Transcript The “Three-Step test in UK Copyright Law

“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 “ThreeStep 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 ThreeStep 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 (C5/08) [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)