Imagine an international instrument that does not merely oblige contracting parties to confer rights on copyright holders (permitting only optional, narrowly circumscribed, exceptions) but also mandates limitations. Imagine, too, that such an instrument requires parties to permit use of material that has been taken from existing works and incorporated in a later work, irrespective of the purpose of so doing, but only on the condition that the use is in accordance with fair practice. Imagine that the mandatory limitation allows the reuse of transformed versions of works, including parodies, and even the whole of a protected work. Imagine, indeed, a regime of global, mandatory, fair use.

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.

Until now, the international legal norm created by Article 10(1) Berne has been relatively dormant and its potential overlooked by scholars, policymakers, judges, practitioners and legislatures: it is now time to harness its potential in the shaping of permitted uses of copyright material. Moreover, despite its clear terms, only a minority of national legal systems have implemented Article 10(1) in full.