One aspect of the international treaties on copyright to which the US is a party has been getting quite a bit of attention recently. The “three-step test” is a provision in the Berne Convention and in the TRIPs (Trade Related aspects of Intellectual Property) Agreement that broadly defines the role of limitations and exceptions in copyright law. It is possible to read the three-step test as providing only a very small window for limitations on and exceptions to the exclusive rights granted by copyright, and “Big Content” has been very active in promoting that interpretation. Recently a legal opinion letter was submitted to the National Institute of Health trying to argue that the NIH Public Access Policy, for example, violated the three-step test.
Applying the three-step test to something like the NIH policy is absurd, but the argument is made for its value as a scare-tactic. Politicians and bureaucrats are very sensitive these days to international aspects of intellectual property, so the three-step test is a very handy club with which to pound into legislative heads one’s own economic interests. So it is very refreshing to read the new Declaration by a group of European IP scholars from the Max Plank Institute on Intellectual Property, Competition and Tax Law on “A Balanced Interpretation of the “Three-Step Test” in Copyright Law.” The authors of the declaration argue convincingly that the test should be understood as a comprehensive framework for interpreting limitations and exceptions, rather than as a set of three steep hurdles over which any proposed exception must leap. They emphasize that the interests of third parties, as well as domestic decisions about the best way to restrict IP monopolies, are not incompatible with the international three-step test.
Beyond its main point, however, I was struck by a simple distinction that is made within the declaration that, to me, has implications well beyond the debate over limitations and exceptions. The authors remind us that the implications of any proposed limitation or exception for both “original rightsholders” and “subsequent rightsholders” should be considered. This simple recognition that the interests of “authors,” who are the original holders of copyright, are often not identical to or necessarily compatible with the interests of those to whom those rights are traditional transferred is profoundly true in the area of scholarly publishing. As I have stressed many times, scholarly authors are usually rewarded almost exclusively by reputation and by reward structures internal to their institutions. Thus their interest is usually in the widest possible distribution of their work. The “subsequent rightsholders” of scholarly work, however, are interested in profits, and their interests may prevent the wide distribution that would best serve scholarship.
To my simple mind, this distinction carries enormous power. Throughout history, all the way back to the 18th century “battle of the booksellers,” publishers and other distributors have appealed to the image of the poor, starving writer to demand stronger copyright protection. But the interests of the two groups are seldom the same and often conflict. Another recent document on international copyright, the “Green Paper on Copyright in the Knowledge Economy,” issued by the European Commission a couple of weeks ago, reinforces this point. In considering the very strong protections contained in a recent EU Directive on the Harmonization of Copyright, the EC report notes that there have been persistent questions raised about whether these broad exclusive rights actually translate into an advantage for authors of the works, who are, of course, supposed to be the principle beneficiaries of copyright protection. Performers, composers, film directors and journalists all complain, according to the report, that they are not making any extra revenue (no increased incentive) because of those new, stronger protections; all of the benefit is directed to the big distribution conglomerates that take copyright from creators and exploit it for their own benefit. This is the dilemma of scholarly authors on a larger scale, and we should watch the debates taking place in Europe for insights into why it is such a bad idea for scholarly authors to transfer copyright to publishers who do not have the best interests of either scholars or scholarship at heart.