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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
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