Three-step test

The three-step test is the rule of international and EU law that frames exceptions and limitations to copyright. Deriving from Article 9(2) of the Berne Convention for the reproduction right, it was generalised by Article 13 of the TRIPS Agreement and Article 10 of the WIPO Copyright Treaty, then restated in Article 5(5) of Directive 2001/29/EC. It requires that any exception be confined to certain special cases, not conflict with the normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author.

The three conditions

The first step requires that the exception be confined to special cases, that is, precisely defined and narrow in scope. The second prohibits any conflict with the normal exploitation of the work, understood as all the forms of exploitation from which the rightholder derives or may reasonably expect to derive economic value from the work, including on emerging markets. The third prohibits unreasonable prejudice to the legitimate interests of the rightholder, which tolerates a reasonable prejudice, where appropriate compensated by remuneration. The three conditions are cumulative and are assessed in turn.

Transposition into French law

The Act of 1 August 2006 inserted the test into the last paragraph of Article L. 122-5 of the French Intellectual Property Code, taking up only the last two steps, the first being deemed satisfied by the exhaustive character of the statutory list of exceptions. A similar provision exists for related rights and for databases. The provision is addressed first and foremost to the legislature, but the Court of Cassation applies it directly to the dispute, and had indeed held, even before the 2006 Act, that the private copying of a videogram could be set aside in the name of the normal exploitation of the work. The test then operates as an additional filter allowing the court to set aside, in a particular case, an exception whose statutory conditions are nonetheless met.

Controversies

The judicial application of the test is debated. Part of the literature sees it as a source of uncertainty, since users can no longer rely on the letter of the exception, and a collective declaration of legal scholars has proposed reading it as a balancing rule rather than a restrictive instrument. The Court of Justice of the European Union holds that the test does not allow exceptions to be extended beyond the cases provided for by the directive, but it is reluctant to use it to narrow the scope of an exception whose conditions are met. The test applies only to exceptions and cannot be invoked to restrict the rules on exhaustion or on the term of protection.

Key points

The three-step test governs the validity and application of any copyright exception: special cases, respect for normal exploitation, no unreasonable prejudice. In France, the court may set an exception aside case by case on this basis. Before relying on an exception for large-scale exploitation, assess the effect of the use on the work’s current and foreseeable markets, because that is where the test applies most rigorously.

---

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

Intellectual property attorney · Tell us about your situation