The World Has Adopted the Three-Step Test. Now it’s Time for NAFTA Negotiators to Do the Same

As the third round of negotiations over a modernized North American Free Trade Agreement (NAFTA) take place in Ottawa, Canada this week, negotiators from the United States, Canada and Mexico will begin to consider the copyright provisions of NAFTA. Much of the discussion has focused on a provision that sets forth what test these countries should use to determine the scope of exceptions and limitations in their copyright laws. For decades, the test that has been used not only by the United States in all its free trade agreements (FTAs), but by every other country, is what is commonly referred to as the “three-step test.”

The three-step test is the international consensus for ensuring balanced copyright law. It is appropriately tailored, provides legal certainty, and is consistent with U.S. law. Specifically, the test permits certain socially beneficial limitations and exceptions that do not interfere with the ability of copyright owners to continue to produce and distribute new works to the public in innovative and emerging markets. This test was first established in the Berne Convention, and it is reiterated in WTO TRIPS Agreement, the WIPO Copyright Treaty, and U.S. FTAs.

The Trans-Pacific Partnership (TPP), which the U.S. withdrew from earlier this year, proposed a different test. This new test included language requiring parties to “endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with” the three-step test. This new language is expansive and undefined, and relies on a concept that is not articulated in any relevant U.S. law, which would introduce a level of confusion and uncertainty among our trading partners. In fact, this provision encourages our trading partners to start with U.S. law and then move backwards, in terms of either under-implementing copyright protections or over-implementing copyright exceptions pursuant to an infinite range of countervailing interests, which will very likely not promote U.S. creators. No substantiated justification has been offered for departing from the internationally well-established three-step test.

We firmly believe in well-balanced copyright law. But what does balance mean?  Certain groups – let’s call them copyright non-believers – like to use the term “balance” as a ruse to pit creators’ against the public interest. The underlying assumption is that creators’ interests are divergent from the public’s interests, and that one can only be furthered at the expense of the other. But this isn’t the case – protecting creators is in the public interest because we all benefit from the work they create.

A diverse chorus of voices has spoken out in favor of the three-step test, including a group of 19 organizations and unions representing creative individuals and small and medium businesses, CreativeFuture, music industry groups, property rights groups, and the U.S. Chamber of Commerce.

As a representative of the copyright community, the Copyright Alliance joins this chorus in support of creators and balanced copyright law. We urge U.S. negotiators to stand with us by endorsing the three-step test and resisting efforts to depart from this well-established, international standard.

Photo Credit: Wavebreakmedia Ltd/Wavebreak Media/thinkstock