Keeping election promises

Yes, we all know that politicians regard their election promises as little more than discardable suggestions, so I don’t mean those promises. No, I mean I promise I made about the election. Early last month, Daithí called on

interested parties (interested being those (bloggers or not) with an interest in the legal and policy elements of the Internet, including copyright, digital media, network regulation, etc - i.e. taking the wide look that Lessig takes, or wider if necessary) to join in. Each person will be responsible for one proposal, of her or his choice. They can be essays, bullet points, draft legislation, powerpoint-style presentations, audio or video podcasts - whatever.

I volunteered (twice!). That’s a promise I’ve just kept, over on Cearta, calling for an expanded and internet-sensitive fair use right in EU law. The post is very long, and very link heavy. Here are two extracts. The first extract is the background:

Intellectual property law and policy are all about innovation, both encouraging it and protecting its fruits. But these are potentially opposing, perhaps even incompatible, goals: if we reward one innovator with a monopoly over the fruits of the innovation, prohibiting others’ use of those fruits, then we risk preventing the next round of innovation. The challenge to law-makers is to strike the an appropriate balance between reward and innovation, by pitching the length of the monopoly at the right level, both in the breadth of its coverage and the length of its term, beyond which others might also use it.

The second extract is the detail of the call for a thoroughgoing re-examination of the current balance between reward and innovation:

First, this rebalancing should be achived by an EU Fair Use Directive, as a positive policy commitment in its own right, and not merely as measure amending previous directives in a piecemeal fashion. Second, the directive should legislate for a broad right of fair use (and not merely as an exception, exemption, license, or privileges as William Patry explains those terms here). It is important to state this new fair use doctrine positively as a right, so that it will be interpreted expansively, rather than merely negatively as a set of exceptions, which will be liable to be interpreted narrowly. Third, whilst copyright in the original work should continue to susbsist, fair use should nevertheless cover as a minimum personal, non-commercial uses which do not impact upon the original work’s market (provided credit is given where appropriate). Fourth, the various elements of fair use in US law, fair dealing in Irish law, and emerging suggestions in Gowers, the FAIR USE proposals, and so on, ought to be iterated as a partial list of examples of that right. And this list should be stated to be open to analogical development by the courts as new situations develop. Fifth, the copyright monopoly should not be unitary, but should instead be graduated by the new fair use right in various ways. For example, it should provide greater protection against commercial infrigement, but less against private use. Moreover, even in the commercial sphere, fair use should provide for a robust range of compulsory licences which reward the original work without stifling further innovation. And, as copyright terms have been and are being increasingly extended, it could provide such greater protection at the beginning of the period, but ought to become subject to an expanding range of fair use rights, exceptions and exemptions over time.