Public Policy Privileges

Abstract

A substantial body of copyright infringement defences is primarily available to institutional users, such as educational establishments, libraries, and archives. In light of the advent of the Internet and mass digitization, the availability of defences has been enlarged through a set of legislative instruments, such as the Orphan Works Directive and the Directive on Copyright in the Digital Single Market. Public policy privileges are meant to make allowances for modern methods of teaching provision, such as online courses, distance learning, and cross-border education programmes, as well as exempt from infringement new methods of carrying out research, such as text mining and data analytics, and enable value extraction from the plethora of works that are currently out of print. Although the policy reason behind the expansion of available defences has been the promotion of growth in the educational and cultural sector, there is a strong public interest underpinning the very presence of these exceptions in the statute. This has to do with the promotion of a rigorous public domain, whereby certain works shall be made more accessible for users to use and re-use. Subject to examination in this chapter is the breadth of these permissible activities and their ability to accommodate modern online services, including also the defences available for uses made by public administration.