57.3, August 2010

International Fair Use?

TyAnna K. Herrington


Purpose: The purpose of this article is to examine pertinent issues regarding the need for a fair use structure in international intellectual property agreements.

Method: The issues in this article were examined using a scholarly methodology based on legal research and applied analysis and application to the technical communication field.

Results: The findings are that fair use cannot be employed in international intellectual property treaty development because, to operate, it must retain its necessary connection to the U.S. Constitution’s goals and policy.

Conclusion: International intellectual property law treaty development should incorporate humanistic guidelines that accommodate fair use goals based on universal rights.

Keywords: fair use, intellectual property, international law, international humanistic treatment

Practitioner’s Takeaway

  • The existence or absence of fair use concepts that affect product development in international work venues affects technical communication practitioners.
  • Technical communication practitioners should be aware of the differences between legal treatments of intellectual property that contain fair use principles and those that do not.
  • As international intellectual property treaties exist today, technical communicators working in international venues cannot expect fair use access to intellectual products in support of democratic interaction.
  • Technical communication practitioners can use their influence to support the development of a fair use structure in international venues.


Technical communicators are aware that increased international business and academic collaboration has had a broad effect on communication methods and product development. But as international access and collaboration have developed, so has the law that influences intellectual product access and protection, and the changes in this area may not be obvious. As international law has adapted to allow increased intellectual product trade and development, scholars in intellectual property law have begun to discuss the need for a fair use structure in international intellectual property. The work of technical communicators will be directly affected by legal developments in this area. Changes might allow greater use of all internationally accessible products, leading to greater innovation, but they could also mean that product creators’ own intellectual property might not be as strictly protected as it is under current international intellectual property law. Beyond the effects on international business, all creators should be aware of the humanistic issues that arise in connection with the treatment of intellectual property, especially in international venues.

In this article, I examine the position of fair use in international law’s treatment of intellectual property. I analyze fair use from the basis of U.S. law because this, rather than international law, is its source. The article focuses on copyright, because the fair use doctrine arises out of U.S. copyright law rather than out of other intellectual property statutes.

In this article, the term “fair use” relates to a number of interrelated concepts. Although the term denotes a structure for allowing use of intellectual products under the fair use doctrine in U.S. law, other authors use the same term as a conceptual signifier to discuss the role of the fair use concept in international law; thus, I also use the term in this manner. However, I want to emphasize that fair use derives from domestic U.S. law in the 1976 Copyright Act, and the processes of assessing its function and protection against infringement claims rely on its relationship to the principles laid out in the U.S. Constitution. Fair use as it exists legally in the United States does not exist in international intellectual property agreements.

After probing the differences in how intellectual property law is treated domestically and in international law, I describe various difficulties that arise from the different cultural and legal perspectives. I discuss the significance of international parties’ diversity and suggest that signatories to international intellectual property agreements forge treaties that accommodate the differing levels of power among international parties as a means to ensure human rights to citizens of all nations. I conclude by highlighting some of the difficulties and suggesting areas for resolution that might lead to a form of international fair use that would satisfy all international parties, balancing support for innovation against the need to protect basic human rights.

Importance of International Legal Issues for Technical Communicators

International legal agreements regarding intellectual property make clear that treaties determine how intellectual property law will be handled among international parties and that anything not included in the treaties and agreements must be decided in domestic venues on the basis of domestic law. In other words, neither U.S. laws nor the laws of other nations may determine how intellectual products are to be treated as international interests. And here lies the crux of the problem.

To suggest that a fair use doctrine should be integrated into international intellectual property law implies the incorporation of U.S. domestic law; however, the international intellectual property law that controls trade in intellectual products does not allow such incorporation. Thus, I suggest that the humanistic concepts of free speech and equal access be employed rather than attempting to superimpose the complex, constitutionally based structure of U.S. fair use law on international agreements. On this basis, technical communicators would be able to make empowered and ethical choices regarding their participation in international product development.

