THE LEGAL NATURE AND IMPACT OF THE THREE STEP-TEST IN THE LIMITATION OF INTELLECTUAL PROPERTY RIGHTS

I. INTRODUCTION

The three-step test functions as a regulatory mechanism that outlines the conditions under which exceptions and limitations to copyright may be deemed lawful, even in the absence of the author’s explicit permission. These conditions are (1) the limitations must be restricted to specific exceptional circumstances, (2) they must not harm the normal exploitation of the work, and (3) they must not unduly harm the legitimate interests of the rights holder. This test serves as an international oversight mechanism when the author’s economic rights are limited under copyright law1. The three-step test was first incorporated into the Berne Convention through the 1967 Stockholm Revision, initially in connection with the right of reproduction2. In 1967, at the conference, those responsible for international policymaking presented an abstract formula regarding the limitations that could be imposed on the right of reproduction in national copyright legislation. This formula, which came to be known as the ‘three-step test’, has been incorporated into various international treaties, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), the World Copyright Treaty (“WCT”) adopted by the World Intellectual Property Organization (“WIPO”), the WIPO Performances and Phonograms Treaty (“WPPT”), and at the European Union (“EU”) level, the EU Copyright Directive3.

The scope of the three-step test was broadened with TRIPS Article 13 to include not only the right of reproduction but also other economic rights. It was later revised under the WCT and WPPT, which entered into force in 20024. The fundamental function of the test is to monitor the limitations and exceptions imposed on the rights of the author. Additionally, it serves to balance the public’s interests with those of the author, establish a balance of economic and social interests at the international level, and contribute to the resolution of disputes regarding the limitation of intellectual rights5. In accordance with the legislation, the limitations and exceptions imposed on the economic rights of the author are monitored through the three-step test. In other words, the three-step test sets forth the necessary conditions for determining the lawfulness of the limitation of the author’s economic rights6.

II. LEGAL SOURCES OF THE THREE-STEP TEST

The three-step test, which emerged in international legal sources with the Stockholm Revision of the 1886 Berne Convention, provides a framework for establishing universal limits on legal regulations that restrict the rights of authors. Its objective is to reconcile the protection of rights holders’ interests with the broader public welfare goals. However, its structure, which is open to different interpretations in practice, and its inadequacy in meeting the needs of the digital age, have led to the emergence of alternative approaches and interpretations.

The provision regarding the three-step test introduced in the 1967 Stockholm Revision of the Berne Convention serves as a foundation for other international treaties. It stipulates that authors hold exclusive rights to permit the reproduction of their works in any form or manner, yet allows for reproduction in certain exceptional cases, provided it does not harm the author’s interests and does not prevent the use of the work, as stated in Article 9. Although the provisions in the Berne Convention are primarily focused on the right of reproduction, they also form the basis for national intellectual property limitations. The aim in establishing this foundation is not to impose uniform and general rules for limiting the author’s rights, whether for nationals or foreigners. Legislators have the discretion to regulate how the rights of the author may be limited. The three-step test provides only a minimum framework for these limitations7. When preparing an international treaty, an agreement could not be reached on the limitations and exceptions to ensure broad participation and accommodate different national legislations.

Following the Berne Convention, Article 13 of the TRIPS Agreement introduced the three-step test. However, unlike the Berne Convention, the TRIPS Agreement expanded the three-step test not only to include the right of reproduction but also to cover the author’s other economic rights8. Under Article 13 of the TRIPS Agreement, the three-step test allows for exceptions to exclusive rights in certain exceptional cases, provided they do not conflict with the normal use of the work and do not unjustly harm the legitimate interests of the rights holder. The primary aim of the TRIPS Agreement, unlike the Berne Convention, is not to increase the level of protection in the field of intellectual property, but rather to standardise these rights internationally, that is, to harmonise them9. In contrast, it has been stipulated under Article 9(1) of the TRIPS Agreement that the Berne Convention will be protected within the framework of TRIPS. From an intellectual property perspective, while the Berne Convention sets a certain level of protection through the three-step test, it should not be considered independently of Article 13 of the TRIPS Agreement10. The TRIPS Agreement considers the Berne Convention as a set of fundamental norms that establish minimum protection standards; it does not allow any deviation or restrictive interpretation of these provisions11.

