Where’s the fair use?

Copyright law is struggling to keep pace with technology. Mayer Brown associate Jonathan Dack looks at what this means for vloggers as the #WTFU debate gathers pace

A debate is raging on social media.

It all started when the founder of Channel Awesome, Doug Walker, asked “Where’s The Fair Use?”. When he posed the rhetorical question, Doug was voicing his dissatisfaction with the state of international copyright law — a sentiment that was shared by his 500k subscribers.

Since then, the hashtag #WTFU has not stopped trending on Twitter, causing lawmakers around the world to take notice.

The campaigners’ message is that online content producers need greater protection from unwarranted claims of copyright infringement. They are frustrated that copyright law is not keeping pace with technology, leaving vloggers in a vulnerable position. Buoyed by the movement, the United States Copyright Office has been inundated with thousands of requests to change The Digital Millennium Copyright Act 1998. If the campaigners are heard, the current system — which, they feel, forces websites to take down user generated content (UGC) unfairly — is in for a serious overhaul.

Not to be mistaken for a typo in a chain of text messages, #WTFU questions one of the most frequently misinterpreted areas of copyright law — the US doctrine of “fair use”. It is this legal principle that, in certain circumstances, allows third parties to make use of copyright protected material without the rights holder’s permission. The exception is sometimes relied on by online creators to make educational videos, critique other peoples’ work, add commentary, or report the news.

Across the pond, a number of public consultations are underway to bring the EU’s single market up to speed with the fast-moving digital world. The objective of these consultations, which cover a wide range of copyright matters, is to respond to the main challenges posed by the new digital environment and ensure that the EU copyright framework supports innovation, harnesses the full potential of the single market, fosters economic growth, and promotes cultural diversity.

Throughout the discussions so far, a significant number of concerns have been raised by people having problems when sharing UGC online. These commentators cite a lack of clarity in the existing legal framework for the average person. According to them, the ambiguity in this area makes it difficult for individuals to assess what they do from a compliance perspective. Others say it is difficult for users to know when their uploads may be covered by licences between internet platforms and right holders, and the exact terms of these licences, of which end users are not part.

If legislative change is required to find a solution, law makers need to decide on the best approach. Some wonder if the existing exceptions (parody, quotation, incidental use and private copying) should be mandatory across all member states or if a new exception should be introduced to cover transformative uses. Others suggest that a solution could be to introduce a formal fair use principle in EU copyright law.

At the moment, the position on fair use is not the same throughout the EU. In the UK, for example, the concept of “fair dealing” is the next best thing. This exception is limited to research and private study of a non-commercial nature, criticism and review, quotation, and news reporting. In addition, parody, caricature and pastiche sometimes fall under the same umbrella. Unlike the related US doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories, effectively narrowing the protection for online content producers.

However, what’s important to remember is that an internet user’s expectation to copy, modify and distribute works online is likely to differ significantly from their expectations in the real world. Closing the gap between the virtual and the physical is a challenge that policy makers have struggled with for decades and, ultimately, it may prove too difficult.

Instead, the world is moving towards a copyright system that leans heavily on government guidance, accepted industry practices and precedent decisions by the courts. Despite these obstacles to reform, what’s clear is that creators of UGC have an important role to play in shaping the future of copyright law. The fair use debate rages on.

Jonathan Dack is an associate in Mayer Brown’s London intellectual property team. He is leading the firm’s CL-IPs project.

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