Wednesday, July 23, 2008

The Three Step Test, eh?

Bill Patry has an interesting blog today about a new declaration on the three step test from the Max Planck Institute.

Some very notable European and American academic expertise went into this document.

Here's the declaration:

The Signatories,
- Recognising the increasing reliance on the Three-Step Test in international, regional and national copyright laws
- Considering certain interpretations of the Three-Step Test at international level to be undesirable,
- Perceiving that, in applying the Three-Step Test, national courts and legislatures have been wrongly influenced by restrictive interpretations of that Test,
- Considering it desirable to set the interpretation of the Three-Step Test on a balanced basis,
Declare as follows:
1. The Three-Step Test constitutes an indivisible entirety.
The three steps are to be considered together and as a whole in a comprehensive overall assessment.
2. The Three-Step Test does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes.
3. The Three-Step Test’s restriction of limitations and exceptions to exclusive rights to certain special cases does not prevent (a) legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable; or (b) courts from - applying existing statutory limitations and exceptions to similar factual circumstances mutatis mutandis; or - creating further limitations or exceptions, where possible within the legal systems of which they form a part.
4. Limitations and exceptions do not conflict with a normal exploitation of protected subject matter, if they
- are based on important competing considerations or
- have the effect of countering unreasonable restraints on competition, notably on secondary markets, particularly where adequate compensation is ensured, whether or not by contractual means.
5. In applying the Three-Step Test, account should be taken of the interests of original rightholders, as well as of those of subsequent rightholders.
6. The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including
- interests deriving from human rights and fundamental freedoms;
- interests in competition, notably on secondary markets; and
- other public interests, notably in scientific progress and cultural, social, or economic development.
Concerning the third point, Bill says, in what may be a not too veiled reference to Canada:
The last statement refers of course to fair use and should be a helpful rebuke to the whispering campaign being conducted in certain national capitals against the adoption of more liberal fair dealing laws.

(emphasis added)
Once again, thanks Bill.


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