On 24 March 2021, Dr. Emily Hudson delivered CREATe’s third public lecture of this academic year entitled ‘An Empirical Perspective on Drafting Copyright Exceptions.’ The event was supported by the EU Horizon 2020 funded consortium reCreating Europe: Rethinking digital copyright law for a culturally diverse, accessible, creative Europe. The lecture was hosted online due to Covid-19 lockdown restrictions, with Dr. Marta Iljadica and Bartolomeo Meletti as chair and discussant, respectively.
In this excellent public lecture, Dr. Hudson presented many of the key insights of her recent book, Drafting Copyright Exceptions: From the Law in Books to the Law in Action. She introduced her lecture presenting an overview of the main goals of her monograph and empirical research based on a case study on copyright management practices of leading cultural institutions in Australia, Canada, the United Kingdom and the United States. This case study draws not only from public available resources, but also from interviews conducted with hundreds of staff from cultural institutions over the course of fourteen years (2004-2019). A key conclusion of her project was that “it is not just about the law”. This rationale permeated Hudson’s whole research as she addressed the question of “what does this mean for the drafting of copyright exceptions?”
Copyright in the UK in a post-Brexit world
Since the UK is no longer in the EU, there are questions on how the UK should address copyright exceptions. In her presentation, Dr. Hudson questioned whether the UK should implement an “open-ended values” model, such as a fair use model. Furthermore, Dr. Hudson explained that there is a lack of legislative bandwidth to discuss the subject, since copyright exceptions do not seem a priority for the UK government, especially considering this is a topic that is politically unattractive for governments in general. It involves a polarized review process with many groups arguing emphatically against fair use. As a result, intermediate positions might be considered a better option for some governments, when compared to a fair use model.
Therefore, there is a question as to whether a fair use model is really necessary, considering there are problems where well drafted specific exceptions can be more effective to deal with them. Nevertheless, copyright cases usually involve highly variable fact patterns, and the legislator often does not have the time and the force to articulate in advance a series of rules that cover every possible situation that might emerge. For this reason, Dr. Hudson argued that the most efficient model of legal drafting is to enact a standard under which the judge decides how the law should be applied in relation to certain facts. Fair use, in this case, is particularly well adapted for that.
Does the UK already have almost everything it needs?
In the last part of the lecture, Dr. Hudson stressed that, in her field work, she verified that legislative reforms and landmark cases do not necessarily lead to a change in practices. On the other hand, norms and practices can sometimes change because of other events and imperatives. Hence, change to the law in action does not necessarily require change to the law in books.
In analysing UK copyright exceptions, it was possible to conclude that in terms of the law in books, the empirical work with the UK institutions pointed to many reasons to be positive, especially after 2014 fair dealing reforms and the ability of the sector to embrace those reforms. Moreover, she mentioned some possible law reforms, for instance, removing limiting words in the fair dealing provisions that are unnecessary and including a new section to cover administrative uses by cultural institutions. Hudson emphasised one more time that “It’s not all about the law” and that institutions can increase the use of copyright exceptions adopting some practices, such as investing in copyright expertise, reframing how copyright problems are viewed, engaging in sector-wide discussions and supporting colleagues in smaller institutions.
The central point of Dr. Hudson’s lecture was that there is a vast gap between the law in books (statutes, cases, commentaries and so forth written by legal experts) and the law in action (the law as understood and practiced by everyday users). The problem is that much legal analysis, including questions about the adequacy of copyright exceptions is focused heavily on the law in books, which can lead to a risk of misdiagnosing problems and recommending ineffective solutions.
Interesting discussion questions followed. Bartolomeo Meletti questioned whether, in addition to informing legal drafting, can the law in action help courts interpret the existing law in books. More specifically in the UK context, he asked whether codes of practice can play a role in defining specific notions of fairness. He also questioned what is the difference between commercial and non-commercial use and how this difference can affect teachers and documentary filmmaker’s reliance on exceptions. According to Dr. Hudson, it depends on the context and how courts interpret codes of practices. However, most cases do not go to the court. Parties can negotiate and settle the dispute themselves. One of the benefits of codes of practices is that they indicate, for example, that at least there is an intra-sector dialogue. On the other hand, she pointed out that the biggest risk of codes of practices, especially cross sector negotiating codes, is when they are adopted as a ceiling or a maximum standard. Regarding the second question, Dr. Hudson said that commercial and non-commercial meanings depend on the acts and the direct consequences of these acts. Some profit entities can undertake non-commercial acts and vice-versa. She mentioned Canada in this case, since it does not use “non-commercial purpose” language, which might be of value for fairness. Dr. Marta Iljadica also presented some questions from the audience about orphan works and the methodology and methods adopted in the project.
You can watch this public lecture on YouTube here:
Dr. Emily Hudson shared the slides of her presentation.