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BLACA IPI JG presentation J Griffiths

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									 “European Copyright Reform” – BLACA/IPI Seminar
                 14th October 2009



The Three-Step Test – a Potentially
     Harmonising Formula?

                 Jonathan Griffiths
Senior Lecturer, Queen Mary, University of London
Presentation based on published
            papers

• “The ‘Three-Step Test’ in European
  Copyright Law – Problems & Solutions”
  [2009] IPQ 489

• “Taking Forward the Gowers Review on
  Exceptions – Rhetoric & the “Three-
  Step Test” [2010] EIPR 309
        The “three-step test”
• “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.”
                       Berne Convention, Art 9(2)
    The “three-step test” - a
 potentially harmonising formula
• Role in international copyright law
• Proliferation in national laws
• Integration within European Copyright Law
  –   Software Directive
  –   Rental Right Directive
  –   Database Directive
  –   Information Society Directive
• Application by the Court of Justice - Infopaq
  (C-5/08) [2009] ECDR 16
      Potential recognised…..

• Wittem Group’s Draft Copyright Code (Art 5.5)

   “Any other use that is compatible to the uses enumerated…is
     permitted provided that the corresponding requirements of
     the relevant limitation are met and the use does not conflict
     with the normal exploitation of the work and does not
     unreasonably prejudice the legitimate interests of the author
     or rightholder, taking account of the legitimate interests of
     third parties.” (Art 5.5)

                                    (http://www.copyrightcode.eu)
   Potential recognised… (2)
• M Senftleben, “The International Three-
  Step Test. A Model Provision for EC
  Fair Use Legislation” [2010] 2 JIPITEC

• D Gervais, “Towards a New Core
  International Copyright Norm: the
  Reverse Three-Step Test”, (2005) 9
  Marquette IP Law Review 1
  Reasons to be cautious (1)
• Unsettled meaning at international level
  – “certain special cases”
  – “conflict with a normal exploitation”
• Evidence of application in national law
  – Google Inc v Copiepresse SCRL [2007] ECDR 5
    (Belgium); Mulholland Drive (2006) 37 IIC 760
    (France)
  – cf ProLitteris v Aargauer Zeitung AG (2008) 39 IIC
    990
   Reasons to be cautious (2)
• Tendency to encourage a restrictive approach to
  exceptions and limitations
   – Permitting only exceptions that are extremely limited in
     scope
   – Not permitting exceptions covering uses that could
     conceivably be licensed

• See, for example:
   – Infopaq International A/S v Danske Dagblades Forening (C-
     5/08) [2009] ECDR 16 [58] (“strict interpretation”)
   – Submissions to Taking Forward the Gowers Review –
     Consultation on Copyright Exceptions
   Submissions to the Gowers
   consultation – the first “step”

• “Research and private study is a
  notoriously difficult purpose to define
  (thereby likely to fail the first step of the
  three step test)….” (PPL)
      Submissions to the Gowers
      consultation – the first “step”
• “Where genuine researchers are analysing
  old films to consider ways of preserving them,
  the British Film Institute and others already
  make material available when a researcher is
  able to confirm their status and the legitimacy
  of their request.
  This may be the sort of limited special case,
  where the Three Step Test could be satisfied
  were an exception introduced.” (PPA)
    Submissions to the Gowers
    consultation – second “step”
• “It is…questionable whether this exception
  [for parody] is consistent with the Three Step
  Test. In particular it might be argued that it
  could conflict with the normal exploitation of
  the work and prejudice the legitimate rights of
  the right holder, by removing the current
  system based on consent from rights holders
  that generates a potential source of income.”
                                          (Equity)

								
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