From Flexible Balancing Tool to Quasi-Constitutional Straitjacket – How the EU Cultivates the Constraining Function of the Three-Step Test external link

Abstract

In the international intellectual property (IP) arena, the so-called “three-step test” regulates the room for the adoption of limitations and exceptions (L&Es) to exclusive rights across different fields of IP. Given the openness of the individual test criteria, it is tempting for proponents of strong IP protection to strive for the fixation of the meaning of the three-step test at the constraining end of the spectrum of possible interpretations. As the three-step test lies at the core of legislative initiatives to balance exclusive rights and user freedoms, the cultivation of the test’s constraining function and the suppression of the test’s enabling function has the potential to transform the three-step test into a bulwark against limitations of IP protection. The EU is at the forefront of a constraining use and interpretation of the three-step test in the field of copyright law. The configuration of the legal framework in the EU is worrisome because it obliges judges to apply the three-step test as an additional control instrument. It is not sufficient that an individual use falls within the scope of a statutory copyright limitation that explicitly permits this type of use without prior authorization. In addition, judges applying the three-step test also examine whether the specific form of use at issue complies with each individual criterion of the three-step test. Hence, the test serves as an instrument to further restrict L&Es that have already been defined precisely in statutory law. Not surprisingly, decisions from courts in the EU have a tendency of shedding light on the constraining aspect of the three-step test and, therefore, reinforcing the hegemony of copyright holders in the IP arena. The hypothesis underlying the following examination, therefore, is that the EU approach to the three-step test is one-sided in the sense that it only demonstrates the potential of the test to set additional limits to L&Es. The analysis focuses on this transformation of a flexible international balancing tool into a powerful confirmation and fortification of IP protection. For this purpose, the two facets of the international three-step test – its enabling and constraining function – are explored before embarking on a discussion of case law that evolved under the one-sided EU approach. Analyzing repercussions on international lawmaking, it will become apparent that the EU approach already impacted the further development of international L&Es. Certain features of the Marrakesh Treaty clearly reflect the restrictive EU approach.

access to knowledge, Berne Convention, Copyright, EU law, frontpage, Human rights, limitations and exceptions, Marrakesh Treaty, rights of disabled persons, transformative use, TRIPS Agreement

Bibtex

Chapter{Senftleben2020b, title = {From Flexible Balancing Tool to Quasi-Constitutional Straitjacket – How the EU Cultivates the Constraining Function of the Three-Step Test}, author = {Senftleben, M.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576019}, year = {0416}, date = {2020-04-16}, abstract = {In the international intellectual property (IP) arena, the so-called “three-step test” regulates the room for the adoption of limitations and exceptions (L&Es) to exclusive rights across different fields of IP. Given the openness of the individual test criteria, it is tempting for proponents of strong IP protection to strive for the fixation of the meaning of the three-step test at the constraining end of the spectrum of possible interpretations. As the three-step test lies at the core of legislative initiatives to balance exclusive rights and user freedoms, the cultivation of the test’s constraining function and the suppression of the test’s enabling function has the potential to transform the three-step test into a bulwark against limitations of IP protection. The EU is at the forefront of a constraining use and interpretation of the three-step test in the field of copyright law. The configuration of the legal framework in the EU is worrisome because it obliges judges to apply the three-step test as an additional control instrument. It is not sufficient that an individual use falls within the scope of a statutory copyright limitation that explicitly permits this type of use without prior authorization. In addition, judges applying the three-step test also examine whether the specific form of use at issue complies with each individual criterion of the three-step test. Hence, the test serves as an instrument to further restrict L&Es that have already been defined precisely in statutory law. Not surprisingly, decisions from courts in the EU have a tendency of shedding light on the constraining aspect of the three-step test and, therefore, reinforcing the hegemony of copyright holders in the IP arena. The hypothesis underlying the following examination, therefore, is that the EU approach to the three-step test is one-sided in the sense that it only demonstrates the potential of the test to set additional limits to L&Es. The analysis focuses on this transformation of a flexible international balancing tool into a powerful confirmation and fortification of IP protection. For this purpose, the two facets of the international three-step test – its enabling and constraining function – are explored before embarking on a discussion of case law that evolved under the one-sided EU approach. Analyzing repercussions on international lawmaking, it will become apparent that the EU approach already impacted the further development of international L&Es. Certain features of the Marrakesh Treaty clearly reflect the restrictive EU approach.}, keywords = {access to knowledge, Berne Convention, Copyright, EU law, frontpage, Human rights, limitations and exceptions, Marrakesh Treaty, rights of disabled persons, transformative use, TRIPS Agreement}, }

