Book talk: global mandatory fair use via the Berne quotation right

Tanya Aplin & Lionel Bently, Global Mandatory Fair Use,
AU Book Talk.

Based on their new book.

Art 10(1) Berne Convention: It shall be permissible
to make quotations from a published work; mention shall be made of the source
and name of author if it appears. This constitutes global, mandatory, fair use.
Berne and TRIPS both require implementation of Art. 10. Meaning and purpose of
quotation is broad. Fair because of the requirements: lawfully made available
to the public, attribution, proportionality, consistent with fair practice.
Mandatory language can be contrasted with other exemptions, which say “it shall
be a matter for legislation in the countries” of the union. Drafting history
includes vote to reject making 10(1) optional rather than mandatory.

Scope: applies to all Berne works, not just literary works,
though optional for related rights b/c Rome Convention has no mandatory
quotation right. Also does not apply to moral rights, b/c travaux suggested
moral rights are reserved, and Art 10(3) provides different requirement for
attribution of source.

What’s the meaning of “quotation”? Proposal to limit
language by purpose were rejected; it was intention to leave language open
because couldn’t agree on purposes to which it should be limited. Aplin &
Bently argue: does not have to be short, can be of the whole work, need not be
distinct, need not be used in another work; need not support or further an
argument or critique. None of these individually are necessary conditions for “quotation.”
Many fields use “quotation” to include use of a full work, no requirement of
commentary, no requirement of “quotation marks.” Example: Cézanne’s Compotier, verre
et pommes, 1878-79, shown in Maurice Denis’ Homage to Cézanne, 1900: group of
painters standing around an easel representing the Cézanne: they’re admiring Cézanne’s
work. It is (all but) the whole work; it is not distinct from the rest of the
work; and one might question whether there’s any critique or dialogue: the
dialogue seems to be “isn’t this a great painting and aren’t all those people
admiring it.”

Similarly in architecture there is quotation: Konstantin Melnikov,
Rusakov Club; quoted in James Stirling, Leicester Engineering Building.
Architecture literature doesn’t hesitate to describe this as quotation w/common
trapezoidal forms. Not distinct from the rest but still described as quotation.
Similar examples from film, e.g., Francis Bacon, Study for the Nurse from the
Battleship Potemkin.

In literature particularly, “quotation” is used routinely
w/o any requirement of critique, which contrasts with EU requirement of
dialogue with work being quoted. That’s not the ordinary meaning of quotation,
which includes inscriptions on buildings that edify visitors.

Art 10(1) requirements help constrain the exception:
lawfully made available to public, attribution, quotation doesn’t exceed that
justified by purpose, and proportionality. Made available: wider notion than
publication under Art 3(3); covers making available via compulsory license.
Sticky issues about where the work has to be made available. Suggest that the
better view is that it should be judged according to place of first making
available. Not synonymous w/right of attribution b/c requires mention of the
source and author if the latter appears thereon. As a result, should be
viewed more flexibly, allowing attributions in abbreviated form, indirect,
implicit attribution, or easily identifiable.

Proportionality: “the extent of the quotation does not
exceed that justified by the purpose.” From human rights jurisprudence:
suitability: is quotation capable of achieving purpose claimed; necessity:
whether shorter quotation would be as effective in achieving the purpose and
less restrictive of author’s rights. Counterbalances the removal of “short” before
quotation.

Finally, “fair practice” requirement gives a lot of scope
for considering fairness. Little guidance in the travaux. Reject of three
possible approaches: (1) solely determined by national law, given that it’s
mandatory and normative; (2) informed by relevant state practice; (3)
synonymous with three-step test. Clearly seen as important mechanism of constraining
exception. Fair practice should assess fairness, informed by notions of
economic and moral harm (which may involve considering amount quoted as well as
nature/purpose of quotation as well as size/proportion); freedom of expression
(expressive purpose of quotation, including political v. commercial; nature of
claimant’s work); distributive justice (educational uses, translations, poorly
financed creators); and custom, to a limited extent (drawing on Kenneth Crews
and Jennifer Rothman’s cautionary work on custom). Notions of bad faith wouldn’t
fall within our meaning b/c it’s too vague: manner of obtaining work is better
dealt w/ by other areas of law; commercial motive can be dealt with by
considering economic harm; failure to ask permission is circular.

Differences from WTO’s approach to the 3 step test, which is
very formalistic. 10(1) v. 3 step: latter is narrow in scope and reach, whereas
quotation can be interpreted broadly. Normative value: 3 step in WTO panel view
is fixated on rights holders interests, while fair practice brings a plurality
of interests into play. 3 step test doesn’t require availability to public;
doesn’t take moral rights into account. 3 step is cumulative in nature, while quotation
elements have some overlap, e.g. proportionality and fair practice. Royalty-free
exception while 3-step envisages paid but permitted exemptions. 3 step test is
not the only lens through which to see exceptions: a powerful force alongside
it. Despite TRIPS art. 13: TRIPS art 9(1) says that nothing in the relevant
provisions shall derogate from existing obligations, and 10(1) is an existing
obligation. Therefore TRIPS doesn’t override 10(1), though it can make 10(2)
and 10bis subject to the 3 step test. Similar argument with WCT, as well as
agreed statement to WCT which supports the argument further.

Consequences for US fair use: assessment according to 3-step
test becomes redundant, but would need to pay attention to making available,
attribution requirements, moral rights, and different emphasis for fairness
factors. Also provides occasion to revisit quotation exceptions where they fall
short by restricting purpose (Portugal), limited to types of works (Austria,
Zimbabwe), restricted to short quotations (France, Greece, Serbia), or require
dialogue/incorporation into other works (France, Germany). CJEU decisions are
also incorrect/inconsistent by requiring intent to enter into dialogue with
work, wrongly importing identifiability/recognisability requirement. Parody
exceptions could also be seen through 10(1) and not just three step test: lets
us worry less about definitional distinctions among parody, satire, pastiche,
though that might be relevant to fair practice rather to whether exception
kicks in at all.

Publisher guidelines could also be revisited through this lens;
many publishers are incredibly narrow and risk averse in acceptable quotation.

Peter Jaszi: mentioned questions in Salinger cases about
whether being made available in archives ought to count as available to public.

Bernt Hugenholtz: Shall is not the same thing as may, and it
ought to have consequences. But note that Berne allows different treatment of
nationals. Mentioned discussion in chat about the new EU snippet right as a
related right that could override the quotation right.

Discussion: Because of the mandatory nature of the quotation
right, it should override any related right where that’s necessary to exercise
the quotation right (e.g., a broadcast treaty or special rights for press
publishers that extend beyond the author’s right).

Discussion of what doesn’t count as quotation: perhaps intermediate
copying (though may be required to avail oneself of some kinds of quotation),
reverse engineering.

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