Many technical communicators work regularly in international collaborations or for clients in various countries, and many businesses are located in venues outside their home nations. For instance, the Coca-Cola Company is well-known for its worldwide reach and even capitalizes on it with its “World of Coca-Cola” exhibit in the Coca-Cola Museum in Atlanta, Georgia. Technical communicators have a big stake in how international legal issues can affect their interactions and control what happens to their contributions, particularly in light of current challenges that may draw international participants together to treat issues that ignore borders. For example, communications regarding the H1N1 virus were important at both the global and local levels, and information regarding the outbreak and treatment was supplied through multiple forms. Those whose job it was to create communications—some controlled by corporations and others by nonprofits and organizations such as the United Nations World Health Organization—cooperated to produce communications that would protect the world’s populations. Nevertheless, these products are subject to protections and limitations of international law that are advantageous in some cases and disadvantageous in others. Technical communicators who participated in developing responses to the potential crisis still have a stake in the treatment of their work.

Another example of a less exigent situation that involved global product development is that of technical communicators who worked on the Adobe Flex 2 online Help system, which grew out of contributions from users around the world. Not only would it be difficult to determine how to allocate benefits from this product’s use, but determining the source for licensing could be extremely problematic. Two more examples illustrate the differences in treatment of intellectual products from one venue to another. A technical communicator might create a strongly protected work in a European Union venue that employs moral rights law but find that the same work would be accessible to the public by way of fair use in a U.S. venue. Another technical communicator, by way of fair use, might be able to reverse-engineer a structure for providing information clearly and effectively in a U.S. venue but might be inhibited from creating a new product on this basis in a more protectionist international locale.

Overview of Fair Use and Its Source

Fair use is a legal structure that derives from U.S. law, and this context is significant for understanding why fair use exists and how it operates. U.S. intellectual property law is unique because it is based on a primary constitutional goal to support knowledge creation, education, and innovation (see Herrington, in press). Advancing this goal, in turn, provides a foundation for democracy and individual self-actualization. The U.S. Constitution gives primacy to its educational goal by making the rights of authors and inventors supportive rather than primary. The promotion of education and knowledge development is made possible through an incentive to authors that encourages creation and allows them to benefit from their efforts, but their exclusive right to their creative products is limited. Creators’ control is subject to a time limit that provides for a public domain, as well as other constitutional limits, such as free speech and information access assurances, that underpin individual rights and egalitarian access to the democratic process.

U.S. Fair Use

The American approach is unique in its use of utilitarian policy as a driving force behind intellectual property law. More common, particularly among western European countries, is a moral rights (droit moral) or natural rights approach to creative product development that focuses on the rights of the author. The moral rights approach connects authors directly to their work, treating intellectual products as representational and also as personal. Under a moral rights treatment of copyrighted work, the focus is on the needs and interests of individual authors. In contrast, the U.S. intellectual property provision establishes intellectual property law as a means to support policy goals as a basis for ensuring the operation of the U.S. system of democratic government. U.S. statutory law, particularly in the fair use doctrine, reflects the constitutional basis for meeting the nation’s goals to expand knowledge, support democratic interaction, and promote self-actualization and individual rights. Fair use is a key part of the 1976 Copyright Act and remains the legal basis for treating U.S. copyright today. The fair use doctrine helps effectuate the Constitution’s goals by allowing the use of copyrighted materials without permission if the context of use adequately meets the statute’s requirements (1976 Copyright Act).

In contrast to moral rights law, U.S. fair use law allows its citizens to use otherwise inaccessible intellectual products as a basis for participating in and influencing society. This helps to make possible an educated citizenry that is capable of maintaining democracy, enabled by support for activities such as news reporting and the criticism and commentary that form the core of democratic interaction and individual self-actualization. Technical communicators may use others’ intellectual products (within the limits of fair use) to create their own and, thus, participate in a process of exchanging ideas.

Ascertaining the reach of fair use is difficult and leads to a complex analysis of competing interests and domestic disagreements, even within a common foundation of U.S. law. Nevertheless, working within one national legal structure allows those with competing interests to argue within a framework that guides all participants, whatever their interest in supporting or diminishing fair use access. But even within a common domestic structure, U.S. law is not the only influence on what may happen to intellectual products. American technical communicators working in domestic venues are still influenced by decisions in international law and would likely benefit from an awareness of their possible impact.

Conceptual Basis for Fair Use in International Law

International law, based on treaties and agreements among international signatories, determines the legal interactions of diverse international parties both at and sometimes across international boundaries. To ensure that intellectual products are globally accessible and are traded to the advantage of international partners, all countries’ needs must be accommodated through negotiation. Achieving this goal increases the difficulty of establishing feasible legal practice. That is, international partners must compromise the dictates of their own diverse and sometimes contradictory legal foundations to effectuate treaties and agreements that accommodate all nations and their varying legal structures. As a result of negotiations to reach trade agreements that manage the sale and distribution of intellectual products internationally, the ability to moderate intellectual property interests on the basis of the U.S. doctrine of fair use—even domestically—has been virtually eliminated.

