Reading list: further on global mandatory fair use

Tanya Aplin & Lionel A. F. Bently, 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).
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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