The uncertainty about the scope of copyright regulation is increasingly one such burden on Internet political speech. This next political cycle will see an explosion of citizen generated political content. Some of that speech will be crafted from clips taken from the Presidential debates. Some of that will be fantastically valuable and important.
Yet as the law is right now, it is extremely difficult for an ordinary citizen to understand the boundaries of “fair use,” or the limits to copyright law. It is likewise difficult for companies such as YouTube, or Blip.tv. Indeed, it is even difficult for a skilled practitioner. That uncertainty, if not checked, could produce a cloud over much of this political speech, as sites and universities don’t know how much is too much. It will certainly create a temptation by some politicians to invoke copyright law to block particularly effective speech critical of them.
The political parties, therefore, should simply make the problem go away by requiring the networks that broadcast the debates to make video freely available, either by freely licensing the content after broadcast or by distributing it under a Creative Commons license.
I am confident that I won’t like much of what this freedom will engender. But if that were a legitimate reason to regulate political speech, this would be a very different world. We should all, regardless of our political persuasion, be encouraging a wide ranging debate about our political future. And we all need to hear more from those with whom we disagree.
I am also hopeful that those typically on the other side of the many debates that we have had about copyright will recognize this proposal as one that strengthens copyright. The last thing a copyright system designed to produce incentives for authors and artists needs is to complicate judgments about “fair use” by accommodating speech that needs no real copyright protection at all. There is incentive enough for politicians to debate, and opportunity enough for broadcasters to carry those debates. We don’t need to add the complexity of a lawyer driven speech regulation into this mix.