In practice, parties negotiating intellectual product regulations have supported goals in trade rather than promoting laws that enable democratic policy. Efforts to “harmonize” U.S. law to coincide with the legal treatment of intellectual products in other countries have affected even U.S. law domestically, inhibiting the goals of the Constitution’s intellectual property provision and the fair use doctrine that supports it. As Michael Birnhack points out, copyright has been severely limited since the advent of the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in which the “new copyright regime is no longer a law of the public and for the public, but rather, a law of business, for businessmen and investors” (Birnhack, 2006, p. 492). Those who create products for the international market may find this limitation advantageous, but technical communicators and other creative product developers who wish to maintain the ability to interact within a humanistically supported democratic structure may find it important to understand the benefits of introducing a fair use conceptual base in international intellectual property law. U.S.-based technical communicators who are accustomed to accessing copyrighted work as a basis for speech could find that without a humanistic structure for access in international intellectual property agreements, their ability to produce speech would be limited. For example, the ad for the film Naked Gun 33 1/3, featuring a pregnant Leslie Nielsen in a pose parodying the Vanity Fair cover of a pregnant Demi Moore, would likely be prohibited. Where a U.S. court found the use supportable as speech, even though it was commercial in nature, an international court would be unlikely to support it. Technical communicators working internationally without a fair use base might find their creativity restricted or, worse, their speech potential curtailed.

The Berne Convention and the TRIPS Agreement

On the WTO Web site, the Berne Convention is defined as “a treaty, administered by WIPO [World Intellectual Property Organization], for the protection of the rights of authors in their literary and artistic works.” This treaty governs the treatment of its signatories’ intellectual products across international borders. The TRIPS agreement, the Trade Related Aspects of Intellectual Property Rights, effectuates the Berne Convention’s goals. Both Berne and TRIPS have been criticized by U.S. scholars for their lack of a fair use structure, notwithstanding the minimal limitations on protection that are built into the agreements.

In the Berne Convention, some exceptions to intellectual product protection exist to allow support for teaching and news reporting, but these exceptions function minimally and, according to most scholars, leave concerns for access to domestic legislation because “Berne and WIPO were created in order to protect the economic rights of owners, not the access rights of users” (Foster, 2008, p. 199). So, for example, technical communicators would be hindered from accessing others’ products for reverse engineering, which would otherwise be supported by U.S. copyright law. Foster notes that it is no surprise that Berne’s primary function is to protect the economic rights of copyright holders, because its development was a result of “authors’ rights groups exerting political pressure on their governments in order to obtain protection on an international level” (Foster, 2008, p. 196). Nevertheless, some concessions were made to access, acknowledging the need to preserve public access to important information. Thus, Berne allows limited access to works of a scientific or educational nature (Foster, 2008, p. 196). The existence of these exceptions indicates that the international community recognizes a need for some form of access to information on the basis of public necessity. But many authors believe that the TRIPS agreement that effectuates Berne is too limited in its support of public access.

TRIPS Trade-Related Aspects of Intellectual Property Rights

The TRIPS agreement sets standards for treating intellectual products that emphasize intellectual product protection. Rochelle Dreyfuss notes that because the motivation for the TRIPS agreement was to protect intellectual products and encourage trade, it did little to aid users’ rights of access (Dreyfuss, 2004, p. 21). And although Richard Peltz (2009) argues that fair use actions are creeping into the activities surrounding treatment of intellectual property under Berne and TRIPS, Ruth Okediji, an oft-cited author who proposes a new fair use resolution, makes a strong case that they are not. She says, “One of the cardinal objectives of TRIPS, then, was to extend strong intellectual property rules to the rest of the world in an attempt to redeem maximum value for intellectual property products in the global market” (Okediji, 2000, p. 81). She says this was necessary to “redress the problem of lax enforcement and to secure the basis of competition in the global information economy” (p. 81). In fact, as she points out, among many who work with international intellectual property law, “the Agreement has earned notoriety as the most ambitious international accord on the protection of intellectual property” (p. 81).

