Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works

Description

In a path-breaking work, Tanya Aplin and Lionel Bently make the case that the quotation exception in Article 10 of the Berne Convention constitutes a global, mandatory, fair use provision. It is global, they argue, because of the reach of Berne qua Berne and qua TRIPS, and its mandatory nature is apparent from the clear language of Article 10 and its travaux. It relates to 'use' that is not limited by type of work, type of act, or purpose and it is 'fair' use because the work must be made available to the public, with attribution, and the use must be proportionate and consistent with fair practice. By explaining the contours of global, mandatory fair use - and thus displacing the 'three-step test' as the dominant, international copyright norm governing copyright exceptions - this book creates new insights into how national exceptions should be framed and interpreted.

Lionel Bently has been the Herchel Smith Professor of Intellectual Property Law at the University of Cambridge since 2004. He is Co-Director of the Centre for Intellectual Property and Information Law at the University of Cambridge, and a door tenant at 11 South Square, Gray's Inn. His publications include The Making of Modern Intellectual Property Law (with Prof. Brad Sherman); Intellectual Property Law (editions 1-4, with Prof. Brad Sherman; 5th ed, with Profs Sherman, Dev Gangjee, and Phillip Johnson); Gurry on Breach of Confidence: The Protection of Confidential Information (with Prof. Aplin, Prof. Johnson and Mr Malynicz). He is General Editor of International Copyright Law and Practice (with Burton Ong), co-editor (with Martin Kretschmer) of Primary Sources on Copyright, and Editor-in-Chief of the Cambridge Law Journal. Tanya Aplin has been a Professor of Intellectual Property Law at Kings College London since 2011. She is Director of the Postgraduate Diploma in UK, EU and US Copyright Law and Co-Director of the LLM in Intellectual Property and Information Law offered by King's College London and a door tenant at Three New Square, Lincoln's Inn. Her publications include Copyright law in the digital society: the challenges of multimedia, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (7th, 8th and 9th eds, with Prof. Cornish and Prof. Llewelyn), Intellectual Property Law: Text, Cases and Materials (1st, 2nd and 3rd eds, with Dr Davis), and Gurry on Breach of Confidence: The Protection of Confidential Information (with Prof. Bently, Prof. Johnson, and Mr Malynicz). She has also edited the Research Handbook on Intellectual Property and Digital Technologies and is on the Editorial Committee of the Modern Law Review and Current Legal Problems.

'This authoritative account of article 10(1) of the Berne Convention presents a systematic and scholarly analysis of a long-neglected treaty provision. Drawing upon a wide range of legal, philosophical, linguistic and other perspectives, Aplin and Bently's arguments will be a stimulus, challenge and provocation to all those involved in copyright law and policy making.' Sam Ricketson, Melbourne Law School, University of Melbourne 'Lying dormant for fifty years has been a broad conception of Article 10(1) of the Berne Convention for the Legal Protection of Literary and Artistic Works. In Global Mandatory Fair Use, Aplin and Bently offer a radical reinterpretation of this provision. The authors delve deeply into the history of this provision to prove the intended breadth of its reach, and they methodically work through each of its main features: the concepts of quotation, proportionality, fair practice, and attribution. This fresh perspective on the mandatory fair quotation right should be read by every serious copyright professional.' Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law, UC Berkeley School of Law 'This book triggers a big bang in the debate on copyright limitations and user rights. Tanya Aplin and Lionel Bently revolutionize our understanding of the right of quotation, reconfigure the architecture of international copyright law and systematically expose neglected implementation obligations of lawmakers and judges - indispensable for practitioners and academics alike.' Martin Senftleben, Professor of Intellectual Property Law, University of Amsterdam '... 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.' Hayleigh Bosher, The IPKat 'With carefully constructed arguments, the authors demonstrate that the art.10(1) exception, mandatory on all signatories to Berne, is broader than most people think and has been woefully under-used.' Charles Oppenheim, European Intellectual Property Review 'The impressive breadth and depth of scholarship underpinning the authors' proposition will attract a wide audience comprising law-makers, policy-makers, academics and practitioners, as well as anyone in the business of producing copyright works or those who might benefit from an expansive quotation exception.' Tania Cheng-Davies, Intellectual Property Quarterly 'Global Mandatory Fair Use provides a new and highly original perspective on copyright exceptions in international copyright law. It has significant implications for national and regional copyright laws throughout the world, as well as the parameters in which we conceive copyright more generally. In displacing the centrality of the three-step test as the dominant international norm it provides a more permissive approach to copyright exceptions, bringing questions of fairness to the centre-stage for the first time. Further, in locating the roots of this liberalisation in principled international inter-state negotiations of the 20th century, Aplin and Bently provide us with a positive example of how international instruments can be the source of balance in intellectual property law. Global Mandatory Fair Use is, without doubt, a landmark in scholarly thinking about copyright and international intellectual property law more generally. It is, therefore, essential reading for intellectual property scholars, lawyers, judges and policy-makers, at national, regional and international levels, as well as representatives of copyright user groups throughout the world.' Elena Cooper, Law Quarterly Review 'Bently and Aplin ... [offer] the most revolutionary proposal to inject flexibility not only into European copyright law but at a global level'. Bernd Justin Jutte, UFITA-Archive for Media Law and Studies