2 - Standards and Rules

Summary

As seen in Chapter 1, discussion of the drafting options for copyright exceptions is often framed around the respective merits of general and specific provisions. This, in turn, is often presented as a choice between flexibility and certainty. One of main propositions in this book is that this approach, whilst containing some truths, is ultimately counterfactual and oversimplified. It is counterfactual because many claims about how exceptions ‘work’ are based on analysis that lacks systematic study of how stakeholders understand and apply the law, instead being drawn exclusively from the law in books. It is oversimplified because classification of a provision as general or specific is often undertaken with inadequate information and with certain characteristics simply asserted: flexibility, rigidity, certainty and so forth. As presented, it can seem that these characteristics are inevitable, invariable and mutually exclusive.