Bill Patry this morning has a must-read post on the three step test and the defence of fair use. Basic premise: fair use is compatible with the three step test – the issue was never raised as a concern for Berne compliance in the US. Of course, just because there’s a feature of US law which wasn’t addressed by the US in its compliance process doesn’t mean it actually is consistent with Berne (moral rights anyone?).

Nevertheless, Bill’s point is well made in this case – the three step test was, as I understand it, meant at drafting to be a test that would cover existing common exceptions found in various countries. It was deliberately open-textured. An open-textured defence should be considered consistent.