Overcoming the Achilles Heel of Copyright Law
Northwestern Journal of Technology and Intellectual Property, Vol. 5, p. 265, 2007
69 Pages Posted: 12 Oct 2007 Last revised: 27 Feb 2011
With the recent proliferation of international, regional and bilateral treaties associated with copyright protection, the three-step test has been hailed as the panacea for measuring the legality of all limitations on copyright. This article challenges the legitimacy of the three-step test which sets up a one-size-fits-all standard for copyright protection. It also puts forward a proposal aimed at reshaping the three-step test. Moreover, this article argues that the inquiry into the legitimacy of the three-step test necessitates a careful reexamination of the conventional wisdom of copyright law in general and the nature of copyright limitations in particular. This examination, as this article shows, inquires into how we might re-imagine the legal status of users in the field of copyright law and whether right holders should take on certain social responsibilities such as a quid pro quo for being granted exclusive rights. To better understand the nature of these theoretical issues, this article further explores legal indeterminacy, conflict of rights, and rights and responsibilities in the framework of copyright law.
Keywords: copyright law, three-step test, right holders, users, legal indeterminacy, conflict of rights, rights and responsibilities
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