This substantially revised chapter examines the impact of Directive 2001/29/EC in light of two major developments since publication of the first edition of this collection. The first is the extensive growth of EU jurisprudence on Directive 2001/29/EC and, particularly, increased judicial harmonization of copyright. The second and more troublesome development is the regrettable decision of the United Kingdom to withdraw from the European Union. The negotiations for withdrawal are on-going and so it is difficult to predict the consequences for UK copyright law. Even so, the Directive 2001/29/EC and its interpretations by the European Court of Justice are likely to remain influential in future to UK copyright law. This chapter seeks to tease out the complexities which arise out of these two major developments in discussion of the following topics: i) originality; ii) exclusive rights; iii) exceptions; and iv) the UK’s post-Brexit future.
Lionel Bently and Tanya Aplin
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.