0.1 The international framework  (Page 8/12)

The coverage of the different versions of the test varies somewhat. For example, whereas the Berne Convention three-step test only applies to exceptions and limitations to the right of reproduction, the three-step test contained in Article 13 of the TRIPS Agreement applies to exceptions and limitations to any of the “exclusive rights” associated with copyright. In addition, the language used in the different versions varies. For example, whereas the third step of the Berne Convention test (quoted above) requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the author,” the third step of the TRIPS test requires that an exception or limitation “not unreasonably prejudice the legitimate interests of the right holder” – a change that shifts attention away from the interests of creators toward the economic interests of the companies that acquire copyrights from the original creators.

Given the prevalence of the three-step test and the long period of time in which it has existed, you might expect that the meaning of the test would by now be clear. Not so. The version of the test contained in the Berne Convention has never been interpreted officially. The version contained in Article 13 of the TRIPS Agreement has only been officially interpreted once by a dispute resolution panel, and how far that interpretation should control other countries in the future is not clear. And the courts in different European countries have construed the test in inconsistent ways in functionally identical cases.

Given this uncertainty, commentators and lobbyists disagree sharply about how restrictive the three-step test really is. At one extreme, some claim that the fair-use doctrine in the United States (which we will discuss in  Module 4 ) violates the test -- and thus that the United States should repeal the fair-use doctrine and that developing countries may not adopt similar doctrines. As  William Patry has demonstrated , this interpretation is highly implausible -- as shown most clearly by the failure of any of the countries involved in the negotiation of the TRIPS Agreement or the accession by the United States to the Berne Convention to object to the fair-use doctrine in the United States.

At the opposite extreme, a group of prominent and influential copyright scholars have recently proposed  "A Balanced Interpretation of the Three-Step Test in Copyright Law" . They argue that an exception or limitation that fails to satisfy one of the three steps should not necessarily be deemed to violate the test. Rather, all three components of the test should be considered together in a "comprehensive overall assessment" that takes into account the threats that excessive levels of copyright protection pose to "human rights and fundamental freedoms," "interests in competition," and "other public interests, notably in scientific progress and cultural, social, or economic development" -- in addition to the important interests of copyright holders in fair compensation. This proposal has two strengths. First, it fits well the underlying purpose of the copyright system as a whole, which, as we have seen, seeks to balance the interests of creators with the interests of society at large in maximizing access to ideas and information. Second, it derives support from the reference in all versions of the test to the "legitimate" interests of either authors or right holders. It does, however, have one weakness: virtually all courts and tribunals that have considered the test to date have concluded that all three of its "steps" must be satisfied.