Berne three-step test
Encyclopedia
The Berne three-step test is a clause that is included in several international treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

 on intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

. It imposes on signatories to the treaties constraints on the possible limitations and exceptions
Limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....

 to exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...

s under national copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

 laws.

Berne Convention

The three-step test was first established in relation to the exclusive right of reproduction under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

 in 1967. Article 9 of the Berne Convention states that:

Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings - (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. (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. (3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Other copyright treaties

Since then, the three-step test has been transplanted and extended into the Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...

, the WIPO Copyright Treaty (Article 10), the WIPO Performances and Phonograms Treaty
WIPO Performances and Phonograms Treaty
The WIPO Performances and Phonograms Treaty is an international treaty signed by the member states of the World Intellectual Property Organization was adopted in Geneva on December 20, 1996...

, the Directive on the legal protection of computer programs
Directive on the legal protection of computer programs
NOTE: Council Directive 91/250/EEC has been replaced by Directive 2009/24/ECCouncil Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome...

 (Article 6(3)), the EU Database Directive (Article 6(3)), and the EU Copyright Directive (Article 5(5)).

The test as included in Article 13 of TRIPs reads:

"Members shall confine limitations and 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 rights holder."

Interpretation

The technical legal reasoning which has been applied to suggest how this wording should be interpreted is arcane (see the references below). To date, only one case (before a WTO
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...

 dispute settlement panel
WTO Dispute Settlement Body
The Dispute Settlement Body of the World Trade Organization makes decisions on trade disputes between governments that are adjudicated by the Organization...

, involving U.S. copyright exemptions allowing restaurants, bars and shops to play radio and TV broadcasts without paying licensing fees, passed in 1998 as a rider
Rider (legislation)
In legislative procedure, a rider is an additional provision added to a bill or other measure under the consideration by a legislature, having little connection with the subject matter of the bill. Riders are usually created as a tactic to pass a controversial provision that would not pass as its...

 to the Sonny Bono Copyright Term Extension Act) has actually required an interpretation of the test.

The three-step test may prove to be extremely important if any nations attempt to reduce the scope of copyright law, because unless the WTO decides that their modifications comply with the test, such states are likely to face trade sanctions. Exceptions to copyright protection are required to be clearly defined and narrow in scope and reach. For instance, the three-step test was invoked as a justification for refusing certain exceptions to copyright wished for by members of the French parliament during the examination of the controversial DADVSI
DADVSI
DADVSI is the abbreviation of the French Loi sur le Droit d’Auteur et les Droits Voisins dans la Société de l’Information...

 copyright bill.

Patents

TRIPs Article 30, covering limitations and exemptions to patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

law, is also derived from the three-step test.

Further reading

  • Ficsor M. 2002 How much of what? The "three-step test" and its application in two recent WTO dispute settlement cases, Revue Internationale du Droit D'auteur 192 pp 110–251.
  • Ginsburg, J.C. 2001 Toward supranational copyright law? The WTO Panel decision and the "three-step test" for copyright exceptions, Revue Internationale du Droit D'auteur 187, p 3.
  • Gervais, D. J., Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Marquette Intellectual Property Law Review, Vol. 9, p. 1, Spring 2005
  • World Trade Organisation 2000 Dispute Resolution Panel Report on Section 110(5) of the United States Copyright Act, http://www.wto.org/english/tratop_e/dispu_e/1234da.pdf
  • Guibault L.M.C.R. 2002 Copyright Limitations and Contracts. An Analysis of the Contractual Overridability of Limitations on Copyright., Kluwer Law International
  • Senftleben M. 2004 Copyright, Limitations and the Three-Step Test, Kluwer Kaw International
  • Koelman K.J., 2006, Fixing the Three-Step Test, European Intellectual Property Review, p. 407, http://ssrn.com/abstract=924174
  • Westkamp, G., The Three-Step Test and Copyright Limitations in Europe: European Copyright Law between Approximation and National Decision Making [2008] 56 Journal of the Copyright Society of the USA 1-65.
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