3 - Preliminary Considerations about the Nature of the Quotation Exception

Summary

An important starting point is our claim that Article 10 of the Berne Convention creates an obligation on Members of the Union to recognise a limitation on the copyright that allows for quotation. The proposition is based primarily on the language used: Article 10 begins with the words, ‘It shall be permissible … ’. This imperative language may be contrasted with Article 10(2) Berne, which, in relation to exceptions for education states: ‘It shall be a matter for legislation in the countries of the Union … to permit’. Similar permissive language is also found in Article 10bis in relation to reporting current events and Article 9(2), which allows exceptions to the reproduction right ‘in certain special cases’. The language of Article 10(1) is distinct and clearly reads as mandatory rather than permissive. Although there is barely any reference to the mandatory nature of the exception in the Stockholm travaux, the limitation is described in terms that reflect its basis in the entitlement of the user.