Hudson (2020)

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Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Hudson (2020)
Title: Drafting Copyright Exceptions: From the Law in Books to the Law in Action
Author(s): Hudson, E.
Year: 2020
Citation: Hudson, E. (2020) Drafting Copyright Exceptions: From the Law in Books to the Law in Action, Cambridge: Cambridge University Press
Link(s): Definitive
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Data were gathered from over 300 semi-structured interviews with copyright managers at various cultural institutions, including museums, galleries, libraries and archives across Australia, Canada, the UK and the US. Data from the interviews were coded using NVivo software. TK: GLAM
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: Yes
Comparative Study?: Yes
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2004 - 2005
  • 2007 - 2009
  • 2012 - 2020
Funder(s):

Abstract

“How should copyright exceptions be drafted? This question is of ongoing interest to scholarly and law reform debates, and often turns on claims regarding the respective merits of ‘flexible’ and ‘specific’ provisions. This book assesses drafting options using insights from the standards and rules literature, and a case study on the cultural institution sector in Australia, Canada, the United Kingdom and the United States. Drawing from thousands of hours of fieldwork conducted over fourteen years, it describes how staff engage with and interpret exceptions. It argues that sometimes practices are guided heavily by the ‘law in books’, but on other occasions are influenced by a variety of factors, ranging from ethical views and risk assessment through to prosaic matters in relation to copyright management. It discusses why practices change – sometimes dramatically. The book uses this detailed account of interpretative practices and the ‘law in action’ to draw lessons for the drafting of copyright exceptions.”

Main Results of the Study

Whilst fair use is viewed as a more flexible and responsive doctrine in the United States, its interpretation and usage is varying amongst cultural heritage institutions. Rather than unilaterally being more risk-tolerant, institutions are split between those who are more forward-leaning and those who are more cautious when managing copyright.
Elsewhere, in jurisdictions with more rigid fair dealing rules, such as Australia and the UK, risk mitigation is based more in ethical beliefs and commercial reasoning rather than legal interpretations. Best practice norms thus influence decision-making more so than legislative reforms and landmark cases (despite prima facie offering legal certainty).

Policy Implications as Stated By Author

The study concludes that the so-called ‘fair use panacea’ (extending the openness and flexibility of the fair use doctrine beyond the borders of the United States) is not the only viable option for reform of copyright exceptions. Flexibility can also be achieved through e.g. the removal of limiting statutory language. However, the study ultimately concludes that law in books has little impact on the law in action, and in this respect the suggestions for improved practices of cultural heritage institutions are given more prominence. This includes: investing in expertise; reframing how copyright problems are viewed’ engaging in sector-wide discussions, and; supporting smaller institutions.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Green-tick.png
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 153
Level of aggregation: Cultural Heritage Institutions
Period of material under study: 2004 - 2005, 2007 - 2009, 2012 - 2020