Step test

Berne three-step test

The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.

It was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then, it has been transplanted and extended into the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty.

The test is included in Article 13 of TRIPs. It 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.

(The three steps are in bold for emphasis.)

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 dispute settlement panel, 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 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. 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 copyright bill.

TRIPs Article 30, covering limitations and exemptions to patent law, is also derived from the three-step test.

The 'three-step' test can also be found in Article 10 of the WIPO Copyright Treaty, Article 6(3) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, Article 6(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases and Article 5(5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

References

  • 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

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