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An estimated 13-minute read

IP Protection: The 3 Step Test Calls For a Change

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As we know the first conception of any piece of work is holding the idea within the marvellous human mind, it can be making a painting, designing an algorithm for software or outlining a new sky scraper design. It all starts from the intellect an individual intends to exploit. This so called cerebral input demands recognition as well as protection in today’s society.

The rapid development in the past twenty years in the field of science has been bewildering and baffling and at present digital internet societies have emerged which hold the key to a very bizarre future. This so called digital world has also enlarged the existing copyright societies with a very exclusive merger of gaining international recognition which was impossible if we look few a years back.

The protection of the copyrighted work has undergone many evaluations depending upon multiple factors like country, type of law, convention or language; hence the concept of copyright is still maturing and to be precise the concept of copyright is very broad and one size fits all commandment is meaningless to be applied.

While discussing privacy ‘Warren and Brandeis’ (1890) state that political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society’.

Till this point a major portion of social order has evolved and arrived at the deciding factors for allowing of copyrighted work in multiple fields without being compensated and this rule is fixed in the widely accepted norms of the Three Step Test.

In this essay I will be touching on the outlines of the Three Step Test taking today’s digital sphere and copyright societies and determining the conditions in which it may be concluded that the Three Step Test is in need of reform.


The Berne Convention held for protection of Literary and Artistic work in the year of 1886 was an international agreement associated to administrate the copyright aspects around the world. The 1967 Stockholm Conference was held for the revision of the Berne Convention in which the Three Step Test was introduced. The prime aim of the introduction of the test was to concrete the rights of reproduction.

Interpretation of international treaties, such as the Berne Convention, the TRIPS agreement and the WIPO copyright treaty, is governed by the rules of customary international law as per the Vienna Convention of 1969’.

Considering the steady increase in the measures on which general agreement had reached on this framework the Berne Convention can be considered as a limited kind of international copyright codification’.

The principal aim was to establish reproduction rights, therefore Article – 9 was inserted mentioning that authors of Literary, Artistic works are protected by this convention and shall obligate exclusive right of authorizing the reproduction of time works in any manner or form’.

Article 9 (2) of The Berne Convention states-

‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with  normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’.

The prime objective of the Three Step Test was in its third step after the special case of non-conflicting nature was decided and was to be kept in balance with the affected group of the right holders with those of the third party as well as the public’.

The Three Step Test will be in the centre for the coming years associated to copyright cases but many countries did have their own national laws to tackle the copyright issue therefore they refused to change. Countries like Germany, UK, Netherlands and Belgium refused to introduce the test into their national legislation on the contrary Italy, Greece, Luxembourg, Portugal and Spain have implemented it’.

In the environments where implemented a wide responsibility is bestowed upon the judges as they have to interpret the exceptions with regard to the test and decide on a case to case basis and check if the application respects the criteria, even the lack of clarity makes the acceptance of the rule more difficult’.

 

The Three Step Test with its repeated incorporation in the international copyright treaties has encountered some slight alterations as to the wording of relevant provisions’.Though the significant part of the wording of the three criteria has remained unaffected.

It is enunciated that the copyright limitation should be in certain and special cases and further categorised that the limitation should not conflict with the normal exploitation of work and also ensuring that the arising limitations do not unreasonably prejudice the legitimate interest of the author or right holder.

This language situation mainly arises from the interpretation provisions of the treaties governing the Three Step Test, as per Article – 24(1) of the WIPO copyright treaty; the six United Nation languages are Arabic, Chinese, English, French, Russian and Spanish which are considered as absolutely authentic in construing the Three Step Test.

It may be said that the authenticity decreases while gradually arriving at the TRIPS agreement mainly due to language. For authenticity mainly French or English languages are favoured though the Berne Convention was solely conscripted in French.

Under the 1948 Brussels Act the situation changed due to the continuing growth of corporeal societies therefore the authentic text was further advanced in English. This development has even been highlighted in the Article – 37(1) (a) Paris Act of the Berne Convention declaring that the authentic text being French and English.

