Proposals for Reform of TRIPS
Edited by Annette Kur
Chapter 5: Limitations and Exceptions Under the Three-Step-Test – How Much Room to Walk the Middle Ground?
5. Limitations and exceptions under the three-step test – how much room to walk the middle ground? Annette Kur 1. INTRODUCTION This chapter will briefly outline the role and functions of limitations and exceptions within the system of intellectual property (IP) law. Furthermore, it will investigate the origins as well as the current interpretation of the three-step test, with a critical focus on the evaluation of the WTO panel decisions dealing with Art. 13 and Art. 30 (and, to some extent, Art. 17 TRIPS). In addition, it will be explained why and how the interpretation by the WTO panels is not doing full justice to the inherent flexibilities of the test, whose potential for a more balanced understanding in the context of TRIPS and other international instruments will be set out in the conclusion. 2. DEFINITIONS AND SYSTEMATIC CONSIDERATIONS 2.1. What are we Talking About? There is no doubt that it lies in the very nature of IP rights to be “limited”.1 They have a beginning and an end, both in time2 and in the space occupied by them. The dimensions of the latter are determined by 1 See e.g. Ricketson & Ginsburg (2006) at 756 pointing out the fact that during the negotiations leading up to the Berne Convention, delegates were reminded by Numa Droz that “limits to absolute protection are rightly set by the public interest”. 2 With the notable exception of trademarks: although the duration of registration is typically limited to 10 or 20 years, it can be...
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