Can One Size Fit All?
Edited by Annette Kur and Vytautas Mizaras
Chapter 7: Maximising Permissible Exceptions to Intellectual Property Rights
Andrew F. Christie* INTRODUCTION 1. Exceptions to intellectual property (IP) rights are of fundamental importance to achieving the policy objectives that justify the grant of IP rights. To the extent to which an IP right is considered to be ‘too strong’, the way to ‘weaken’ (or, to better ‘balance’) it is through the use of an exception to it. It is not surprising, therefore, that much attention has been paid in recent times by academics and policy-makers to the issue of exceptions, and in particular to the issue of the extent to which the ‘three-step test’ in international treaties restricts the ability of national legislatures to introduce new exceptions to IP rights.1 * Davies Collison Cave Professor of Intellectual Property at the Melbourne Law School, and Research Associate of the Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne. This chapter is based on a presentation by the author at the 2008 Congress of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), Munich, 22 July 2008, and describes research that was supported by IPRIA and by the Australian Research Council through its Linkage Project scheme as part of the project Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia’s Digital Heritage (Andrew Kenyon and Andrew Christie, LP0669566). 1 The following is a selective, but representative, sample of the more recent literature: Geiger, C., ‘From Berne to National Law, via the Copyright Directive: The Dangerous Mutations of the Three-Step Test’, (2007) 29...
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