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The “Three-Step test in UK Copyright Law

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The balancing methodology
Jonathan GriffithsQueenMary, University ofLondonCIPILSpringConference,11thMarch 2017
Balancing in IP and fundamental rights
The rhetoric of “balance” in IP discourseMore than rhetoric?Canadian copyright law and balance“Fair balance” in EU copyright lawMy focus todayThe application of the “fair balance” modelIssues presented by adoption of the model
“Fair balance” as a background value in EU copyright law
Early copyright jurisprudence – e.g.(C-200/96)MetronomeMusikGmbH“A fair balance of rights and interests between the different categories ofrightholders, as well as between the different categories ofrightholdersand users of protected subject-matter must be safeguarded….” (ISD,Recital 31)“Fair balance” a term of art in EU public / human rights law
“Fair balance” in remedial measures - (C-275/06)PromusicaevTelefónicadeEspañaSAU
“…MemberStates must, when transposing thedirectives…,take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member Statesmust…makesure that they do not rely on an interpretation of them which would be in conflict with those fundamentalrights…” [68]
Building onPromusicae
(C-70/10)Scarlet Extended(C-461/10)Bonnier Audio AB(C-314/12)UPCTelekabelWien GmbH[(C-580/13)Coty Germany](C-484/14)McFaddenNational application in the United Kingdom
Interpretation of exceptions
“That fair balance isstruck…byfavouringthe exercise of the users’ right to freedom of expression over the interest of the author in being able to prevent the reproduction of extracts from his work…From those two opposing points of view, the issue of whether the quotation is made as part of a work protected bycopyright…isirrelevant.” (C-145/10)Painerv StandardVerlagsGmbH[135]-[136])“Metall-auf-Metall” 1BvR1585/13 (Germany)
Application of exceptions - (C-201/13)DeckmynvVandersteen
“Itfollowsthat the application, in a particular case, ofthe exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception forparody…” [27]
Scope of rights - (C-160/15)GS Media
“…[T]heharmonisationeffected by[Directive 2001/29]istomaintain…afair balancebetween…theinterests of copyright holders and related rights in protecting their intellectual property rights, safeguarded by Article 17(2)…and…theprotection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and ofinformation, safeguardedby Article 11 of the Charter, and of the general interest.” [31]
Scope of rights - (C-160/15)GS Media
Internet of particular importance to freedom of expression and information [45]“[I]tmay bedifficult…forindividuals who wish to post such links, to ascertain whetherthe websiteto which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on theinternet….”[46]
What is happening in these cases?
Movement towards “fair balance” as a more deeply integrated principle?Situationin which existing rules provide little guidance (or an obstacle to a desirable outcome)Fundamental rights providing structure of justification for outcomesAllows progressive development of regulation
Advantages of reliance on concept of “fair balance”
Particularly underdeveloped set of rules in EU copyright lawProvision of a framework of principled development – what alternative?Ensures consistent development with other adjacent areas of lawScholars welcoming development – notably Geiger, alsoOhly,Schovsbo, Angelopoulos
Potential problems of reliance on the“fair balance” model
Relatively uncertain geometry of the balancing methodology – meaning of “fair balance” not entirely settled - discretion? proportionality?essence?relationship with fundamental freedoms?Differingcategories of problem:Incomplete application of the modelConsequences of full adoption of the model
Insufficient commitment to the “fair balance” model?
Inconsistentapplication offundamental rights framework?(C-466/12)Svenssoncf(C-160/15)GS Media(C-277/10)Luksancf(C-52/13)Reprobel(C-301/15)Soulier(C-174/15)VerenigingOpenbareBibliothekenConsistency with other interpretative principles? – narrow interpretation, “three-step test”, purposive interpretation?
Insufficient commitment to the “fair balance” model?
Lack of detailed reference to fundamental rights law (eg(C-484/14)McFadden)Particular problem with the right ofproperty (Husovec,Mylly,Peukert)
More consistent application of a “fair balance” model?
Diminution in significance of secondary legislationRisk of “petrification” (Husovec); “lock-in” (Mylly)Difficulty of accommodating more diffuse interestsAnalysis not always bipolarbutcftransformativeness, economic efficiencyMitigated by broad potential coverage of rights
“Fair balance” – a background value, useful tool or consistentorganisingprinciple?Ad hocreference acceptable?





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The “Three-Step test in UK Copyright Law