The “Three-Step Test” and the Wider Public Interest: Towards a More Inclusive Interpretation
Intellectual property law aims to protect the public interest in two often-contradictory ways: by granting exclusive rights to encourage creativity and by limiting those rights in certain situations for socially beneficial purposes. The Three-Step Test in international intellectual property treaties aims to ensure that limitations and exceptions to intellectual property rights do not inappropriately encroach upon the interests of rights holders. This article examines the interpretation of the Three-Step Test as included in the Agreement on Trade-Related Aspects of Intellectual Property Rights for copyright and patents by two World Trade Organization dispute-resolution panels and by other commentators. It looks at how these interpretations have dealt with the public policy motivations underlying limitations and exceptions to exclusive rights, and considers the ways in which the public policy intentions that underlie decisions by national legislators to adopt the limitations and exceptions to intellectual property rights can be considered in each step of the test. The conclusion reached is that the Three-Step Test contains the potential to allow both aspects of the public interest to be considered as part of an inclusive interpretation.