This strict protectionist mantle characterizes international intellectual property law partially because intellectual property treaties are created more in consideration of patent than copyright, and no fair use access is provided in patent law, even in the United States. In addition, the business structures of parties who develop patents are often very different from those of the people who work with copyrights, trademarks, and trade secrets. Where patents are usually developed by large corporate entities, copyrights may be created by individuals; significantly, the economic interests of those who patent and those who copyright can vary broadly.

Implications for Technical Communicators

Technical communicators populate vastly differing workplace venues; some may develop products for large companies whose main interest is in protecting patents, while others may run individually owned and operated small businesses that compete by developing unique products to introduce to an established market. Academics in technical communication have an interest in accessing intellectual products as a way to assess their impact on society or their potential to shape trends in business and communication development. A strong protectionist base in international trade law ultimately provides substantial aid to those with great power and can hinder access for those who lack power. Technical communicators, thus, are affected by the parameters of their specific workplaces as well as by the international intellectual property law in each venue in which they work.

Product developers who are interested in humanistic access to information to support learning and innovation should note Okediji’s conclusion about the protectionist nature of current international intellectual property law; she says that “an international fair use doctrine does not currently exist in the internal law of copyright” (Okediji, 2000, p. 87). She argues that “such a doctrine is vital for effectuating traditional copyright policy in a global market for copyrighted works as well as for capitalizing on the benefits of protecting intellectual property under the free trade system” (p. 87). This opinion is echoed by Dreyfuss (2004), Foster (2008), Leaffer (2001), and Long (2002), among others.

International Fair Use Doctrine?

The value of fair use to support U.S. constitutional goals is clear (e.g., see Herrington, 1998, 2001, and in press). But questions about how to create and effectuate an international form of fair use remain. I believe that international law should contain a form of fair use that encompasses the concepts behind it, because fair use concepts allow access that makes it possible to support human rights for individuals, such as freedom to speak and to participate in determining how their cultures are represented, how their intellectual products are treated, and how their means of cultural (and sometimes physical) survival are supported or hindered by legal structures that will dictate their futures both at and across international borders.

Fair use in U.S. domestic law operates on the accepted basis (if not always operational in reality) that all U.S. citizens have the power to participate in democratic dialog. It exists within a structure of balance provided in the Constitution that acts as a foundation for all aspects of law in the U.S., so the fundamental goals in the Constitution temper the means and manner by which fair use proceeds. Legal access to copyrighted intellectual products is, on the basis of political theory, available to all U.S. citizens through fair use to support educational and free speech purposes. Therefore, in theory, fair use cannot be used to undermine the rights of some in favor of the rights of others. In other words, constitutional policy supporting public rights in favor of individual needs drives fair use and effectuates the overriding policy interests in treating intellectual property as a whole.

International Base for Intellectual Property: Fair Use Contrast

In contrast, international intellectual property law under Berne and TRIPS is based on economic needs and goals. Berne and TRIPS are trade agreements that allow nations to exchange innovations. And because international treaties and agreements must accommodate the vastly differing needs and government structures of all signatories, no one domestic legal structure can be used as a basis for international law. Aspects of U.S. law that are tied to fair use—such as the First Amendment—are not factored into international intellectual property protection and access issues. The result—as Dreyfuss, Foster, Leaffer, Long, Okediji, and others note—is that fair use interests have not been incorporated into Berne and TRIPS.

Okediji’s argument that fair use should be incorporated into international intellectual property law might be supportable if all actors affected by international treaties retained equal power to balance the satisfaction of human rights needs made possible by fair use against the needs to protect products in support of innovation and intellectual advancement. In this case, incorporating a fair use policy into international intellectual property law could produce optimal results. Long echoes the benefits of this possibility, and I strongly agree that “appropriate levels of protection, which balance individual rights with community needs, developed through a harmonization process that assures democratic access and avoids marginalization of less politically powerful voices, can serve as a powerful force for balanced, continued economic growth and development” (Long, 2002, pp. 248–249).

International Fair Use Type of Intellectual Property Structure

Accommodating Differences: Considerations for a Humanistic Use Structure in International Intellectual Property

Creating a legal means of access to internationally traded and protected intellectual property products based on concepts in fair use could be problematic. To make a fair use structure possible, a number of difficulties would have to be overcome. The following are some of the issues that must be considered if a form of international fair use is to be developed and accepted among international treaty signatories.

