EU copyright legislation has cultivated the constraining function of the three-step test known from Article 9(2) of the Berne Convention, Article 13 TRIPS and Article 10 of the WIPO Copyright Treaty. Instead of transposing into EU law the dualistic concept of these international provisions – the enabling function that creates room for the adoption of copyright limitations at the national level as well as the constraining function that sets limits to domestic copyright limitations – Article 5(5) of the 2001 Information Society Directive and Article 7(2) of the 2019 Digital Single Market Directive reduce the three-step test to the constraining function that further restricts copyright limitations and exceptions (L&Es) which are circumscribed precisely anyway. In the EU, the three-step test cannot be invoked as an instrument to extend the scope of L&Es or create new L&Es to avoid overbroad copyright protection. The jurisprudence of the Court of Justice of the European Union (CJEU) enhances the constraining effect by placing the three-step test in the context of the obligation to interpret L&Es strictly and allowing the balancing of copyright protection against competing fundamental freedoms only within the statutory system of rights and limitations in EU copyright law.
The result is a three-step test that has been transformed from a flexible balancing tool into a robust straitjacket of copyright L&Es. After the CJEU decision in Pelham, the three-step test even determines the maximum space for freedom of expression and information, freedom of the arts, freedom of the press and freedom of science. Considering that the fundamental rights in the EU Charter of Fundamental Rights have a higher rank in the norm hierarchy than the three-step tests in EU copyright law, this development is highly inconsistent and worrisome. It may even lead to a disproportionate, unconstitutional maximization of copyright protection. Against this background, the analysis discusses ways out of the dilemma and makes recommendations for a different approach that would render the EU copyright infrastructure for L&Es more flexible. As a result, EU copyright law would become capable of satisfying cultural, social and economic needs in times of rapid technological change – with beneficial effects for society as a whole.
Senftleben, Martin, EU Copyright 20 Years After the InfoSoc Directive – Flexibility Needed More Than Ever (November 1, 2021).