The three-step test and copyright limitations case analysis
Q1. Critically evaluate the impact of the so called three-step test on a potential evolution of limitations as applied to digital uses in a copyright law. In your answer, refer where appropriate, to relevant case law.
A three-step test according to Senftleben it is a clause included in much intellectual property International treaties (67). The parties to these international treaties are in a treaty to standardise the possible exceptions and restrictions to the exclusive rights under their national copyright laws respectively. The three-step test is supposed to avert copyright restrictions from infringing on the rights of the author (Westkamp 15). A control mechanism that safeguard the balance between reservations and grants of right of copyright law. Therefore, three-step test fulfils a particular task. First, it may be involved only after the conferment of exclusive rights to the authors. Secondly when the limitations are just about to be imposed on these authors exclusive rights. This section will critically evaluate the impact of the three-step test on a potential evolution of limitations as applied to digital uses in a copyright law (Westkamp 26). The Berne Convention under article 9 subsection 2 provides for the three-step test. The Berne Convention three-step provision refers to authors and the reproduction of content. It, however, does not place limitations to quotations, teaching illustrations, and recordings. Further, the lex specialis derogate legi generali, legal principle places a limitation to the application of the Berne Convention to the limitations stated (Geiger, Griffiths, and Hilty 708). The evolving and easy access to copyright content have made it hard to enforce digital copyright. Although the three-step was enacted several decades ago, its meaning is still not clear to many authors and content users. Most commenters, therefore, suggest that the test should be applied flexibly and interpreted in its literal meaning. Easy access to internet content has assured a higher restriction to copyright. It is, therefore, important to interpret the three-step test to take advantage of the new copyright law evolution (Papadapoulou 5).
Copy right consists of exclusive rights of an author to their work; it, however, does not put into consideration the access of knowledge. The conditions to guide on the access of knowledge have been a contested issue for a long time. Copyright law take away some works from copyright protection. Also, the law provides an exception to infringement protection where certain conditions of the three-step test have been fulfilled.
Q2. Limitations to copyright: discuss the three step test in relation to digital limitation, private copying, educational/research use.
This question will discuss the limitations to the copyright with a major focus on the three-step test in relation to digital limitation, private copying, educational/research use. It has been understaood for a long time that restrictions on authors and the related rights are reasonable and justifiable in certain cases. Therefore, at the beginning of the negotiations which resulted to the creation of the 1884 Berne Convention, it was stated that absolute protection limits are set rightly by the interest of the public. Consequently, the convention has included the provisions that grant latitude to the member states to limit the authors’ rights in certain circumstances (Geiger, Gervais & Sentfleben 20).
- The three step test in relation to digital limitation
New usages of works arise in the digital environment that in the pre-digital age, it could have never been contemplated. According to Christie & Wright, one of the principal objectives of WPPT and WCT was to meet this challenges and more particularly for greater protection of right holders and authors in the new digital environment (7). On the same note, Love asserted that it was recognized that it was significant to maintain a balance between the larger interest of the public and these rights, in particular, to access to education and research (5). The international treaties provisions that deal with the new communication right to the public and the technological measures are envisioned to address the right holders concerns. However, the question of larger public interest and limitations in the digital environment is more vexed and rely upon the various agreed statements effects. The following issues arise, in particular:
Whether Berne Conventions Article 9(1) is to be interpreted as to apply to digital uses. WCT Article 1(4) agreed statement indicates clearly that this is so, however, whether this also forms part of WCT context for the interpretation purposes or whether it is just a supplementary aid to the interpretation pursuant to Vienna Convection Article 32 is still unclear (Westkamp 33).
On the supposition that Article 9 (1) entails the digital reproductions, it is clear that the three-step test will apply under Article 9(2) and will allow the extension of the exceptions existing into the digital environment or the formation of new exceptions applying alone in the digital environment. Regarding this, the reference in the WCP Article 10 agreed statement that these exceptions should be proper adds title to the three-step test requirements, if anything, other than to point out that uses of digital may involve different consequences compared to their counterparts in the hard copy, real environment (Westkamp 42).
