Vol. 16 No. 4 (April, 2006), pp.268-270


COPYRIGHT EXCEPTIONS: THE DIGITAL IMPACT, by Robert Burrell and Allison Coleman. Cambridge: Cambridge University Press, 2005. 458pp. Hardback. £65.00/$120.00.  ISBN: 0521847265.


Reviewed by Irini Stamatoudi, LL.M, Ph.D, Athens, Greece.  Email: stamatoudi [at] syrigos.gr.


One of the aspects of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, which has been most criticized, was the exceptions it introduced to copyright. Some claimed that this Directive played a rather deharmonising role, instead of a harmonizing one concerning copyright, since it bundled together all possible exceptions to copyright. Another part of the literature welcomed this regime of ‘harmonisation,’ finding it flexible as well as a tool on which users’ rights could find a basis to flourish further. COPYRIGHT EXCEPTIONS rather belongs to this latter category of literature.


Robert Burrell and Allison Coleman discuss the issue of the exceptions to copyright from a British law background (it is essentially the UK Copyright, Designs and Patents Act 1988 which is examined in conjunction with the relevant EC Directive and both authors are or used to be academics with a UK University) but not necessarily from a British law perspective. And that is because the authors do not find themselves stuck in the rigid principles of the British entrepreneur-friendly common law tradition.


This book is divided into three parts. The first part examines in detail some of the most important exceptions found in the UK Copyright Act, such as fair dealing for the purposes of criticism, review and news reporting and some related exceptions, the public interest defence, exceptions applying to education, research and private study, exceptions for libraries and so on, and the rationale behind them. The general conflict between copyright and freedom of expression is also explored. The examination of these provisions aims, amongst other things, to demonstrate that the UK exceptions present serious defects as well as practical difficulties and do not provide the certainty they claim because of their extensive detail. On the contrary, they prove to be inflexible, especially when they have to deal with new technology situations or current market practices. From that point of view reform is needed.


The second part of the book explores the various reasons, which led to the adoption of the current general copyright regime, part of which includes the current exceptions. Issues such as political factors and lobbying, institutional, constitutional and accidental factors, as the authors call them, including the divisions within the government, the mandate to the European Commission, poor drafting, a general line followed by the courts and so on, are discussed. Burrell and Coleman claim that all the above reasons, coupled with domestic, [*269] European and other supranational legislative and political processes, have led us where we are. In other words a legal and political path has been followed.  The law’s  incentives have not been fully explored, and when explored, a pro-owner tradition surfaces, which, apart from the political reasons, it is also the outcome of an entrepreneur-friendly common law copyright tradition, which claims that copyright is a property right and exceptions to it should be narrowly interpreted. That leaves users little space to react and turns copyright into a rigid absolute right lacking the necessary flexibility to adapt to realities as it is transformed by new developments and practices in the market arena. According to the authors this alienation of copyright is also due to the fact that the problems it sets are increasingly dealt with at a European level rather than a domestic one, without denying European involvement in the area as a whole.


Part Three forms the political part of the book. Burrell and Coleman present various models for reform (the previous chapters conclude that reform is needed), and at the same time present their vision—a user-friendly vision. They first explore whether a wise move would be towards the adoption of a US-style fair use defense which would allow for adequate flexibility in order to deal with evolving and changing situations. However, the authors do not consider this as an appropriate solution, since, according to their view, the problem is not solved with legislative changes but with a change in judicial attitudes. A solution which would combine the two (the introduction of fair use defence and a change in judicial attitudes) is not found to be either realistic or practical. They therefore argue that the best way forward is to exploit the opportunities set by the exceptions introduced by the EC Directive, supplemented by the introduction of a public interest defence. In the last chapter, Burrell and Coleman set out the four principles on which their model is based. The new system needs to be a) more flexible, b) workable, c) styled as a system of users’ rights and d) allow for more public participation. These characteristics are explored and described further into the final chapter.


The basic characteristic of the system which is proposed is that reform can take place at a domestic level without contradicting the aims of the European Community, and it can be done without fundamental or radical legislative changes. The ammunition offered by the EC Directive can be used to this end. This model of reform looks practical compared to supranational legislative changes where it is much more difficult to achieve the aimed balances, taking into account the relevant political and lobbying obstacles. However, it is a model of ‘inner reform’ which requires a change in attitudes, especially judicial attitudes, and requires a change of the approach which has been followed up to now by the various common law systems, particularly the British one. In other words it is claimed that, instead of changing the provision, one should change the way one looks at it. The truth, however, is that this is something which may take years to happen, if it ever happens. It is more likely to change a provision than an attitude, because provisions can form the subject of a particular legislative action whilst [*270] mentalities cannot form the subject of any action. They can only derive from a combined set of actions which have to be thoroughly considered and which again require changes in the mindset of people who deal with this area of law.


This book is very well written. It follows its argument cleverly from the start to the end and offers the reader frequent summaries of what was preceded. Burrell and Coleman select the most important issues and deal with them in depth. They explore most aspects of the problem – legal, social, political, and so on.  The book is indeed a complete (even though not comprehensive since this exercise would require many more hundreds of pages) treatise in the area. It is also obvious that the authors have done a lot of research in the area. Another interesting point of this book is that it offers a fresh and unexpected approach to the subject. I cannot think of many who would approach the relevant EC Directive as a solution to the problem, especially after all the criticism it incurred in the area of exceptions. From this point of view, this book offers an optimistic approach to all who are active in the area of copyright law. COPYRIGHT EXCEPTIONS is one of those books in Europe (since outside Europe the discussion is more vivid on users’ rights) which present a voice in favour of users’ rights, a voice which is little heard in the lobbying arena.


One last minor point about the book is that the authors could have also discussed whether MAGILL and MAGILL-like cases could offer some help in relation to those copyright works whose use could be considered to form an essential facility for third parties in particular situations.





© Copyright 2006 by the author, Irini Stamatoudi.