Editing Berne three-step test (section)

== Berne Convention ==
The three-step test was first established in relation to the [[exclusive right of reproduction]] under Article 9(2) of the [[Berne Convention for the Protection of Literary and Artistic Works]] in 1967. Article 9 of the Berne Convention states that:
<blockquote>
''Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings'' - (1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form. '''(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.''' (3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention. 
</blockquote>

The test is vague; But, spelled out in the formulation of Hugenholtz and Okediji,<ref>{{cite journal |last1=Hugenholtz |first1=P. Bernt |last2=Okediji |first2=Ruth |title=Conceiving an International Instrument on Limitations and Exceptions to Copyright |journal=Amsterdam Law School Research Paper |date=March 7, 2012 |volume=2012 |pages=37 |doi=10.2139/ssrn.2017629|s2cid=152366700 }}</ref> the three steps are:
# Limitations and exceptions cannot be "overly broad" [= "certain special cases"]
# Limitations and exceptions cannot "rob right holders of a real or potential source of income that is substantive" [= "conflicting with normal exploitation of the work"]
# Limitations and exceptions cannot "do disproportional harm to the rights holders" [= "prejudice legitimate interests"]


The three-step test in Article 9(2) of the Berne does not apply to copyright exceptions that are implemented under other parts of the Berne convention that have a separate standard, such as those in articles 2(4), 2(7), 2(8), 2&nbsp;bis, 10, 10&nbsp;bis and 13(1), or the Berne Appendix. 

=== Other copyright treaties ===
The three-step test has been modified and transplanted into the [[Agreement on Trade-Related Aspects of Intellectual Property Rights]], the [[WIPO Copyright Treaty]] (Article 10), the [[WIPO Performances and Phonograms Treaty]] (Article 16(2)), the EU [[Computer Programs Directive]] (Article 6(3)), the [[EU Database Directive]] (Article 6(3)), and the [[Information Society Directive|EU Copyright Directive]] (Article 5(5)).

The test as included in Article 13 of TRIPs reads:
<blockquote>
"Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder."
</blockquote>

The WTO three-step test does not apply to cases where the Berne or Rome Conventions provide separate standards for exceptions, or for rights not covered in the TRIPS Agreement.