Similar considerations apply clearly in the case of new rights of WCT, particularly the communication rights to the public. The three-step test will be applicable here in the same way it applies to the right to reproduction under Berne (Geiger, Griffiths, and Hilty 710). Take a case example of BGH (Germany) Electronic Press Clipping Service – Infopaq – CJEU. The meltwater law courts states that the copies the users made are not excused (they say the copies are unlicensed hence encroaching the copies). The reasoning of the court relies majorly on the point that the sole purpose of copying is to enable work consumption or a transmission lawfully in a network by an intermediary between third parties of a protected subject matter or of lawful use. The E-commerce Directive (2001/29) states that copies made by a third party during transmission, subject to certain conditions, or in your cache, ram among others are not reproductions that are covered by the copyright law. The court used a circular logic as much as it accused the defense of applying the same. That a person using his computer screen and making webpages copy will not have any defense under CDPA s.28A
- The three step test in relation to private copying
This area covers a wide potential area of usage, and suggests that the kind and scale of envisaged private use will need to be defined carefully and limited to meet the first step (Helberger, Natali and Hugenholtz 32). The provision of EC Directive (Article 5(2) (b)) on private use provides an instructive guide:
“In respect of any reproductions by a natural person on any medium for private use, and for neither indirectly or directly commercial ends, on a term that the rightful holders gets a fair compensation taking into account the non-applications or the application of the technological measures to the subject matter or work concerned as referred to in Article 6” (Helberger, Natali and Hugenholtz 37)
This is limiting to the provision and states clearly that the use must be limited to the purposes that are non-commercial (first step). It then makes assumptions that such applications do not conflict with normal work exploitations (second step), probably on the argument that it is almost impossible for the copyright owner/author to regulate this through the arrangements of private licensing, and also probably because this is a private, that is totally different from a public, usage of the work, and this is a normative factor that is non-economic which is to be measured against the economic interest of the author. Lastly, so far as the prejudice to the interest of the right holder that are unreasonable is concerned (third step), it necessitates that the right holder get a fair compensation taking into account the application the technological measures of protection, if there is any (Helberger, Natali and Hugenholtz 44).
- The three step test in relation to educational/research
Distance education requires a very special attention since it is possible to implicate two unprotected exclusive rights under the Berne and WCT, namely communication and reproduction rights. The statutory license provision here may be another means of making sure that there is no prejudice to the authors’ legitimate interest unreasonably, while making sure that an appropriate balance is struck between authors rights and those seeking objectives of education (Westkamp 59).
“The introduction of a right of communication to the public as well as a right to control temporary copies was a misled attempt to harmonize copyright law and has resulted in an almost incomprehensible formulation of relevant legal provisions.”
Critically discuss the statement. In your answer, refer to relevant case law.
There are several legal provisions that govern communication to the public and the right to control temporary copies. However, the action of harmonising these copyright laws has led to a formulation that is almost incomprehensive because of several intertwined legal provisions. This section of the paper will critically discuss these issues while referring to relevant case laws.
The delivered speeches during legal proceedings and political speeches are covered under Article 2bis (1). The arguments of public interest favoring permitting total or partial exclusion of protection for suck kind of works has never been disputed since the introduction of the provision in 1928, Rome. However, it is important to point out that the provision in its entirety is permissive. At the same time, the provision places no restrictions on the degree to which there can be denial of protection for these works, as it potentially applies to all possible exploitation forms that are comprehended within the authors’ rights under the convention. For instance, reproduction, recitation, public performance and broadcasting. On the other hand, Article 2bis (1) has temporal limitations indicating that it principally concerned with contemporary or immediate communication of these forms of works. Therefore, the national laws under Article 2bis (3), must go on permitting the author of such works the exclusive right to make a collection of their works. Accordingly, writers of legal and political speeches preserve the right to make a collection later of the oratorical wisdom. For example, in the case of Svensson in which the Court of Justice of the European Union (CJEU) set a new boundary in the copyright regime for content distribution in the electronic platform. The ruling stated that links clickable to sites protected and are available freely on another website does not infringe the public right communication in the works (Verdegaal 23).
Article 10bis (1) deals with the use of articles in periodicals and newspapers. It states that it shall be a legislation matter in the Union countries to allow the reproduction by press, the communication or broadcasting to the public by wire of the published articles in periodicals or newspapers on current religious, political or economic topics, and of broadcast works of the individual, in situations where the broadcasting, reproduction or such communications thereof is not reserved expressly. Nonetheless, the source must be indicated clearly; the legal consequences of this obligation breach shall be determined by the country’s legislation where protection is claimed. From this provision, it is evident that it is incomprehensible since the following comments can be made from it:
“The acts that may be permitted extend to communication by wire to the public, broadcasting ad reproduction.”
