In my previous post, I introduced Article 10 of the Berne Convention. In this post, I want to focus on Article 9(2) of the Berne Convention which contains what has become known as the three step test. Article 9(2) of the Berne Convention provides that: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

Article 9(2) permits countries to introduce exceptions to the right of reproduction given to authors of literary and artistic works in Article 9(1) of the Berne Convention. However, such exceptions must satisfy three requirements: (i) they must be limited to ‘certain special cases’ (ii) they must not be in conflict with ‘a normal exploitation’ of the literary or artistic work, and (iii) they must not ‘unreasonably prejudice the legitimate interests of the author’ of the literary or artistic work. Now, there is no universal agreement on what these three requirements really mean.

Nevertheless, one thing is clear: Article 10 of the Berne Convention is distinct from and not subject to the requirements of Article 9(2) of the Berne Convention. As noted in the Records of the Stockholm Conference of 1967 where Article 9(2) was introduced:

“The Drafting Committee was unanimous in adopting, in the drafting of new texts as well as in the revision of the wording of certain provisions, the principle lex specialis legi generali derogat: special texts are applicable, in their restricted domain, exclusive of texts that are universal in scope. For instance, it was considered superfluous to insert in Article 9, dealing with some general exceptions affecting authors’ rights, express references to Articles 10, 10bis, 11bis and 13 establishing special exceptions.”

Thus, countries that want to introduce exceptions based on Article 10 of the Berne Convention need not worry about satisfying the requirements of Article 9(2) of the Berne Convention. You might be wondering, ‘but what about the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)?Doesn’t that change everything?’ In my next post, I will examine the impact of the version of the three step test incorporated into Article 13 of the TRIPS Agreement on Article 10 of the Berne Convention.