Three-step Test Research Articles

The Unproductive “Overconstitutionalization” of EU Copyright and Trademark Law – Fundamental Rights Rhetoric and Reality in CJEU Jurisprudence

In EU copyright and trademark law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression and the right to a healthy environment, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to use competing fundamental rights productively. Instead, the Court has developed a meaningless fundamental rights rhetoric that produces the false impression that there is sufficient room for all competing rights and interests within the existing copyright and trademark systems. However, the current configuration of EU copyright and trademark law fails to offer users the chance of meeting right holders as equals, even if their fundamental rights are of equal ranking in the Charter. By adding fundamental rights cosmetics to imbalanced protection systems, the CJEU only cements and further stabilizes the existing rule/exception edifice that is strongly in favour of right holders. Introducing the mantra of internal balancing – requiring the reconciliation of competing rights and interests within the confines of secondary copyright and trademark legislation – the Court has even created a considerable risk of sacrificing competing fundamental rights on the altar of the EU harmonization agenda. By letting the harmonization objective reign supreme, the CJEU has also given the three-step test in copyright law and the honest practices proviso in trademark law a quasi-constitutional status. As a result, these open-ended provisions undermine limitations of exclusive rights that could support competing fundamental rights. To remove the imbalances in current EU copyright and trademark law, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.

THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)

he paper delves into the development and intricacies of international legal frameworks for intellectual property (IP) rights protection and commercialization, focusing on agreements like the Paris and Berne Conventions. It outlines the evolution from initial measures safeguarding industrial property to broader copyright and trademark protections, facilitated by entities such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is highlighted for establishing minimum standards for IP protection and enforcement, integrating provisions for dispute resolution, and managing the balance between IP holders' interests and the public good. TRIPS' role in addressing challenges posed by differing national norms and its efforts to mitigate IP rights abuse through limitations and exceptions, known as the Three-Step Test, are emphasized. This analysis underscores the importance of a fair and balanced IP system that promotes global innovation and creativity, acknowledging the need for a harmonious integration of varied national laws within the global trade and IP protection landscape.

Oops, I Sampled Again … the Meaning of “Pastiche” as an Autonomous Concept Under EU Copyright Law

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.

A Three-Step Test for Determining Patent Infringement Related to Repair

Repair, refill and recycle (in the following: repair) of physical goods is a necessity and a convenience – mending is better than ending, at least for the consumer. Where the goods to be repaired are patented, the question arises whether such act of repair infringes the patent, and under what conditions. There are different approaches by national courts on this matter, and it will eventually be the task – and the chance – of the Unified Patent Court to find its own solution to this issue. The author in this regard proposes a three-step test.

AI covers: legal notes on audio mining and voice cloning

Abstract This article explores the impact of Artificial Intelligence (AI) on the music industry, particularly focusing on the case of AI-generated covers. The emergence of AI technologies has been raising concerns not just about the originality and protection of AI-generated outputs but also about the complex input and training phase of those systems. The focus of this contribution is the latter, analysing the case of AI covers from the perspective of copyright and image rights. In the first part, an overview of the text and data mining (TDM) exception found in Article 4 of Directive 2019/790 is presented, with a primary focus on the opt-out mechanism in connection with the three-step test. Moving to the second part, the analysis delves into the complexities of voice cloning, highlighting the absence of a comprehensive European Union regime for image rights. By addressing these issues, this contribution unveiled two crucial points. First, AI models trained on various artists’ works to create and spread deepfake covers not only violate copyright but also reveal shortcomings in the TDM exception. Second, while the multifaceted image right regime may not be as exhaustive as necessary, it proves to be a viable solution against voice cloning with anticipated advancements in the future.

Should the European Court of Human Rights Treat the Anonymous and the Absent Witness Equally? The Application of the Same Three-Step Test

The ‘right to (cross)-examination’ is regulated in Article 6(3)(d) of the European Convention on Human Rights (ECHR). However, this right is not absolute and can, under circumstances, be limited. This is notably the case when evidence given by anonymous or absent witnesses is presented in court.
 In the prominent Al-Khawaja and Tahery judgement, the European Court of Human Rights (ECtHR) listed three principal requirements which was later called the three-step test for the admissibility of testimonies of absent witnesses. Although the situation generated by the admission as evidence of testimonies by absent witnesses and by anonymous witnesses differs, the ECtHR appears to have gradually applied the same test to both types of testimonies to assess whether their admissibility violates the defence rights under Article 6(3)(d) ECHR.
 Even though the three-step test is important, the ECtHR has contradictory judgments on the admissibility of evidence by absent and anonymous witnesses. This study will thus analyse and evaluate this judicially-created test by discussing the differences between anonymous and absent witnesses.

