The first and second of these are certainly worth celebrating in their own right as significant milestones in the development of public international law generally, but it is the third – national treatment – which is the starting point for the subject of the present paper, namely a consideration of the provisions made for limitations and exceptions to copyright protection under the international agreements.

International copyright law imposes a solid minimum standard of copyright protection, while requiring a very thin minimum standard of permitted uses. As the Berne Convention (BC) evolved and in 1996 subsequent international Treaties were adopted, international copyright law has increasingly strengthened protection of private rights of exclusion and eschewed setting mandatory permitted uses. Also International law has been progressively interpreted as a limit for States to lay down permitted uses in their laws or to define the scope of existing provisions extensively. This is partly due to how the Three-Step Test set forth by Article 9(2) BC has been understood over time. Originally intended as a way for Berne Union countries to permit reproduction of copyrighted works, the Test has been later intended as a strict method of regulating the system of copyright permitted uses.

Article 10(1) of the Berne Convention mandates a quotation exception that is broad in scope, one that is not limited by work, nor type of act, nor by purpose, and is only subject to the conditions in Article 10, namely, the work has been lawfully made available to the public, attribution, fair practice, and proportionality. We call this “global mandatory fair use.” This overlooked norm in international copyright law is unaffected by and distinct from the three-step test and, as such, potentially dislodges its dominance. In turn, this creates different possibilities for how to conceive of and assess copyright exceptions at the national level. To substantiate our argument, this chapter is structured in three parts.outlines our underpinning contention, namely, that Article 10(1) creates a global mandatory “fair use” type obligation.explains why this obligation is unaffected by the three-step test in international copyright law. Finally, in , we draw out the differences between Article 10(1) and the three-step test and illustrate the potential relevance of this for national law using the specific case of US “fair use.”

With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled (hereinafter “Marrakesh Treaty” or “MT”), in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions (“L&Es”) in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty had success and became reality, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending.

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.

An important starting point is our claim that Article 10 of the Berne Convention creates an obligation on Members of the Union to recognise a limitation on the copyright that allows for quotation. The proposition is based primarily on the language used: Article 10 begins with the words, ‘It shall be permissible … ’. This imperative language may be contrasted with Article 10(2) Berne, which, in relation to exceptions for education states: ‘It shall be a matter for legislation in the countries of the Union … to permit’. Similar permissive language is also found in Article 10bis in relation to reporting current events and Article 9(2), which allows exceptions to the reproduction right ‘in certain special cases’. The language of Article 10(1) is distinct and clearly reads as mandatory rather than permissive. Although there is barely any reference to the mandatory nature of the exception in the Stockholm travaux, the limitation is described in terms that reflect its basis in the entitlement of the user.

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.

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.

This study offers a concise overview of both the theory and practice of exceptions and limitations to copyright in the Czech Republic. The first part describes the copyright system of the Czech Republic and the general approach to regulating exceptions and limitations. The second part analyses the existing individual exceptions and limitations, and their application by national courts. The last part offers some conclusions and identifies future challenges.