Re: Users' rights under Berne Protocol

From: Neil Netanel <nnetanel[_at_]mail.law.utexas.edu>
Date: Wed, 24 Apr 1996 12:35:36 -0500

Jamie Wodetzki wrote:
>
> There are many clauses in the Berne Convention (and the Rome
> Convention) that provide for limitations on the scope of rights, and
> exceptions to infringement, etc. People often think only in terms of
> Art 9(2) of Berne, but there is more to the "users' rights" or "fair
> use" provisions in both Berne and Rome. See, for example, Arts 2(8),
> 2bis, 9(2), 10, 10bis, and 17 in the Berne Convention.
>
> What I would like to suggest is that the Berne Protocol include a
> single provision that brings these threads together to create a general
> 'fair use' right that can be applied to all subject matter and all
> protected rights.
>
> Simply to extend Art 9(2) (as the US has proposed in its submission to
> the Committee of Experts) does not, in my view, go far enough.

A general and more robust fair use right sounds good to me in principle. However, my sense from discussing this issue with Europeans is that they would be opposed to more open-ended fair use provisions in domestic copyright law, in part because the idea that courts would have such broad case-by-case discretion is foreign to their tradition of civil law adjudication.

What is the U.S. proposal regarding Art. 9(2)?

Neil Netanel                            Phone:  512-471-2679
Assistant Professor                     Fax:  512-471-6988

University of Texas School of Law
727 East 26th Street
Austin, Texas 78705 Received on Wed Apr 24 1996 - 17:43:39 GMT