The Berne three-step test is a clause that is included in several international

treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...

intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...

. Signatories of those treaties agree to standardize possible limitations and exceptions to

exclusive right In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right to p ...

s under their respective national

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...

laws.

Berne Convention

The 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, 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

The three-step test has been modified and transplanted into the

Agreement on Trade-Related Aspects of Intellectual Property Rights The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...

, the

WIPO Copyright Treaty The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT) is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides addi ...

(Article 10), the

WIPO Performances and Phonograms Treaty The WIPO Performances and Phonograms Treaty (or WPPT) is an international treaty signed by the member states of the World Intellectual Property Organization and was adopted in Geneva on 20 December 1996. It came into effect on 20 May 2002. As of ...

(Article 16(2)), the EU

Computer Programs Directive The European Union Computer Programs Directive controls the legal protection of computer programs under the copyright law of the European Union. It was issued under the internal market provisions of the Treaty of Rome. The most recent versio ...

(Article 6(3)), the

EU Database Directive The Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is a directive of the European Union in the field of copyright law, made under the internal market provisions of the T ...

(Article 6(3)), and the

EU Copyright Directive The copyright law of the European Union is the copyright law applicable within the European Union. Copyright law is largely harmonized in the Union, although country to country differences exist. The body of law was implemented in the EU through ...

(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

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 Sonny is a common nickname and occasional given name. Often it can be a derivative of the English word "Son", a name derived from the Ancient Germanic element *sunn meaning "sun", a nickname derived from the Italian name Salvatore (especially in N ...

) 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.Sam Ricketson (2003)
WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment
/ref> 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 Loi DADVSI (generally pronounced as ''dadsi'') is the abbreviation of the French ''Loi relative au droit d’auteur et aux droits voisins dans la société de l’information'' (in English: "law on authors' rights and related rights in the infor ...

Patents

TRIPs Article 30, covering limitations and exemptions to

patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...

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.

Berne Convention

Other copyright treaties

Interpretation

Patents

See also

References

Further reading