Calls for Trump, Congress to 'Weaken' Fair Use Doctrine are 'Alarming,' Says EFF

The News Media Alliance's recent white paper on policy positions (see 1611300048) for the incoming Trump administration is “alarming” given its call to potentially “weaken fair use,” said Electronic Frontier Foundation IP activist Elliot Harmon in a blog post. The alliance, formerly known as the Newspaper Association of America, proposed that a Trump White House and Congress seek the enactment of “strong” copyright protections that “must be structured to allow for a return on investment, and not to encourage aggregators, search engines, social media sites and advertising networks to build revenue from content in which they do not invest.” Legislation should include language “refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity,” NMA suggested. It targets federal courts' transformative fair use test prong by “asking the government to revoke rights that journalists rely on: the use of quotations and eyewitness photos in news reporting is itself a form of transformative fair use,” Harmon said. “Glibly asking to change the fair use statute, which has been the bedrock of copyright law's free speech protections since it was written into the Copyright Act in 1976, is short-sighted and dangerous.” Fair use “is one of the safety valves in copyright law intended to protect First Amendment rights,” Harmon said. “The press can’t afford to weaken one of its most important tools.” It “takes a leap to say what we're suggesting” will result in a weakening of the fair use doctrine, an NMA spokesman said. NMA's white paper is aimed at “trying to bring back value” to the journalistic work its members produce, with its copyright proposal focusing on “protecting those that create and disseminate ideas,” the spokesman said.