The concept of reproduction discussed and how it is made available and how it is created relate in different ways with article 3 and article 5(1) of InfoSoc Directive. The InfoSoc Directive is a European Union Directive that was enacted to harmonize the copyright laws aspects across Europe and to implement the copyright treaty of WIPO (Wong & Wai 45). Article 2, 3 and 4 contains the exclusive rights definitions under the copyrights and other related rights. Article 2 distinguish the “right of reproduction” while Article 3 entails “making available to the public” or “the right of communication to the public.” According to Munoz and Chege, Article 3 is intended specifically to cover transmission and publication on the internet (12). Furthermore, the two names of Article 3 are derived from the WIPO performance and Phonograms Treaty (article 10) and the WIPO Copyright Treaty (Article 8). Lastly article 4 also details the author’s right to prohibit or authorize any form of distribution to the general public through sale.
The concept of reproduction also relates to article 5 of InfoSoc directive since it lists the exceptions of the copyright to the member states that they may apply. The member states are permitted to apply the exemptions that are not listed in the list agreed. However, Article 5 (3) (0) states that the other exception that as of 22/06/2001 were already in the national laws may remain in operation. Copyright Directive According to Wong & Wai, makes only one exception obligation, and that’s the incidental or transient copying as part of as part of legal use or network transmission (48). Therefore, internet service providers according to Munoz and Chege are not liable whatsoever to the data they transmit as much as it may infringe on the copyright (21).
It applies to the published articles in periodicals and newspapers, and also to the broadcast works of the same kind. On the other hand, the criterion for qualifying is that they should be broadcast works or articles on current religious, political, economic topics. This excludes wide range of periodical and newspaper writings such as sports reports, artistic and literary reviews, technical matters, and scientific articles. Furthermore, the word “current” shows that the articles must be of relevant immediately since the purpose is to expedite free flow of information on the events that are current. This provision also does not make reference to broadcasting and reproduction of articles in translation
Article 10bis (2), deals with incidental usage of works when reporting the events that are current using radio, cinematography and photography. The provision states that “it shall be a legislation matter in the Union countries to make a determination of the conditions under which, the aim of reporting the current events by means of cinematography, photography, communication or broadcasting to the public wire, artistic or literary works heard or seen in the course of the event may, to the justified extent by the informatory purpose be made available and reproduced to the public.”
On reporting on addresses, lectures and other similar works, the provision under Article 2bis (2) allows member states to make regulations on the conditions under which these orally delivered works may be used for the reporting purposes.
The InfoSoc directive provides for a larger protection on the basis of other international instruments and WCT to which the European community have adhered. There has been no general and harmonized definition of reproduction right until InfoSoc Directive was adopted. According to AIIL (24), Article 2 of InforSoc Directive elaborates on the comprehensive and broad definition of the reproduction right and it covers all reproduction acts, whether offline or online, immaterial or in material, permanent or temporary reproduction right is conferred on broadcasting organizations, film producers, phonograms, performers, and authors, who all benefit from the same protection level from their works or other related subject matters regarding the protected acts by the right of reproduction (AIIL 24).
According to AIIL (25), there is no general, overreaching right of communication at the international level to the public for the authors nor the related rights holders. However, Article 8 of WCT broadly covers the authors’ rights. The article has introduced “right of communication” for authors to the public, and it include making available and broadcasting. Similarly, Article 3 (1) of InfoSoc Directive grants a general exclusive right to authors to prohibit or authorize any communication to the public. Article 3(1) on the second section of the communication rights to the authors, offers an interpretation that the “communication to the public” right, and it includes availing of works to the public, in a mode that the members of the public may have an access to the works at a time and from a place chosen by themselves. The provisions main objective is to make it clear that it covers “on demand” interactive services. Furthermore, it aims at ensuring legal certainty by confirming that the public right communication is also relevant when many persons who are unrelated (public) members may have individual access, at different times from different places, to a work that is available on a location that is publicly accessible, such as through private or open network
In the streaming offer case in Germany, the appeal court of Hamburg came to a conclusion that producers of phonograms have the exclusive rights of making available phonograms to the public for a price called streaming process. Applying Article 9a of the German Copyright Act, the act of making available does not need that a phonogram copy be downloaded and become the user’s possession. Instead, the streaming act is regarded as constituting a form of making it available, therefore, which is subject to the rights owner prior authorization (OLG Hamburg 749-751). In another case similar to that, the British High Court in their ruling came to a similar conclusion in a case that was opposing Union des Associations Européennes de Football to Briscomb et al (EWHC 413-415). In their ruling, the court specified that the complainant’s copyrights had been encroached by the defendants in the broadcast signals. Lastly, the appeal court of Cologne made a ruling in another case, an offer of an internet provider to save on a storage space assigned to his server selected television programs that are digitized and transmitted in Germany for the deferred viewing of the users on their personal computers are also within Article 19a of the German Copyright Act’s ambit (OLG Köln 5-7).