Another aspect where the TRIPS Agreement diverges from the Berne Convention is its provision of a mechanism for the resolution of disputes. While the Berne Convention does not provide a specific dispute resolution centre for violations, Article 64 of the TRIPS Agreement grants authority to the World Trade Organization (“WTO”) in this regard12. If a national law restricts the economic rights of the author in a manner that conflicts with the three-step test, the WTO will examine this dispute in terms of compliance with the three-step test and reach a conclusion13.

Finally, the three-step test outlined in Article 13 of the TRIPS Agreement establishes an exceptions regime that, as a rule, must be interpreted in harmony with the provisions of the Berne Convention. In contrast, the scope of the application of the three-step test, particularly under Article 10 of the TRIPS Agreement, has been expanded beyond classical literary and artistic works to include technological content such as computer programs, databases, and similar materials14.

The rights of authors can be infringed not only by traditional methods but also by technological means. Therefore, when evaluating the exceptions and limitations on the author’s economic rights, not only traditional forms of infringement but also technological advancements must be considered; the three-step test should also be interpreted considering these developments. To keep pace with digital advancements, the WCT and WPPT agreements, prepared by WIPO, came into force in 2002. Thus, in this regard, the WCT and WPPT diverge from the TRIPS Agreement15.

Under the WCT, the three-step test is defined in Article 10(1), which stipulates that states party to this convention may provide for limitations or exceptions in their national legislation in certain special cases, provided these do not prevent the normal use of the work and do not harm the legitimate rights of the author. Article 1(4) of the WCT requires full compliance with Articles 1–21 of the Berne Convention and its Appendix. This provision has led to a consensus that actions such as use and storage of works in the digital environment are considered ‘reproduction’ under Article 9 of the Berne Convention16.

Article 10 of the WCT grants contracting states the opportunity to adapt exceptions and limitations from the Berne Convention in their national laws to suit the digital environment and, when necessary, develop new exceptions specific to the digital context. However, Article 10(2) of the WCT clearly stipulates that the boundaries of the exceptions under the Berne Convention will be preserved. Therefore, the provisions of the Berne Convention set the boundaries of rights in the digital environment as minimum protection standards. On the other hand, the general principles of the WCT, particularly as outlined in its preamble, call for a balance between public interest and authors’ rights, allowing for broader exceptions in certain cases, taking public interest into account, without being directly bound by the provisions of the Berne Convention.

In the WPPT, the provision regulating the three-step test is found in Article 16(2), which states: “Contracting Parties shall confine any limitations of or exceptions to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram”. Regarding the limitations and exceptions introduced under the WPPT, Article 16(1) allows member states to harmonise these limitations and exceptions with those applicable to literary and artistic works, ensuring they are in line with the Berne Convention, the TRIPS Agreement, and/ or the WCT. Furthermore, Article 16(2) of the WPPT stipulates that limitations and exceptions concerning the rights under this treaty must be “limited” to those that comply with the three-step test, ensuring the protection of the “legitimate interests” of the rights holders, namely the performers and phonogram producers. These provisions aim to balance the protection of rights holders with the public interest, providing a coherent and consistent framework for regulation within the international intellectual property regime17.

In addition to its international identity, the three-step test has gradually been incorporated into national legal texts in countries such as France, Portugal, China, and Australia18, with the stages of the test being directly or indirectly reflected in these national legal frameworks. While the three-step test plays a vital role in the protection of economic rights and the balancing of interests, it is not explicitly included in Turkish legislation.

