Understanding the “three-step test”

In the current debate on flexibility in the area of exceptions and limitations (E & Ls) to intellectual property, the three-step test embodied in the Berne Convention, the TRIPS Agreement and several other more recent instruments have taken centre stage. In this chapter, we explain the history, purpose and interpretation of the test. In Part I, we consider the drafting history of the international three-step test. In Part II, we unpack the criteria of the three-step test and offer guidance on their interpretation. In Part III, we suggest that national legislation can, and in many cases probably should, preserve flexibility by allowing the courts to identify ex post new use privileges on the basis of the test’s criteria. The first version of the three-step test in international copyright law emerged as article 9(2) of the Berne Convention. It served as a counterweight to the formal recognition of a general right of reproduction at the 1967 Stockholm Berne Convention Revision Conference. It is not entirely accurate to say that the right of reproduction was added to the Berne Convention only at the Stockholm Conference. It was already there in various forms. However, it is true that a general right of reproduction was recognized at the 1967 Stockholm Conference, and with it, the need for a general clause regulating exceptions and limitations.