CREATe Director Prof. Martin Kretschmer spoke at an international workshop on copyright limitations and exceptions in the digital age at the Cegla Center for interdisciplinary research on the law, Tel Aviv University. The event was organised by Prof. Lionel Bently (Cambridge) and Prof. Michael Birnhack (Tel Aviv), both partners of the CREATe centre.
The gap between copyright law in the books and copyright law in action seems broader than ever before: the law protects copyright owners’ rights and limits users’ freedom to use works of authorship, and at the same time, users seem not to care too much about the law, and continue to download, upload, and share copyrighted material, without permission. The content industries advocate more enforcement so as to bridge this gap. A different approach is to delve into the source of the problem, and evaluate how the current law limits users in unnecessary ways. Here is where limitations and exceptions (L&E) enter the picture. Copyright law contains various such (L&E), sometimes conceptualized as users’ defences or users’ rights.
There is much discussion about these users’ freedoms. Despite their shared copyright history, the UK and Israel now represent two different approaches to such freedoms. Israeli copyright law was based on—and was in fact—British law, with some Israeli amendments, until 2008, when it broke away. The main exception within British law is the fair dealing defence, with a limited set of defined purposes subject to certain conditions. The new Israeli law adopted the American approach of an open-ended fair use defence, accompanied by various ‘fairness’ considerations or factors (rather than conditions). The UK, bound by the European directives on copyright law, is currently considering expanding the list of exceptions, following the Hargreaves Report (2011). Israeli courts are making their first steps in applying the new concept of ‘fair use’.