The nature and content of the three-step test in EU copyright law: a reappraisal

This chapter discusses the role played by the so-called three-step test in European Union (EU) copyright law. It suggests that the three-step test as implemented into EU law is principally intended to ensure compliance with international law. As a result, the interpretation of both EU and national law in light of the three-step test should take into account the considerable margin of discretion inherent in the test. The test is not to be understood as delineating the precise scope of protection, nor does it require implementation into national law. In order to determine whether (the scope of) a particular limitation or exception exceeds the boundaries of the three-step test, courts should principally assess the trade-off between the contribution of protection to the objectives of copyright and other competing considerations. This is also consistent with the need to ensure that a fair balance of rights and interests is struck, as identified by the Court of Justice of the European Union. Consequently, the Court itself, until now far from a beacon of consistency and largely blind to competing considerations when applying test, ought to adjust its approach.