This is significant because broad, flexible copyright exceptions are rare outside the United States. On the other hand, as indicated by an analysis of a recent World Trade Organization panel adjudication regarding section 110(5) of the U.S. Copyright Act, flexible, fair use-like copyright exceptions may violate the Agreement on Trade-Related Aspects of Intellectual Property. This Note argues that the requirements of these human rights and intellectual property treaties may be in conflict with regard to the copyright exception member nations must enact to comply with each. However, recent developments indicate momentum toward international acceptance of flexible, fair use-like copyright exceptions. Thus, this conflict between the treaties should be resolved in favor of freedom of expression and flexible copyright exceptions.