In recent and current negotiations over copyright norms, the U.S., the European Union and some other high income countries have asked for provisions in the agreement that limit copyright limitations and exceptions to some type of “three-step-test.”
Today the copyright lobby sees various 3-step tests as mechanisms to limit the freedom countries have to make exceptions. How restrictive is this test? That depends upon whom you talk to. During a WIPO SCCR negotiation on a treaty for copyright exceptions for disabilities, one Latin American delegation described the three step test as “a straight jacket to undermine human rights.” At a recent WTO side event, one expert claimed three step tests have been liberally interpreted by the WTO in the three cases where they were tested, once each for WTO disputes involving exceptions for copyright, trademarks and patents, but this view is not shared by many copyright scholars. A recent “Declaration for a Balanced Interpretation Of The ‘Three-Step Test’ In Copyright Law,” signed by leading copyright scholars in Europe, took issue with the WTO’s interpretation of the 3-step test, and suggested a “balanced” alternative.
In the field of copyright law, this Declaration proposes an appropriately balanced interpretation of the Three-Step Test under which existing exceptions and limitations within domestic law are not unduly restricted and the introduction of appropriately balanced exceptions and limitations is not precluded.
The Declaration for a Balanced Interpretation of the 3-Step test provides a roadmap for possible revision of the WTO’s interpretation of the agreement.
The treatment of third parties is one of several areas where the copyright version of the three step test has been criticized. In the WTO versions of the trademark and patent 3-step tests, the interests of third parties are given explicit status to balance the interests of right holders. The copyright 3-step test does not mention third parties. To address this issue, the Declaration offers this suggestion:
6. The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including interests deriving from human rights and fundamental freedoms; interests in competition, notably on secondary markets; and other public interests, notably in scientific progress and cultural, social, or economic development.
Beyond the WTO, there are now a growing number of regional and bilateral trade agreements that have various versions of 3-step test language, and each will be subject to its own dispute resolution process, providing a risk that national exceptions will be subject to multiple standards.
Aside from how one interprets the 3-step test, there is controversy over when it comes into play. The Berne Convention has several articles which provide for either mandatory exceptions (quotations, news of the day) or national flexibility for exceptions in specific areas, such as education, broadcasting, current events or music compositions. The standards for “particular” exceptions are NOT subject to the 3-step test in the Berne Convention.
The WTO seemed to take this view in a 2000 decision (DS160, United States – Section 110(5) of US Copyright Act ) when it said a country meeting the remuneration standard in the Berne for an exception would not be separately subjected to the 3-step test. And, there are rights not mentioned in the TRIPS Agreement where neither the Berne nor the WTO rules apply.
The best evidence that the 3-step test is unsettled is the zeal at which copyright lobbyists seek to drive three step language into the new trade agreements and treaties.
A three step test first appeared in the Berne Convention as a general limit for exceptions to the right of reproduction.
Berne Article 9(2)
It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
The Berne Convention had a number of other articles that addressed copyright limitations and exceptions, dating back the 1886 agreement. Through 1971, every revision of the Berne included changes in the language on limitations and exceptions. In a number of cases, the exceptions were broadened, sometimes extended to address new or expanded uses, or in some cases, to new technologies. (See: Berne Convention revisions, and the evolution of its limitations and exceptions to copyright, https://www.keionline.org/berneconventionexceptions). The records of the 1967 negotiations include notes from the preparatory work, which considered the relationship between the new Article 9(2) of the Berne and the existing provisions on limitations and exceptions. It was proposed that if there was language dealing with particular permitted exceptions, the standards for the particular would prevail.
Account must be taken of the other provisions in the Convention. This implies that the provisions already existing in certain special purposes (Articles 10, 10bis and 11bis, paragraph (3)) must be regarded as rules exercising limits on the questions with which they deal. Thus, the special conditions, whose presence these exceptions imply, must always be respected. . . . Furthermore . . . It follows, therefore, from this reservation that the new provision places no restriction on the right granted to countries of the Union, under Article 13, to institute a compulsory license to the right to record musical works. Records of the Stockholm Conference, 1967, Vol 1, page 112
Later new 3-step language would be introduced into the TRIPS agreement, as Article 13, which reads:
TRIPS Article 13
Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
US Fair Use laws depends extensively upon the Berne exceptions that are not subject to the 3-step test.
The following Berne provisions are not subject to the three step test:
- 2.(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.
- Article 2bis – Possible Limitation of Protection of Certain Works:
1. Certain speeches; 2. Certain uses of lectures and addresses; 3. Right to make collections of such works
- Article 10 – Certain Free Uses of Works:
1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author
- Article 10bis – Further Possible Free Uses of Works:
1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events
- Article 13(1) – Possible Limitation of the Right of Recording of Musical Works and Any Words Pertaining Thereto:
1. Compulsory licenses; 2. Transitory measures;
- APPENDIX – SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES
Also and importantly, the 3-step test does not apply to certain other areas of exceptions, including the 1st sale doctrine (Article 6 of the TRIPS), the control of Anti-competitive practices (Article 8 and 40 of the TRIPS), or exceptions to remedies to infringement found in Part III of the TRIPS.
To the extent that negotiators want to avoid changing the current balance in global copyright norms, they should avoid mentioning the three step per se, and just say that the new agreement is without prejudice to obligations and rights they may have under other agreements they have signed.
For additional discussion of this issue:
- For examples of various versions of the 3-step tests in various copyright and trade agreements, see: More on the 3-step test in global copyright negotiations /node/1568
- For a historical look at the origins of the 3-step test, see: Berne Convention revisions, and the evolution of its limitations and exceptions to copyright /BerneConventionexceptions
- The Max Planck Institute Declaration on the “Three-Step-Test”