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