Is Legal File Sharing Legal? An Analysis of the Berne Three-Step Test

Abstract

“Just legalize file sharing.” This solution, long favored by peer-to-peer users everywhere, has recently been embraced by many academics. Although the phrase conjures up visions of a lawless wasteland where copyright is meaningless, such is not the case. Scholars have managed to develop alternative compensation systems that both legalize file sharing and increase artists’ earnings.

These plans are well constructed, but one important aspect has been given little attention: under international law, is it legal for a country to legalize file sharing? Since the U.S. is a signatory to several copyright treaties, all domestic reforms must accord with our international obligations. In particular, any limitations on copyright have to pass the Berne three-step test, a notoriously nebulous standard. This Article argues that a carefully constructed alternative compensation system would pass the test and satisfy international copyright law. To reach this conclusion, the paper develops a framework for the Berne three-step test that has applications beyond the file-sharing domain.

Keywords: file sharing, Berne three-step test, Berne Convention, WTO dispute, intellectual property, WCT, WIPO Copyright Treaty, WIPO Performances and Phonograms Treaty, WPPT, international law