The Nature and Function of Exceptions to Copyright Infringement

Abstract

This chapter looks at the nature of exceptions to copyright infringement (e.g., fair use, fair dealing) and at how copyright user rights are often assimilated to exceptions to copyright infringement. It discusses whether copyright user rights should be better understood as a rule of interpretation of exceptions, rather than giving rise to ‘rights’ as the legal meaning of that term suggests. It further investigates the consequences of exceptions to copyright infringement being characterized as rights or privileges and whether they are (or should be) mandatory (i.e., that exceptions may not be waived by contract). It looks at the mechanics and shortcomings of exceptions to copyright infringement as a regulatory tool. The chapter concludes that exceptions are probably better characterized as privileges than rights, and that, unless expressly stated otherwise, they may be waived by contract. This account of exceptions to copyright infringement reveals a weak strain of copyright user rights.