“In Global Mandatory Fair Use, Tanya Aplin and Lionel Bently make a bold claim: that the current international copyright system, which spans most countries of the world, mandates a ‘fair use’ exception to copyright infringement. This will be startling reading for copyright lawyers, as well as policy-makers and judges, all over the world. To date, the dominant norm concerning copyright exceptions in international instruments (principally the Berne Convention on Copyright and the Agreement on Trade Related Aspects of Intellectual Property Rights or TRIPs) has been understood to be the ‘three-step test’ which requires contracting states to confine exceptions: (1) to ‘certain special cases’; (2) which do ‘not conflict with a normal exploitation of the work’; and (3) which ‘do not unreasonably prejudice the legitimate interests of the author’ (art 9(2) Berne Convention, or as per art 13 TRIPs, ‘the legitimate interests of the right holder’). The radicalism of Global Mandatory Fair Use is that, in breathing new life into a much-neglected specific exception in the Berne Convention, to which the three-step test does not apply – art 10(1) concerning quotation – Aplin and Bently provide an alternative centre of gravity for debates about how to accommodate the interests of users into copyright law …”
Elena Cooper, ‘Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works‘ (2021) 137 Law Quarterly Review (Oct) 685.