In today’s world English being the most widely spoken language is also usually the first language preferred as the starting point on exploring the construction of the Three Step Test. Even the language covering the rule of the Three Step Test was officially proposed by the delegation from UK and is also accounted as the origin of it from the British custom.

The fear did prevail of the text of the Three Step Test being too typically British to be understood by the judges from the continental countries during the Stockholm Conference of 1967. The discussion in the main committee during the Stockholm Conference affirms to the difficulties which were confronted while translating the term ‘unreasonable prejudice’ in French language. While construing the English text and the French text to see if any inconsistencies emerge and to check if no interpretation can be found that fits with both texts, then the French version must be favoured over the English one.

 

The relation between the national legislation and copyright control is quite polygonal. At the period of Stockholm Conference the UK Copyright Act -1956 had prudently and judiciously determined which particular uses of copyright works are exempted from author’s control. UK also did not accede to the Paris Act - 1971 of the Berne Convention till 2nd January 1990 and the obligation to comply with the Article 9(2) of Berne Convention was not placed on domestic limitations prior to this date.

It was UK which had actually articulated for adoption of a mere abstract procedure for regulating exemptions from the right of reproduction during the Stockholm Conference. The wording of the Three Step Test was based on the text submitted by UK delegation and it also proposed to allow reproduction in certain particular cases where reproduction does not unreasonably prejudice the legitimate interest of author.

The UK philosophy was understandable with the background of the common law system and UK also stated that ‘private use’ and ‘administrative purposes’ goes beyond the point and also carries many dangers for authors and publishers since it is extensive use of copyright material without payment by organisation which may be either government bodies or educational institutions.

This particular viewpoint existed during the non-digital age but in today’s world where copyright widening and digital civilizations have emerged the concept of private use seems to hamper the flow of information when it is most needed due to its limitation on information being used though without compensating remuneration to the copyright owner.

In today’s digital age the concept of world has been broadened to the term international community and where the emergence of technology associated to internet has grown till the point where it is now being called as a way of life, there the concept of unreasonable prejudice appears as a boulder in recognition for the author or right holder itself.

The use for private purpose has limited the use of copyrighted work in UK itself as it is unable to gain international recognition without being widely known and documented. This international recognition is only possible when the movement of information is absolutely unrestricted regarding the copyrighted work in today’s digital era.

The UK concept of ‘Fair Dealing’ for the purpose of research, private study, criticism, reporting current events does not amount to infringement but it does pose strict and rigid controls over excessive attainment of information. The Fair Dealing provisions are coded under section 29 and 30 of the copyright, design and patents act of 1988 hereafter referred as the ‘CDPA’ act.

The provisions of UK Fair dealing are restrictive in applicability and scope since they apply only for specific purposes furthermore the section 29(1) CDPA does not allow dealing with sound recording, broadcast or film hence it would not be possible for a researcher to copy a part of a recording without infringing it leading to limiting the recognition of the copyright owner.

Scholars have even criticised the narrowness and rigidity concept of Fair Dealing as it leaves no elasticity for the doctrine to adapt to future oriented technological changes’. Format shifting is an everyday task being performed in today’s digital world where storage and transfer of data is performed just via few clicks by an individual or by changing the format of the copyrighted work be it for personal use like changing format of an audio CD to MP3 for personal use which is prohibited under UK law and amounts to infringement.

The recent growth in availability of scanned version of books online via Google books has also led to rise in concerns and the concept of Fair Dealing is improbable to be applied. The world’s most prominent internet search engine- Google scans the books and journals from the library database it holds an affiliation with. These books are available on the internet just via simple internet search though a few pages or texts of the book are omitted as it is copyrighted work but still a major part of the book is accessible and stored in the innovative notion of digital libraries of today’s ecosphere.