III. ELEMENTS OF THE THREE STEP TEST

The three-step test consists of steps that require the limitation to be specific and related to a particular situation, not to conflict with the normal use of the work, and not to unjustifiably harm the legitimate interests of the rights holder. In the first step, under Article 9(2) of the Berne Convention, it is stipulated that the limitation must be specific and related to a particular case. In the second step, it is required that the limitation should not harm the legitimate interests arising from the normal use of the work by the rights holder. In the last step, the limitation must not adversely affect the legitimate interests of the rights holder without a reasonable justification19. Although each step is evaluated independently, this independent assessment alone is not sufficient to determine the lawfulness of the limitation. For the limitation to be considered lawful, all steps of the three-step test must be individually and fully satisfied20.

A. The Limitation Must Be in Certain Special Cases

In the first step of the test, an assessment is made as to whether the situation that limits the rights of the author is predetermined and foreseeable by everyone. In other words, ‘exceptions and limitations must be clearly defined21. For example, the reproduction of a work without the author’s consent is not lawful in every case; it is only considered lawful when such reproduction is connected to educational purposes22. Therefore, limitations that are not clearly defined or unspecified do not comply with the first step of the test. For this step to be applied, intellectual property holders must know where their rights begin and end and should be able to understand whether the use of their rights by third parties constitutes an infringement23. During the WTO negotiations, it was argued that to ensure the principle of certainty, any limitation should be clearly and explicitly defined in legal regulations. Two key conditions are required to accept that sufficient certainty is present. The first condition is that every individual should have access to the legal regulations related to the relevant limitation. The second condition is that the legal text must be sufficiently precise to ensure the predictability of the limitation for the author24.

However, the concept of the limitation being ‘special’ must also be clearly and precisely defined. In its decision, the WTO defined the term ‘special’ as having a limited application and purpose25. In the literature, the term ‘special’ in the first step of the three-step test has been addressed both qualitatively and quantitatively. However, in the WTO decision, the assessment in terms of quantity is given more prominence. For a limitation or exception to the economic rights of the author to be considered ‘special,’ it must be applied in a quantitatively limited manner. However, it is not sufficient for a limitation to be considered ‘special’ based solely on quantitative criteria26. It is not always possible to quantitatively limit exceptions in the face of technological developments. For example, in a limitation on the right of distribution and reproduction in the online environment, it cannot be expected that such a limitation will remain at a low quantitative level27. Therefore, evaluations based solely on quantity are not sufficient to determine the compliance of limitations specific to recent technologies with the three-step test. Additionally, determining the number of limitations and exceptions on economic rights is quite difficult. This is because issues such as how often limitations on economic rights can be applied or whether these limitations will be repeated are uncertain. Even if the number of limitations is determined, it is impossible to ascertain how many times these limitations have been used. For this reason, it is not possible to foresee a definitive number or usage percentage to determine compliance with the three-step test. For example, under Article 34 of the Law No. 5846 on Intellectual and Artistic Works (“FSEK”), it is envisaged that a new work can be created by adapting an existing work for educational and instructional purposes. However, determining the method of adaptation and the number of copies to be distributed of this adapted work is not an easy task28. Therefore, the regulatory function of the quantitative aspect of the term ‘specific’ is quite limited; in contrast, its qualitative aspect demonstrates that the limitation on the author’s economic rights serves a distinctive or exceptional purpose29. In this context, the policies determined by the country within the scope of its regulatory authority are significant. Thus, the qualitative definition of the special case should be determined within the framework of national policies to serve the purpose of the exception. For example, when examining the exception related to persons with disabilities regulated under Article 11 of the Additional Provisions of the FSEK, the Turkish legislator has adopted a policy aimed at facilitating access to information for disabled individuals. In this context, understanding the purpose for which the exception is applied, rather than how frequently it is used, leads to the conclusion that the requirement of being limited to exceptional cases is fulfilled30.