Negotiations among multiple nations can be extremely difficult, because the bases for their laws vary broadly. As Long aptly points out, integrating international parties’ interests can increase the pace of economic development but may also lead to “an erosion of sovereign autonomy” and could end in greater problems if regional needs are subverted in the process of supporting global considerations (Long, 2002, p. 239). Tending to the requirements of all nations that are potential signatories to an incorporated fair use doctrine implies finding a way to appease the needs of each nation, its corporations, and its individual citizens. The mix of developed and developing countries—with their broadly diverging goals, interests, and laws—requires complex efforts in negotiation. Technical communicators who trade with international entities should prepare for interaction by researching the legal background of potential trade partners’ nations and determining their positions on human rights issues.

Nations often represent the interests of their corporations rather than of their general populations. Because individuals’ needs and rights are not always considered, negotiators would have to be careful to ensure that access in a fair use structure would extend not only to those with power to use it but to less powerful individuals or groups that may need it most. This is a daunting task.

In fact, U.S. citizens’ rights provided through domestic policy were diminished when the copyright term extension act was passed, in part as a way to harmonize with Berne. Harmonization reduced the public domain and diminished the power to protect the policy interests supported in the U.S. Constitution. Many argue that harmonization of the U.S. term limitation on copyright, in effect, disabled the constitutional mechanism for creating a public domain, thereby rendering the current copyright statute unconstitutional. Others have argued that harmonization with international parties for the purpose of enabling trade has overriding value. But “critics argue that harmonization is just a disguise, and that there is no harmony in a world where the powerful impose their will upon the weak” (Birnhack, 2006, p. 503). Technical communicators who work in corporations might participate in helping to create balance by influencing the vision of those who negotiate in favor of product protection to include a way to support humanistic values.

Developing countries may need special power to protect their cultures and cultural products against the kinds of access that a broad fair use might allow if it were incorporated in current international intellectual property agreements. Because Berne and TRIPS are based on trade rather than policy interests, they encompass no system of policy balance that would allow fair use to operate in a way that protects the products of those who need protection, while also supporting human rights interests in speech and fair access to education and the means to participate in innovation. If a fair use structure were written too broadly, it might actually be harmful rather than helpful to the weaker parties to a potential agreement.

Human Rights Interests

To uphold human rights interests in speech, representation, security, and self-actualization, the international fair use structure in international intellectual property law should maintain some kind of mechanism to allow the kinds of functions that fair use is intended to provide in U.S. statutory law. But because Berne and TRIPS support trade rather than a government policy interest, international fair use would have to be shaped in a way that responds to trade needs to gain cooperation from signatories, while implementing compliance from those who would be compelled to compromise their interests to make policy support possible. This prospect is further complicated because not all signatories perceive laws in the same way. For instance, “despite attempts to create an international principle of free speech, there is no such unified principle. Free speech remains a local matter, with free speech jurisprudence and the ‘tradition’ of free speech varying from one jurisdiction to another” (Birnhack, 2006, pp. 494–495).

Finding a means to enable speech and other human rights, even within international compromises of domestic law, is important to the human rights of all people. Peltz (2009) believes that a trend in that direction is beginning to take hold, in which “the international community might even be warming to U.S. fair use doctrine, or some similar ‘public interest’ doctrine, because it is a legal norm that is more permissive of the nonconsensual use of copyrighted content than traditional common law and civil law models that have dominated the international field” (p. 71). He surmises that the balance may be shifting toward users’ rights as a reaction to overbroad protectionist tendencies in copyright law, but cautions copyright holders that “[i]f the tide is turning to favor fair use, then content users may seize the opportunity to press for their own favorable copyright balance” (pp. 271–272).

To negotiate an international fair use mechanism on a legal rather than policy basis would be complex, and it is clear that creating a viable structure would be difficult. But it is also important to consider the role power plays in how fair use or something like it would operate. Both workplace and academic technical communicators are in a good position to consider these issues, since they work within a balance of product use and development as a regular part of their everyday activities. They might be able to influence the development of a fair use structure on the basis of their familiarity with the workings of fair use in U.S. law and a democratic system built on humanistic goals. I contend that a structure of international fair use that equalizes power among signatories would be an optimally useful legal structure. The following issues would affect the development of such a structure.

Balancing Power

The key for developing an effective international intellectual property structure is to create a means for balancing power among treaty signatories, developers, and users of creative products. Without this balance, a viable fair use pattern that simultaneously supports innovation and access cannot exist. The following material points directly to power as a central feature in international intellectual property law.

