Bonadio, Lucchi and Pollicino, ‘Fake news and copyright’

ABSTRACT
As is known, new technologies have profoundly changed the way content is produced, shared and disseminated. One of the most recent (and worrying) changes is the phenomenon of ‘fake news’, especially since disinformation and intentional misrepresentation of real information have started to affect individual decision-making in the political sphere. It is a worrying phenomenon because the dissemination of fake news can challenge democratic values and undermine national security.

Against this background, can copyright play a role in the fight against fake news? And what is the relationship between such news and copyright in the first place? Fake news in theory falls within copyright subject matter and may often meet the requirements for protection. The paper analyses three recent examples of fake news which have been widely disseminated online – and makes the point that copyright may subsist in such news. Yet, despite such content being potentially capable of attracting protection, we propose to remove any copyright which may arise on grounds of public interest. Indeed, when a work is protected by copyright, right holders have an incentive to exploit it, as the monopoly granted to them increases the ability to extract profits out of the work, for example via licensing. This may contribute to encouraging creators of fake news to spread such content across multiple channels to reach wide audiences. Excluding copyright could therefore help make fake news less appealing. A short reference will also be made to copyright defences which may be relied on by entities and individuals who check news’ accuracy (fact-checkers) – that is, the fair use doctrine under US law and several exceptions under EU (and UK) law, namely transient use, text and data mining, criticism and review and public security.

Enrico Bonadio, Nicola Lucchi and Oreste Pollicino, Fake news and copyright, Queen Mary Journal of Intellectual Property volume 11 issue 4 (December 2021) 444, https://doi.org/10.4337/qmjip.2021.04.02.

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