Fair Use in American and Continental Laws

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees the droit d’auteur (right of the author). Under the commercial Anglo-American approach, the protection of a creation is not a natural right, but instead is expressed in the form of economic incentive granting the creator a right to copy. The United States Constitution supports the latter approach in its Copyright Clause. This clause emphasizes the importance of limiting the time that the author has an exclusive right to the creation, in order to “promote the progress of science and useful arts.” The United States Supreme Court has also established support for the utilitarian economic approach in its decisions. Despite this, some scholars are calling against the economic approach and for the need to restore natural law theory in American copyright. This paper argues that the efforts to incorporate natural law theory in American copyright law would be undesirable, and that natural law concepts are incompatible with existing American copyright law. The two theories and their origins will be examined in order to show this, as well as the concept and scope of the fair use doctrine in American law and the Continental system