The Three-Step Test Frenzy - Why the TRIPS Panel Decision Might be Considered Per Incuriam

Abstract:     
In 2000 the first decision interpreting the copyright provisions of the Trade Related Aspects of Intellectual Property Agreement ("TRIPS") was made by a Panel established under the World Trade Organization Dispute Settlement Understanding. This significant and long-awaited decision is premised upon a fundamental error in the Panel's interpretation of the relationship between TRIPS Article 13 and the incorporated Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works ("Berne"). That error led the Panel to apply the three-step test contained in TRIPS Article 13 to everything that was to be decided before it. In so interpreting TRIPS, what one might have been forgiven for regarding as the specifically relevant Berne provision - Article 11bis(2) - was found to be irrelevant to the dispute.

The paper does not analyse in detail the Panel's application of the three-step test. Some concluding comments are made as to the desirability of "the three-step test frenzy"; the increasing willingness in international copyright law to attempt to define the limits of copyright by reference to the three-step test. Instead, the paper is concerned with the uses - or more precisely misuses - of secondary material in TRIPS interpretation. In analysing this aspect of the Panel's decision, the paper contends that the Panel acted in ignorance of the detail of the very secondary material upon which it placed so much reliance.

Accepted Paper Series