The Motion Picture Association is at war with the legal doctrine of fair use in copyright law around the world.

Over the weekend the Washington Post had a long story detailing the outsize influence the MPAA has had with U.S. trade negotiators as delegates from around the world try to hammer out a treaty to ensure that blind people and the visually impaired have access to books in accessible formats, such as read-aloud audio, Braille and large print.

The treaty was pretty far down the tracks, and was scheduled to be signed this week in Marrakech, Morocco. But the deal is now in danger of coming undone due to U.S. demands for last minute changes, largely, according to the Post, at the behest of the MPAA. Among the U.S. demands, ironically, is a rewrite of a section in the treaty incorporating a fair use standard modeled on American copyright law. The Post article quotes Ted Shapiro, a former long-time MPA attorney in Europe now representing the studio group in private practice, acknowledging the studios’ concern with the fair use provision for fear that courts in other countries would not apply the doctrine in the same manner as U.S. courts.

Separately, the MPAA previously submitted comments on Monday in an Australian proceeding aimed at update Australian copyright law for the digital era. And once again, the U.S. studios take aim at a proposal to insert U.S.-style fair use language into the law.

And, as with the treaty for the blind, the MPAA’s objection is that Australian courts would be unable to apply the U.S. fair use standard appropriately because they lack sufficient knowledge, experience and case law to draw on:

The main problem relates not so much to the concept of a general defense to infringement that is applied on a case-by-case basis to specific facts, but with the role of the specific U.S. judicial precedents that have developed within and provided content to the fair use framework in particular factual settings.  As noted above, the U.S. fair use doctrine is based on an analysis of these U.S. judicial precedents.  It is only on this basis that the fair use doctrine can be said have any real impact, positive or negative, on the development of copyright-based businesses, or upon businesses that depend upon the mass exploitation of copyrighted works owned by third parties. If, as is sometimes asserted, fair use provides “breathing space” for innovative new businesses, that can only be because counsel to those businesses have analyzed the applicable fair use precedents and have advised that the uses that these companies wish to make of copyrighted materials, without authorization from the copyright owner, and without the shelter of specific exceptions to copyright law, are likely to be considered fair if and when they are presented to a court for resolution.  This case law has shaped the fair use doctrine and in many cases constrained its application.  The enactment as part of Australian law of a new system based on the fair use doctrine would not bring with it this century and a half of judicial precedent that allows counsel, and the companies and individuals they advise, to rely upon the doctrine.  Indeed, at its introduction, the new system would be unsupported by any binding precedent at all [snip].

Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts.  This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public.  Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.

In other words: You can’t handle fair use.