The single most important of the conditions for the availability of the exception is that the quotation be ‘compatible with fair practice’. As noted in Chapter 2, it was the introduction of the concept of fair practice that enabled the parties to agree on a quotation exception. Previous attempts to reach an international consensus, which had sought to limit quotation by reference to type of work, extent of taking or purpose had failed to provide a sufficiently flexible criterion. The concept of ‘fair practice’ (or ‘bons usages’) proved the magic solution.

Imagine an international instrument that does not merely oblige contracting parties to confer rights on copyright holders (permitting only optional, narrowly circumscribed, exceptions) but also mandates limitations. Imagine, too, that such an instrument requires parties to permit use of material that has been taken from existing works and incorporated in a later work, irrespective of the purpose of so doing, but only on the condition that the use is in accordance with fair practice. Imagine that the mandatory limitation allows the reuse of transformed versions of works, including parodies, and even the whole of a protected work. Imagine, indeed, a regime of global, mandatory, fair use.

Importantly, and in contrast with Article 10(2) and Article 10bis(2), the language of Article 10(1) Berne is not limited by purpose. It simply states ‘it shall be permissible to make quotations’. There is no limitation, even illustrative, such as ‘for purposes such as criticism or review’. Given that the provision is mandatory, it would thus be inappropriate for a Member to introduce any limiting purpose (or at least one which operates inflexibly). Quotation is permitted, if it complies with the remaining condition, whatever its purpose.

Until now, the international legal norm created by Article 10(1) Berne has been relatively dormant and its potential overlooked by scholars, policymakers, judges, practitioners and legislatures: it is now time to harness its potential in the shaping of permitted uses of copyright material. Moreover, despite its clear terms, only a minority of national legal systems have implemented Article 10(1) in full.