Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?

[Martin Senftleben] Abstract: ... lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure compliance with the three-step test laid down in Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement and Article 10 of the WIPO Copyright Treaty. An imbalanced, restrictive interpretation of the three-step test, however, can lead to an overly cautious approach that stifles TDM and makes broad inroads into the right to research – instead of establishing a proper balance between copyright protection and the right to research that supports TDM activities. Against this background, the analysis raises the question whether international copyright law covers TDM activities at all.