[A2k] Max Planck Institute Declaration for a balanced interpretation of the "three step test" in copyright law'

[Anne-Catherine Lorrain]

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[ Picked text/plain from multipart/alternative ]
http://www.lawfont.com/2008/07/24/a-balanced-interpretation-of-the-three-step-test/


A group of European IP Professors have drafted a Declaration, available from
the Max Planck Institute<http://www.ip.mpg.de/ww/en/pub/news/declaration_on_the_three_step_.cfm>,
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<http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350>,
TRIPs <http://www.wto.org/english/tratop_e/trips_e/t_agm3_e.htm#1>,
and the Australia-US
Free Trade Agreement<http://www.austlii.edu.au/au/other/dfat/treaties/2005/1/chapter_17.html>.
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.

http://www.lawfont.com/2008/07/24/a-balanced-interpretation-of-the-three-step-test/

Link to the Declaration:
http://www.ip.mpg.de/shared/data/pdf/declaration_three_steps.pdf

Excerpts:

"Copyright law aims to benefit the public interest. It produces important
incentives for the creation and dissemination of new works of authorship to
the general public. These works serve to satisfy common needs; either in
their own right or as a basis for the creation of further works." (...) "The
Three-Step Test has already established an effective means of preventing the
excessive application of limitations and exceptions." (...) "The public
interest is not well served if copyright law neglects the more general
interests of individuals and groups in society when establishing incentives
for rightholders."

*Initiators and co-ordinators of the Declaration:*

Christophe Geiger, Researcher, MPI for Intellectual Property, Germany;
Associate Professor and Director elect, Centre for International Industrial
Property Studies (CEIPI), University of Strasbourg, France

Reto M. Hilty, Director, MPI for Intellectual Property, Munich, and
Professor, Universities of Zurich and Munich, Germany

Jonathan Griffiths, Senior Lecturer, School of Law, Queen Mary, University
of London, U.K.

Uma Suthersanen, Reader, School of Law, Queen Mary, University of London,
U.K.