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Much to the displeasure of the wider EU, the Dutch want to liberalize their copyright laws to explicitly allow remixes and mashups. The irony is that their inspiration is not political movements like Sweden’s Pirate Party, but America’s laws about fair use.

In the U.S., fair use protects the use of copyrighted material for commentary, criticism and the like. But automated tools for detecting copyrighted material (on e.g. YouTube) and the overly-broad Digital Millennium Copyright Act, which allows anyone to request that an infringing work be taken down, put the burden of proving that a work constitutes fair use on the content creator. This has a chilling effect on the kind of work everyday people release on the web.

The proposed Dutch laws, in contrast, would explicitly protect fair use of copyrighted material. Here’s Marietje Schaake, of the European Parliament, quoted by Radio Netherlands:

“We must ensure that there is competition and a free market but we have to protect creativity as well. Right now the entertainment industry, for one, benefits from these outdated laws. These big parties will do all they can to prevent reform or redesign at all.” 

Remember when tape decks and VCRs represented mortal threats to copyright holders? The result was the Audio Home Recording Act, for which the RIAA lobbied. That law set the precedent for taxing media (in this case, tapes) to pay for perceived losses to content creators, and it paved the way for subsequent Digital Rights Management technologies.

We’re in a similar situation today, in which rights holders would rather cripple the unique abilities of a new technology than be forced to innovate new ways to profit from it. If the Dutch actually pass the proposed law, it will be over the protests of the EU, which would like to harmonize copyright standards across all member countries. That harmonization wouldn’t just be a tragedy for Europe, which has no fair use provisions in its copyright law. It would also represent a missed opportunity for the Netherlands to show the rest of the world that copyright can be guided by the principles under which it was first established, when the goal was an enlightened balance between the needs of citizens and corporations.

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