Treastie on the application of U.S.

Copyright law in light of

Of Article 13 of European Union Directive on Copyright

A. Framework of Fair Use under U.S. Copyright law

under Section 107 of the Copyright Act of 1976

Structurally, the Copyright Act leans toward protection; it gives broadly and takes away
narrowly. Section 106 enumerates in expansive terms the exclusive rights that a copyright
owner enjoys in a copy-righted work.2' Sections 107 through 122 then set forth
"limitations"22on these exclusive rights. Most of these limiting sections contain highly
specific, even regulatory language.3 Section 107, however,24among the briefest of the
limiting sections, is extraordinarily broad in scope. The Section states in full:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.

Section 107 thus consists of three parts: a preamble that identifies "the fair use of a
copyrighted work" as an exception to the copyright owner's exclusive rights and that
gives examples of fair "purposes," a list of four factors that courts must consider in
determining whether a use is a fair use, and an additional statement regarding
unpublished works that was added in 1992.

Had the drafters of the statutory language of section 107 known how judges would end
up actually applying that language, they may very well have fallen back on the 1965 one-
sentence provision after all. In the opinions studied, courts often acknowledged that the
four-factor test should not be applied in a formulaic fashion; as one court put it, the test
does not "constitute an algorithm that enables decisions to be ground out mechanically. 1

Notably, Circuit courts outside the Second Circuit cited to an average of 0.59 S.D.N.Y.
(Southern District of New York) cases per fair use analysis, while district courts outside
the Second Circuit cited to an average of 0.60 S.D.N.Y. cases per fair use analysis during
the same time period. Ultimately, circuit and district courts of the Second, Fifth, and
Ninth Circuits were the only courts that cited on average more often to opinions from
their own circuit court than to opinions from the circuit courts of either the Second or the
Ninth Circuits. Thus, when we speak of modern U.S. fair use case law, we are speaking
primarily of the
1 Chicago Board. of Education. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003) (Posner, J.)
 approximately 122 opinions generated by four courts-the Supreme Court, the Second and
Ninth Circuits, and the Southern District of New York -and the progeny of these opinions
in the other federal courts.

B. Use of Copyright law in the international scope and European Union Article 13

The first thing to understand is that there is no such thing as an “international copyright”
that will protect an author’s works throughout the world with a single registration (unlike
the multi-jurisdictional protection provided by a patent filing under the Patent
Cooperation Treaty). Copyright law is “territorial” and therefore national in scope.
Regardless of where the author lives or where the work was first published, the copyright
protection afforded to a work depends on the national laws of the country in which the
author seeks protection. That concept has an important implication for U.S. authors, as
well as foreign authors alike. Regardless of the protection an author has secured for the
work in the United States, acts of infringement that occur outside of the jurisdiction of
the United States cannot be addressed under the U.S. Copyright Act because copyright
laws do not have any extraterritorial operation. Similarly, it follows that, by the same line
of reasoning, acts of infringement that occur inside the jurisdiction of the United States
cannot be addressed under foreign laws, which do not apply inside the United States. 2

Further, in a 2004 opinion, J. Scalia chided fellow Justices for implying that the “law of
nations,” which he described as “redefined to mean the consensus of states on any
subject,” could ever bind citizens in our territory because, he wrote, this idea is “a 20th-
century invention of internationalist law professors and human rights advocates” 3

Therefore, if these rulings are any clue given stare decisis4, lack of jurisdiction is likely a
viable defect to effectively shut down a take down notice under the Digital Media
Copyright Act, where the infringement doesn’t occur on the sole basis of the United
States Copyright Act as currently enacted into U.S. law. Thus, even a resident of the
European Union cannot bring a claim of infringement in the U.S. arising under Article 13
of the copyright directive, but instead must use the provisions of the United States
Copyright Act. This line of reasoning becomes especially viable in the context of a fair
use allegation, considering the fact that as of 2019, a copyright owner must now register
his work with the United States Copyright Office, before the copyright owner is entitled
to judicial relief- However, however, a copyright owner can recover for infringement
that occurred both before and after registration. Quintessentially, registration is thus akin
to an administrative exhaustion requirement that the owner must satisfy before suing to

2 See .e.g. Foster v. Florida, 537 U.S. 990, 990 (2002) (Thomas, J., concurring in the denial of
certiorari).“While Congress, as a legislature, may wish to consider the actions of other nations on any
issue it likes, this Court’s…jurisprudence should not impose foreign moods, fads, or fashions on
Americans.”
3 See Sosa v. Alvarez-Machain, 542 U.S. 692, 749–50 (2004) (Scalia, J., concurring in part and
concurring in the judgment).
4 Stare Decisis (lit. “let the decision stand”) is a legal term expressing the concept that the court will
look to it’s own previous decisions as well as the decisions of superior courts, as binding precedent.
enforce ownership rights.5 It is submitted that most foreign copyright holders will not
have complied with this provision, and therefore will not be able to effectively prosecute
a case which hinges on U.S. fair use doctrine, making the DMCA counter notice an
exceptionally powerful tool in the context of international copyright.

However, this is not to say that this is a license to abuse the fair use doctrine, as a
copyright owner still does not have to register a copyright in order to have immediate
access to copyrights.6 Thus, it would still be of practical concern to be able to defend an
infringement claim hinging on fair use.

5 See Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC et al. 586 U.S. ___ , 139 S. Ct. 881;
203 L. Ed. 2d 147; 129 U.S.P.Q. 2d 1453 (2019).
6 Id.