The Optimal Drafting of
Copyright Exceptions
Emily Hudson
WIPO 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 overand 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 forwardleaning 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 opentextured 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.