“Three-step Test”

The Berne Convention’s Three-Step Test describes the criteria by which a participating country can have its own unique limits or statutory exemptions on copyright law without violating the terms of the Convention.

The three steps come originally from Article 9(2) of the Berne Convention, which reads:

“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 a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

This language can be broken out into the following three steps.

1) The exemptions must be for special cases or types of creative work only;

2) The exemptions allowed must not conflict with the “normal’ exploitation of the work that copyright usually makes possible, and;

3) the exemptions must not unreasonably prejudice the legitimate interests of the author.

This language has since been exported -- with important modifications -- to a number of other international copyright treaties, including the TRIPS agreement, several WIPO treaties, and the EU Copyright Directive. The wide range of contemporary interpretations of the three-step test is discussed in Module 2: The International Framework.

See also:

  • Statutory Exemption

Other resources:

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