ECHR rules for determining the presence of sufficient balancing factors for the admission of the testimony of a prosecution witness who did not appear in court

The article examines the legal position of the European Court of Human Rights regarding the existence of balancing factors for accepting the testimony of a prosecution witness who did not appear in court.
 It is substantiated that when the accused was not given the opportunity to question the witness during the investigation or during the trial, the European Court of Human Rights states a violation of paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms. It is shown that the given approach is not strictly categorical and the European Court of Human Rights allows the possibility of using the testimony of a witness who did not appear at the court session and was not questioned at the stage of the pre-trial investigation.
 It has been established that, the Grand Chamber of the European Court of Human Rights used the rule of the three-step test, one of the criteria of which obliges national courts to establish: whether three were sufficient balancing factors, including important procedural guarantees, which compensate for the difficulties which compensate for the difficulties with which faced by the defense as a result of accepting unverified testimony as evidence.
 It is well-founded that national courts are obliged, when faced with the problem of non-appearance or anonymity of witnesses, to consider t6he possibility of using alternative measures that limit rights to a lesser extent than accepting testimony of witnesses, to consider the possibility of using alternative measures that limit rights to a lesser extent than accepting testimony of witnesses as evidence. It is emphasized that when national courts recognize alternative measures as inexpedient and allow witness testimony to be announced, they violate paragraph 1 of sub-paragraph «d» of sub-paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
 The conviction of the Grand Chamber of the European Court of Human Rights is emphasized: the presence of sufficient balancing factors should be investigated not only in those cases in which the testimony of an absent witness was the only or decisive basis for the conviction of the accused, as well as in cases in which it was not possible to establish whether relevant indications are the only or decisive. At the same time, the amount of balancing factors necessary for the trial to be considered fair will depend on the importance of the testimony of the absent witness: the more important these testimonies are, the more weighty the balancing factors should be. Examples of additional guarantees that prevent violations of the mentioned legal norms are given.

Assessment of the tolerance angle for pedicle screw insertion.

Cannulation process intervenes before implantation of pedicle screw and depends on the surgeon's experience. A reliable experimental protocol has been developed for the characterization of the slipping behavior of the surgical tool on the cortical shell simulated by synthetic materials. Three types of synthetic foam samples with three different densities were tested using an MTS Acumen 3 A/T electrodynamic device with a tri-axis 3 kN Kistler load cell mounted on a surgical tool, moving at a constant rotational speed of 10° mm-1 and performing a three-step cannulation test. Cannulation angle varied between 10° and 30°. Synthetic samples were scanned after each tests, and cannulation coefficient associated to each perforation section was computed. Reproducibility tests resulted in an ICC for Sawbone samples of 0.979 (p < 0.001) and of 0.909 (p < 0.001) for Creaplast and Sawbone samples. Cannulation coefficient and maximum force in Z-axis are found the best descriptors of the perforation. Angular threshold for perforation prediction was found to be 17.5° with an area under the curve of the Receiver Operating Characteristic of 89.5%. This protocol characterizes the cannulation process before pedicle screw insertion and identifies the perforation tool angle until which the surgical tool slips on the cortical shell depending on bone quality.

업무상저작물 저작권 귀속 논의에 따른 동일성유지권에 대한 소고

Article 2, No. 31 of the Korean Copyright Act stipulates the conditions for works made for hire. Article 9 of the Korean Copyright Act stipulates that the author shall be an employer if there are no other regulations in the contract. In a comparative legal analysis, its provisions are recognized as significant exceptions to the creator principle of the Korean Copyright Act. Still, there is a question as to whether it may unduly restrict the interests of employees as creators.&#x0D; To achieve an appropriate balance of interests between employers and employees, the proposed amendment to the Korean Copyright Act of the Ministry of Culture, Sports and Tourism in 2020.&#x0D; It suggests the provision that copyright property rights, including the right to create derivative works, shall be deemed to be transferred to the employer, while copyright moral rights shall belong to employees who are the creators of the work.&#x0D; Regarding works made for hire, the issue of infringement disputes shall arise regarding the right of integrity. Under the German Copyright Act, balancing the employer’s and employee’s legal interests is essential during the three-step test relating to exercising moral rights.&#x0D; When considering the legal doctrine of attributing moral rights to employees, the appropriate standard for restrictions on exercising the right of integrity should be made concrete. This discussion is even more critical when considering the influence of the content industrial sector through works made for hire.

