2017 Articles

Session IV: Fair Use and Other Exceptions (David Carson)

Carson, David

I’m going to give an overview on where we are right now with respect to international copyright treaties and how they deal with exceptions and limitations, and maybe a little bit about how we got there, and I’ll leave it to others to say where we ought to be going. We start with the Berne Convention, which is the first international copyright treaty. And if you look at why Berne came about, it was mainly because authors back in the mid-to-late nineteenth century were concerned that they weren’t getting protection for their works in countries other than their home countries. French authors—and of course French authors were very much at the forefront of the Berne movement—were concerned that their works were being pirated in Belgium and in Holland. And that sort of led to this movement to have an international treaty whereby if you were an author from country A, your rights would be recognized in country B to the same degree that authors in country B would have their rights. And that gets us to the basic proposition—not just a premise of international copyright law, but international IP law in general—the notion of national treatment. And of course Berne goes beyond that: the first Berne Convention talked about certain degrees of rights, and over years there have been revisions of Berne. There have been expansion of rights, and expansion of subject matter protected, largely as a result of technology, which has allowed new ways of expression and new ways of exploiting expression. And that’s been the focus for most of the history of international copyright agreements.