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

Abstract

International law making and harmonization activities have led to a remarkable approximation of Anglo-American copyright and continental European droit d'auteur.To this day, however, the approach to copyright limitations differs significantly: Whereas continental European countries provide for a closed catalogue of carefully defined exceptions, the Anglo-American copyright tradition allows for an openended fair use system that leaves the task of identifying individual cases of exempted unauthorized use to the courts.2 Reflecting the continental European approach, Article 5 of the EC Copyright Directive sets forth various types of specific copyright exceptions.Besides the mandatory exemption of temporary acts of reproduction to be implemented by all member states, Article 5 contains optional exceptions that relate to private copying; use of copyrighted material by libraries, museums, and archives; ephemeral recordings; reproductions of broadcasts made by hospitals and prisons; illustrations for teaching or scientific research; use for the benefit of people with a disability; press privileges; use for the purpose of quotations, caricature, parody, and pastiche; use for the purposes of public security and for the proper performance or reporting of administrative, parliamentary, or judicial proceedings; use of political speeches and public lectures; use during religious or official celebrations; use of architectural works located permanently in public places; incidental inclusions of a work in other material; use for the purpose of advertising the public exhibition or sale of artistic works; use in connection with the demonstration or repair of equipment; use for the reconstruction of buildings; and additional cases of use having minor importance.3 A prominent example of the Anglo-American approach to copyright limitations is the fair use doctrine that has evolved in the United States.Section 107 of the U.S. Copyright Act permits the unauthorized use of copyrighted material for purposes "such as criticism, comment, news reporting, teaching […], scholarship, or research."5 To guide the decision on individual forms of use, four factors are set forth in the provision which shall be taken into account among other considerations that may be relevant in a given case:(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

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