A Comprehensive Mechanical Characterization of Subject-Specific 3D Printed Scaffolds Mimicking Trabecular Bone Architecture Biomechanics.

This study presents a polymeric scaffold designed and manufactured to mimic the structure and mechanical compressive characteristics of trabecular bone. The morphological parameters and mechanical behavior of the scaffold were studied and compared with trabecular bone from bovine iliac crest. Its mechanical properties, such as modulus of elasticity and yield strength, were studied under a three-step monotonic compressive test. Results showed that the elastic modulus of the scaffold was 329 MPa, and the one for trabecular bone reached 336 MPa. A stepwise dynamic compressive test was used to assess the behavior of samples under various loading regimes. With microcomputed tomography (µCT), a three-dimensional reconstruction of the samples was obtained, and their porosity was estimated as 80% for the polymeric scaffold and 88% for trabecular bone. The full-field strain distribution of the samples was measured using in situ µCT mechanics and digital volume correlation (DVC). This provided information on the local microdeformation mechanism of the scaffolds when compared to that of the tissue. The comprehensive results illustrate the potential of the fabricated scaffolds as biomechanical templates for in vitro studies. Furthermore, there is potential for extending this structure and fabrication methodology to incorporate suitable biocompatible materials for both in vitro and in vivo clinical applications.

Battle between ‘Long’ and ‘Short’ Videos: Fragmented Uses, Diversified Purposes, and the Evolution of China’s Copyright Limitation Rules in the AI Era

Abstract The rapid proliferation of artificial intelligence (AI) technology, particularly the deployment of generative AI in the creation of short videos, has exposed the anachronistic and incomplete nature of the copyright limitations and exceptions (L&amp;E) within the Copyright Law of China. The US jurisprudential approach, characterized by the four-factor fair use analysis and the doctrine of transformative use, has been embraced in China by courts as ‘general legal principles’. These principles have been localized within the restrictive framework of the Berne Convention’s three-step test. However, the application of these principles to China’s burgeoning AI and AI-generated content industry, exemplified by the short video sector, reveals a complex landscape. The purposes behind the utilization of copyrighted works are multifaceted, and the intense rivalry between ‘long’ and ‘short’ videos that represent established and emerging giant Internet platform enterprises further muddies the waters in the application of the American ‘purpose transformation’ concept. A better alternative would be to seek guidance from the Copyright Law of Japan. By grounding decisions in pre-existing, enumerated copyright exceptions, systematically categorizing L&amp;E scenarios, and delineating key considerations for various categories, the judiciary can be steered towards a more nuanced and equitable resolution of individual cases and strike a balance between the interest of copyright holders, Internet users, and the emerging Internet platform enterprises.

The Modified Tampa-Scale of Kinesiophobia for Anterior Shoulder Instability

To assess content validity and to modify the Tampa Scale of Kinesiophobia (TSK) to make it suitable for application in patients with anterior shoulder instability. A four-round Delphi method was performed to establish expert consensus on developing the Tampa Scale of Kinesiophobia for patients with anterior shoulder instability (TSK-SI) using an expert group of Dutch shoulder-specialized orthopedic surgeons and physiotherapists. During round 1, experts were asked to score the 17 items of the original TSK on relevance and construction using the COSMIN guidelines. With this feedback, questions were reviewed and modified. During round 2, experts were asked to score the modified items. This process was repeated until consensus was established. Then, patients were asked to participate in a moderator-guided, three-step-test interview using a Web-based platform to assess the modified scale. Sessions were recorded and evaluated by the working group. The modified scale was finally adjusted on the basis of the input of these patients. Thirty Dutch shoulder experts were included, of which 25 completed all 4 rounds, after which consensus was established. One question was added to the modified scale based on feedback in round 1, establishing the 18-item TSK-SI. Sixteen patients with shoulder instability were included, which all completed the three-step test interview. Following this, question 4 (changed to present tense) and question 7 (hypothetical component added) were adjusted, resulting in the final TSK-SI. This consensus modification of the TSK to TSK-SI can support the content validity of the instrument to assess kinesiophobia in patients with anterior shoulder instability. These modifications may improve the responsiveness and validity of the TSK-SI, as it does not match all the items of the original TSK. Level V, consensus statement.

