Displacing the Dominance of the Three-Step Test: The Role of Global Mandatory Fair Use

2021 ◽  
pp. 37-58
Author(s):  
Tanya Aplin ◽  
Lionel Bently
Keyword(s):  
Fair Use ◽  
Step Test

From Market Access to Cumulative Innovation

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Market Access ◽  
Step Test ◽  
Property Law ◽  
Intellectual Property Law ◽  
Rights Protection ◽  
Intellectual Property Rights Protection ◽  
Property Rights Protection ◽  
Production Output

This chapter argues for a reinvigorated role of the market access doctrine and references a number of important antitrust and intellectual property law decisions in which courts have given priority to market access. It finds a novel function for market access to play within antitrust and intellectual property law liability: courts that grant plaintiffs access to a defendant’s production output should refer to a three-step test under which they inquire (1) whether the inventor, through first-mover advantages, has reaped a sufficient reward such that contractual or intellectual property rights protection would no longer be required to facilitate innovation, (2) whether competitors were able to challenge the proprietary platform’s position in the market without the possibility of granting access, and (3) whether competitors seeking to benefit from market access will make use of it to facilitate the introduction of new goods rather than merely to copy the initial invention.

scholarly journals A Pattern-Oriented Approach to Fair Use

2017 ◽  
Author(s):  
Michael J Madison
Keyword(s):  
Social Practices ◽  
Copyright Law ◽  
Fair Use ◽  
Social Implications ◽  
Social Scientists ◽  
The Social ◽  
Case Application ◽  
Use Factors ◽  
Oriented Approach

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

The Fair Use of Lower-Limb Running Prostheses: A Delphi Study

2011 ◽  
Vol 28 (1) ◽  
pp. 16-26 ◽  
Author(s):  
Bryce Dyer ◽  
Siamak Noroozi ◽  
Philip Sewell ◽  
Sabi Redwood
Keyword(s):  
Expert Opinion ◽  
Lower Limb ◽  
Delphi Study ◽  
Fair Use ◽  
Disability Sport ◽  
Perceptions Of Fairness ◽  
Developing Area

The purpose of this paper is to investigate the role of lower-limb running prostheses and stakeholders’ perceptions of fairness in relation to their use in competitive disability sport. A Delphi study was conducted over three rounds to solicit expert opinion in a developing area of knowledge. High levels of consensus were obtained. The findings suggest that the prosthesis is defined as a piece of sporting equipment to restore athletes’ function to enable them to take part in disability sport. In addition, the panel determined that the development of this technology should be considered to be integral to the sport’s ethos. Crucially, prostheses technology should be monitored and have limits placed upon it to ensure fairness for both participants and stakeholders.

The Moderating Role of Insulin-Like Growth Factor 1 in the Relationship Between Cognitive and Aerobic Endurance Change

2017 ◽  
Vol 30 (2) ◽  
pp. 84-89 ◽  
Author(s):  
Jason R. Anderson ◽  
Dayana Calvo ◽  
Ellen Glickman ◽  
John Gunstad ◽  
Mary Beth Spitznagel
Keyword(s):  
Growth Factor ◽  
Step Test ◽  
Insulin Like Growth Factor ◽  
Blood Draw ◽  
Before And After ◽  
Global Cognition ◽  
Average Serum ◽  
The Relationship ◽  
Moderating Role

Background: Improvements in cognition often accompany fitness improvements in older adults, and research suggests insulin-like growth factor 1 (IGF-1) may influence this association. No prior work has examined this in mild cognitive impairment (MCI). We predicted that IGF-1 would moderate the relationship between cognition and aerobic endurance improvement, such that greater baseline IGF-1 would accompany a stronger relationship between cognition and aerobic endurance change. Method: Twenty-seven individuals with MCI completed assessments of aerobic endurance (2-minute step test [2MST]) and global cognition (Modified Mini-Mental State [3MS]) before and after a 6-month period of twice-weekly exercise. Serum IGF-1 levels were assessed at baseline via fasted blood draw. The Johnson-Neyman technique determined whether baseline IGF-1 levels moderated the relationship between changes in aerobic endurance (Δ2MST) and cognition (Δ3MS). Results: A significant interaction was found; however, Δ2MST was inversely associated with Δ3MS in individuals with above-average serum IGF-1 levels; this relationship was strengthened as IGF-1 increased and was not seen when IGF-1 was below average. Conclusion: The relationship between cognitive and aerobic endurance change varies as a function of IGF-1 in persons with MCI. Additional work is needed to clarify the mechanisms of these findings.

scholarly journals Research Libraries and New Technologies, Promoting Access to Information, Learning, and Innovation for Today and the Future

2017 ◽  
Author(s):  
Krista L. Cox
Keyword(s):  
New Technologies ◽  
Historical Record ◽  
Fair Use ◽  
Research Libraries ◽  
History Of ◽  
Historical Role ◽  
To Come ◽  
Access To Knowledge ◽  
Teaching Learning

The role of libraries today is rooted in their historical mission. At their heart, libraries provide access to knowledge and information. They do so by preserving the cultural and historical record, not only for today, but for generations to come. They support teaching, learning and research by providing access to works, curating collections and ensuring that connections between different materials can be made. Libraries also have a long history of providing physicalspaces for studying, meeting or for exhibitions. They have also provided accessible formats to individuals with print and other disabilities, helping to ensure that everyone can access information. While these activities represent the historical role for libraries, these same endeavors hold true today. Beyond this historic role, libraries today have also evolved to accommodate the new ways of learning that technology has permitted. Ultimately, libraries have adapted to the changing landscape to ensure that they fulfill their missions of preservation and provision of access to knowledge and culture. Through fair use, for example, libraries have been able to adapt to new and emerging technologies.

The role of prediction in evaluating econometric models

1986 ◽  
Vol 407 (1832) ◽  
pp. 25-34 ◽  
Keyword(s):  
Predictive Testing ◽  
Response Surfaces ◽  
Confidence Bands ◽  
Step Test ◽  
Finite Samples ◽  
Data Process ◽  
Distributed Array ◽  
One Step ◽  
Encompassing Test

Many statistical and economic criteria must influence the overall evalua­tion of econometric systems, but success when ‘predictive testing’ seems to establish most credibility, perhaps because the data were unavailable to the modellers. Yet the ability of prediction tests to detect even gross mis-specifications depends both on the properties of the data process and on the structure of the selected tests. To study the issues involved, a mixed analytical-Monte Carlo approach was adopted, based on asymp­totically valid approximations to forecast confidence intervals. Tests were calibrated for finite samples by simulation experiments on a Distributed Array Processor to yield numerical power function response surfaces. The main results of analysing prediction tests are that H successive one-step ahead tests are equivalent to one H -step test; that conditional multi-step forecast confidence bands are not necessarily monotonically increasing in H , so that ‘intercept corrections’ potentially have an objective justification; that tests based on averages (e. g. within-years) may be more useful than either one-step or H -step tests for detecting predictive failure; that the need to pool forecasts indicates non-encompassing models; and that a forecast-encompassing test should have some diagnostic power when applied to macroeconometric systems. Forecasting of the level of uncertainty is briefly considered.

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