Universalizing Copyright Fair Use: To Copy, or Not to Copy?

This Article thoroughly examines the universal shift toward the U.S. fair use doctrine. It begins with an elucidation of the fair use doctrine and its foreign counterparts, briefly explaining the history and function of each doctrine and differentiating them from one another. The Article then delves into the aspirations of foreign countries that have opted into the transplant of the U.S. doctrine or merely contemplated a transplant. These aspirations are narrowed down to three dimensions of development: access to knowledge, responsiveness to innovative technologies, and enhancing creative production.

Using the capabilities approach of development – developed by Amartya Sen and Martha Nussbaum - as the standard of assessment, this Article examines the credibility of the postulations set forth by these nations, comparing fair use to its counterparts with regard to the three dimensions. This Article supports two conclusions. First, fair use entails development and is better equipped to foster development within the three dimensions. Second, the U.S.’s blatant protest of the universal transposition of the doctrine is a precapitalist constraint that provides U.S. industries with a comparative advantage.