Fair use in Europe: not yet good idea, but one that might justify a copyright regulator

This article examines recent French and European proposals to introduce a "fair use" exception into European copyright law. The article points out that fair use seems attractive because it is flexible, but that in fact fair use creates considerable uncertainty for market players in the US. Mashups or other forms of user generated content are in a grey area until clear case law emerges, which can take years. Citing the example of the Perfect 10 case in the US and similar thumbnail cases in Europe, the article points out that European courts generally find ways to arrive at the same outcome as in the US, relying on grounds other than fair use. Consequently, there does not appear to be an immediate need to introduce a fair use exception in Europe. The article points out that France's graduated response regime, by concentrating only on serious online infringers, already creates a form of fair use although it is not labelled as such. Finally, the article draws attention to the "regulatory" function of the Library of Congress in the US in connection with anti-circumvention measures. Some academics recommend the creation of a copyright regulatory authority in the US with a broader regulatory role, which might contribute to reducing the uncertainty linked to fair use.

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