Over on Lex Ferenda, Daithí has highlighted that, in the US, Fox News has written to US Republican Presidential candidate John McCain asking him to stop using a clip of his own words from a debate in a political advertisement. In fact, not content with taking on one presidential candidate, Daithí points out that they have decided to take on all of them, writing to them all in similar terms.

Fox are playing a dangerous game here (well, dangerous for them, at any rate). There is a very strong argument that First Amendment political speech concerns make this advertisment a non-commercial fair use (don’t just take my word for it; Michael Geist thought so too during a similar Canadian flap last January). And an express Federal Circuit Court holding to that effect would certainly set the cat amongst the pigeons for those broadcasters like Fox who continue to insist on restricting copyright in political debates which they host / broadcast. In fact, Fox seem to be the main holdout against Lessig‘s petition to the US political parties and broadcast networks to license Presidential debates freely after they are initially broadcast – either by putting the debates into the public domain, or by permitting anyone to use or remix the contents of those debates, for any reason whatsoever, so long as there is attribution back to any purported copyright holder. Fox declined! On the other hand, CNN immediately agreed; MSNBC started a dialogue with Lessig about its policy; and both ABC and NBC have now substantially come on board. Fox looked silly when they didn’t catch this wave; and, with their current actions against political advertising, they now look positively antediluvian.

Update: Lessig has a typically punchy post about this episode here. A sample:

It is time that the presidential candidates from both parties stand with Senator McCain and defend his right to use this clip to advance his presidential campaign. Not because it is “fair use” (whether or not it is), but because presidential debates are precisely the sort of things that ought to be free of the insanely complex regulation of speech we call copyright law.

It is not just the US networks who have heeded the Lessig plea. Michael Geist has made a similar call in Canada; as have I in Ireland; and I now learn from Peter Black’s superb Freedom to Differ and from the ever-excellent House of Commons that a similar call has now been made in Australia:

Election debates should be openly available: Expert

… Dr Matthew Rimmer from the ANU College of Law said that Australia’s political leaders have already embraced new media such as YouTube and Facebook as political tools, and that the ALP has called for a debate to be broadcast on YouTube. He said both parties should go a step further to ensure that digital copyright issues do not become an impediment to the sharing of election debate broadcasts.

“Whichever television networks or internet media end up broadcasting the federal election debates, it’s important to the health of our democracy that people are free to capture and distribute the dialogue of our prospective leaders so that they can make a more informed decision,â€? Dr Rimmer said. “New file sharing networks and technologies mean we have more potential than ever before to choose the time and place in which we consume media – provided we are not restricted by unnecessary copyright requirements.â€? …

I hope his call has a better response than mine did. In the meantime, when will Fox live up to their motto “We Report. You Decide”?