In summary, the criterion of being ‘limited to certain special cases,’ which constitutes the first step of the three-step test, should be evaluated in two distinct dimensions — ‘certain’ and ‘special’ — with respect to the limitations and exceptions imposed on the author’s economic rights31.

B. Not Conflicting with the Normal Exploitation of the Work

The second step of the test requires that the limitation does not conflict with the ‘normal’ exploitation of the work, aiming to ensure that the author can keep their work under legal protection in the way they are accustomed to presenting it. Although there are discussions in the literature regarding the meaning to be derived from the word ‘normal’, the prevailing view is that it should be interpreted both as a normative and an economic term32.

The term ‘normal’ refers to a benefit that is lower than the benefit that could be derived from the full exercise of an economic right over the work. However, there is debate regarding whether this benefit must necessarily be present in a current and concrete form33. According to the prevailing view, a conflict with the ‘normal’ use of the work can also occur when there is an economic or non-economic significant benefit that is expected with high probability in the future. In this regard, if the limitation significantly reduces the commercial value of the work or seriously hinders the ability of the work to generate income in the future, it should be considered that the second condition of the three-step test, which requires the limitation to not conflict with the normal use of the work, is not met34. If the limitations or exceptions are structured in such a way as to cover an economically significant market, it is considered that this exceeds the boundaries of the normal use of the work35.

C. Not Unreasonably Prejudice the Legitimate Interests of the Right-Holder

The final consideration in the three-step test relates to the unreasonable harm to the legitimate interests of the author. Thus, the protection of the author’s legitimate interests and the maintenance of a balance are the primary objectives. When referring to the author’s legitimate interests, not only economic but also moral rights and interests should be understood; therefore, when evaluating these interests, both potential material and moral losses should be considered. Harm to legitimate interests means the reduction or elimination of the author’s current or future potential material or moral gains36. In the English text of the Berne Convention, it is expressed as ‘does not unreasonably prejudice’, meaning that the harm must not occur for ‘unreasonable reasons or to an unreasonable extent.’ Since every limitation will naturally cause some degree of harm to the interests of the author, unreasonable harm can be interpreted as the author having to bear disproportionate costs due to the benefits gained by the public37.

The third step, like the second step, requires an assessment that includes both normative and economic dimensions. Although the area where harm may occur primarily relates to economic rights, what is meant by the author’s legitimate interests is the benefits they can derive from their work through lawful means. This concept of interests encompasses all types of benefits, both economic and non-economic, that can be provided by the author and are legally protectable38.

As a result, it is acknowledged that limitations may cause reasonable harm to the author. However, this harm must remain within reasonable limits; otherwise, both the material and moral rights of the author will be unfairly impaired.

IV. REFLECTIONS OF THE THREE-STEP TEST IN TURKISH LAW

Although the three-step test is not explicitly incorporated into Turkish law, it is applied due to Turkiye’s membership in the Berne Convention, TRIPS, WCT, and WPPT treaties. According to Article 90/5 of the Constitution, international treaties that have been duly enacted hold the force of law. In this context, international texts such as the Berne Convention, TRIPS, WCT, and WPPT are considered to have the force of law in Turkish law and can be directly applied in the courts.

Due to the adoption of the civil law legal system in Turkish law, limitations on intellectual property rights are explicitly listed in the law. Article 30 et seq. of FSEK regulates the limitations on the author’s economic rights by enumerating them. The limitations outlined in Articles 30-41 of the FSEK are considered in alignment with the general and comprehensive elements of the three-step test39.

