Intellectual Property

Article 10 of the Berne Convention and the Three Step Test (Part 1)

I want to start a series of posts on the relationship between Article 10 of the Berne Convention and the ‘Three Step Test.’ The Berne Convention for the Protection of Literary and Artistic Works (simply known as the Berne Convention) is the first multilateral agreement on copyright and it has been revised a number of times since it was first adopted in 1886. The focus of my analysis here is on one of its provisions i.e. Article 10.

Article 10 of the Berne Convention deals with some exceptions to copyright which it refers to as ‘certain free uses of works’ and it specifically refers to uses such as quotations in Article 10(1) and illustrations for teaching in Article 10(2). There is however a key difference between Article 10(1) and Article 10(2). Essentially, Article 10(1) is a mandatory exception and it requires states to permit quotations from a work provided that such quotations are compatible with fair practice and their extent does not exceed that justified by the purpose. Lionel Bently and Tanya Aplin have both recently written two interesting papers (here and here) that, among other things, emphasize the mandatory nature of Article 10(2).

On the other hand, Article 10(2) is not mandatory and it is up to states to decide whether or not they want to provide for this exception in their national copyright laws. Basically, Article 10(2) gives countries the freedom to permit the use of literary and artistic works by way of illustration in publications, or sound or visual recordings for teaching purposes. It is however subject to two requirements. The use must be ‘to the extent justified by the purpose’ and it must be ‘compatible with fair practice.’

In the next post, I will examine the interface between Article 10 and another provision of the Berne Convention that deals with exceptions to copyright i.e. Article 9(2) of the Berne Convention. Article 9(2) is the genesis of what has now famously (or infamously) become known as the ‘three step test.’


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