Book review: Global Mandatory Fair Use

This Kat is delighted to bring you a book review of Global Mandatory Fair, the Nature and Scope of the Right to Quote Copyright Works by Tanya Aplin, King's College London and Lionel Bently, University of Cambridge. 

 

In this book, Aplin and Bently argue that global mandatory fair use already exists, under the provision of article 10(1) of the Berne Convention. Global, because of the reach of Berne Convention and the TRIPS agreement. Mandatory because of the language of the provision and its travaux. It relates to use that is not limited by type of work, act, or purpose. And it is fair because of the conditions of 10(1) and 10(3) of Berne; namely that the work was lawfully made available to the public, attribution, proportionality and fair practice must be satisfied. 

Until now, the international legal norm created by Article 10(1) Berne has been relatively dormant and its potential overlooked by scholars, policymakers, judges, practitioners and legislators: it is now time to harness its potential in the shaping of permitted uses of copyright material.

The book is set out in 8 chapters. Discussed below:

Chapter 1: Introduction

The opening paragraph to the introduction is everything I look for in a law book. Poetic and kind of sassy, in a way that lets you know these authors are serious and dares you to turn the page!

Imagine, indeed a regime of global mandatory fair use… it is pointless to imagine because there is no need to imagine it. It already exists. 

The premise of the book is set out, before sign posting the rest of the chapters. 

Chapter 2: History of article 10(1) Berne

As the title of this chapter suggests, this chapter takes the reader through the evolution of the quotation exception, from its proposal at the 1928 Rome Revision, its incorporation at the 1948 Brussels Revision and key changes made at the 1967 Stockholm Revision where the exception was extended to all types of works, without restrictions on the purpose of the quotation. Chapter 3: Preliminary considerations about the nature of the quotation exception.

Chapter 3: Preliminary considerations about the nature of the quotation exception

Chapter 3 examines the mandatory character of Article 10(1), based primarily on the language of the provision and the travaux to the 1967 Stockholm Conference. Secondly, the authors consider the place of Article 10(1) within the Berne Convention and its relationship to subsequent international treaties, the TRIPS agreement, and the WIPO Copyright Treaty; in particular discussing the types of works and rights to which the quotation exception applies. It then sets out the authors’ arguments for why the three-step test is not applicable to the quotation exception. 

Chapter 4: Article 10(1) Berne: requirements

Chapter 4 considers the necessary requirements for Article 10(1) to apply, the authors argue that quotation is not restricted by purpose, as it simply states "it shall be permissible to make quotations." This is also demonstrated by the travaux to the Stockholm Revision of Berne. The authors next consider the requirement that the quotation exception applies only to a work that was already lawfully made available to the public. They distinguish this from publication, as a broader concept, and contextualise the issue with a discussion of the Spiegel Online case [Katpost here]. The chapter concludes with a discussion on proportionality, in assessing 'fair practice', which the authors argue supplies the question of whether the length of the quotation is suitable for the purpose for which it is being used.

Chapter 5: Article 10(1) Berne: the meaning of quotation

In this chapter the authors dissect the meaning of what constitutes a quotation, conducting a thorough investigation, looking at the use of quotation within different areas such as music, film, and architecture. The authors demonstrates that quotation is broad, and goes beyond the typical cases of textual quotation. Therefore, they argue that quotation should not be limited by length, type of work or purpose, but rather that any quotation that might be regarded as infringement would be on the basis if sufficient acknowledgment, proportionality and compatibility with fair practice.

Chapter 6: Article 10(1) Berne: fair practice

The authors highlight that the most important condition for the availability of the quotation exception is that the use be compatible with fair practice, which is analysed in detail chapter 6. The authors put forward a view of 'fair practice' that reflects a pluralistic range of considerations encompassing harm to the author, disruptive justice concerns and freedom of expression. Subsequent proposals are put forward on how courts should  interpret fair practice. 

Looking for something that's already there..
Image: Paulo O

Chapter 7: Consequences of global, mandatory fair use

In view of the arguments built in the previous chapters, chapter 7 turns to consider the consequences of a global mandatory fair use. Unsurprisingly, this new perspective through which to view the copyright exceptions raises questions as to the future of the dominance of the three-step test. The authors consider whether the US Fair Use system complies with Article 10(1) and the need for amendment of national legislation that does not properly implement the quotation exception. In particular, the authors demonstrate how the exceptions of several (mainly) civil law jurisdictions are contrary to Article 10(1) because they restrict the types of purpose of the quotation or impose a quantitative limit of short quotation. Common law quotation exceptions are also found to be problematic where they restrict quotation to the purpose of criticism or review. Moreover, the authors explain the impact of their findings on the judicial interpretation, and how it provides an international basis for the parody exception. Lastly, the authors clarify that industry guidelines are unnecessarily risk averse, using unduly narrow and conservative limits for quotation.

Chapter 8: Conclusion

Drawing together their arguments, the authors conclude:

This book seeks to provoke norm entrepreneurs and their interpretive communities, in particular Members of the Berne Union and those law-makers and policymakers within them, to give full effect to a norm that has been on the books for fifty years, and thus, finally recognise global mandatory fair use.

It therefore goes without saying that this book is an important read for lawmakers, policymakers, scholars, judges and practitioners with an interest in copyright exceptions, as well as those wishing to make use of the quotation exception, including publishers. 

If you would like to hear the authors speak about their work, you can watch this YouTube video here. 

Publisher: Cambridge University Press

£ 85.00 Hardback

Published: November 2020

Extent: 253 pages

ISBN: 9781108835459

Also available as an ebook