Displacing the Dominance of the Three-Step Test: The Role of Global, Mandatory Fair Use
Forthcoming in Wee Loon Ng, Haochen Sun, and Shyam Balganesh (eds) Comparative Aspects of Limitations and Exceptions in Copyright Law (CUP, 2018).
31 Pages Posted: 22 Feb 2018 Last revised: 22 May 2018
Date Written: February 6, 2018
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 national level. To substantiate our argument, this chapter is structured in three parts. Part I outlines our underpinning contention, namely, that Article 10(1) creates a global, mandatory “fair use” type obligation. Part II explains why this obligation is unaffected by the three-step test in international copyright law. Finally, in Part III, 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 U.S. “fair use”.
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