Define: Three-Step Test

The three-step test is a method used to assess whether someone has violated another person’s copyright. It entails examining three factors: (1) whether the use of the copyrighted material is limited to specific circumstances, (2) if it does not impede the owner’s regular utilization of the work, and (3) if it does not detrimentally affect the owner’s interests. This test bears resemblance to the fair-use doctrine in U.S. legislation.

The three-step test is a legal analysis utilised to ascertain whether the utilization of a protected work is deemed an infringement under the TRIPs and Berne Convention. This test comprises three steps: Is the utilization of the protected work confined to exceptional cases? Does the utilization of the protected work clash with the owner’s customary exploitation of the work? Does the utilization of the protected work unreasonably harm the legitimate interests of the owner? This test bears resemblance to the fair-use doctrine in U.S. law. For instance, if a musician intends to incorporate a sample from another artist’s song into their own music, they must apply the three-step test to determine if their use of the sample constitutes an infringement. Is the use of the sample limited to exceptional cases? In this scenario, it could be argued that employing samples is a prevalent practice in the music industry, thus not limited to exceptional cases. Does the use of the sample conflict with the owner’s customary exploitation of the work? If the sample is employed in a manner that competes with the original song, it may be deemed conflicting. Does the use of the sample unreasonably harm the legitimate interests of the owner? If the use of the sample detrimentally affects the original artist’s ability to profit from their work, it may be considered an unreasonable prejudice. By applying the three-step test, the musician can ascertain whether their use of the sample constitutes an infringement or not.

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This glossary post was last updated: 17th April 2024.