9 - The Changing Judicial Politics of Copyright Exceptions in the UK

Summary

In an article written some years ago, I expressed the concern that those who were in favor of the United Kingdom (UK) and other Commonwealth countries moving to a fair use model of copyright exceptions were not paying sufficient attention to how judges would react to the introduction of such a defense. The universal assumption seemed to be that the problem lay solely with the quality of the legislative tools available to judges. In contrast, I sought to demonstrate that if judges were unable to protect users, this was in large part because they had divested themselves of tools that could have been used to provide such protection. I argued that, viewed over a long sweep of history, judges in the UK had demonstrated a reluctance to protect user interests. My argument was that without a change in judicial attitudes a fair use defense would be applied parsimoniously and hence users would see little, if any, benefit. This argument gained some traction, and the observation that we need to think about exceptions reform not merely in terms of drafting choices, but also in terms of judicial culture, now appears to be broadly accepted.