Fair Use: Be careful what you wish for!
A little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.
At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works.…