Vol. 7 (2011)

Limitations and Exceptions in the Digital Era

William Patry

Ideological polarization has hijacked copyright debates, drowning out the question: how do we get our copyright laws to do what we want them to do? The term “limitations and exceptions” assumes that the ability to control all unauthorized uses is the norm. This special comment asserts that private rights should never trump public interest, and that our copyright laws must reflect this principle. Copyright law must be grounded in current technological and market conditions in order to accomplish its lofty objectives. Even as changes wrought by digital technology are at the core of most debates over copyright, there is a failure to grasp the profundity of these changes and the challenges they pose. We need dynamic laws in order to encourage creativity on the internet. Properly structured copyright laws would enable desirable behaviour in a world that technology is changing faster than ever before. It is argued that guiding principles such as fair use should be the bases for adjudication and not statutory straitjackets, as is already the case in legal regimes supporting the most advanced technology sectors, in India and the U.S.A. Though legislative and judicial understandings are not always at par in their level of progression, even judicial interpretation in light of broad principles as opposed to a closed list is a step in the right direction because we need transformative laws to regulate the transformative world we live in.

Author

Senior Copyright Counsel, Google Inc.