EU Copyright Exceptions and Limitations and the Three-Step Test: One Step Forward, Two Steps Back

Abstract

The three-step test, by origin an international provision, restricts copyright exceptions and limitations. The three-step test was incorporated into multiple treaties and trade agreements after being first included in the Berne Convention. Despite some nuances regarding the test’s wording in these legal instruments, the essential part – i.e. the three criteria – has remained unchanged. The European Union (EU) legislator took a step forward by expressly implementing the international three-step test into EU law. Article 5(5) of the 2001 InfoSoc Directive provides for its own EU three-step test, and more recently, the test was included in the 2019 DSM Directive. However, two substantial issues remain. First, there is still uncertainty on the specific meaning of each of these steps, due to scarce case law at the international level. Second, the incorporation of this standard has led to an added discussion on the scope and addressee of the EU three-step test. Due to the InfoSoc Directive’s wording, the question arose whether the three-step test is solely addressed to national legislators, or whether the test can also be applied by national courts. This article features a detailed analysis of the European Court of Justice’s case law on the three-step test, highlighting differing tendencies in its rulings. The Court’s decisions bring little clarification regarding the question of the test’s addressee, leaving the issue unresolved and disputed in the legal literature.