The court of justice on 7th December 2006 delivered its judgment on the SGAE v. Rafael Hoteles case. Regarding Article 3 of Directive 2001/29/EC, a ruling was made on the interpretation on the synchronization of certain copyright aspects and related infoSoc rights. In this case, SGAE, the body entrusted with the intellectual property rights management in Spain were of the opinion that playing ambient music and the use of TV sets within Hotel Rafael amounted to communication to the public of works that belong to its repertoire and therefore accordingly sought compensation (Arena 1). Article 3 of the directive indeed requires member states to provide authors with the exclusive rights of prohibiting or authorizing any communication to the public of their works but do not offer any definition of such communication. The court of justice in dealing with the notion of “communication to the public” based their decision on the case of Mediakabel BV v Commissariaat voor de Media by defining the “public” as unspecified number potential viewers. Therefore, a large number of viewers in hotel rooms also to the successive viewers in the common hotel areas constitute a “public” within the directives meaning (para 2).
Under Berne Convention’s Article 11bis(1)(ii), the court noted that the signals distribution through TV sets in hotel rooms also constituted a communication that was made by the organization that broadcasts other than the original one that have exclusive rights of prohibiting or authorizing (para 3). Concerning the viewers, such transmission is done to a public from the person at which the original communication of work act is directed, which is, to a new public. As non-binding WIPO guide clarifies, however when authors authorize broadcasting of their works, they only give consideration to direct users within their family or private circles. On the other hand, if the work is availed to a larger audience like in a hotel clientele, then independent communication act takes place. It is, therefore, the authors’ rights to authorize in respect of such communication, which can be offered for profit. In the case of SGAE v. Rafael Hoteles, as the court observed incidentally, Hotel Rafael distributed to its customers the TV signals as an additional service, which directly had a bearing directly to their rooms’ prices (para 4). Moreover, in answering the question as to whether TV sets installation in hotel rooms constitute communication to the public, the Court referred to Article 8 of the WIPO Copyright Treaty, which mandates clearly that just provision of physical faculties itself does not amount to communication. Nonetheless, the court observed that such facilities installation could make it possible for public to access broadcast works technically (para 5).
Lastly, as to the private nature of the hotel rooms, the court of appeal considered it whether it is a bar given that audiovisual works communication takes place to the public. Therefore, the court was of the opinion that the private or public nature of the place where communication is taking place is immaterial, and the factor relevant is whether is some work has been availed to the public (para 7).
There has been the emergence of practical problems from the fact that reproduction right is increasingly perceived to be overlapping the public’s communication rights, which also to other consequences makes rights clearance to be more cumbersome. The large scope of right of communication extends practically to all the involved parties in the use and dissemination of protected works, wherein the physical distribution world, their roles would not be involving he acts that are restricted. The limitation on incidental and transient copying admitted exempts some of the acts. However, from the analysis of Article 5 (1) below, it does not prevent multiplication of the performed restricted acts by no means by the providers of content such as online providers or broadcasters, who are now forced to enter into several licenses for what can be described as unitary usage acts.
While a user is offline (commercial user), he or she would have required paying remunerator a permission, for either a public communication act or even reproduction and distribution. Contrary to that, the distribution using the internet currently involves reproduction acts also to communication (making available or broadcasting) and, therefore, needs double authorization. For example, right holders have claimed webcasting remuneration based on the argument that it constitutes communication to the public and reproduction because of the intermediate copies that are made during the process of streaming.
From the discussion above, the respective boundaries of the right to communication and right to reproduction to the public are evidently unclear. This has given rise to an overlap between these two rights, hence resulting o practical difficulties and creation of legal uncertainties that can undermine online businesses development. However, Article 5(1) of InforSoc directive has laid down exception that have the potential of offering a solution to part of the problem. AIIL (29) indicated that Article 5 (1) was created for an application in the digital environment and has an important function of the delineating reproduction right from the right to communication to the public. Furthermore, it has been designed for regulation of the boundaries of the copyright liability of the intermediaries of the internet, in conjunction with the Electronic Commerce Directive provisions (AIIL 29).
