New Content Industry Talking Point: Fair Use Is Bad Because It Leads To Litigation
from the say-what?!? dept
While we were initially skeptical of a planned review of copyright law in the UK (after all, it had been done just five years earlier, with most of the key points then ignored by the government), we were encouraged by some of the folks who were included as a part of the process. However, it looks like, once again, politics may have gotten in the way. We had laughed at the ridiculous claims from the UK copyright industry folks that fair use was bad and would put a “chokehold on innovation.” After all, we have fair use in the US, and we’ve seen no evidence that fair use holds back innovation in any way, shape, or form.
And yet, as the report is about to come out, reports are leaking that the committee has decided not to support an American-style fair use law in the UK. The suggestion is that they bought the ridiculous claim from the entertainment industry that fair use is a problem because it leads to a lot of lawsuits:
According to sources close to the review, the panel decided fair use would be too problematic to replicate from scratch in UK law because it emerged from a number of US case law precedents. Fair use, which is employed as a defence against infringement claims in the US, has also given rise to a high volume of litigation.
Frankly, this makes no sense (at all), unless there’s a lot more to it. Yes, fair use in the US developed through case law, and was then codified in 1976. And, yes, there has been additional case law on the matter since, but the UK now has all of that case law to look at, and it’s entirely possible to write smarter fair use laws today. You can’t just throw up your hands and say because it developed out of case law in the US that it leads to too much litigation. The proper response is to better define the contours of fair use, such that there need not be as much litigation. Tragically, that appears to be unlikely this time around.