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|Other Titles: ||Exception Clauses in the TRIPS Agreement: General Exceptions as the Focus|
Wang, Richard Li-Dar
|Issue Date: ||2016-05-20 15:06:51 (UTC+8)|
Each item of intellectual property protected in the TRIPS Agreement has its own exception clauses. These clauses regulate the width and scope of exceptions to those private rights and have become one of the focal points of disputes between member economies. Moreover, these clauses are not only related to IP protection, but also interact with other public values of individual members, such as morality, public health, nutrition, environment, dissemination of technology, and development of vital sectors. Consequently, these provisions are critical adjusting valves that strike the proper balance between IP protection and other socio-economic policy goals, and in the meantime demonstrate the normative complex of IP protection in both developed and developing countries. Despite their crucial positions in the TRIPS Agreement, not all of the exception clauses are well drafted. Some of them are general exceptions, governing all variety of exceptions that are attached to a specific type of intellectual property, encompassing copyright, trademarks, industrial design, and patents. This group of exception clauses is characterized by vague wording, and the controlling criteria embodied in these provisions—the so-called “three-step” and “two-step” tests—contain no concrete standards and are hardly distinguishable from each other. The panel reports of the Dispute Settlement Body (DSB) fleshed out these criteria and clarified the vagueness to some extent, but meanwhile laid down interpretations that are excessively restrictive. The panel reports have been criticized as too grammatical and too intrusive to members’ sovereignty, since the ruling ignored relevant provisions of the TRIPS Agreement such as Articles 7 and 8.1, the objective and principle clauses. The reports also ignored contending policy goals and public interests that member economies may pursue by way of exceptions to IP rights. Given the key role of the TRIPS Agreement in the field of international IP regulation and the deficiencies present in its texts and DSB interpretations thus far, those general exceptions are in need of careful examination and consideration so as to find an adequate way to address their current problems.
|Relation: ||法學評論, 107, 83-127|
|Data Type: ||article|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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