Much of what occurs in treaty negotiations among nations reflects corporate rather than citizen interests, a situation that can allow individual rights to be overlooked. An effective, balanced international fair use mechanism would require a cornerstone of individual/human rights. Finding a method to balance human rights interests (which often attach to individuals) against the need to facilitate trade and innovation requires an assessment of where the power lies in each affected party and demands assurances that greater power in one party cannot be used to overcome the human rights of another.

Developing countries are often weak participants in treaty negotiations with developed powers. In fact, Graeme Austin says that “several respondent countries [working within Berne and TRIPS] reported that expressions of folklore originating in their countries had been exploited abroad without authorization” and that this kind of inequity is “a trend that will likely increase as global communication systems expand” (Austin, 2003, p. 334). The great difficulty in creating balance in this area is that developing countries with new intellectual products need strong means for protecting those products against infringement by those in countries with greater access and power. But, by the same token, an international fair use structure for access that provides for the same interests balanced in U.S. law would also mandate a means of access to information to allow weaker parties to participate in egalitarian negotiation. These conflicting interests must be carefully balanced, particularly with regard to their effects on weaker signatories.

Awareness of the needs of indigenous cultures and their interests is strong among authors who examine international intellectual property law from a human rights perspective, and steps have been taken in response to the need to protect culture. These include initiatives for the protection of folklore, such as the “guarantee in the International Covenant on Civil and Political Rights, that persons belonging to ethnic, religious, or linguistic minorities ‘shall not be deprived of the right, in community with other members of their group, to enjoy their own culture,’ and the recognition of the right of indigenous peoples to self-determination, articulated in the International Labor Organization Convention 169” (Austin, 2003, p. 335). Finding a balance that accommodates this complex set of needs is important to an effective international fair use mechanism.

Many human rights are intangible, noneconomic, and aspirational, in the sense that they support individuals’ interests in self-actualization and self-governance. As a result, these rights are hard to account for in economic systems such as Berne and TRIPS. In fact, “it is not possible for human rights to have priority over economic policy. Rather, economic policy must be implemented to realize human rights to the greatest extent possible” (Foster, 2008, p. 173). Finding a way to accommodate these rights to provide individuals with powers of self-development would be important in a fair use mechanism.

It is not feasible to use the law of any one government in place of another in international agreements. And “TRIPS’ reliance on national standards cannot create a unitary intellectual property (IP) regime because the common law and civil law systems are based on different rationales and presumptions which lead to legal plurality—and conflict” (Engle, 2002, p. 188). Nevertheless, determining commonality among human rights interests is imperative. Reaching agreement on what human rights are is difficult enough; in negotiating a structure for supporting them, parties would also have to prioritize them.

The U.S. Constitution’s Framers understood the value of access and interaction with intellectual products as a basis for making innovation possible. They knew that a balance of these interests would lead to a strong, progressive society. Where developed countries already have a base of information and creativity from which to build, despite the cultural interests of indigenous peoples that must be accommodated within a properly balanced structure, developing countries may be a position in which access is more important than product protection for their ability to create and innovate, and ultimately to become strong parties to global agreements. Thus, even in international law that does not draw from the U.S. Constitution’s principles, some support exists for users’ rights. As Dreyfuss (2004) notes, “A few user rights can be found in the TRIPS Agreement itself. For example, Article 9(2) prohibits the extension of copyright to ‘ideas, procedures, . . . and such,’ and Article 10(2) limits database protection ‘to the data itself’ (p. 30).

In addition, the Universal Declaration of Human Rights (UN General Assembly, 1948) supports speech and information access interests. Under Article 19, “everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Technical communicators may wish to maintain a structure that allows them to engage internationally in the development of creative work, supported by their own human rights interests. For those who do, supporting a human rights basis for intellectual product access in international venues is important.


In an ideal world, humankind would be supported in all efforts to create, to build knowledge, and to improve the world’s condition, challenging common obstacles like climate change, supporting common goals like disease eradication, and improving each person’s quality of life by ensuring the basic rights to freedom, including the ability to access the body of intellectual material that frames our experience with the world and to participate in speaking about it as a way to shape it. Although the conceptual goals of the U.S. fair use doctrine could provide a valid starting point from which to build a means of access to information in international intellectual property law, requiring signatories from varying domestic legal structures to accept U.S. domestic law as a basis of international law is not feasible. More important, fair use is intricately bound to a broader structure of balance within the U.S. Constitution; it would not function as a basis for international law if it were severed from its restrictions to legal principles of democracy in U.S. domestic law.

