“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 “Three- Step 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) (

Potential recognised… (2) M Senftleben, “The International Three- Step 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 (C- 5/08) [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)