Re: Users' rights under Berne Protocol

From: Mike Holderness <mch[_at_]cix.compulink.co.uk>
Date: Thu, 2 May 96 17:36 BST-1

jamie wodetzki <jwodetzk[_at_]nla.gov.au> proposes amendments to Berne:
>
> > (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.
>
> And on Thu, 25 Apr 1996, I (Mike Holderness) replied:
> >
> > ... 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.
>
> My (Jamie's) comment, by way of rejoinder:
>
> The simple fact is that the language I propose is _already_ scattered
> about in the Berne Convention. All I am saying is that it should be
> pulled together in one spot and simplified a bit. This is not, in my
> humble opinion, the sort of clause that would allow anyone to 'crush'
> authors. It's about putting the public interest first and saying that
> authors' rights are wonderful, but sometimes the public interest is best
> served by providing for exceptions, where this is _compatible with fair
> practice_ or _not unreasonably prejudicial_ to the author, and so on ...
> You can hardly say that it's unfair to introduce an element of
> 'fairness' to the law of copyright, can you?

Of course I could't oppose 'fairness'. :-)

My comment was based on reading Jamie's proposal while imagining myself to be a lawyer for a publisher. In that persona, when I see "compatible with fair practice" and "unreasonably prejudice", I think "loophole!".

The specific instance I have in mind is in the text of the UK's 1988 Copyright, Designs and Patents Act. Section 77 grants the Berne "right of paternity":
77(1) The author of [stuff] has the right to be identified...

78 [Right applies only where "asserted" by author.]

BUT: 79(1) The right conferred by section 77 (right to be identified as author or director) is subject to the following exceptions. [...]
  (5) The right does not apply to any work made for the purpose

        of reporting current events. 
        
  (6)   The right does not apply in relation to publication in--
        (a)     a newspaper, magazine or similar periodical, or
        (b)     an encyclopaedia, dictionary, yearbook or other 
                collective work of reference. 
                

Sections 80 and 81 repeat the trick for the right of integrity.

The 1979 US Act managed to go even further, inasmuch as it persuaded WIPO that the US could ratify Berne, while granting effective "moral rights" only to photographers taking pictures at temperatures between 21 and 25 Degrees Reamur (I exaggerate... slightly).

The UK sections were, I am reliably told, the result of a wellfunded  lobbying campaign by publishers.

What have they to do with "fair use", which was Jamie's point?

Nothing. Zip. And that's _my_ point.

But isn't it the national legislation language "scattered about in the Convention" which gave the publishers their loophole for this quite different purpose?

So, if we want a harmonised fair use provision, or a regulated framework for national legislation on fair use, let's PLEASE talk about _definitions_ of fair use.

I was not opposing Jamie's intention, but his proposed language.

William Morris said (I paraphrase):

        Men strive and strive to change the world, and when 
        they reach their goal, they realise it wasn't where
        they wanted to be all along. 

If someone digs out the correct wording, I'll make it into a poster, to be (compulsorily?) displayed over the desk of everyone involved in drafting statue.

Perhaps a way to carry this forward would be for someone to draft a 200-word "manifesto for fair use" in the English language; and then to hold a competition to translate it into the language of international law. Points will be given for (a) similarity to any other language (even formal similarity to Algol-60); and (b) achieving a translation shorter than 2000 words.

Who knows, it could become an annual event :-)

Mike Holderness
<mch[_at_]cix.compulink.co.uk>

(C) 1996; moral rights asserted. A license is hereby granted for all non-commercial electronic redistribution including this notice. For other uses contact mch[_at_]cix.compulink.co.uk. Received on Thu May 02 1996 - 16:37:05 GMT