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Has interpretation of Fair Use in the US gone too far? – Charles Clark Memorial Lecture

20th March 2017

The annual Charles Clark Memorial Lecture, held each year during London Book Fair, saw lively debate on the Fair Use doctrine in the US between Judge Pierre Leval and Jon Baumgarten Esq.

The lecture, now a staple of the London Book Fair, takes place each year in memory of the late copyright lawyer and expert, Charles Clark, who was involved in numerous influential copyright decisions including the Copyright, Designs and Patents Act 1988 and the 1993 extension of copyright protection from 50 to 70 years after the death of an author. Each year the lecture is attended by leading authorities on copyright; rights managers; authors; visual artists; and anybody interested in the future of copyright in the content business.

For the first time, the lecture took on the form of a debate with Peter Day, former BBC broadcaster, acting as moderator. Day introduced the debate and its subject of fair use by talking of the dawn of intellectual property and the origins of the doctrine of fair use; the limited use of copyright material without having to contact the copyright owner. He highlighted that new technologies have made content more accessible than ever, but that tensions have arisen between the issues of ownership of information and the access to it.

Judge Pierre Leval, of the United States Court of Appeals, was the first to address the issue of how fair use has been handled in the US. Leval acknowledged that technology was certainly changing how we access content, but argued that this does not necessarily come as a detriment to copyright owners. He contended that the US approach to fair use gives a beneficial flexibility that allows the two objectives of copyright to be met; allowing authors to make a living, and also to increase the access to information, therefore, the knowledge of man. The digital sphere inherently involves the fair use of others’ work, but if the copyright owner’s market is not under threat or being encroached upon, then it can be of great value to them, rather than harm. Leval concluded that fair use is not the enemy of the copyright owner, but is in fact solicitous of their rights.

The second speaker Jon Baumgarten Esq, former General Counsel for the US Copyright Office, was more wary of the flexible nature of fair use in the US. Baumgarten described his worries over recent decisions concerning fair use, and his fears that it will become misused under a false flag of authority, leading to widespread, unauthorised copying. He argued that technology giants have the ability to create copying enterprises, which is outside the spirit of fair use. Warning against the expansion of the fair use doctrine, Baumgarten underlined his concern that increasing calls upon ‘fair use’ would take away copyright value from the owner.

The dynamic exchange of ideas between the two leading US copyright experts provided good insight into how fair use is treated around the world, and the increasing number of challenges that the doctrine will have to meet in the face of new technology.

The Charles Clark lecture is hosted by the Publishers Association, and sponsored by the Federation of European Publishers (FEP), the Publishers Licensing Society (PLS), the Association of American Publishers (AAP), the Copyright Clearance Center (CCC), the International Publishers Association (IPA), the Copyright Licensing Agency (CLA) and the International Federation of Reprographic Rights Organisations (IFRRO) as well as sponsorship from leading law firms specialising in IP – Harbottle & Lewis, Proskauer, Taylor Wessing, Wiggin, and publishers Elsevier and Pearson.