The 'Three-Step Test' in European Copyright Law - Problems and Solutions
The Intellectual Property Quarterly, Forthcoming
23 Pages Posted: 23 Sep 2009 Last revised: 29 Sep 2009
Date Written: September 22, 2009
The appropriate scope and function of limitations and exceptions in copyright law is a controversial issue. Significant proposals for harmonised and mandatory exceptions are under discussion at international level and difficult cases concerning the application of existing exceptions in new conditions arise regularly in national courts. In this context, the so-called “three-step test” has attracted considerable attention from copyright policy makers, courts and scholars. In international copyright law, the “three-step test” restricts the ability of states to introduce, and maintain, exceptions to the exclusive rights of authors and other right-holders. Under its well-known terms, exceptions are only permitted (1) in certain special cases; (2) which do not result in a conflict with the normal exploitation of a work and (3) which do not unreasonably prejudice the legitimate interests of the author (or other right-holder). Originating in the 1967 Stockholm Conference revision of the Berne Convention, this formula now forms an integral part of several international agreements concerning copyright and related rights and has been applied as a constraint on the availability of exceptions to the exercise of other forms of intellectual property right at international level. The “test” has also recently come to play a significant role in domestic copyright laws, not only through its role as a restriction on legislative freedom, but also as a result of the transposition of its terms, either directly or indirectly, into national laws themselves. Where the “test” has been incorporated in national law, courts have been obliged to test the compatibility of existing legislative exceptions with the “three-step test” in particular concrete circumstances. In European courts, in particular, national judges have increasingly been required to apply the “test” in this manner. In this article, a number of decisions from European national courts are analysed in the context of current debates concerning the interpretation of the “three-step test”. It looks closely at a series of cases in which the “test” has been applied - sometimes in a manner that significantly restricts the scope of national exceptions and sometimes more flexibly. It is argued that, viewed as a whole, these cases reveal significant problems. While a “flexible” or “balanced” approach to the interpretation of the “test”, as advocated recently by a number of copyright scholars would certainly alleviate some of these problems, it is suggested that one core problem with the “three-step test” will be more difficult to solve. It is argued (i) that the “test” has no settled meaning and is therefore currently incapable of functioning as a useful legal tool; (ii) that it may, in any event, be fundamentally unsuited to the role of providing an analytical framework for the resolution of disputes concerning the scope of copyright exceptions, and (iii) that, as a result, claims by some scholars that a flexibly-interpreted “three-step test” could function as a valuable mechanism for introducing flexibility into closed copyright systems are misconceived.
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