Fake News and Copyright

As is well-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 the copyrightable subject matter and may often meet the requirements for copyright protection. The paper analyses three recent fake news which have been widely disseminated online – and makes the point that copyright may subsist in such news. The first example is a short article. The other two examples are a digitally modified photograph and a doctored video. Yet, despite them 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 them exponentially 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) – i.e., 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.