Book review: Drafting Copyright Exceptions

http://ipkitten.blogspot.com/2021/01/book-review-drafting-copyright.html

Continuing the theme of balancing copyright and other fundamental rights, from this Kat’s previous book review, she now turns to Emily Hudson’s Drafting Copyright Exceptions: From the Law in Books to the Law in Action, which was also nominated in the IPKat book of year awards for best copyright book.

Law in books v law in action 

Hudson, Reader at King’s College London, introduces her book by stating that we need a new paradigm through which to view the operation and drafting of copyright exceptions. And just before the reader might begin to think this is another book analysing the justifications and role of copyright exceptions, Hudson quickly departs by saying that the majority of the literature takes a top-down or ‘law in books’ approach, whereas this research considers the ‘law in action’, which uses an understanding of the practices of non-legal actors; the creators, copyright owners and users.

To illustrate, the case of CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 saw the Supreme Court of Canada hand down a judgement that received favourable academic commentary, declaring it a landmark case with far-reaching effects regarding the conceptualisation of exceptions. However, Hudson details in chapters 7 and 8, the reception of the case within Canadian cultural institutions, using not only publicly available information but also empirical research including interviews with institution staff and representatives of peak bodies. A compelling and concerning argument is presented, that in the five years following the judgement, a significant gap emerged between the academic interpretation of the case and the muted response within the institutions. Awareness of the case itself was mixed and few changes to procedures were made. 

Whilst reading, this Kat recalls times that she has worked with companies, publishers and organisations in the UK, that also reflect the same experience, after the UK updated its copyright exceptions in 2014. Whilst this is an anecdotal experience, Hudson demonstrates the issue to be a very real concern. 

Delving deeper, the book explores what the law in action means for the drafting of copyright exceptions. In particular, chapter 2 makes predictions for when a legal command is better drafted, highlighting the crucial role that empirical analysis has in helping to determine better drafting. 

Fair Use v Fair Dealing

Of course, Hudson weighs in on the popular debate of whether countries with a closed list of fair dealing exceptions face struggles that can only be resolved by implementing an open-ended fair use system. Hudson uses qualitative methods to compare the management of copyright challenges by a leading cultural institution in the US, with equivalent bodies in Australia, Canada and the UK. 

Whist Hudson’s research supports the implementation of fair use in other jurisdictions, she is careful to note that “standards are not inevitably superior to rules, nor is fair use the end point of a mature legal system.” 

And it’s an international longitudinal study…

Just when you think this book has made its contribution, Hudson turns around and makes a slam dunk with a longitudinal study! She mentions that the book uses data from 2004, relating to the copyright management of cultural institutions in Australia, Canada, the UK and US, to describe the decision-making processes at institutions, to explore why some practices changed but others didn’t, in context of what this means for copyright exceptions. The methodology is provided in the text, with further details in the Appendix. 

The book is presented in three parts, consisting of nine chapters in total. Part 1 provides the introduction, key insights from the literature on standards and rules, the rationales and methodology, and doctrinal matters relating to copyright management and cultural institutions. Part 2 focuses on institutional experiences in Australia, Canada, the UK and US in relation to copyright exceptions, highlighting decision-making processes and their influences. Part 3 looks to the future in 2 chapters, shifting to the effects of new approaches to copyright management, including repeated reports that institutions were becoming more comfortable with risk. For example, some of the field work highlighted that risk averse behaviours around some exceptions had been overcome, such as relating to orphan works. The closing chapter therefore considers how these changes impact on the choice between rules and standards in the drafting of copyright exceptions. 

This research provides lessons about how the law in books translates to the law in action, and the range of matters to which legislators should have regard when implementing copyright reform.

As readers might know, this Kat is the book review editor for the IPKat blog, which means that she reviews a lot of books, and she can sincerely say that this one is impressive. Not only because of the high standard of research, originality of thought, but on top of that, it is written in a way that made it a pleasure to read. Therefore, is this Kat’s opinion that this book is essential reading for those researching, practising, legislating in copyright law, particularly exceptions – although it is worth noting that this is not the focus area of research in copyright and I still found it to be enlightening and useful, so I would also recommend it to those with broader interests in copyright. 

Publisher: Cambridge University Press 

Runs 380 pages

Hardback £95, from the publisher 

ISBN: 9781107043312

Also available as an ebook.

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