According to FSEK, limitations on the author’s rights are regulated with various public interest justifications. In this context, Article 30 provides limitations for public order, Articles 31 et seq. include justifications based on the general interest, and Articles 38 et seq. establish limitations for personal use. In cases where public order requires it, Article 30 limits the author’s rights within the boundaries specified by law, allowing the work to be reproduced and disseminated as evidence in court or other official bodies, or for public security purposes, within the limits set by the law. According to Articles 31 et seq. of FSEK, limitations based on general interest justify the free reproduction and dissemination of laws, decrees, regulations, and similar legal texts, as well as court decisions; the selection and compilation of works published for the purposes of speeches, representation, and education; limitations related to quotations, newspaper content, and news are considered legitimate. Finally, in Articles 38 et seq., based on personal use justification, it is stipulated that the author’s economic and moral rights can be limited in cases such as reproduction and exhibition, or use and/or transmission of works, performances, phonograms, productions, and publications in public places.

When making decisions, the court will assess whether the limitations fall within the boundaries set by FSEK. Additionally, according to Article 90/5 of the Constitution of the Republic of Türkiye, the three-step test will be considered by judicial authorities in disputes related to intellectual property limitations. Nonetheless, the three-step test has not been directly addressed in court rulings to date, and no reference has been made to this test40.

V. ALTERNATIVE APPLICATIONS TO THE THREE-STEP TEST

Although the three-step test is regulated in international agreements, the absence of clear provisions regarding the procedure for applying the test raises various uncertainties. These include the order in which the test should be applied, whether it should be considered by the legislature or directly by the judiciary, and how the author should be compensated if their interests are infringed. Due to its regulation in international treaties, there are also differences in how the contracting states integrate the treaty into their domestic law. Consequently, the application of the fair use doctrine, which bears similarities to the three-step test, can play a guiding role in establishing a balance between the interests of the author and the public’s benefit from the work.

The three-step test shares significant similarities with the fair use doctrine, known as the ‘fair use doctrine’ in Anglo-Saxon law. The fair use doctrine is enshrined in the United States Copyright Act and the United Kingdom Copyright, Designs and Patents Act. The commonality between the three-step test and the fair use doctrine is that both mechanisms serve as a criterion or control tool for assessing the legality of limitations imposed on the rights of the author of a work41. In other words, these applications establish the fundamental criteria for assessing the legitimacy of forms of use that may constitute an infringement of intellectual property rights and define the framework of the limitation regime. Although both the three-step test and the fair use doctrine are based on the limitation of the author’s intellectual property rights, their forms of emergence differ. The Continental European legal system, which focuses on protecting the rights of authors, aims to address the limitations that may be imposed on the rights of the author within the framework of predetermined and predictable regulations. In this system, legal certainty, and predictability come to the fore, as the author could know in advance under what circumstances and under what conditions their rights may be limited. In contrast, the Anglo-Saxon legal system, which has adopted the doctrine of fair use, has adopted a more flexible approach that is open to case-specific assessments. The doctrine of fair use was developed to assess the legality of a wide variety of uses that were not previously foreseen or explicitly regulated in legislation, and it provides general and guiding principles for determining the legitimacy of actions that interfere with rights. In Civil Law, the protection of the author’s rights is the principle, and the exceptions introduced in this context are regulated as freedom of use.

In judicial systems influenced by the Anglo-Saxon legal tradition, courts have broad discretion to strike a balance between the public interest and the intellectual property rights of the author in the context of limiting the author’s rights. This situation grants courts the flexibility to make assessments based on the specific characteristics of each case; however, for authors, it creates the risk that the limits of their rights cannot be determined in advance and that legal certainty may be weakened42. In this context, unlike the approach based on normative regulations adopted in the Civil Law legal system, it can be argued that the broad judicial discretion in the Anglo-Saxon system creates a legal basis that could lead to uncertainty and insecurity for copyright holders. For example, in the United States, some judges, when applying the four-factor test for assessing fair use, have ruled that the application of the three-factor principle favours fair use; however, some judges do not consider this sufficient and rule against fair use if three or more factors are against it43.

