7 - The Consequences of Global Mandatory Fair Use

Summary

As has been argued, Article 10(1) Berne mandates a quotation exception that we describe as global, mandatory fair use. It is global because of the reach of Berne and TRIPS. It creates a mandatory exception because of the clear language of the provision and its travaux. It relates to ‘use’ that is not limited by type of work, type of act, or purpose and which ‘quotation’ should be understood broadly. Finally, it is ‘fair’ use because the conditions of Article 10 – namely, the work having been lawfully made available to the public, attribution, proportionality, and fair practice must be satisfied. In particular, the requirement of ‘fair practice’ embraces a range of normative considerations relating to economic and moral harm, distributive justice, freedom of expression and, in limited situations, custom.