Balance in the three-step test -- academics to the rescue?

At the conference of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), which begins in Munich today, three imaginative copyright activists have announced a "Declaration on a Balanced Interpretation of the 'Three-Step Test' in Copyright Law".

Right: the IPKat tests out a new four-step test ...

From the abstract which accompanies the declaration the IPKat is pleased to quote as follows:

"There are increasing concerns about the impact of the so-called “three-step test” on the law of copyright and related rights. From its relatively modest origin as confirmation that countries of the Berne Union are entitled to permit the reproduction of copyright 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”,[1] the scope of this legal instrument has been steadily extended. Under the TRIPs Agreement[2] and the WIPO Treaties,[3] it has been applied to the full range of authors’ and related rights and it has also increasingly been enshrined explicitly in national legislation. Today, the test affects all debates concerning the future of exceptions and limitations to copyright.

At the same time, the prevalent understanding of the impact of the “three-step test” has become more restrictive. The WTO Panel’s interpretation of the test in its decision on s 110(5) of the United States’s Copyright Act 1976 was self-avowedly economic in focus and appears to leave limited scope for states to balance the interests of right-holders with countervailing interests of fundamental importance.[4] Domestic courts have sometimes misunderstood the requirements of the test and, as a result, have applied it in a profoundly unbalanced manner. [5]

Against that background, in a joint project of the Max Planck Institute for Intellectual Property and the School of Law at Queen Mary, University of London, a group of experts has collaborated on a declaration that aims to confirm the legitimacy of a balanced interpretation of the “three-step test” in copyright law. The Declaration that has resulted from this collaboration is set out below. It is open for signature on the websites of the Max Planck Institute (http://www.ip.mpg.de/) and of the School of Law at Queen Mary, University of London (http://www.law.qmul.ac.uk/)

[1] Berne Convention for the Protection of Literary and Artistic Works, Art 9(2).
[2] TRIPs Agreement, Art 13.
[3] WIPO Copyright Treaty, Art 10; WIPO Performances and Phonograms Treaty, Art 16(2).
[4] Report of the WTO Panel dated 15th June 2000, WT/DS160/R.
[5] See, for example, French Supreme Court, 1st Civil Division, 28th February 2006 (2006) 37 IIC 760."

This Declaration is signed by Christophe Geiger (Researcher, Max Planck Institute for Intellectual Property, Competition and Tax Law, Germany, and Associate Professor and Director, Centre for International Industrial Property Studies (CEIPI), University of Strasbourg, France), Jonathan Griffiths (Senior Lecturer, School of Law, Queen Mary, University of London) and Reto. M. Hilty (Director, Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, and Professor, Universities of Zurich and Munich, Germany).

The IPKat is glad to see the valuable contribution that academics can make in focusing the minds of legislators, the judiciary and the various stake-holders in IP and its subject-matter on the problems that need to be addressed and the need to seek as much consensus as possible when trying to resolve them.