The International Three-Step Test. A Model Provision for EC Fair Use Legislation

The three-step test is central to the regulation of copyright limitations at the international level. Delineating the room for exemptions with abstract criteria, the three-step test is by far the most important and comprehensive basis for the introduction of national use privileges. It is an essential, flexible element in the international limitation infrastructure that allows national law makers to satisfy domestic social, cultural, and economic needs. Given the universal field of application that follows from the test’s open-ended wording, the provision creates much more breathing space than the more specific exceptions recognized in international copyright law. EC copyright legislation, however, fails to take advantage of the flexibility inherent in the three-step test. Instead of using the international provision as a means to open up the closed EC catalogue of permissible exceptions, offer sufficient breathing space for social, cultural, and economic needs, and enable EC copyright law to keep pace with the rapid development of the Internet, the Copyright Directive 2001/29/EC encourages the application of the three-step test to further restrict statutory exceptions that are often defined narrowly in national legislation anyway. In the current online environment, however, enhanced flexibility in the field of copyright limitations is indispensable. From a social and cultural perspective, the web 2.0 promotes and enhances freedom of expression and information with its advanced search engine services, interactive platforms, and various forms of user-generated content. From an economic perspective, it creates a parallel universe of traditional content providers relying on copyright protection, and emerging Internet industries whose further development depends on robust copyright limita- tions. In particular, the newcomers in the online market – social networking sites, video forums, and virtual worlds – promise a remarkable potential for economic growth that has already attracted the attention of the OECD. Against this background, the time is ripe to debate the introduction of an EC fair use doctrine on the basis of the three-step test. Otherwise, EC copyright law is likely to frustrate important opportunities for cultural, social, and economic development. To lay groundwork for the debate, the differences between the continental European and the Anglo-American approach to copyright limitations (section 1), and the specific merits of these two distinct approaches (section 2), will be discussed first. An analysis of current problems that have arisen under the present dysfunctional EC system (section 3) will then serve as a starting point for proposing an EC fair use doctrine based on the three-step test (section 4). Drawing conclusions, the international dimension of this fair use proposal will be considered (section 5).

Unsticking the centre-piece – the liberation of European copyright law?

Following European legislative initiatives in the field of copyright limitations and exceptions, policy flexibilities formerly available to mem- ber states has been greatly diminished. The law in this area is increasingly incapable of accommodating any expansion in the scope of freely permitted acts, even where such expansion may be an appropriate response to changes in social and technological conditions. In this article, the causes of this problem are briefly canvassed and a number of potential solutions are noted. It is suggested that one such solution – the adoption of an open, factor-based model similar to s 107 of the United States’ Copyright Act – has not received the serious attention it deserves. The fair use paradigm has generally been dismissed as excessively unpredictable, contrary to international law and/or culturally alien. Drawing on recent fair use scholarship, it is argued here that these disadvantages are over-stated and that the potential for the development of a European fair use model merits investigation.

CAD Files and European Design Law

Three-dimensional printing (“3DP”) is an additive manufacturing technology that starts with a virtual 3D model of the object to be printed, the so-called Computer-Aided-Design (“CAD”) file. This file, when sent to the printer, gives instructions to the device on how to build the object layer-by-layer. This paper explores whether design protection is available under the current European regulatory framework for designs that are computer-created by means of CAD software, and, if so, under what circumstances. The key point is whether the appearance of a product, embedded in a CAD file, could be regarded as a protectable element under existing legislation. To this end, it begins with an inquiry into the concepts of “design” and “product”, set forth in Article 3 of the Community Design Regulation No. 6/2002 (“CDR”). Then, it considers the EUIPO’s practice of accepting 3D digital representations of designs. The enquiry goes on to illustrate the implications that the making of a CAD file available online might have. It suggests that the act of uploading a CAD file onto a 3D printing platform may be tantamount to a disclosure for the purposes of triggering unregistered design protection, and for appraising the state of the prior art. It also argues that, when measuring the individual character requirement, the notion of “informed user” and “the designer’s degree of freedom” may need to be reconsidered in the future. The following part touches on the exceptions to design protection, with a special focus on the repairs clause set forth in Article 110 CDR. The concluding part explores different measures that may be implemented to prohibit the unauthorised creation and sharing of CAD files embedding design-protected products.