Copyright exceptions: the experiences of cultural institutions in the United States, Canada and Australia

© 2011 Dr. Emily Jane HudsonThis thesis argues that we need a new paradigm through which to analyse the drafting of exceptions to copyright infringement – one that pays far greater attention to the attitudes and behaviours of those whose conduct is regulated by copyright law. Without empirical evidence, we risk misdiagnosing problems and recommending misguided solutions. However by combining both doctrinal and empirical techniques, we can provide a fuller account of the operation of the law, and determine how exceptions are best crafted to ensure they function as optimally as possible. This research focuses on the experiences of museums, galleries, libraries and archives. In addition to doctrinal methods, this thesis uses fieldwork to gain an understanding of how leading institutions in the US, Canada and Australia invoke exceptions, most notably fair use, fair dealing and sector-specific provisions. This analysis reveals that institutional experiences are far more nuanced than may be suggested by statements such as ‘flexible fair use standards are responsive but lack predictability’ or ‘detailed rules provide certainty but are unduly rigid’. This thesis concludes by considering what its findings means for law reform debates in Australia and North America