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.
The test is vague; But, spelled out in the formulation of Hugenholtz and Okediji,[1] the three steps are:
Limitations and exceptions cannot be "overly broad" [= "certain special cases"]
Limitations and exceptions cannot "rob right holders of a real or potential source of income that is substantive" [= "conflicting with normal exploitation of the work"]
Limitations and exceptions cannot "do disproportional harm to the rights holders" [= "prejudice legitimate interests"]
The three-step test in Article 9(2) of the Berne does not apply to copyright exceptions that are implemented under other parts of the Berne convention that have a separate standard, such as those in articles 2(4), 2(7), 2(8), 2 bis, 10, 10 bis and 13(1), or the Berne Appendix.
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."
The WTO three-step test does not apply to cases where the Berne or Rome Conventions provide separate standards for exceptions, or for rights not covered in the TRIPS Agreement.
Interpretationedit
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 legal 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. Exceptions to copyright protection are required to be clearly defined and narrow in scope and reach.[2] 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.
Patentsedit
TRIPs Article 30, covering limitations and exemptions to patent law, is also derived from a somewhat different three-step test, that includes "taking account of the legitimate interests of third parties." Exceptions to exclusive patent rights are not subject to this test if they are implemented through Article 31 of the TRIPS, or Articles 6, 40 or 44.2.
^Hugenholtz, P. Bernt; Okediji, Ruth (March 7, 2012). "Conceiving an International Instrument on Limitations and Exceptions to Copyright". Amsterdam Law School Research Paper. 2012: 37. doi:10.2139/ssrn.2017629. S2CID 152366700.
^Sam Ricketson (2003), WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment
Further readingedit
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
Guibault L.M.C.R. 2002 Copyright Limitations and Contracts. An Analysis of the Contractual Overridability of Limitations on Copyright., Kluwer Law International
Rodrigues Jr., E.B. 2012 The General Exception Clauses of the TRIPS Agreement: Promoting Sustainable Development, New York: Cambridge University Press.
Senftleben M. 2004 Copyright, Limitations and the Three-Step Test, Kluwer Kaw International
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.
External linksedit
The Three-Step Test by EFF
January 01, 1970
berne, three, step, test, this, article, includes, list, references, related, reading, external, links, sources, remain, unclear, because, lacks, inline, citations, please, help, improve, this, article, introducing, more, precise, citations, 2022, learn, when,. This article includes a list of references related reading or external links but its sources remain unclear because it lacks inline citations Please help improve this article by introducing more precise citations May 2022 Learn how and when to remove this message In international law the Berne three step test is a clause that is included in several international treaties on intellectual property Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective national copyright laws Contents 1 Berne Convention 1 1 Other copyright treaties 2 Interpretation 3 Patents 4 See also 5 References 6 Further reading 7 External linksBerne Convention editThe 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 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 The test is vague But spelled out in the formulation of Hugenholtz and Okediji 1 the three steps are Limitations and exceptions cannot be overly broad certain special cases Limitations and exceptions cannot rob right holders of a real or potential source of income that is substantive conflicting with normal exploitation of the work Limitations and exceptions cannot do disproportional harm to the rights holders prejudice legitimate interests The three step test in Article 9 2 of the Berne does not apply to copyright exceptions that are implemented under other parts of the Berne convention that have a separate standard such as those in articles 2 4 2 7 2 8 2 bis 10 10 bis and 13 1 or the Berne Appendix Other copyright treaties edit The three step test has been modified and transplanted into the Agreement on Trade Related Aspects of Intellectual Property Rights the WIPO Copyright Treaty Article 10 the WIPO Performances and Phonograms Treaty Article 16 2 the EU Computer Programs Directive 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 The WTO three step test does not apply to cases where the Berne or Rome Conventions provide separate standards for exceptions or for rights not covered in the TRIPS Agreement Interpretation editThe 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 legal 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 Exceptions to copyright protection are required to be clearly defined and narrow in scope and reach 2 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 Patents editTRIPs Article 30 covering limitations and exemptions to patent law is also derived from a somewhat different three step test that includes taking account of the legitimate interests of third parties Exceptions to exclusive patent rights are not subject to this test if they are implemented through Article 31 of the TRIPS or Articles 6 40 or 44 2 See also editFair use Fair dealingReferences edit Hugenholtz P Bernt Okediji Ruth March 7 2012 Conceiving an International Instrument on Limitations and Exceptions to Copyright Amsterdam Law School Research Paper 2012 37 doi 10 2139 ssrn 2017629 S2CID 152366700 Sam Ricketson 2003 WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital EnvironmentFurther reading editFicsor 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 Organization 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 Rodrigues Jr E B 2012 The General Exception Clauses of the TRIPS Agreement Promoting Sustainable Development New York Cambridge University Press 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 https 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 External links editThe Three Step Test by EFF Retrieved from https en wikipedia org w index php title Berne three step test amp oldid 1207439152, wikipedia, wiki, book, books, library,
