Seeking a Balanced Interpretation of the Three-Step Test - An Adjusted Structure in View of Divergent Approaches

It has become a challenge to recast the three-step test into a two-way norm which is flexible and thus sustainable. With copyright holders being ever more empowered both legally and technologically, the increasing prominence of the three-step test exacerbates the perceived concern that this test has lost its balance. It is now only one-way flexibility, from which only the right holder can benefit. Many propositions have arisen aiming to render the three-step test more flexible and responsive to the changing social, economic and technological enviroment. Unfortunately, they point in different directions. As such, they are fragmented and weak. The declaration of "A Balanced Interpretation of the 'Three-Step Test' in Copyright Law" has helped to lay some common ground, being a milestone. This paper carefully reviews the representative propositions with a view to integrating them further. Based on such a review, it explores an adjusted structure. Following that, it then examines step by step the adjusted structure for the three-step test, which make the involved exclusive rights as a consistent reference point for each step of the test, comprising: (1) the first step, as a threshold and a factual inquiry, serves to secure the viability of the affected exclusive rights. It is proposed that the quantitative approach of the WTO panel report should be improved with the qualitative approach to supplement rather than replace the quantitative approach. (2) The second step, as the core and a normtive test, serves to secure the reasonableness of denying exclusivity of the affected exclusive rights. It is submitted that the second step could comprise an adapted U.S. fair use doctrine in view of the traditional test for granting injunctive relief. That is, the following four factors should be weighed together: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and possibility of irreparable injury of the use on the potential market of the work. (3) The third step, as an adjusting tool, serves to secure reasonableness of the involved prejudice through provision of equitable remuneration. Equitable remuneration should be determined in view of the rationale behind the limitation by reference to the considerations of the flexible second step comprising the adapted fair use test. In so doing, relevant propositions, including the declaration on "A Balanced Interpretation of the 'Three-Step Test' in Copyright Law", are discussed and technical protection measures taken into account. It concludes that the structure proposed here could be more suitable for judges to apply and could intergrate and further the considerations of the declaration.http://gateway.webofknowledge.com/gateway/Gateway.cgi?GWVersion=2&SrcApp=PARTNER_APP&SrcAuth=LinksAMR&KeyUT=WOS:000267451800003&DestLinkType=FullRecord&DestApp=ALL_WOS&UsrCustomerID=8e1609b174ce4e31116a60747a720701LawSSCI6ARTICLE3274-3084