Re: Users' rights under Berne Protocol

jamie wodetzki <jwodetzk[_at_]nla.gov.au> wrote:
>
> It worries me that there isn't more discussion of the Berne Protocol
> on this list....

Most are Americans, Jamie... Berne sets an international standard, and they still use feet and acres rather than follow international standards... for some, _because_ they're not standards :=) [Surgeon-General's warning: this message originates in Britain, where irony is endemic.... etc.]

> 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.
>
> The following treaty language is suggested for consideration:
>
> (1) It shall be a matter for legislation in the countries parties to
> this Protocol to provide for exceptions to the rights protected under
> this Protocol and under the Berne Convention for purposes such as
> reporting current events or the news of the day, reporting political,
> legal, economic, religious or other public activities, teaching,
> research or study, and criticism or review, provided that such
> exceptions are compatible with fair practice, and the extent of the
> exception is justified by the purpose.
>
> (2) It shall be a matter for legislation in the countries parties to
> this Protocol to provide for exceptions to the rights protected under
> this Protocol and under the Berne Convention provided that such
> exceptions do not conflict with a normal exploitation of the work and
> do not unreasonably prejudice the legitimate interests of the author.
>
> Does anyone have comments to add to this?

I certainly do. Sorry, but the language is going to have to be a _lot_ tighter to achieve what I think you want. The draft above gives publishers room to drive a coach and horses through, with the express intention of crushing authors (me, for example). And, relatively weakly organised though we authors may be, I think we know how to stop most countries voting for something as vague as what you propose.

Consider, in the extreme, the case where Vanuatu -- or China -- decides to be a "copyright haven" in the sense that Antigua is a tax haven. How long before Mr Murdoch acquires Vanuatan (or Chinese) citizenship? Think what loopholes they could create for him, using your language... Present UK law, in fact, already attempts to create loopholes on the "news-gathering" front.

I think you're going to have to spell out _exactly_ what you consider to be a "fair use". You then have to confront the existence of very different legal and cultural traditions -- and then you have to re-write so that everyone feels that your language accomodates their tradition.

Philosophically, confronted with new media to which national borders are less significant than pot-holes are to a 14-wheeler, I propose that we need to move _towards_ harmonization, not towards creating open-ended licenses for perverse national interpretations.

Mike Holderness
<mch[_at_]cix.compulink.co.uk> Received on Thu Apr 25 1996 - 05:27:21 GMT