Legal Definitions - three-step test

The three-step test is an international standard used in copyright law to determine if a particular use of a copyrighted work, without explicit permission from the owner, should be allowed as an exception or limitation to the copyright owner's exclusive rights. This framework is adopted by major international treaties, such as the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and helps countries balance the rights of creators with the public's interest in accessing and using creative works.

For a use of a copyrighted work to be considered permissible under this test, it must cumulatively satisfy three conditions:

• Limited to Special Cases: The use must be confined to specific, clearly defined circumstances or purposes, rather than being a broad or general permission to use the work.
• No Conflict with Normal Exploitation: The use should not interfere with the ways the copyright owner typically makes money from or manages their work. It should not act as a substitute for purchasing or licensing the original work.
• No Unreasonable Prejudice to Legitimate Interests: The use should not unfairly harm the copyright owner's reasonable expectations of profit, control, or reputation regarding their work.

Here are some examples illustrating how the three-step test might be applied:

• Example 1: Educational Use in a Developing Country

  A non-profit educational institution in a developing country creates a limited number of photocopies of a chapter from an internationally published textbook. These copies are distributed only to students enrolled in a specific course who cannot afford to purchase the textbook, and the institution ensures the copies are used solely for classroom study.

  • How it illustrates the test:
    • Limited to Special Cases: The use is restricted to a specific educational purpose for a defined group of students in a context where affordability is a significant barrier.
    • No Conflict with Normal Exploitation: In this specific market, the textbook publisher might not have a strong commercial presence or the students might not be able to afford the book anyway, so the photocopies are unlikely to displace actual sales.
    • No Unreasonable Prejudice to Legitimate Interests: Given the circumstances, the limited, non-commercial use for educational purposes is unlikely to significantly harm the publisher's overall market or legitimate interests, especially if the publisher has no viable market in that region for that specific textbook.

• Example 2: Archival Preservation by a Public Library

  A national public library digitizes a collection of old, fragile, and out-of-print local newspapers from the 1930s. The digital copies are stored on secure servers and are only accessible to researchers on dedicated terminals within the library building, not available online to the general public.

  • How it illustrates the test:
    • Limited to Special Cases: The use is strictly for archival preservation and limited on-site research access, a specific and necessary function for cultural heritage.
    • No Conflict with Normal Exploitation: Since the newspapers are out-of-print and physically deteriorating, there is no active commercial market for the original physical copies that the library's digitization would disrupt.
    • No Unreasonable Prejudice to Legitimate Interests: The library's action ensures the survival of historical records without undermining any current or future commercial exploitation by the copyright holder, especially if the works are no longer commercially viable.

• Example 3: Brief Quotation in a Critical Review

  An online literary critic writes a review of a newly published novel and includes a single, short paragraph (approximately 100 words) from the novel to illustrate a point about the author's writing style. The review encourages readers to purchase the full novel.

  • How it illustrates the test:
    • Limited to Special Cases: The use is confined to a critical review, a specific and recognized form of commentary.
    • No Conflict with Normal Exploitation: A brief quote for review purposes is highly unlikely to substitute for reading or purchasing the entire novel; in fact, it often serves as promotion.
    • No Unreasonable Prejudice to Legitimate Interests: The review, including the short quote, generally benefits the author and publisher by generating interest and potential sales, rather than causing unreasonable harm.