- 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 copyrightlaws.
It was first applied to the
exclusive right of reproductionby Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Worksin 1967. Since then, it has been transplanted and extended into the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directiveand 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
1998as 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
TRIPs Article 30, covering limitations and exemptions to
patentlaw, 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.
* 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 " [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=253867 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., " [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=499924 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
Wikimedia Foundation. 2010.
Look at other dictionaries:
Berne Convention for the Protection of Literary and Artistic Works — Berne Convention redirects here. For other uses, see Berne Convention (disambiguation). Berne Convention signatory countries (in blue). The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention … Wikipedia
Balancing test — A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow. But… … Wikipedia
DADVSI — First page of the bill as finally adopted by both houses of Parliament DADVSI (generally pronounced as dadsi) is the abbreviation of the French Loi sur le Droit d’Auteur et les Droits Voisins dans la Société de l’Information (in English: law on… … Wikipedia
Copyright law of Australia — The copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Australian Copyright Act 1968 (as amended), which applies … Wikipedia
Software patents under TRIPs Agreement — The WTO s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), particularly Article 27, are important elements in the debate on the international legal framework for the patentability of software, and on whether software… … Wikipedia
Australian copyright law — emerged from British and colonial models of the early 20th Century. It reflects international standards found in the Berne Convention for the Protection of Literary and Artistic Works, other multilateral treaties, and more recently, the U.S.… … Wikipedia
Legal tests — are various kinds of commonly applied methods of evaluation used to resolve matters of jurisprudence.cite book title = Responsibility in Law and Morality first = Peter last = Cane publisher = Hart Publishing year = 2002 id = 1841133213] In the… … Wikipedia
Public Domain Enhancement Act — The Public Domain Enhancement Act (PDEA) (USBill|108|H.R.|2601 (108th Congress), USBill|109|H.R.|2408 (109th Congress)) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their… … Wikipedia
Agreement on Trade-Related Aspects of Intellectual Property Rights — TRIPS redirects here. For the new microprocessor design, see TRIPS architecture. For the German racing driver, see Wolfgang Graf Berghe von Trips The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international… … Wikipedia
Fair use — is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non licensed citation or… … Wikipedia