Book review: The Cambridge Handbook of Copyright Limitations and Exceptions

Continuing this Kats serendipitous journey of reviewing books on copyright exceptions, she comes to the last, but by no means least, of its kind in her pile: The Cambridge Handbook of Copyright Limitations and Exceptions, edited by Shyamkrishna Balganesh (Columbia Law School), Ng-Loy Wee Loon (National University of Singapore) and Haochen Sun (University of Hong Kong).

This edited collection provides a stellar list of contributors, many of whom have been included in this Kats recent book review saga, such as Aplin and Bently, Emily Hudson and other leading authors, making this handbook the first to bring together comparative reflection of copyright limitations and exceptions. 

The book is presented in 22 chapters, organised into 5 parts, which reflect the 5 principle themes presented by the volume. This is something that immediately sets this handbook apart from many others that this Kat has had the pleasure of reading - whilst it is a handbook covering a range of ideas, there is clear narrative that makes you want to read it cover to cover, rather than what we more commonly do with handbooks, which is to take a more a la carte approach to chapters of interest.

Whilst the volume has consciously refrained from framing discussions in the traditional 'comparative law' mold, it has nevertheless attempted to be exhaustive in its topical and methodological coverage, in the abiding hope that the comparative discussion of copyright limitations and exceptions will become a mainstay of intellectual property conversations and debates in the years to come.

That said, it would be a disservice to attempt to detail to readers the content of every chapter, so instead I will give you an overview of each part, picking chapters from each section to wet your appetite!

Part I: The Theoretical Foundation of Copyright Limitations

Part 1 of the book consists of two chapters. The first chapter by Ben Depoorter considers the economics of copyright exemptions, followed by Christopher S. Yoo’s chapter looks at the theory of self-actualization. 

Part II: Internationalizing Copyright Exceptions

This part consists of 4 chapters that explore the role of international law in facilitating the global development of limitations and exceptions. The section begins with a chapter by Tanya Aplin and Lionel Bently, summising their arguments set out in their book, recently reviewed, Global Mandatory Fair Use, which focuses on Article 10(1) of the Berne Convention.

Chapter 4, by Reto M. Hilty and Valentina Moscon describes the International Instrument for Permitted Uses developed by the Max Planck Institute for Innovation and Competition. The destiny of this Instrument remains open, but the aspiration of the project is to influence international and national legislation. In chapter 5 Martin Senftleben analyses the Marrakesh Treaty and in chapter 6, Sam Ricketson considers international provisions made for limitations and exceptions under international agreements.

Part III: Models of Copyright Exceptions

Parts 3 and 4 are the most substantial of the book. Part 3 is on a mission to detail the real landscape of copyright exceptions across the globe, doing away with the over simplified categories of ‘fair use’ and ‘fair dealing’ systems. 

In chapter 7, Debunking the Fair Use vs Fair Dealing Myth: Have We Had Fair Use All Along? Ariel Katz argues that Parliament sought to codify a principle – a flexible standard, not precise rules. But that we have instead been sentenced to a 100 years of stagnation by the courts failure to recognise this.

In chapter 8, Michael Handler and Emily Hudson take a look at the option for reforms in the Australian copyright regime. In particular they argue that expansions to the fair dealing system might just as well serve the Australian system as the adoption of a fair use system, which may be desirable but also has its challenges such as political and doctrinal impediments. 

Other chapters in this section provide perspectives from different jurisdictions for example, the changing judicial politics of copyright exceptions in the UK by Robert Burrell; 'Fair use' through fundamental rights in Europe: when freedom of artistic expression allows creative appropriations and opens up statutory copyright limitations by Christophe Geiger; Limitations and exceptions in copyright law across the Taiwan by Strait Kung-Chung Lin; A general clause on copyright limitations in civil law countries: recent discussion on Japanese-style fair use clause by Tatsuhiro Ueno; and Bridging fair dealing and fair use concepts: Malaysia's transition to a hybrid system by Ida Madieha Azmi.

Part IV: Obvious and Hidden Values in the Working of Copyright Exceptions

Part 4, provides 8 chapters looking into specific values that operate within copyright law. The editors organise these values into two categories, 1) obvious – including educational uses, parody and news, and 2) hidden or implicit – cultural uses and the idea of an overarching concern for the public interest. 

A chapter that captured my attention in this section was Copyright and Religion: An Exemption for the Use of Music and Songs in Worship? By one of the editors of the book, Ng-Loy Wee Loon. This chapter explores the role of music and songs in Buddhism/Taoism, Christianity, Hindusm and Islam, and the impact of this on the scope of the copyright exceptions in Malaysia and Singapore. Whilst both regimes find their roots in the UK Copyright Act 1911, they revised their laws in the 1980’s taking different directions on this issue; Singapore carved out an exception for the use of music in worship, whereas this is not found in the Malaysia Copyright Act 1987. Ng-Loy Wee Loon suggests that this may well be a result of the dominant religions of each country and the use of music in worship within those cultures. The chapter considers the relationship between religious worship and music, and then turns to question whether the use of music in worship justifies an exception. Comparing the UK approach, the author concludes that UK policymakers were persuaded by the argument that:

Although authors of religious music and songs compose for the glory of God, this does not mean that these authors should find their reward only in Heaven.

Hungry for more!
Image: Devon D'Ewart

Part V: Copyright Exceptions and Technology

This final part, consists of only one chapter, which is a shame as such an interesting topic could have benefited from further perspectives. Nevertheless, David Nimmer takes on the Part and the Chapter by looking at security measures and the future of US fair use. Nimmer argues that the fourth fair use factor that courts consider, namely; “the effect of the use upon the potential market for or value of the copyrighted works”, premises copyright liability on predicting the future, which is further complicated by the development of technology. 

Weighing in at 0.966kg, it feels relevant to mention that it is not a small book (dimensions: 254 x 178 x 24 mm) and 419 pages. This book would undoubtedly appeal to anyone interested in copyright exceptions. It provides a truly global discussion on all angles of the dimensions and debates around copyright exceptions and limitations. 

Publisher: Cambridge University Press 

Date Published: January 2021

Hardback ISBN: 9781108483049 

£160.00