The issue of concern raised is that the Google books are available online and are accessible to all as a major portion of work and also provides its readers with the fragment of internet searches made. Though both the actions fall under the US doctrine of Fair Use but many law suits are prevailing before the US courts against the Google policy of making the book available online. Under the UK copyright law the Google book system is unlikely to satisfy any of the needed provisions of Fair Dealing.

Having a look at the rise in technologies where format shifting and Google books are the emerging concepts, it appears impossible to foresee what new technologies may give rise in the future, and Fair Dealing allows only for a limited number of purposes therefore it appears discriminating against the digital society and dynamism of information society.

A much wider doctrine does transpire in today’s era known as the US doctrine of ‘Fair Use’. The US doctrine of fair use is always perceived when looking into copyright provisions and is somewhat similar to the concept of Fair Dealing.

The UK concept of Fair Dealing is slightly traditional as compared to the US doctrine of Fair Use which provides a general defence instead of rigid and specific categories of acceptable behaviour. It seems to appear that the UK concept of Fair Dealing appeals for a broader approach in order to enhance the recognition of its copyrighted works as required in today’s sphere.

Section - 107 of the United States Copyright Act also deemed the ‘Fair Use’ doctrine is holding the regulation for the unauthorized use of copyrighted work for purposes like teaching, scholarship, research, criticism and comment.

The deciding four factors of a work as Fair Use are:

  1. The purpose and character of use, whether for a commercial practice or non-profit practice like education or research,
  2. The nature of copyrighted work,
  3. The amount and substantiality of the potion of copyrighted work used,
  4. The effect of the use upon the potential market for the value of the copyrighted work.

Very similar to the UK concept of Fair Dealing both the doctrines have the nature of abstracting those precise occasions on which the use of copyrighted work may be permitted. The US doctrine is an open norm comparable with the UK concept and here the fourth factor also happens to deal with the use of copyrighted work upon the commercial market value.

However the Doctrine of Fair Use happens to be holding a longer tradition and history then the concept of the Three Step Test and also operates against the backdrop of wealth experience which was held in the landmark case of Harper and Row versus the Nation Enterprise.

This methodology can enhance the allowing of a copyrighted work to rise within the public domain in a free flowing modern trend which will inevitably help the right holder in gaining recognition and all the right vested to him will also be composed.

The doctrine of Fair Use also allows the science of reverse engineering of a computer program in which deconstruction of a program takes place from the very literal code to produce a more compatible program from a previous program and moreover the US doctrine is flexible to adapt to any new changes emerging with the growth of societies and the US courts can even rely upon the non-statutory issues of fairness for considering a case.

Another advantage of the Fair Use test is the simplicity associated to it. Fair Use combines all the exceptions into one single provision and also simplifying its wording and structure making it easier to understand and simpler to read for the users.

Rapid development in technological enlargement has encouraged an essential change in the gathering and efficiency of copyright law. The development of new business models has led to a dramatic shift in priorities. Unprecedented and unfamiliar pressures have grown increasing threats for both the copyright holder and the copyright user. As far as possible, potentially conflicting interests must be reconciled.

New technologies have extremely affected copyright law and have exposed the urgent need to adapt a law designed in a time when today’s communication technologies only existed in science-fiction novels. Changing the law becomes even more pressing when one considers the fact that the technological evolution was accompanied by a penetration of these new instruments in the social body.

Conclusion

The struggling flow of principles in the Three Step Test can be of multiple factors and determining a single root cause will be meaningless. The general observation is that yes the Three Step Test necessitates a reform calling a broader spectrum which goes hand in hand with today’s rapid developing copyright and digital societies.

In today’s ecosphere where Internet associated technologies have amplified the magnitude of revenue generation and international acknowledgment in every field including copyright there the UK concept of Fair Dealing appears as an impediment in the authors recognition though it is allowed for educational and research purposes without being compensated.

As ‘Warren and Brandeis’ said that political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.

Therefore it does appear that it is time that common law associated to the test should be supplemental with consideration of widening the magnitudes allowing the unavoidable obligatory development in field of science within its sphere, which will certainly aid to international recognition of authors, right holders or possessors of copyrighted works.


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