Although created more than four decades ago, the so-called “three-step test" has grown in importance over the last years since it began to be used in response to the abuse of the copyright exceptions in the digital context. After being initially confined to exceptions to the reproduction right, its scope was later extended to other rights and limitations.
However, unlike other mechanisms for assessment and adequacy of rights in apparent conflict, the formula of the “three-step test” came without a prior legal reference which helps determine its shape clearly. Given this lack of substance and genealogy, the rule has come to be construed and used in a well diverse, even contradictory, way by the authorities who have made decisions regarding the legitimacy of certain exceptions in the digital context.
There is much literature on the issue of the three-step test. Though it played more a constitutional role in the drafting of law, I think some countries actually included it in the local laws. It is the case in France, in article L122-5 (paragraph before last) of the copyright law., and also in article L122-6-1, same position, and a few other articles. I think these are recent modifications.
I assume you meant "cases" disputed in court. I do not recall any, but I am most likely incompetent to know that.
An interesting point though is that, like many laws, it could bite back those who designed it to their own advantage, My personnal opinion, which I do develop in some of my papers (in French or English), is that the three-step test could be used to curb the abuse of copyright that we see with digital creation. The point is that the three-step test is largely based on the economics of copyright and digitization of works has changed significantly these economics. There is more diversity in what some creators consider as normal exploitation of their work, thus creating a complex and multi-paradigm situation that did not exist before.
https://www.researchgate.net/publication/228663803_Orphan_Works_and_the_Google_Book_Search_Settlement_An_International_Perspective
Article Orphan Works and the Google Book Search Settlement: An Inter...
I published in 2011 (in the French Revue Internationale du droit d'auteur - in three languages French, English and Spanish) an article about chinese copyright law in which some china's cases concerning three steps tests are analysed. If you want to take a look at it, give me your email address, I will send it to you (I can't not post it here, because of the copyright).
You may like to have a look at this, which is useful regarding exceptions:
Nicolas Suzor,* Paul Harpur† and Dilan Thampapillai‡ "Digital copyright and disability
discrimination: From braille books to bookshare"
Thien, could you please send your article also to my e-mail address
Thank you in advance!
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