Fair Use, the Three-Step Test, and Access to Knowledge: A Doctrinal, Rights-Based Approach

Abstract

In the last decade, academic scholarship has mounted a serious challenge to the dominant, utilitarian understanding of Anglo-American intellectual property law. In particular, deontological, or rights-based approaches, have gained currency. This development has taken place simultaneously with the rise of the access to knowledge (A2K) movement. This paper lies at the intersection of these two contemporary alternatives to the traditional IP regime. It applies the rights-based approach to an issue that is of central concern to the A2K movement: the legality, under copyright law, of course-packs (i.e., compilations of photocopies of parts of academic textbooks, for the purposes of classroom teaching) in universities. The paper complements the theoretical work of the rights-based and A2K scholars, by presenting a doctrinal analysis of the course-packs issue. This analysis is three-pronged. First, I ground the rights-based approach within existing international law. I invoke widely ratified international legal instruments, such as the ICCPR and the ICESCR, and their authoritative interpretations, to demonstrate that international law recognizes rights that are directly relevant to course-packs specifically, and A2K more generally: that is, rights of access to educational materials (flowing from a right of free speech and expression), and rights to cultural participation. Secondly, I examine cases in the United States and in Canada, to argue that a rights-based approach, when applied to the fair use (or fair dealing) doctrine, leads to tangibly different judicial outcomes in cases involving course-packs. And lastly, I argue that these outcomes are consistent with international treaties such as TRIPS and Berne. The goal of this paper is to demonstrate that not only is the rights-based approach theoretically and philosophically sound (as other scholars have argued), but that it is a viable legal tool that can be used in copyright litigation, and by judges, worldwide, to ensure outcomes that are both substantively just (at least from an A2K perspective), and doctrinally sound.