The three-step test under the TRIPS Agreement and the specific exceptions and limitations permited by the Berne Convention
By Dr. Mihály J. Ficsor
The three-step test has proved to be a well-functioning means for balancing of interests in the field of copyright and related rights by offering sufficient flexibility and, at the same time, determining the limits thereof to be respected in order to guarantee sustainable creation and production of works and objects of related rights needed by the society. In recognition of this, the international community has found it advisable to extend its application from the exceptions to or limitations of the right of reproduction as provided in the Berne Convention to any exceptions to or limitations of any economic rights under the TRIPS Agreement, the WCT and the WPPT and quite recently also under the BTAP. In spite of this, certain theories are presented time and again aimed at limiting the scope of application of the test in an unjustified manner. One of such theories is that the specific exceptions and limitations permitted in the Berne Convention are not subject to the three-step test under Article 13 of the TRIPS Agreement and Article 10 of the WCT. The paper presents the reasons for which this assertion is wrong. This is a timely issue since such unfounded allegations have also been made in connection with the proposed WIPO instrument (now it seems to take the form of a treaty) to promote trans-border availability of accessible-format copies for the visually impaired. Due to the important cause of the visually impaired, it is indispensable to make it sure that the specific rules on the reproduction, distribution and making available of accessible-format copies are in accordance with the existing international treaties and in particular that the exceptions or limitations facilitating the availability of such copies are subject to the three-step test as required by the above-mentioned TRIPS and WCT provisions. After all, it is also an evident interest of the visually impaired that the rules to be adopted do not conflict with the normal exploitation of the works concerned – as required by the test – since such conflict would endanger availability thereof. It also would hardly be a reasonable objective to apply exceptions or limitations that, also contrary to the test, would not only reasonably but unreasonably prejudice the legitimate interest of the rightholders.