Bently, Lionel; Aplin, Tanya --- "Whatever became of global, mandatory, fair use? A case study in dysfunctional pluralism" [2019] ELECD 1396; in Frankel, Susy (ed), "Is Intellectual Property Pluralism Functional?" (Edward Elgar Publishing, 2019) 8

Book Title: Is Intellectual Property Pluralism Functional?

Editor(s): Frankel, Susy

Publisher: Edward Elgar Publishing

Section: Chapter 1

Section Title: Whatever became of global, mandatory, fair use? A case study in dysfunctional pluralism

Author(s): Bently, Lionel; Aplin, Tanya

Number of pages: 29

Abstract/Description:

The international copyright system requires all participants recognise a freedom for fair quotation. The obligation derives from Article 10(1) of the Berne Convention and also must be complied with under TRIPS. In contrast to other limitations, quotation is not optional but mandatory. The breadth of the obligation is wide. In national law, it should not be limited by work, type of act, or purpose. Nor should it be subjected to additional 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. Its breadth reflects the desire to give effect to the freedom of expression. We have dubbed this ‘global, mandatory, fair use’, or GMFU, for short. This chapter explores why there has been a marginalisation of Article 10(1) and illustrates the dangers of pluralism in international copyright.