International Intellectual Property

International Intellectual Property

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Daniel J. Gervais

International Intellectual Property: A Handbook of Contemporary Research provides researchers and practitioners of international intellectual property law with the necessary tools to understand the latest debates in this incredibly dynamic and complex field. The book contains both doctrinal analyses and groundbreaking theoretical research by many of the most recognized leading experts in the field. It offers overviews of the major international instruments, with specific chapters on the Berne and Paris Conventions, the Patent Cooperation treaty and several chapters that discuss parts of the TRIPS Agreement. The book can also be used by students of international intellectual property to obtain useful knowledge of major institutions and instruments, and to gain an understanding of ongoing discussions.

Chapter 5: Understanding the “three-step test”

Christophe Geiger, Daniel J. Gervais and Martin Senftleben

Subjects: law - academic, intellectual property law, public international law


In the current debate on flexibility in the area of exceptions and limitations (E & Ls) to intellectual property, the three-step test embodied in the Berne Convention, the TRIPS Agreement and several other more recent instruments have taken centre stage. In this chapter, we explain the history, purpose and interpretation of the test. In Part I, we consider the drafting history of the international three-step test. In Part II, we unpack the criteria of the three-step test and offer guidance on their interpretation. In Part III, we suggest that national legislation can, and in many cases probably should, preserve flexibility by allowing the courts to identify ex post new use privileges on the basis of the test’s criteria. The first version of the three-step test in international copyright law emerged as article 9(2) of the Berne Convention. It served as a counterweight to the formal recognition of a general right of reproduction at the 1967 Stockholm Berne Convention Revision Conference. It is not entirely accurate to say that the right of reproduction was added to the Berne Convention only at the Stockholm Conference. It was already there in various forms. However, it is true that a general right of reproduction was recognized at the 1967 Stockholm Conference, and with it, the need for a general clause regulating exceptions and limitations.

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