Fair use: internet creatives strike back

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By Jonathan Dack, associate, Mayer Brown

In recent weeks creators of user-generated content have taken to -social media to voice concerns about the state of copyright law.

The campaigners’ message is that content producers need more protection from unwarranted claims of copyright infringement. They are growing frustrated that the law is not keeping pace with technology, leaving internet creators in a vulnerable position.

It all started in February of this year when Doug Walker (pictured below), the founder of Channel Awesome, posed the rhetorical question, ‘where’s the fair use?’ to his legion of followers.

Walker’s initial ventilation quickly turned into a worldwide movement, using the hashtag #WTFU to get the attention of lawmakers.

Doug-walker

And it’s working. In America the US Copyright Office has been inundated with thousands of requests to change The Digital Millennium Copyright Act 1998. Most of the appeals call for clarification on how the legal doctrine of ‘fair use’ is interpreted.

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 content, critique other peoples’ work, add commentary or report the news.

Doug Walker,  founder of Channel  Awesome, posed the  question, ‘where’s the  fair use?’ to his legion  of followers, using the  hashtag #WTFU

Closer to home, public consultations are underway to bring the EU single market up to speed with the 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 digital environment and ensure the EU copyright framework supports innovation.

Through these talks it has become clear that online creators often find it hard to understand whether their actions are legally compliant. Particular concerns have been raised about differing fair use interpretations among member states, adding another level of complexity when it comes to using global platforms such as YouTube.

Given the legal uncertainty, relying on fair use can be a risky business and it will be interesting to see how lawmakers respond in the coming months. But legislative reform may not be the answer. The world is moving towards a copyright system that leans heavily on government guidance, accepted industry practices and precedent decisions by the courts.

Although the path to a clear copyright system remains uncertain, content creators will surely play a part in shaping the future of fair use.