Capturing the dynamism of fairness: a common law perspective

Statutory limitations and exceptions are often put forward as the balancing mechanism of copyright law. As provisions that cater to the interests of various stakeholders, these are meant to bring fairness into the copyright system. However, statutory limitations and exceptions are steeped in formalism, which is manifest in three important ways. First, formalism dictates that these limitations and exceptions are statutory – meaning that the law only recognises the legislature as the repository of powers to limit or exclude copyright protection. Secondly, formalism requires that these limitations and exceptions are exhaustively enumerated in the statute. Thus, the role of the courts is limited to interpreting the express language of the statutory limitations and exceptions so enumerated. Thirdly, the structure of the formalism is such that copyright protection is the norm from which these limitations and exceptions are then carved out, addressing specific instances of permitted use of a copyright. As exceptions to the rule, in other words, these limitations and exceptions are required to be interpreted narrowly,2 thus further constraining the role of the courts. This set-up makes one wonder whether formalism can achieve fairness. Statutory limitations and exceptions include sweeping generalisations as to the circumstances when it would be fair not to enforce use restrictions based on copyright. However, fairness which is a function of time and space, is a dynamic concept. Along the axis of time over the last 300 years, the socio-cultural and technological milieu within which