From the articles and the provisions quoted in the discussion, it is evident that many provisions have been harmonized, and this has resulted in an almost incomprehensible formulation of relevant legal provisions. There is a thin differences on the limits and regulations of the provisions from one provision to the other.
You are asked to write an expert opinion on these matters
Adam in the case study is a website owner but has violated several copyright laws. In the website YouRule.com he finds copy protected mp3 music files and downloads them. Furthermore, through his internet search, he finds a software that can circumvent the copy protection on the music. The software has the ability to remove the copy protection system. Finally, given that the copy protection does not prevent analogue coping, Adam uses the gap to copy the music from the mp3 files to a CD-R in analogue format.
Similarly, Adam uses the information from another website to update his website without prior notification of the content owners or even paying for their copyrighted information. He goes on to rewrite copyrighted poems on this website that only download through e-book formats and on-screen viewing.
Lastly, Adam copyrighted free download software that allows users to combine football matches snippets broadcasted previously on television to create his video. Adam is not permitted to redistribute the software either by sale as much as the software is free for downloading. However, he distributes the software by giving a set copy to even, an aspiring designer of computer games.
Colombia is a country that is a member of European Union which has literary implemented all the relevant copyright legislation although it has not implemented Article 6 (4) of the EUCD (directive 2001/29/EC). Moreover, Colombia allows private copying but there is no effective compensation scheme in place
Considering the case of Adam, he violated several copyright laws by illegally using the content copy protected. Furthermore, he used and distributed the software copy protected and, therefore, was liable for any damages and breach of copyright laws. However, Adam resides in Colombia, a country that is an EU member with no proper copyright laws. Moreover, it allows private copying, and this makes Adam liable to any damages that might have occurred.
Private copying covers a wide potential area of usage and suggests that the kind and scale of envisaged private use will need to be defined carefully and limited so as to meet the first step. The provision of EC Directive (Article 5(2) (b)) on private use provides an instructive guide:
“In respect of any reproductions by a natural person on any medium for private use, and for neither indirectly or directly commercial ends, on a condition that the rightful holders gets a fair compensation taking into account the non-applications or the application of the technological measures to the subject matter or work concerned as referred to in Article 6.”
To begin, the private copying copyright laws states clearly that the use must be limited to the purposes that are non-commercial. Adam used the content on his website by feeding his readers with football information. It is not stated whether his content were for commercial or non-commercial purposes. The assumption is that his website was non-commercial in nature, and this makes Adam not liable and has not breached the copyright laws. However, if in deed his website was for commercial purposes, then he breached the laws.
According to (Ricketson 6), under copyright laws, the assumption is that any applications do not conflict with normal work exploitations, probably on the argument that it is almost impossible for the copyright owner/author to regulate this through the arrangements of private licensing, and also probably because this is a private, that is totally different from a public, usage of the work, and this is a normative factor that is non-economic which is to be measured against the economic interest of the author. The website where Adam used their applications and content regulated their content for public usage. Adam is liable for damages because he used a third party software to interfere with the copyrighted music by copying them into his CD-R for his personal use. Moreover, the regulated content was to be downloaded through e-books that were regulated and copyrighted. However, Adam copied the on-screen content and manipulated the poem wordings to suit his website.
Adam in London University starts a movement in conjunction with other academics seeking to convince the government to provide for copyright limitations that are specific. The bill is soon to be passed and it will allow making available and reproduction of any work to a small group of students and researchers, if the author is given a fair compensation and that there are adequate technical measures put in place to restrict access to the intranet.
From the case scenario, this would not violate the international and European copyright law since the two unprotected exclusive rights under the Berne and WCT, namely communication and reproduction rights, allows for reproduction of work for research and education purposes. So long as the statutory license provision here has no prejudice to the authors’ legitimate interest unreasonably, and that there is an appropriate balance is struck between authors rights and those seeking objectives of education, there would be no violation.
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OLG Hamburg, Urteil vom 7.7.2005, 5 U 176/04, ZUM 2005/10, p. 749-751.
 EWHC 1268 (Ch) (Lindsay J) 8/5/2006; see: S. Sampson, “Streaming of live television broadcasts over the Internet found to infringe copyright”, Computer Law & Security Report 2006/22, pp. 413-415.
OLG Köln, Urteil vom 9.9.2005, 6 U 90/05 (Personal Video Recorder), GRUR-Rechtssprechungs Report, 2006/1, p. 5-7.