Unlike the three-step test in international copyright instruments, it is uncertain who the addressees of the test in Article 5(5) of the EU Information Society Directive 2001/29/EC are. Are they national legislatures only, or national legislatures and courts alike?
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. However, unlike the three-step test in international copyright law, it is uncertain whether the three-step test in the EU Information Society Directive is addressed to national courts as well as the legislatures of the EU Member States.
Referring to recent case law of the Court of Justice of the European Union (CJEU) in this respect, the authors conclude that it appears from the CJEU’s jurisprudence that the three-step test in the EU Information Society Directive is addressed at national legislators and courts alike. Even in those EU 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 of the three-step test as set in Article 5(5) of the EU Information Society Directive.
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