Notwithstanding the prominence of flexible and case-specific assessments in the Anglo-Saxon legal system, the three-step test, which is widely accepted internationally, does not impede the applicability of the fair use doctrine; rather, it provides a more comprehensive and balanced legal framework. In this context, how these two concepts are interpreted and applied together is significant. It is accepted that the three-step test is broadly structured to encompass the fair use doctrine. For example, countries that adopt the principle of fair use, such as the United States and the United Kingdom, are also parties to international treaties that include the three-step test. This situation demonstrates that the three-step test does not prevent the application of fair use; on the contrary, it offers a more comprehensive and flexible normative structure. In some countries that adapt the fair use doctrine, however, there are certain reservations regarding the application of the three-step test44. Particularly, inconsistencies may arise between the restriction of ‘certain specific circumstances’ in the first stage of the test and the more open-ended limitations of fair use which means a limitation may be considered appropriate within the scope of fair use but may not comply with the three-step test. On the other hand, the principle of balancing interests in the third stage of the test allows for flexibility in fair use and enables exceptions and limitations determined by enumeration to be interpreted in line with fair use doctrines. Thus, it is possible to achieve a balanced protection of interests, considering both the financial and moral rights of the author45.

In brief, given the rapid pace of technological advancement today, it can be argued that the flexible nature of the fair use doctrine offers a more favourable legal framework. Both systems have their own advantages and disadvantages, and the search for a balance between the rights of the author and restrictions in the field of intellectual property law continues. In this technological environment, the interpretation of the three-step test and the application of fair use should contribute to the sustainability of the balance between the protection of the financial and moral rights of authors and the development of the information society.

VI. IMPLEMENTING THE THREE-STEP TEST IN THE DIGITAL SOCIETY

Considering developments in the digital world, the difficulties in applying the three-step test have become increasingly apparent. To adapt the changes brought about by digitalisation, views have been put forward that the flexibility of the three-step test should be increased. This is because the production and distribution of digital content cannot be managed within the limits envisaged by the traditional understanding of the three-step test, and this situation caused debates around the test.

Significant issues arise regarding how the step of “not conflicting with the normal exploitation of the work” in the three-step test should be applied in the digital environment. In the traditional understanding of intellectual property, normal use’ is based primarily on commercial use and sets limits on the use of the work46. However, these boundaries are becoming increasingly blurred in the digital environment. The source of this uncertainty lies in the diversification of ways in which works are used in the digital environment. This is because the processes of sharing, copying, and redistributing works in the digital environment have become much more complex than commercial uses in the physical environment. For example, while a film or music work in the traditional sense can be distributed under a licence agreement, content in the digital environment can be subject to actions such as streaming, peer-to-peer file sharing, and digital copying via NFT. It should be noted that sharing in digital environments may not always infringe upon the commercial interests of the author; it may even enable the dissemination of the work in a way that could potentially benefit the author in the future. However, ensuring that the author’s economic interests are not harmed may not align with the traditional definition of ‘fair use’. One of the views put forward in this context is that the test should be interpreted using the ‘reverse reading’ method rather than being approached from a restrictive and economic perspective47. In the event that situations arise conflict with normal usage, it is envisaged that the third stage of the test should be applied, balancing the conflicts based on social benefit. Accordingly, rather than analysing the test solely because of economic interests, it is essential to start with the third step, which considers the interests of rights holders but does not neglect public benefit, to offer a fairer and more balanced solution. Thus, it is argued that the normal use step should be evaluated within a narrow framework. Approaching the test through a reverse reading method can be considered as a perspective that could benefit a broader segment of society beyond the economic interests of rights holders. The proposed flexible interpretation is particularly consistent with the application of the fair use doctrine48. In the fair use doctrine, the three-step test places greater emphasis on factors such as public interest and social benefit than on the protection of the economic interests of the copyright holder. Indeed, pursuant to Section 107 of the US Copyright Act, the purpose and character of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use upon the market are evaluated. The noteworthy aspect here is the assessment of whether the resulting use is ‘transformative’ in nature. In transformative use, the work is not merely ‘copied’ a contribution is made to it, a new meaning, interpretation, or message is added. Especially in the digital age, the ways in which users produce content have diversified; forms such as parody, remix, mashup, fan-made content, commentary videos, and critical montages have become widespread. Such content often emerges without the direct permission of the author; however, it is considered protectable on grounds such as social contribution, freedom of critical expression, or creative reuse. Accordingly, in Campbell v. Acuff-Rose Music49 the US Supreme Court ruled that the commercial use of a song for parody purposes does not in itself constitute copyright infringement, highlighting the importance of transformative use in the public interest. Similarly, in the Cariou v. Prince case50 the works of Richard Prince, who used photographer Patrick Cariou’s works without permission, were deemed ‘transformative’ by the court and protected under fair use.