(Re)structuring Copyright: A Comprehensive Path to International Copyright Reform external link

Edwards Elgar, 0303, Series: Edgar Monographs in Intellectual Property Law

authors, Berne Convention, Copyright, fragmentation, reform

Bibtex

Book{Gervais2017, title = {(Re)structuring Copyright: A Comprehensive Path to International Copyright Reform}, author = {Gervais, D.J.}, url = {https://www.elgaronline.com/view/9781785369490/9781785369490.xml}, year = {0303}, date = {2017-03-03}, keywords = {authors, Berne Convention, Copyright, fragmentation, reform}, }

Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law external link

Kluwer Law International, 2017, Series: Information Law Series, ISBN: 9789041186676

Abstract

This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.

Berne Convention, Charter of Fundamental Rights of the European Union, CJEU, collective rights management, communication to the public right, compensation systems, Copyright, Digital Single Market, EU copyright law, exceptions and limitations, fair balance, Internet, Kluwer Information Law Series, online intermediaries

Bibtex

Book{Quintais2017, title = {Copyright in the Age of Online Access: Alternative Compensation Systems in EU Law}, author = {Quintais, J.}, url = {https://pure.uva.nl/ws/files/7607912/QUINTAIS_Doctoral_Dissertation_Final_Manuscript.pdf}, year = {2017}, date = {2017-05-29}, volume = {40}, pages = {}, abstract = {This book examines pragmatic legal solutions that enable Internet users to access works in the digital environment by exploring the flexibilities in EU copyright law in search of a consistent regulation of non-commercial online use. In addition to proving virtually impossible, online enforcement of copyright may be undesirable because it risks encroaching upon fundamental rights and freedoms. However, the problem remains that creators are often not fairly remunerated for the online use of their works. This book addresses the need for legalisation schemes that favour remunerated access over exclusivity and enforcement for large-scale online use by individuals, while assuring remuneration to rights holders and promoting the development of the information society.}, keywords = {Berne Convention, Charter of Fundamental Rights of the European Union, CJEU, collective rights management, communication to the public right, compensation systems, Copyright, Digital Single Market, EU copyright law, exceptions and limitations, fair balance, Internet, Kluwer Information Law Series, online intermediaries}, }

Communication to a New Public? Three reasons why EU copyright law can do without a ‘new public’ external link

Hugenholtz, P. & Velze, S.C. van
IIC (International Review of Intellectual Property and Competition Law), vol. 47, num: 7, pp: 797-816, 2016

Abstract

This article critically examines the 'new public' test in EU copyright law, which was developed by the CJEU interpreting the right of communication to the public in cases of retransmission and hyperlinking. As the authors seek to demonstrate, this test is flawed for at least three reasons: historical, conceptual and economic. EU copyright law can do well without a 'new public' test.

aggregation, Auteursrecht, Berne Convention, communication to the public, Copyright, frontpage, hyperlinking, new public

Bibtex

Article{Hugenholtz2016b, title = {Communication to a New Public? Three reasons why EU copyright law can do without a ‘new public’}, author = {Hugenholtz, P. and Velze, S.C. van}, url = {http://link.springer.com/article/10.1007/s40319-016-0512-7?wt_mc=Internal.Event.1.SEM.ArticleAuthorAssignedToIssue}, doi = {https://doi.org/10.1007/s40319-016-0512-7}, year = {1118}, date = {2016-11-18}, journal = {IIC (International Review of Intellectual Property and Competition Law)}, volume = {47}, number = {7}, pages = {797-816}, abstract = {This article critically examines the \'new public\' test in EU copyright law, which was developed by the CJEU interpreting the right of communication to the public in cases of retransmission and hyperlinking. As the authors seek to demonstrate, this test is flawed for at least three reasons: historical, conceptual and economic. EU copyright law can do well without a \'new public\' test.}, keywords = {aggregation, Auteursrecht, Berne Convention, communication to the public, Copyright, frontpage, hyperlinking, new public}, }