Capturing the dynamism of fairness: a common law perspective

Abstract

Statutory limitations and exceptions are often put forward as the balancing mechanism of copyright law. However, these are steeped in formalism. Although one might argue that the advantage of formalism is certainty of the law, the value of certainty is diminished if the result of its application is unfair. This chapter argues that the dynamism of fairness is better captured by a court, which can take into account the changing times and circumstances on a case-by-case basis. Although fair use and fair dealing are normally put forward as less formal approaches to fairness within the regime of statutory limitations and exceptions, this chapter instead deals with the less examined yet facially more open common law power of the judges to prevent or restrict the enforcement of copyright on the grounds of public interest, preserved under s 171(3) of the UK Copyright Designs and Patents Act 1988.

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