Towards A More Balanced Approach to Addressing Game Adaptation Infringement in China

Abstract While game adaptations have enriched people’s cultural lives, they also give rise to many legal disputes. The current copyright regime in China fails to acknowledge the core role of the right of adaptation in copyright theory and provides scant protection for video games. This allows game developers to clone or re-skin games at the expense of bona fide creators, thereby discouraging innovation and stifling creativity. This paper suggests that the normative target of the right of adaptation differs from that of the right of reproduction, despite their considerable overlap. This notion is strengthened by the exploration from the perspective of game design. Drawing on US judicial practice, this paper proposes a new three-step test to address game adaptation infringement in China. If strictly implemented, this test would avoid unduly restraining competition and follow-on innovation and interfering with the reasonable interests of the original creators

Status zakonskih ograničenja autorskog prava i patenta u međunarodnom pravu i pravu Srbije

The focus of the work is on the confrontation of the traditional (de lege lata) and modern (de lege ferenda) concepts of the “three-step test”, which shows that the traditional principle of restrictiveness in the regulation of the limitation of rights gives way to the principles of purposefullness and proportionality. This enables this test to become a flexible and effective tool for adjusting the balance of relevant interests in the protection of intellectual property, in order to achieve the public interest – the improvement of creativity, development and community welfare. The “three-step test” is, by its very nature, an instructive international legal norm addressed to the national legislator who prescribes the limitations of rights. In Serbia, this test was incorporated into the text of Law on Copyright and Related Rights and Law on Patents, which gave it the nature of a national legal norm that binds entities that apply the law. Considering the causes and consequences of this unusual phenomenon, the author criticizes the technique of harmonizing domestic law with EU law, where the emphasis is on the criterion of text matching, and not on the substantive integration of EU norms into the domestic legal order.

Development and Validation of Responses to Personal Mortality Measure

The aim of this study was to develop and validate the Responses to Personal Mortality Measure (RPMM), a new self-report tool to assess existential skills in relating to personal mortality. Items reflecting responses to personal mortality were generated and then selected through a rating process. They were further refined using Three-Step Test Interviews (TSTI). The psychometric properties of 91 items were explored with an online sample of 869 respondents, randomly divided into an exploratory factor analysis (EFA) and confirmatory factor analysis (CFA) subsamples. Through EFA, six factors were obtained: Emotional Response, Self-Oriented Acceptance, Transcendental Acceptance, Relational Acceptance, Relief Acceptance, and Avoidance. Internal consistency coefficients ranged between .90 and .97 ( M = .94). The six-factor model showed good fit statistics in traditional and bifactor CFAs. The construct and incremental validity were supported by relationships with the Psychological Well-Being Scale (PWB-42); the Meaning in Life Questionnaire (MLQ); the Depression, Anxiety and Stress Scale-21 (DASS-21); the Existential Death Anxiety Scale (EDAS); and the Existential Anxiety Questionnaire (EAQ). The RPMM is a self-report tool of responses to personal mortality that can be used to evaluate the relationship between existential skills and psychological wellbeing. Further research is needed to examine the psychometric properties of the RPMM in a clinical sample.

HYA and Others: Reshaping participation at criminal trials in Europe

The recent decision of the Court of Justice of the European Union in HYA and Others has a significant impact on the use of untested witness statements in criminal proceedings. The case concerned the right to examine witnesses, which is protected under 6(3)(d) of the European Convention on Human Rights. The CJEU established a three-step test to determine whether the use of untested evidence violates the right to a fair trial and ruled out the use of ‘sole or decisive’ untested evidence in criminal proceedings. The Court also held that the right to examine witnesses is a fundamental right in criminal proceedings and falls within the scope of Article 8(1) of Directive 2016/343. The HYA and Others judgment sets a higher standard than that guaranteed by the ECtHR, preventing the use of sole or decisive witnesses in reaching a final conviction decision. Finally, the judgment extends the scope of defence rights in EU law and enhances the effectiveness of fundamental rights in criminal proceedings.

