The Optimal Drafting of Copyright Exceptions

Emily HudsonWIPO Advanced Research Forum

Geneva, 28-30 May 2012

Debates on the drafting of exceptions

These debates are often framed around the respective merits of open-ended general provisions (standards) and closed-ended detailed provisions (rules).

Certain qualities tend to be associated with each style of drafting:

General exceptions: provide flexibility; lack certainty; must be interpreted by a court or tribunal (potentially introducing further uncertainty and expense for litigants).

Specific exceptions: provide certainty; lack flexibility; risk being over- and under-inclusive; are prone to becoming redundant.

In assessing exceptions, academic analysis often focuses on the “law in books”.

Fair use is frequently proposed as a response for the ills associated with detailed, specific exceptions.

The critique of Burrell & Coleman (2005)

Certainty is not an inevitable feature of specific exceptions, thus “to a large extent the strongest argument for the current approach rests on an illusory foundation” (p. 252).

It is not obvious that fair use would produce a noticeably different result in the UK:

Analysis of judicial understandings of fair dealing.

Anyone arguing that fair use should serve as a model for law reform must pay due regard to the environment in which fair use operates in the US.

Empirical analysis

Semi-structured interviews with staff of cultural institutions and other peak bodies in the US, Canada and (using earlier research) Australia:

US: 22 institutions; 7 peak bodies; total of 55 interviewees.

Canada: 22 institutions; 10 peak bodies; total of 59 interviewees.

Australia: 38 institutions and peak bodies (including six detailed case studies); total of 134 interviewees (of which 94 came from the case studies).

The interviews developed an understanding of the copyright management strategies adopted by participating institutions, including the role of exceptions: (1) sector-specific exceptions for libraries, archives and museums; (2) fair use; and (3) fair dealing.

Some of the pre-fieldwork questions

To what extent do institutions rely on: (1) specific exceptions; and (2) general exceptions?

Is fair use a meaningful or marginal part of the copyright management repertoire of US institutions?

Have Canadian cultural institutions expanded their reliance on fair dealing in response to CCH v Law Society of Upper Canada?

Note the positive response in the academic literature, and the findings of subsequent cases, especially the Copyright Board decision in Tariff 22A and Justice Bastarache’s opinion in Euro-Excellence v Kraft Canada.

Key observations: practices

Participating US institutions reported adopting forward-leaning interpretations of fair use, particularly for public uses.

The institutional reception to CCH was extremely muted, and the exceptions most relevant to cultural institutions were the sector-specific LAM provisions.

In all three countries, there were instances in which institutions internalised views that seemed to oust any room for copyright considerations.

Example: administrative activities

Permitted under sector-specific exceptions in Australia and Canada; no specific exception in the US, suggesting that such activities must be considered by reference to fair use.

In all three countries, interviewee responses suggested that copyright has had no discernible impact on institutional activities.

Explanation: norms of best practice are so strong that institutions will proceed regardless of what the law says.

Example: websites and online databases

In all three countries, institutions commonly targeted the content of public websites to works in the public domain, those subject to a licence, and those for which the institution owned copyright.

Were exceptions to copyright infringement also relevant?

Australia: no, as exceptions were not understood as relevant to online public access.

Note: this fieldwork pre-dated 2006 copyright reforms.

Canada: no, although query whether this conclusion is inevitable given CCH v Law Society of Upper Canada and the Copyright Board’s Tariff 22A decision.

US: yes, over half of participants reported making images and other content available on publicly accessible websites by reference to fair use.

Conclusions

It is not just about drafting and case law! Other important factors include:

Institutional factors, e.g.: best practices in collection management.

Other statutory provisions, e.g., remedies limitations; provisions encouraging collective administration; etc.

Copyright management techniques, e.g.: level of resources dedicated to copyright management; presence of lawyers and copyright experts on staff; risk preferences.

Historical and philosophical factors, e.g.: legislative history; prevailing views on the role and relevance of exceptions.

A final word: the three-step test

Thesis aligns itself with those who prefer an open-textured interpretation of the three-step test.

The empirical work may provide indirect support for such a view, as it explains why it is desirable that countries have some latitude to craft exceptions to suit local conditions.

3ST concerns not just relevant to fair use: e.g., Copyright Act 1968 (Aust) s 51A(2) (“The copyright in a work that is held in the collection of a library or archives is not infringed by the making, by or on behalf of the officer in charge of the library or archives, of a reproduction of the work for administrative purposes”).

Credits

The research described in this presentation was undertaken as part of two ARC Linkage Projects supported by the following organisations:

Kenyon and Christie LP0348534 (in which I was Research Fellow): Art Gallery of New South Wales; Australian Centre for the Moving Image; Australian War Memorial; Museum Victoria; National Museum of Australia; and State Library of Victoria.

Kenyon and Christie LP0669566 (in which I was APAI doctoral candidate): Arts Law Centre of Australia; ACMI; Museum Victoria; Museums Australia; National Film & Sound Archive, National Gallery of Victoria; National Library of Australia; NMA; National and State Libraries Australasia; Powerhouse Museum; Screen Australia; and SLV.

The research described in my thesis was conducted independently from other aspects of this project. The opinions and conclusions presented are strictly my own.

My thanks to all the interviewees who participated in this research.

To contact me: emily.hudson@law.ox.ac.uk.