The three-step test within the copyright system

Tobias Schonwetter
University of Cape Town, South Africa - Department of Commercial Law

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     Last modified: July 31, 2006
     Presentation date: 10/31/2006 4:00 PM in NT Manchester
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Abstract
The importance of the three-step test for the delicate balance between private and public interests in the field of copyright law can not be overestimated. The test sets limits to the limitations and exceptions on the copyright holders’ rights. Since its first mention in the Berne Convention of 1886, the test has been embodied in several international treaties and its scope of application has broadened significantly. Nowadays, the three-step test appears in the Berne Convention as well as in the TRIPS Agreement, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty and the EU Copyright Directive. However, no significant degree of agreement existed with regards to the actual meaning of the test until, in 2000, for the first time a supra-national body ruled on the interpretation of the test in the context of Article 13 TRIPS.
The paper is going to explain the significance of the three-step test and strives to build up an understanding for the correct application of the test. Subsequently, the paper will scrutinize each of the three steps under consideration of prior interpretations by recognised scholars as well as the aforementioned WTO Panel decision of 2000.