The Berne ‘three-step test’: A Need for Clarification?

Within the majority of states there is legislation which allows for exemptions to and limitations of the scope of copyright. This ensures sufficient means to reproduce protected works, beyond the sole control of the right holder, when it is deemed necessary: in exceptional cases, and in a way that is congruent with the public interest. States have implemented these exemptions or limitations in various ways and, naturally, disparities in levels of regulatory standards have arisen and been exploited. (1) There is, however, an international test; a ‘three-step test’ with which all domestic copyright exemptions must comply. First established in Article 9.2 of the Berne Convention for the Protection of Literary and Artistic Works in 1886, it set the legal parameters for reproducing a work at international level. As outlined in Article 9.2, “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.”(2) While the main premise behind the ‘three-step test’ has remained largely static, over the years, and as the test has subsequently been incorporated into numerous other treaties such as TRIPS (Article 13), and the WIPO Copyright Treaty (Article 10), the language of the test has evolved a great deal. In regards to Article 13 of TRIPS, unlike Article 9.2 of the Berne Convention which only applied to reproduction rights, the language used allows the test to cover copyright more broadly. (3) Thus, as the test has evolved, and as we enter a new digital age, clarification of the ‘three-step test’ and the limitations of copyright seems crucial.

This opinion is clearly supported by WIPO who in the last session of the Standing Committee on Copyright and Related Rights, carried out substantial work on defining copyright definitions and exceptions for various user groups. (4) Librarians seeking to preserve books online or the visually impaired who wish for better access to works designed for their use are two examples of user groups that the current test cannot adequately cater for. Moreover, there is also growing critique of the way in which the test is read and interpreted. This, in turn, has highlighted the confusion that currently exists at the international level and the correct definitions of particular words used in the test, such as “normal” and “reasonable”, have been fiercely debated. Developing countries are exempt from the test under the Berne appendix on Special Provisions for Developing Countries and yet, because of the complex nature of compulsory licenses and high transaction costs, they are rarely used. These countries still do not have sufficient access to knowledge. (5)

To conclude, as the digital horizons wherein copyright protection is still largely experimental broaden, it has become of critical importance that we devote as much time and effort into exploring the exemptions and limitations of the scope of copyright, as we do to improving copyright protection.

(2) Article 2,
(3) Article 13,