The Application of the 'Three-Step-Test' and its Policy Implications in Uganda

Abstract

The different Limitations of or Exception to copyright (L&Es) do not extinguish the underlying bundle of exclusive rights conferred to the rights holder and for this reason they need to be limited in scope. The application of the ‘Three-Step-Test’ in the copyright law provides a mechanism that attempts to strike a balance between the increasingly complex interests of copyright owners and those of others in the copyrighted works by setting a predefined scope to these L&Es. An exploratory case-study using a qualitative research approaches was conducted to philosophically examine this application and its policy implications to the copyright system in Uganda. The copyright law considered for the study was the Copyright and Neighboring Rights Act, 2006 of Uganda. The study findings revealed that the ‘Three-Step-Test’ was only partially applied under the broad ‘fair uses of protected works’ exception which is the general exception provision on copyright L&Es in the copyright law of Uganda. From the results, the L&Es in the copyright law of Uganda can be broadly classified into four groups on the aspects of, 1) ownership, or 2) exploitation, or 3) enforcement and or 4) liability following an infringement. This classification is as per the general aspects/elements of copyright and neighbouring rights impacted on by the institution of the different forms of L&Es. It also emerged that [policy] implications of the application of the ‘Three-Step-Test’ to the copyright policy landscape of [Uganda] are contextual and the effect differed from context to context. Results showed that the policy implications were different when the ‘Three Step-Test’ was applied in the current policy landscape which is characterized with specific statutory L&Es, an enumerated fair use doctrine and bits of fair practices/dealings contained in the general fair use doctrine. They also showed that the policy implications would totally be different when the ‘Three-Step-Test’ was applied in the copyright law of Uganda as the sole regulating doctrine of the L&Es. From the study findings, it emerged one has to explore the questions of ‘where the utility in the application of ‘Three-Step Test’ is?’ and ‘where the utility effect from the application of ‘Three-Step-Test’ is?’, to understand what the different policy implications would be following such application. In conclusion, in an already open-ended copyright system of L&Es like one for Uganda that applies majorly the fair use doctrine in the copyright laws to set the appropriate checks and balances. The subsequent incorporation or scaling of the application of the ‘Three-Step-Test’ in the copyright system might not have any substantial effect in the existing access to and exploitation patterns of the protected works as it would have in a closed system all, other factors kept constant.