What's fair here is not fair everywhere: Does the American fair use doctrine violate international copyright law?

As part of the Uruguay Round of negotiations of the General Agreement on Tariffs and Trade, signatory nations elevates the enforcement of copyright and other intellectual property rights to unprecedented international prominence with the inclusion of the Trade Related Aspects of Intellectual Property (TRIPS) agreement. With respect to copyright, the TRIPS agreement added a viable enforcement mechanism-the World Trade Organization (WTO)-to the minimum standards provided in the earlier Berne Convention for the Protection of Literary and Artistic Works. However, a new provision of the TRIPS agreement-Article 13-appeared to narrow the exceptions to the Berne minimum standards that signatory nations may recognize. In this note, Tyler G. Newby examines the potential impact of Article 13 on the American doctrine of fait use of copyrighted works. Newby first argues that the public benefit and the maintenance of the balance between an author's monopolistic rights in a copyrighted work and the Copyright Act's underlying policy of encouraging invention are at the core of the American fair use exception. Next, Newby analyzes the language and history of Article 13 and the recently-drafted World Intellectual Property Organization's copyright treaty, arguing that both are broad enough to encompass the American fair use doctrine. Newby then considers the application of Article 13 to the popular practice of reverse engineering of computer programs, which is judicially recognized as fair use in some circumstances in the Unites States, bur recognized as noninfringing in only more limited contexts, or not at all, abroad. Newby ultimately argues that because of the important public policy considerations embedded in American fair use doctrine, as well as the evolving nature of the issue of software reverse engineering internationally, the practice should not be subject to the WTO dispute resolution process.