Document Type

Article

Publication Date

2017

Source Publication

33(1) American University International Law Review 1 (2017)

Keywords

Copyright; Fair Dealing; Fair Use; User Rights; Critical Legal Theory; International Law; Intellectual Property

Abstract

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically examines the recent embrace of the language of “users’ rights” to frame fair use, fair dealing, and other non-infringing acts. This terminology has been adopted to varying degrees by courts in Canada, Israel, and the United States and is increasingly employed by public interest advocates and policy-makers at the domestic and international level. In this Paper, I ask whether the rise of “user rights,” thus cast, is a positive development that will help to rein in some of copyright’s excesses, advancing the cause of content users and the public at large—or whether it is, perhaps, something of a false friend. Drawing on lessons from critical legal theory, I caution that “rights” may be a double-edged sword with the potential to undermine or obstruct the public interests, social values, and relationships that should inform copyright’s development in the digital age. As a rhetorical tool, “user rights” should therefore be wielded carefully if public interest advocates are to avoid self-inflicted injury.

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