Páras

Doyle, Lesley; Muirthile, Liam Ó

doi:10.2307/25573430

Cited by 5 publications

(5 citation statements)

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“…held that they do not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder'. 137 The assumption that an exception can only be relied upon if the conditions of the three-step test are also fulfilled is confirmed in Public Relations, 138 Ulmer 139 and VCAST, 140 as well as in some opinions of Advocates General. 141…”

Section: D)mentioning

confidence: 97%

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

Wymeersch

2023

GRUR International

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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.

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Section: D)mentioning

confidence: 97%

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

Wymeersch

2023

GRUR International

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“…The second factor ...... is that causation must be treated as a commonsense matter.' [23 In terms of awarding less than the whole, Lord McFadden made it clear that "if a lesser claim is to be made out, that must be done on the basis of the evidence which is properly led within the scope of the existing pleadings. "[ ] (emphasis added)…”

mentioning

confidence: 99%

Cost benefit analysis approach to global claims

Lord

Gray²

2011

International Journal of Law in the Built Environment

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Purpose -The purpose of this paper is to examine relevant case law governing the failure and/or success of global or rolled-up claims, where it is said to be impractical or impossible to demonstrate the links between certain causes of action and the monetary value to be attached to each. The paper proposes a theoretical framework to improve a claimant's prospects of success in advancing a global claim, not only in circumstances where it may be impractical or impossible to provide a breakdown but also where a cost benefit analysis concludes it is reasonable to do so.Design/methodology/approach -The paper uses traditional doctrinal legal methodology to evaluate judicial statements on the merits of global claims from a number of jurisdictions. The paper also draws on key authorities from the realms of health and safety and professional negligence.Findings -The cases demonstrate attempts by the court to recognise the problems faced by claimants at the end of a construction contract where their total costs exceed the agreed contract price. The comparative success or failure of a global claim depends on the judicial approach to a number of factors including: impossibility, impracticability, conduct of the claimant and defendant, balance between excessive particularity and basic information, the keeping of records, the costs of claim preparation and apportionment. There remains a significant risk of failure of a global claim but the risk can be reduced significantly provided the claimant conducts a defensible cost benefit analysis of the approach taken.Practical implications -A global claim can be used more often provided the rationale behind its presentation forms a logical basis. The cost of litigating complex construction contracts can be reduced significantly if global claims can become the norm rather than the exception, provided the claimant conducts a cost benefit analysis and the court concludes the analysis is reasonable and defensible.Originality/value -Traditional legal theory relies upon the proposition that the claimant must prove that to which he believes he is entitled to such an extent that the defendant's right to know the case it has to meet is satisfied. This paper adds value to the theory by proposing a radical strategy whereby a reasonable claimant can assist the court in finding a factual and logical basis for awarding the whole of a global claim and, where appropriate, by deduction in addition to the principle of apportionment, less than the whole.

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“…Domínquez-Redondo argues that (by now) the interpretative work of the Special Procedures in terms of (authoritatively) clarifying the scope of existing norms in response to new issues, or in contributing to the creation and consolidation of (new) international human rights standards, is 'one of their least contested activities'. 203…”

Section: Special Proceduresmentioning

confidence: 99%

“…202 All in all, it seems that a broader rights-based discussion on 'minimum affordable energy supplies' is very welcome, and much needed, including especially under Article 11 ICESCR and potentially towards the adoption of a specific right to energy. Based on Sudan's report, such discussions may also evaluate relevant policies for ensuring the affordability of minimum sets of energy services and appliances, 203 and in fact, support for greater energy efficiency. 197 Ibid, and Bouzarovksi and Petrova (2015) 28November 2019) UN Doc.…”

Section: The Right To Freedom Of Expression and Access To (Digital) I...mentioning

confidence: 99%

“…Additional measures were put in place 'for individuals or families in particular vulnerable situations'. 203 To deal with the situation long-term, the government also decided to 'dismantle' parts of the settlement and rehouse residents 'over the course of the next five to eight years'. 204 This seems a very long time to be without any modern energy supplies.…”

Section: Access To Basic Utilities In the Hudorovič Casementioning

confidence: 99%

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Human rights and access to modern energy services

Hesselman¹

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The 'universal access target' in SDG 7.1 largely focuses on universal electrification and access to clean cooking; 27 but, it also clearly refers to reliability and affordability for all, as well as sustainability in the wider goal. 28 Likewise, the Global Tracking Framework for UN SDG 7 supports that there is a 'growing consensus' that ultimately 'energy access must look beyond basic access to electricity and clean cooking' and facilitate the use of energy services common rules for the internal market in electricity and repealing Directive 2003/54/EC, OJ L 211/55, recital (53) and Article 3(7).

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Páras

Cited by 5 publications

References 0 publications

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

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

Cost benefit analysis approach to global claims

Human rights and access to modern energy services

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