Whatever Became of Global Mandatory Fair Use? A Case Study in Dysfunctional Pluralism.

Forthcoming, S. Frankel (ed), Is Intellectual Property Pluralism Functional? (Edward Elgar, 2018)

University of Cambridge Faculty of Law Research Paper No. 34/2018

25 Pages Posted: 20 Feb 2018 Last revised: 22 May 2018

See all articles by Lionel A. F. Bently

Lionel A. F. Bently

University of Cambridge - Faculty of Law

Tanya Aplin

King's College London

Date Written: February 6, 2018

Abstract

The international copyright system requires all participants to recognise a freedom for fair quotation that covers much of the ground encompassed by the notion of ‘fair use.’ The obligation derives from Article 10(1) of the Berne Convention and thus applies to some 174 countries (and, because Article 10(1) must be complied with under TRIPS, is carried over into the WTO Agreement). In contrast to other limitations in Berne, Article 10(1) is not optional, it is mandatory. It creates an obligation, and thereby imposes a ceiling on the freedom of action of Members of the Union. The breadth of the obligatory exception is wide: as enacted in national law, it should not be limited by work, nor by type of act, nor by purpose. The exception should not be subjected to additional conditions beyond those recognised in Article 10: to do so is to breach the obligation. Subject to those conditions, the freedom the Article secures to users encompasses any and every act of quotation, the meaning of which reflects how the term is ordinarily used across all cultural forms. That includes free-standing uses, transformative uses and parodic uses. Its breadth reflects, but is not limited by, the desire to give effect to the fundamental freedom, freedom of expression. We have dubbed this ‘global, mandatory, fair use’, or GMFU, for short.

Yet, despite this obligation, there has been a marginalisation of Article 10(1) and this paper explores how, and why, this distortion of international obligations has occurred. It suggests the dangers of pluralism in copyright when it comes to international obligations.

Keywords: quotation, fair use, pluralism

Suggested Citation

Bently, Lionel A. F. and Aplin, Tanya F., Whatever Became of Global Mandatory Fair Use? A Case Study in Dysfunctional Pluralism. (February 6, 2018). Forthcoming, S. Frankel (ed), Is Intellectual Property Pluralism Functional? (Edward Elgar, 2018); University of Cambridge Faculty of Law Research Paper No. 34/2018. Available at SSRN: https://ssrn.com/abstract=3119041

Lionel A. F. Bently

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Tanya F. Aplin (Contact Author)

King's College London ( email )

Dickson Poon School of Law
The Strand
London, WC2R 2LS
United Kingdom
+44 (0)20 7848 1049 (Phone)

HOME PAGE: http://www.kcl.ac.uk/law/people/academic/taplin.aspx

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