The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law

The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level. The three rather abstract criteria of the test offer room for different interpretations. Various alternative approaches have been developed in the legal literature and applied by national courts, including an understanding of the test’s factors as elements of a global balancing exercise; and a reverse reading of the test starting with the last, most flexible criterion. There are also parallels between factors in Anglo-American fair use and fair dealing legislation and the three step test. The study herein concludes that the three-step test in international copyright law does not preclude flexible national legislation allowing the courts to identify individual use privileges case-by-case and that the three-step test can serve as a source of inspiration for national law makers seeking to institute flexible exceptions and limitations at the domestic level