Who are the addressees of the InfoSoc three-step test? A new article

National courts as addressees
of the InfoSoc three-step test?!?

This question has probably haunted the minds and hearts of many 1709 Blog readers. 

This is because, unlike the three-step test in international copyright instruments, it is uncertain who the addressees of the test in Article 5(5) of the InfoSoc Directive are. Are they national legislatures only, or national legislatures and courts alike?

Mr Justice Richard Arnold and I have just completed an article [available here] on this very issue, that will be published by the Journal of Intellectual Property Law & Practice.

The title of our contribution is Are national courts the addressees of the InfoSoc three-step test?.

And here's the abstract:

"Directive 2001/29/EC (the ‘InfoSoc Directive’) contains an exhaustive list of exceptions and limitations that Member States are free to implement into their own copyright laws (save that the exemption for temporary copies is mandatory). Article 5(5) incorporates the three-step test and mandates that exceptions and limitations shall only be applied in certain special cases that do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder. Unlike the three-step test in international copyright law, it is uncertain whether the three-step test in the InfoSoc Directive is addressed to national courts as well as the legislatures of the Member States.

Recent case law of the Court of Justice of the European Union (‘CJEU’) has provided guidance in this respect. Although the Court has held that Article 5(5) of the InfoSoc Directive is not intended to affect the substantive content of the exceptions contained in Article 5(1), (2) and (3) thereof, and hence cannot extend their scope, and has held that, if acts clearly fall within one of those exceptions, then they satisfy Article 5(5), it has also held that those exceptions must be construed in the light of Article 5(5). More significantly, despite holding that Article 5(5) takes effect only at the time that the exceptions are applied by the Member States, the CJEU has also held that the acts of the defendant in question must satisfy the requirements of Article 5(5). As such, it appears from the CJEU’s jurisprudence that the three-step test in the InfoSoc Directive is addressed at national legislators and courts alike.

The consequence of this is that, even in those Member States that have not transposed the language of the three-step test into their own legal systems, courts must determine not only whether the acts of the defendant in question are eligible for the application of a certain exception or limitation, but also whether they comply with the cumulative conditions set in the InfoSoc three-step test."