Published online by Cambridge University Press: 07 June 2017
At the international level, this debate frequently plays out in terms of how 17 U.S.C. § 107 meets or fails the “three-step test” of Berne and TRIPS. The chapter reasons that asking whether section 107 complies with the three-step test is asking the wrong question: section 107 structure is not an exception – it is a mechanism to establish particular exceptions. When the fair use doctrine works properly, it produces discrete de facto exceptions, such as a parody exception following Campbell or intermediate copying exception for software following Sega and Connectix. Section 107 is almost certainly “compliant” with the three-step test; it is particular applications of the doctrine that might be attacked in the future as failing the three-step test. The chapter also describes how fair use has proliferated – in different permutations – to other jurisdictions as well as why the United States does not – and should not – strenuously lobby other countries on whether or not to adopt fair use-style mechanisms.
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