Exceptions to the exceptions, or the Three-step Test

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International law (Art. 9 para. 2 Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), Art. 13 Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), Art. 10 WIPO Copyright Treaty (WCT), Art. 16 para. 2 WIPO Performances and Phonograms Treaty (WPPT)) specifies for the protection of the author and the owner of rights when and to what extent their exclusive right may be limited. The Three-step Test conforms to the legislature and specifies

  • that copyright limitations may only be limited to particular special cases (1st level),
  • normal exploitation of the work by the author and owner of rights may not be impacted (2nd level),
  • and the legitimate interests of the author and the owner of rights may not be unreasonably infringed (3rd level).

The limitation to particular special cases (1st level) forbids general or very broad limitations; for example, copying for any use. However, the limitation to particular cases of private use, such as in Art. 19 para. 1 CopA, or the copying of a work for disabled people (Art. 24c CopA) is permitted.

The 2nd level is supposed to ensure that the limitation of the exclusive right of the author and the owner of rights or their option to exploit their work are proportionate. The customary (commercial) marketing forms remain reserved to the author and the owner of rights. Their financial interests should continue to be protected. For example, the publishing house should reserve the right to sell complete magazines on the market (Art. 19 para. 3(a) CopA). However, the user entitled to private use is permitted to copy individual articles from a corresponding magazine; because the sales of magazines will not be impacted as a result (c.f. BGE 140 III 633 as well for further information).

Finally, through the 3rd level, there is a balancing of interests between the interests of the author or the owner of rights and those of the third party. Seen from this angle, the law presupposes a duty of remuneration to the author or the owner of rights, if necessary, in order for the encroachment of their exclusive rights not to seem unreasonable (BGE 133 III 486).