Furthermore, such examples exist in the advertising industry. For instance, situations such as the use of a well-known film scene in a television advertisement for satirical purposes or the alteration of the lyrics of a popular song to criticise consumers may be considered fair use due to the transformative nature of the content, even if they occur in a commercial context. Such digital content challenges the narrow, economically focused limits of the traditional three-step test, taking on new social functions beyond the ‘normal use’ of the work.

Accordingly, it may be contended that the fair use doctrine offers a more adaptable and contemporary legal framework that is better aligned with the evolving demands and complexities of the digital age. This approach would be based not only on the economic interests of the rights holder but also on fundamental principles such as freedom of expression, public interest, and creative reuse, as determined by the three-step test.

VII. CONCLUSION

The three-step test provides an authoritative international mechanism for assessing the limitation of intellectual property rights. This test aims to protect the rights of the author while also assessing the applicability of limitations that serve the public interest. In line with the conditions set out by the three-step test, limitations should be confined to specific and exceptional circumstances, should not prevent the normal exploitation of the work, and should not cause disproportionate harm to the legitimate interests of the author. This control mechanism aims to provide a more nuanced approach, protecting the rights of authors while also considering the broader interests of society. However, the integration of the test into national laws and its level of implementation vary from country to country.

In times of digitalisation, the application of the condition that ‘not conflicting with the normal exploitation of the work’ in the three-step test is becoming more intricate. The distribution, copying, and reproduction of works in the digital environment have diversified far beyond the limitations of the traditional physical environment; this has blurred the commercially focused narrow definition of the concept of ‘normal use’. This situation has led to the inadequacy of the three-step test’s classic interpretation based on economic interests. Therefore, it is proposed that the test be interpreted using a more flexible approach that considers social benefit and freedom of expression rather than economic interests, using a ‘reverse reading’ method. In this approach, the step of balancing social benefit and public interest, which constitutes the third stage of the test, takes precedence; thus, ‘fair use’ is evaluated not within a narrow framework but from a broader and more contemporary perspective.

Especially in line with the fair use doctrine, transformative uses of digital content contribute to society in the context of freedom of expression and creative reuse and are therefore considered worthy of protection. Although such uses are mostly conducted without the author’s permission, they are important in terms of social benefit and creative reproduction. In this respect, the application of the three-step test in the digital environment should not only protect the economic interests of rights holders but also adapt to the changing dynamics of the digital society, considering fundamental principles such as social benefit and freedom of expression. Thereby, the test will both safeguard the rights of authors and serve as a balanced mechanism that responds to the needs of the digital age.

In sum, it is indisputable that the three-step test provides a fundamental framework for establishing international standards for the protection of authors’ economic and moral rights, particularly in today’s rapidly advancing technological environment, and continues to play a guiding role in legal regulations in this context. Although this test, which has found application at the international level, has been attempted to be expanded to secure the rights of the author not only in the traditional sense but also in terms of digital content and technological materials, the steps taken in this respect are not considered sufficient and are a subject of debate. At this point, more flexible and principled approaches, such as the fair use doctrine, may be considered in updating the three-step test. This plays a crucial role in enabling intellectual property law to align with and respond to ongoing developments at the international level.