I suggest, instead, that international actors consider ways to structure a means of intellectual product access within international law based on nations’ common interests in supporting human rights rather than on U.S. domestic law. Technical communicators could participate in making this possible in the following ways:

  • Acknowledging the differing bases of law driving international partners’ and clients’ development decisions and negotiating differences to create products in a way that benefits all participants. For example, technical communicators might opt to create intellectual products that avoid using cultural capital of indigenous people who are represented by signatories who negotiate treaties for corporate rather than cultural advantage.
  • Choosing international partners and clients who approach product development with human rights interests in mind—asking about their stances on human rights and intellectual property and making difficult ethical choices to work only with those who support humanistic goals.
  • Influencing international participants in legal negotiations regarding intellectual property regulations. U.S. technical communicators have worked within a domestic intellectual property structure that arises from a basis of humanistic framing. This experience can enable them to help guide the development of a human rights–based international intellectual property structure.

An international law of access based on human rights could allow its signatories to moderate access on the basis of balancing power. An effective model of access attuned to human rights could provide weaker signatories with protection against intrusive access to their cultural products while still providing speech access to all signatories. A human rights approach might be an effective way to meet the needs of a world in which information is not just a commodity but also frames our way of life. Although this article focuses on the challenges of creating an effective mechanism for fair use in international intellectual property law, I hope that it will also contribute to efforts to conceptualize the possibility of incorporating fair use principles into an effective international doctrine. In this way, technical communicators and other participants in product use and development will be able to pursue innovation, tempered by human rights limitations and facilitations, to the advantage of all people.


1976 Copyright Act, Fair Use. 17 U. S. C. § 107 (1978).

Austin, G. W. (2003). Re-treating intellectual property? The WAI 262 proceeding and the heuristics of intellectual property law. Cardozo Journal of International and Comparative Law, 11, 333–363.

Birnhack, M. D. (2006). Global copyright, local speech. Cardozo Arts & Entertainment Law Journal, 24, 491–532.

Dreyfuss, R. C. (2004). TRIPS–Round II: Should users strike back? University of Chicago Law Review, 71, 21–35.

Engle, E. A. (2002). When is fair use fair? A comparison of E.U. and U.S. intellectual property law. Transnational Law, 15, 187–224.

Foster, S. E. (2008). Prelude to compatibility between human rights and intellectual property. Chicago Journal of International Law, 9, 171–211.

Herrington, T. K. (1998). The interdependency of fair use and the First Amendment. Computers and Composition, 15(2), 125–143.

Herrington, T. K. (2001). Controlling voices: Intellectual property, humanistic studies, and the Internet. Carbondale, IL: Southern Illinois University Press.

Herrington, T. K. (in press.) Intellectual property on campus: Students’ rights and responsibilities. Carbondale, IL: Southern Illinois University Press.

Leaffer, M. (2001). The uncertain future of fair use in a global information marketplace. Ohio State Law Journal, 62, 849–867.

Long, D. E. (2002). Democratizing globalization: Practicing the policies of cultural inclusion. Cardozo Journal of International and Comparative Law, 10, 217–269.

Okediji, R. (2000). Toward an international fair use doctrine. Columbia Journal of Transnational Law, 39, 76–175.

Peltz, R. J. (2009). Global warming trend? The creeping indulgence of fair use in international copyright law. Texas Intellectual Property Law Journal, 17, 267–287.

United Nations General Assembly. (1948). Universal declaration of human rights. G.A. Res. 217A, art. 19, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12).

World Trade Organization. Berne Convention definition. Retrieved from http://www.wto.org/english/thewto_e/glossary_e/berne_convention_e.htm

About the Author

TyAnna K. Herrington, JD, PhD, is an associate professor in the Georgia Institute of Technology’s School of Literature, Communication, and Culture. She is the author of three books: Intellectual Property on Campus: Students’ Rights and Responsibilities; Controlling Voices: Intellectual Property, Humanistic Studies, and the Internet; and A Legal Primer for Technical Communicators. She was awarded a Fulbright professorship in 1999, which led to her development of the Global Classroom Project. Contact: ty@gatech.edu