Tuesday, February 14, 2012

CJEU: Does The Three Step Test Matter?

Huťko almost missed the publication of Infopaq II. C-302/10 decision. On 17th of January, CJEU pronounced its awaited decision on ´temporary and transient reproductions´, monitoring agencies and most importantly the role of the Union three step test. So what CJEU said?

 Question 7 relating to the condition that the acts of reproduction must neither conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the rightholder
55      By its seventh question, the referring court asks, in essence, whether Article 5(5) of Directive 2001/29 must be interpreted as meaning that the acts of temporary reproduction carried out during a data capture process, such as those in issue in the main proceedings, fulfil the condition that those acts must neither conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the rightholder.

56      In that regard, suffice it to note that if those acts of reproduction fulfil all the conditions of Article 5(1) of Directive 2001/29, as interpreted by the case-law of the Court, it must be held that they do not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder (Football Association Premier League and Others, paragraph 181).

57      Consequently, the answer to the seventh question is that Article 5(5) of Directive 2001/29 must be interpreted as meaning that, if they fulfil all the conditions laid down in Article 5(1) of that directive, the acts of temporary reproduction carried out during a ‘data capture’ process, such as those in issue in the main proceedings, must be regarded as fulfilling the condition that the acts of reproduction may not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder.
Huťko wonders whether this would be also the case for other copyright exceptions listed in article 5(2) or 5(3) of InfoSoc directive as they are not mandatory and leave more space to the member states in comparison to art. 5(1). I guess, in case of these exceptions, the three steep test would be still decisive and important to read.

Also note that Infopaq II. again confirms that exceptions should be interpreted narrowly.

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