14.8 Education has been called ‘one of the clearest examples of a strong public interest in limiting copyright protection’.
14.9 The preamble to the World Intellectual Property Organization Copyright Treaty (WCT) refers to ‘the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention’.
14.10 The fair use of copyright material for teaching has long been recognised as a legitimate type of exception in international law. Article 10(2) of the Berne Convention provides:
It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
14.11 The references to ‘purpose’ and ‘fair practice’, Professors Sam Ricketson and Jane Ginsburg state,
make the provision more open-ended, implying no necessary quantitative limitations. The words ‘by way of illustration’ impose some limitation, but would not exclude the use of the whole of a work in appropriate circumstances.
14.12 However, Ricketson and Ginsburg express some doubt about whether anthologies or course packs consisting of chapters taken from various books would fall within the scope of art 10(2) of the Berne Convention. It would be ‘a distortion of language’, they state, to describe such uses as ‘by way of illustration … for teaching’. They also note that such usages are ‘well-developed forms of exploitation in many countries, subject to voluntary licensing arrangements or even compulsory licensing schemes’.
K Garnett, G Davies and G Harbottle, Copinger and Skone James on Copyright (16th ed, 2011), [9–96].
World Intellectual Property Organization Copyright Treaty, opened for signature 20 December 1996, ATS 26 (entered into force on 6 March 2002), preamble.
Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971,  ATS 5 (entered into force on 15 December 1972).
S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd ed, 2006) Vol I, 791.