Professor Abraham Drassinower (University of Toronto) has a new paper available on SSRN, “Exceptions Properly So-Called“. His paper is described below.
The paper sets out to distinguish four kinds of copyright limitations, of which only one can be regarded as a true exception. There are (a) subject matter limitations, (b) scope limitations, (c) miscellaneous exceptions, and (d) exceptions properly so-called. The upshot of this classification is that “exceptions properly so-called” denote instances where copyright as a juridical order encounters claims recognized in other juridical orders, with the result that the resolution of the ensuing dispute requires reaching beyond or outside the copyright regime itself.
The encounter between copyright and freedom of expression is an example of such a situation. One might say that exceptions properly so-called are sites wherein the language of copyright encounters other juridical languages, thereby giving rise to efforts of translation.
From this viewpoint, the problem of language and copyright to which this volume is devoted (LANGUES ET DROIT D’AUTEUR / LANGUAGE AND COPYRIGHT, Ysolde Gendreau, Abraham Drassinower, eds., Carswell; Bruylant, 2009), turns out to be less about examining the relationship between different tongues, than about conceptualizing the nexus between copyright and other juridical orders. In this vein, the paper considers the definitions of and distinctions between subject matter limitations, scope limitations and miscellaneous exceptions. It then discusses aspects of the relation between copyright and human rights as an example of an encounter between copyright and other juridical orders. On that basis, it suggests by way of conclusion that “proportionality” is the name we give to the efforts of translation to which exceptions properly so-called give rise. Exceptions are not peripheral phenomena, but rather invitations to understand the relatedness of different juridical orders as aspects of a comprehensive system of rights.