Intellectual Property

Article 10 of the Berne Convention and the Three Step Test (Part 4)

In this post, I intend to examine the interface between Article 10(1) of the Berne Convention and Article 13 of the TRIPS Agreement. In this regard, I will be drawing extensively on a recent paper by Tanya Aplin and Lionel Bently titled, ‘Displacing the Dominance of the Three-Step Test: The Role of Global, Mandatory Fair Use.’ This paper is due to be published in Comparative Aspects of Limitations and Exceptions in Copyright Law (2018).

Article 10(1) of the Berne Convention provides that: “It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”

According to Aplin and Bently, Article 10(1) of the Berne Convention recognizes a ‘global, mandatory fair use.’ As noted by Aplin and Bently: Article 10(1) is global because it applies to every country that is a member of the Berne Union and the WTO; it is mandatory because of the language contained in the text of the provision i.e. ‘It shall be permissible’ and the fair use prescribed in Article 10(1) concerns the making of quotations. They discuss this further in a separate paper titled, ‘Whatever Became of Global Mandatory Fair Use? A Case Study in Dysfunctional Pluralism‘ which is due to be published in Is Intellectual Property Pluralism Functional? (2018).

Aplin and Bently also provide a number of reasons why Article 10(1) of the Berne Convention is not subject to Article 13 of the TRIPS Agreement. I will focus on two of these reasons:

  1. Article 10(1) of the Berne Convention is obligatory and this obligation has also been incorporated into the TRIPS Agreement via Article 9(1) of the TRIPS Agreement. In other words, Article 10(1) is actually not an optional provision and states have a duty to implement it at the national level.
  2. Even if Article 13 of the TRIPS Agreement can restrict the operation of an optional provision in the Berne Convention, this would not apply to Article 10(1) of the Berne Convention because Article 2(2) of the TRIPS Agreements explicitly provides that nothing in Parts I to IV of TRIPS (which includes Article 13) shall derogate from any obligations that states have to each other under the Berne Convention.

These two reasons provide a basis for concluding that Article 10(1) of the Berne Convention is not subject to Article 13 of the TRIPS Agreement. In the next post, I will focus on the interface between Article 10(2) of the Berne Convention and Article 13 of the TRIPS Agreement.

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