IP Experts Sign Declaration Seeking Balanced Copyright Three-Step Test

By Monika Ermert for Intellectual Property Watch
Harmonisation of copyright regulation in recent years has overly “focussed on securing rightsholders’ ability to benefit from new modes of exploitation and business models” and has primarily served “the interests of copyright exporting countries.”

This statement does not come from copyright critics, but from a group of well-known experts in copyright law mostly from Europe and one from the United States gathered at the annual conference of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) held 21-23 July in Munich.

The academics signed a declaration – initiated by this year’s ATRIP host, the Max Planck Institute of Intellectual Property, Competition and Tax Law – asking for “a balanced interpretation of the ‘three-step test’ in copyright law.”

In the declaration, the academics argue that three-step test has in fact established “an effective means of preventing the excessive application of limitations and exceptions” to copyright. However, it adds, “there is not [a] complementary mechanism prohibiting an unduly narrow or restrictive approach.”

Courts and national legislatures in recent years had been “wrongly influenced by restrictive interpretations of the test,” it said. But the test “does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes,” demand the signatories.

The so-called three-step test first laid down in the Berne Convention for the Protection of Literary and Artistic Works is integrated in several international copyright related treaties like the World Intellectual Property Organization Copyright Treaty, the rules under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the EU Copyright Directive.

The test allows the narrowing of limitations and exceptions from copyright to special cases (first step) which do not conflict with a normal exploitation of the work (second step) and do not unreasonably prejudice the legitimate interests of the rights holder (third step).

Copyright, the academics underline, “aims to benefit the public interest” and “the public interest is not well served if copyright law neglects the more general interests of individuals and groups in society when establishing incentives for rightsholders.”

Possible conflicts between authors as the original rightsholders and subsequent rightsholders have to be taken into account as well as third party interests. These interests include those “derived from human rights and fundamental freedoms”, “interests in competition” and the “general scientific progress and cultural, social, or economic development,” the declaration said.

“The intention is not to do away with the three-step test,” said Christophe Geiger, researcher at the MPI in Munich and one of the co-authors of the original draft. “What we want to point out is that commercial interest is only one aspect of many to be taken into account. For the time being, the three-step test has very often been interpreted as if the commercial interest is the most important.”

Geiger told Intellectual Property Watch that the drafting for the carefully worded declaration started two years ago and was influenced by the discussions about the development agenda at the World Intellectual Property Organization.

Developing countries there had promoted, according to Geiger, an international treaty more clearly specifying exceptions and limitations. “We hope that the declaration will be discussed next year in the US and possibly also in Latin America,” he said, asserting that at the Munich conference, the text was very well received by international participants.

Possible EU Changes on Limitations and Exceptions

A discussion on possible changes to limitations and exceptions in EU copyright law has just been initiated by the European Commission with regard to the educational and research sector and also for disabled persons.

EU Commissioner Charlie McCreevy, in charge of the Directorate General for Internal Market and Services, last week started a consultation on this issue by presenting the Commission’s green paper on copyright in the knowledge economy.

Rainer Kuhlen, UNESCO chair in communications at the University of Constance (Germany) and one of the initiators of the German “Coalition for Action ‘Copyright for Education and Research’,” said to Intellectual Property Watch: “While the Commission once more focuses heavily on commercial exploitation of scientific content, I hope that the resulting consultation might backfire.”

The coalition that plans to set up a European network on the issue of copyright for education and research in November has asked in recent years to make open access to content funded by public universities and research institutes “the default” and commercial exploitation of it the exception.

Kuhlen said he hopes that the EU and national legislators in Europe could be convinced in the course of the consultation to introduce open-ended limitations and exceptions like the “fair use principle” instead of the existing list of 20 exceptions.

The IP law experts in Munich say that this is already possible under the existing three-step test. “We certainly think that open-ended limitations and exceptions are covered and could be implemented,” said Geiger.

The declaration may be signed here.

Monika Ermert may be reached at info@ip-watch.ch.