This chapter introduces exceptions to copyright. The chapter continues to evaluate the extent to which copyright is a property right (the ’conceptual question’)

As stated earlier in this Part of the guide, it can be helpful to determine the defined standard, or benchmark, for the author’s perspective, action or statement, whether that is for a fictional character or plot, or in a non-fiction work (see Identifying the explanatory framework within a text). Once you have clarified that and the author’s intention, the next step is to consider whether there are any potential legal consequences.

As an editor, you should have a basic understanding of copyright, libel, defamation and related legislation, sufficient to be able to identify when a legal reading is needed. However, you should not be expected to provide that legal reading, regardless of how familiar you are with the legislation.

How should IP be reformed to incorporate a negligence liability rule? This chapter considers the various implementation options. It argues that, rather than return to a nineteenth-century reliance on formal rules, IP law should change infringement doctrine to incorporate a reasonable person standard. It then applies this proposed regime to a range of contemporary problems in IP law (i.e. orphan works, independent invention, strategic behaviour, IP triangles).

Although economics models goods as unified, in fact artworks are goods that are made up of many different rights. Here, we consider intellectual property, specifically copyright, as part of the bundle of rights. We review fair use and expand to discuss other forms of property artists have in their work, including resale royalties and fractional equity. We consider case studies of Richard Prince, Takis, and the Art Workers’ Coalition, the Siegelaub–Projansky Artist’s Contract, Adrian Piper, Betty Parsons Gallery, Green Gallery, and Shepard Fairey. Although this chapter focuses on a US legal context, it also includes international treaties and systems of moral rights.

But we often loathe others having a laugh at our expense. Therefore it hardly comes as a surprise when copyright owners aggressively seek to enforce their monopoly right against others who use their works for the purposes of parody, satire, caricature, and pastiche.

When the plaintiff has made a case of copyright infringement under US law, the defendant can still avoid liability by showing fair use. The defense comprises four factors, arguably the most important of which is the fourth, namely “the effect of the use upon the potential market for or value of the copyrighted work.” The word “potential” connotes a focus on the future, a need for courts to evaluate how events could unfold in days to come and what effect will thereby arise in that future world.

It is often assumed that an open-ended limitation to copyright, such as the fair use defense, is alien to the civil law tradition as it gives too much power to judges to design the contours of copyright law on a case-by-case basis. However, the increasing use of fundamental rights in copyright disputes in many civil law countries is challenging that assumption, raising the question of whether a sort of “fair use” limitation is not already being wielded through the weighing of interests and use of the proportionality test, both of which are required when the judiciary is applying fundamental rights. It will be shown in this chapter that even in France, traditionally considered an exemplar of civil law reasoning in copyright matters, a recent and highly commented-upon decision of the French Supreme Court concerning the balancing of freedom of artistic expression with copyright has paved the way for a judicial in concreto assessment of copyright limitations. This change in approach by the courts can be witnessed not only in France but also in many other civil law jurisdictions across Europe, and even by the Court of Justice of the European Union (CJEU), thus strengthening the argument for the introduction of an open clause for limitations in EU copyright law.

Fair use is an awkward creature. It has been hailed as a legal invention that is essential for human and societal development. At the same time, fair use has become something of a legal monster, causing no end of troubles owing to its vague and shifting contours. Hence, lamentations that fair use is the most troublesome yet least determinate doctrine in copyright law are hardly surprising.

Eleven decades ago, on December 16, 1911, the Imperial Copyright Act of 1911 received royal assent, codifying fair dealing for the first time, and thus explicitly recognizing it, in the imperial copyright legislation. Ten years later, the same fair dealing provision would appear in the Canadian Copyright Act and would remain the basis of the current fair dealing provisions. Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common law principle, usually referred to as “fair use,” ended up – with a few notable exceptions – in a hundred years of solitude and stagnation. Misinterpreting the 1911 Act, some courts and commentators in the UK and other Commonwealth countries adopted a narrow and restrictive view of fair dealing. Meanwhile, in the United States, fair use, the same common law concept that English and American courts developed, remained uncodified for most of the twentieth century. When the United States finally codified fair use in 1976, Congress left no doubt that the codification would not alter its common law basis and ought not hinder its flexibility and adaptability. Thus, toward the end of the twentieth century, a noticeable split in Anglo-American copyright law emerged: an open, flexible, and general fair use regime in the United States, and a seemingly rigid and restrictive fair dealing tradition in the Commonwealth countries.

Over the last dozen or so years, countries with laws based on the Copyright Act 1911 (UK) have prioritized the issue of copyright exceptions in their law reform agendas. In each of these countries, a central question has related to the desirability of injecting greater flexibility into exceptions, most notably through the introduction of a “fair use” provision in addition to, or perhaps replacing much of, the existing closed-list system. The resulting statutory reforms have varied. Sri Lanka and Israel, for example, have both adopted a US-style fair use defense, along with a small number of specific exceptions, in their new copyright laws of 2003 and 2007. Singapore has also enacted an open-ended provision, albeit in the form of extended fair dealing rather than fair use. This was achieved by amending one of the purpose-limited fair dealing exceptions to allow it to apply to (almost) any use, with the many closed-list exceptions otherwise retained. In contrast, the reforms of Canada and the UK have – in terms of drafting choices – stayed closer to the existing infrastructure, with the addition of new fair dealing purposes directed to education, parody, and (in the UK) caricature, pastiche and quotation, and the introduction of new detailed exceptions to accommodate specific practices such as user-generated content, private copying, and data mining. The Australian reform experience has been less fruitful. After some expansion of exceptions (albeit within the closed-list model) in 2006, an impasse arose following strong calls for fair use from two major law reform inquiries. Despite the level of attention already given to copyright exceptions, the Australian government initiated yet another round of consultation in relation to reform options in 2018. There may finally be some progress, as the Australian government announced in August 2020 that it intends to make a series of reforms to the Australian copyright statute, including a new fair dealing exception for non-commercial quotation, a limitation on liability for use of orphaned works, and reforms to certain specific exceptions.

Chapter 8 focuses on a specific issue created by 3D printing technology: whether DMFs of purely (or primarily) utilitarian objects should receive copyright protection. Tangible objects dominated by utilitarian concerns do not receive copyright protection. Neither should the corresponding DMF, I argue. This novel argument has attracted criticism, but I defend it as a matter of doctrine and policy. Doctrinally, I argue that U.S. law excludes copyright protection not only for useful articles, but also for designs of (i.e., the shape of) useful articles, even if depicted in a two-dimensional drawing. Moreover, most jurisdictions around the world extend copyright protection only to works containing creativity, and I argue that DMFs of utilitarian objects contain no copyrightable creativity – they are exact, uncreative representations of the unprotected tangible objects. As a matter of policy, allowing copyright protection for DMFs of useful articles would cause copyright law, which is geared toward aesthetic works, to trespass on patent law, which is geared toward utilitarian works. In short, granting these DMFs copyright protection would inhibit the progress of utilitarian innovation.