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2 results

  • 7 - The Consequences of Global Mandatory Fair Use

  • Tanya Aplin, King's College London, Lionel Bently, University of Cambridge
  • Book:
    Global Mandatory Fair Use
    Published online:
    26 October 2020
    Print publication:
    05 November 2020, pp 190-224

  • 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.

Global Mandatory Fair Use
  • The Nature and Scope of the Right to Quote Copyright Works
  • Tanya Aplin, Lionel Bently
  • Published online:
    26 October 2020
    Print publication:
    05 November 2020
  • In a path-breaking work, Tanya Aplin and Lionel Bently make the case that the quotation exception in Article 10 of the Berne Convention constitutes a global, mandatory, fair use provision. It is global, they argue, because of the reach of Berne qua Berne and qua TRIPS, and its mandatory nature is apparent from the clear language of Article 10 and its travaux. It relates to 'use' that is not limited by type of work, type of act, or purpose and it is 'fair' use because the work must be made available to the public, with attribution, and the use must be proportionate and consistent with fair practice. By explaining the contours of global, mandatory fair use - and thus displacing the 'three-step test' as the dominant, international copyright norm governing copyright exceptions - this book creates new insights into how national exceptions should be framed and interpreted.