A group of European IP Professors have drafted a Declaration, available from the Max Planck Institute, which offers ‘a balanced interpretation of the “three step test” in copyright law’.

The Three Step Test is a provision found in various treaties on IP and particularly copyright – the Berne Convention, TRIPs, and the Australia-US Free Trade Agreement. It states that countries are allowed to introduce exceptions to copyright law, provided those exceptions are confined to ‘certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’.

The initial declaration was a collaborative effort, and it has been signed by a long list of specialists, including some names generally considered authoritative.

Part of the point of the Declaration is to offer an alternative to some of the more narrow views taken of the test thus far, including some court and tribunal decisions on the test. These narrow views tend to be put forward to limit the extent to which governments can protect users’ rights and interests when drafting (or extending) copyright law.

At the heart of the declaration is the view that the test is not a series of hurdles that users must overcome, but an “indivisible entirety”, in which “the three steps are to be considered together and as a whole in a comprehensive overall assessment”, and that the test allows policymakers to base the need for an exception on important competing considerations – particularly interests derived from human rights and fundamental freedoms, interests in competition, and other public interests such as scientific progress, and cultural, social and economic development. The declaration also usefully highlights the distinction between original rightsholders (creators) and subsequent rightsholders (distributors and commercialisers) – both of whom are important but both of whom have interests that are not always congruent.

This Declaration is worthy of attention. As a collective group, the people who have drafted it, and those who have advised on its content, and those who have signed it, comprise a group of highly experienced, and authoritative, commentators on copyright law, including international copyright law. While different views exist, this perspective is a legitimate one which may be useful to policymakers who want to protect the public interest and currently feel constrained to take a narrow view. In fact, it would be helpful if some in Australian policy circles were to pay attention to it, since it does seem, at times, that policymakers are ‘spooked’ by a narrow view of the test, into failing to protect the public interest when drafting ever-stricter copyright laws.

Worth passing on the fact that Jonathan Griffiths, one of the drafters, has indicated that he’s happy to answer any questions about the declaration (his contact details here). I should also have emphasised that the drafters are seeking further signatures from those who support the sentiments/interpretation outlined in the Declaration (sign up here).

Important Links:
Download the PDF of the Declaration and accompanying statement here.
Visit the Max Planck site here.
Bill Patry has commented here.
The Drafters:

  1. Christophe Geiger
  2. Reto M. Hilty
  3. Jonathan Griffiths
  4. Uma Suthersanen