Chinese companies’ transparency under sustainable development goals: the role of asset impairment and biological assets in audit

The paper aims to analyse the role of asset impairment and biological assets in the company’s audit and to estimate the impact of asset impairment losses and biological asset scale on audit fees. The object of the investigation was A-share listed companies from 2012 to 2021 in China. The study analysed 370 listed companies to obtain 28741 observations, of which 367 listed companies had 1854 observations with biological assets. The study applied the fixed effect model, three-step mediation test, Sobel mediation test and PSM matching test. The results show that asset impairment loss and biological asset size are significantly positively correlated with audit fees, and the scale of biological assets will strengthen the positive correlation between asset impairment loss and audit fees. It is further found that asset impairment and biological assets positively affect audit fees through two parallel intermediary paths of "audit working hours" and "violations". Finally, based on the above findings, this paper also attempts to make optimisation recommendations for the four relevant stakeholders involved in the audit. This paper contributes to improving accounting standards for biological assets and enriching the research on audit pricing based on the empirical justifications of their role in the company’s audit.

The test of availability of medical treatment

In Montgomery v Lanarkshire Health Board, the Supreme Court declared that patients are entitled to choose among all available treatments. But, who decides what is ‘available’? Doctors rely upon evidence-based medicine (EBM) – a complex epistemology that generates normative recommendations – for determining treatment availability. EBM is required to be applied through exercise of the treating doctor’s clinical judgement, which inescapably involves some value judgements. EBM attempts to accommodate patient values through shared decision-making (SDM). However, SDM remains contingent upon EBM for its starting points, and this contingency provokes a charge of epistemic injustice because it privileges the treating doctor’s judgement over conflicting views. Such a charge was implicit in Montgomery. The Court responded by adopting a strategy that retains reliance on clinical judgement, yet attempts to restrict the treating doctor’s privilege by admitting other professional views. This strategy permits the induction of a three-step test for availability of treatment, which is theoretically appealing but challenges the practical organisation of the medical profession.

Assessing DSM-5-TR and ICD-11 prolonged grief disorder in children and adolescents: development of the Traumatic Grief Inventory – Kids – Clinician-Administered

ABSTRACT Background: Around 10% of bereaved youths experience symptoms of prolonged grief disorder (PGD). Recently, PGD was included in the two main classification systems for mental disorders: the ICD-11 and DSM-5-TR. Assessing PGD symptoms in youth is currently hindered by the lack of instruments for ICD-11 and DSM-5-TR criteria. To fill this gap, we developed an instrument to assess PGD symptoms in children and adolescents, the Traumatic Grief Inventory – Kids – Clinician-Administered (TGI-K-CA), based on input of grief experts and bereaved children. Methods: Five experts rated the items on alignment with DSM-TR and ICD-11 PGD symptoms and comprehensibility. The adjusted items were then presented to seventeen bereaved youths (Mdnage = 13.0 years, range = 8–17 years). Using the Three-Step Test Interview (TSTI), children were asked to verbalize their thoughts while answering the items. Results: Issues raised by experts were mostly related to alignment with the DSM-5-TR/ICD-11 symptom, ambiguous formulation of the items, or low comprehensibility for children and adolescents. Items raising fundamental issues according to experts were adjusted. The TSTI showed that children encountered relatively few problems with the items. Frequently reported problems with some of the items (e.g. regarding comprehensibility) led to final adjustments. Conclusion: With input from grief experts and bereaved youths, an instrument to assess PGD symptoms as defined in DSM-5-TR and ICD-11 in bereaved youths was finalized. Further quantitative research is currently undertaken to evaluate the instrument’s psychometric qualities.

EU Copyright Exceptions and Limitations and the Three-Step Test: One Step Forward, Two Steps Back

Abstract The three-step test, by origin an international provision, restricts copyright exceptions and limitations. The three-step test was incorporated into multiple treaties and trade agreements after being first included in the Berne Convention. Despite some nuances regarding the test’s wording in these legal instruments, the essential part – i.e. the three criteria – has remained unchanged. The European Union (EU) legislator took a step forward by expressly implementing the international three-step test into EU law. Article 5(5) of the 2001 InfoSoc Directive provides for its own EU three-step test, and more recently, the test was included in the 2019 DSM Directive. However, two substantial issues remain. First, there is still uncertainty on the specific meaning of each of these steps, due to scarce case law at the international level. Second, the incorporation of this standard has led to an added discussion on the scope and addressee of the EU three-step test. Due to the InfoSoc Directive’s wording, the question arose whether the three-step test is solely addressed to national legislators, or whether the test can also be applied by national courts. This article features a detailed analysis of the European Court of Justice’s case law on the three-step test, highlighting differing tendencies in its rulings. The Court’s decisions bring little clarification regarding the question of the test’s addressee, leaving the issue unresolved and disputed in the legal literature.