#sccr43 The Copyright three step test first appeared in 1967, in a revision of the Berne Convention, as Article 9(2) on the right of reproduction. Much misunderstood, it was designed to expand the possible exceptions beyond those that had their own provisions, in order to keep the list of permitted exceptions manageable through a flexible system. Arpad Bogsch was then DG of United International Bureaux for the Protection of Intellectual Property (BIRPI). BIRPI was transformed to a new organization, WIPO in 1970, and joined the UN system in 1974.

In the Berne Convention, there are several different articles that provide for limitations and exceptions that are not subject to the three step test, including news of the day, public affairs, speeches, quotations, education, government use, etc. In more recent WIPO treaties (WCT, WPPT, Beijing, Marrakesh), WIPO has had been pressured by publishers to include some new versions of the three step test, often providing some assurances that the older Berne or Rome type exceptions would be consistent. You end up with a large number of different three step tests, all inserted by the publisher and rights holders lobbies to shrink the space for exceptions in national legislation.