Ambivalence to Fair Use in U.S. Trade Policy



Jonathan Band|Disruptive Competition Project|

On June 16, 2020, President Ramaphosa of the Republic of South Africa referred the Copyright Amendment Bill (“CAB”), which had been awaiting his signature for more than 18 months, back to the Parliament. This action appears motivated at least in part by the U.S. Trade Representative (“USTR”)’s concerns about the CAB’s inclusion of a fair use right. This is the most recent example of apparent ambivalence towards the “exportation” of fair use in U.S. trade policy over the past 25 years—notwithstanding that the Supreme Court has twice held that fair use is a built-in accommodation between the Copyright Act and the First Amendment. (See here for the text of the fair use and fair dealing provisions that have been enacted in more than 40 countries with over a third of the world’s population.)

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