The Three-Step Test – BLACA/IPI Seminar 21st October 2009 Declaration on a Balanced Interpretation of the Three-Step Test in Copyright Law Jonathan Griffiths Senior Lecturer, Queen Mary, University of London

The problems with the three- step test in copyright law (1) Interpretation by WTO Panel in the s.110(5) dispute (WT/DS160/R) Increased role in European copyright law – legislation and national courts Rhetorical impact in law-making …[C]ertain special cases… –Forseeability – challenges to fair use and other flexible doctrines –Narrowness – presumption of restrictiveness

The problems with the three- step test in copyright law (2) …does not conflict with a normal exploitation of the work –privileges economic interests of creator/right-holder –a particular problem in digital context –a show-stopper under the step-by-step approach to the test (cf fair use, for example)

The problems with the three- step test in copyright law (3) …does not unreasonably prejudice the legitimate interests of the author [right holder]. –taking into account authors and subsequent right- holders The test as support for narrow interpretative approach to exceptions/limitations –See, for example, Google Inc v Copiepresse SCRL [2007] ECDR 5 (Belgium)

Declaration on a Balanced Interpretation of the Three-step Test in Copyright Law Drafted at Workshops organised by the Max Planck Institute and Queen Mary, University of London Aims of the Declaration –concerned with the interpretation of the test – not its functional role –concerned with interpretation by legislature and judiciary

Declaration – General points The Three-Step Test constitutes an indivisible entirety –Aim to remove the show-stopper quality from the second step The Three-Step Test does not require limitations and exceptions to be interpreted narrowly…

Declaration – certain special cases Test does not prevent: (a) legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable; or…

Declaration – certain special cases (2) Test does not prevent: …(b) courts from: – applying existing statutory limitations and exceptions to similar factual circumstances mutatis mutandis; or – creating further limitations or exceptions; where possible within the legal systems of which they form a part

Declaration – no conflict with normal exploitation Limitations and exceptions do not conflict with a normal exploitation of protected subject matter; if they: –are based on important competing considerations; or –have the effect of countering unreasonable restraints on competition, notably on secondary markets, particularly where adequate compensation is ensured, whether or not by contractual means.

Declaration – …not unreasonably prejudice the legitimate interests of the author [right holder] In applying the Three-Step Test, account should be taken of the interests of original right-holders, as well as those of subsequent right- holders.

Declaration – interpretation to take other interests into account The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including: –interests deriving from human rights and fundamental freedoms; – interests in competition, notably on secondary markets; and –other public interests, notably in scientific progress and cultural, social or economic development.

Reception of the Declaration Published at [2008] EIPR 489 and (2008) 39 IIC 707. Also published in translation in Germany, France, Belgium, Spain, Portugal, Brazil, Holland, Italy & Japan WIPO SCCR – May 2009 Commentary – supportive and critical Jonathan Griffiths, The Three-Step Test in European Copyright Law – Problems & Solutions [2009] IPQ 489