Can One Size Fit All?
Edited by Annette Kur and Vytautas Mizaras
Chapter 13: Exploring the Flexibilities of the TRIPS Agreement’s Provisions on Limitations and Exceptions
Christophe Geiger* 1. INTRODUCTION Important concerns have been expressed in recent times about the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and it has become obvious that many scholars seem not to be satisfied with its provisions.1 More then ten years have passed since the adoption of this international convention and one can presume that it is unlikely that this agreement would be signed if it were presented today to the member states of the WTO. Anyhow, this agreement has been adopted and member states are now bound by it. However, the TRIPS Agreement, despite having many unsatisfying provisions, has one major advantage: some provisions are vague, unclear, and their exact scope is often hard to understand. This can be an advantage because when legal provisions are unclear, judges or scholars have to give them a meaning, to propose interpretations. This allows the IP community to have a certain influence where provisions of the TRIPS Agreement offer some flexibility,2 by ‘rethink* Associate Professor and Director of the Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg; Senior Researcher, Max Planck Institute for Intellectual Property and Competition Law, Munich. 1 Critical literature on the TRIPS Agreement is too abundant to be quoted extensively. See e.g. Vaver, D. and Basheer, S. (2006), ‘Popping Patented Pills: Europe and A Decade’s Dose of TRIPs’, EIPR, p. 282; Malbon, J. and Lawson, C. (eds) (2008), Interpreting and Implementing the Trips Agreement: Is It Fair?, Cheltenham, UK and Northampton, MA, USA: Edward...
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