1 Introduction 1
1.1 Relationship between sustainable development and access to knowledge 1
1.2 Role of intellectual property rights in restricting access to knowledge 12
1.3 Purpose and plan of the work 15
1.4 Methodological approach 24
Part Ⅰ Determining the normative meaning of the general exception clauses of the TRIPS Agreement 27
2 The customary rules of treaty interpretation and the elements in light of which the general exception clauses of TRIPS should be interpreted 29
Introduction 29
2.1 Ordinary meaning attributable to the terms of the treaty 32
2.2 Principle of good faith 33
2.2.1 Principle of effectiveness in the interpretation of treaties 34
2.2.2 Doctrine of abuse of rights 36
2.3 Object and purposes of the WTO system and the TRIPS Agreement 39
2.3.1 General objectives of the WTO system 41
2.3.2 Specific objectives of the TRIPS Agreement 42
2.3.3 Article 8 of the TRIPS Agreement and the guiding principles of the general exception clauses 44
2.3.3.1 Objectives pursued by the exceptions to IPRs 45
2.3.3.2 The necessity standard 46
2.3.3.2.1 The transformation of the necessity standard into a proportionality test 54
2.3.3.2.2 The necessity standard in the context of art. 8 of the TRIPS Agreement 61
2.3.3.3 The consistency standard of art. 8 of the TRIPS Agreement 63
2.3.3.3.1 Additional obligations that shall be observed by copyright exceptions 64
2.3.3.3.2 Additional obligations that shall be observed by the exceptions to the rights conferred by trademarks 66
2.3.3.3.3 Additional obligations that shall be observed by the exceptions to the rights conferred by protected industrial designs 66
2.3.3.3.4 Additional obligations that shall be observed by the exceptions to the exclusive rights conferred by a patent 67
2.3.3.3.4.1 Guarantee of protection to all categories of inventions that shall be protected by all WTO Members 67
2.3.3.3.4.2 Minimum term of protection of patents 68
2.3.3.3.4.3 Respect for the area occupied by the TRIPS compulsory licensing system 68
2.3.3.3.4.4 Non-discrimination based on national origins, the field of technology and the manner of exploitation of the invention 70
2.4 Context of the general exception clauses of the TRIPS Agreement 74
2.4.1 Interpretative agreements and subsequent State practices 75
2.4.2 Rules of international law applicable in the relations between the parties 78
2.4.2.1 Principle of proportionality 82
2.5 Supplementary means of interpretation 87
3 Determining the normative meaning of arts. 17, 26(2) and 30 of the TRIPS Agreement 90
3.1 Introduction 90
3.2 Art. 30 of TRIPS according to Canada - Pharmaceutical Patents 90
3.2.1 The first step of the test of art. 30 91
3.2.2 The second step of the test of art. 30 93
3.2.3 The third step of the test of art. 30 95
3.2.4 Obstacles created by Canada - Pharmaceutical Patents 96
3.3 Refraining the meaning of art. 30 in the light of the treaty interpretation rules of the VCLT 97
3.3.1 The first step of the test 97
3.3.2 The second step of the test 100
3.3.3 The third step of the test 103
3.3.4 Summary of the normative meaning of art. 30 resulting from the application of the general rule of interpretation of theVCLT 107
3.4 Assessment test of the legitimacy of exceptions to the rights conferred by trademarks (art. 17) 108
3.5 Assessment test of the legitimacy of exceptions to the rights conferred by protected industrial designs (art. 26.2) 114
4 Determining the normative meaning of art. 13 of the TRIPS Agreement and art. 9(2) of the Berne Convention 117
4.1 Introduction 117
4.2 Art. 13 of TRIPS according to US - Section 110(5) Copyright Act 121
4.2.1 First step: exceptions shall be confined to certain special cases 121
4.2.2 Second step: exceptions shall not conflict with a normal exploitation of the affected works 122
4.2.3 Third step: exceptions shall not unreasonably prejudice the legitimate interests of the copyright holders concerned 124
4.2.4 Why US - Section 110(5) Copyright Act is legally irrelevant to future disputes 124
4.3 Interpreting art. 13 TRIPS and art. 9(2) BC in accordance with the customary rules of treaty interpretation 127
4.3.1 The first step 127
4.3.2 The second step 130
4.3.3 The third step 136
4.3.4 Aids offered by the records of the Stockholm Revision Conference 140
Concluding remarks on Part Ⅰ 148
Part Ⅱ Putting to the test the capacity of the general exception clauses of the TRIPS Agreement to promote the pillars of sustainable development 157
5 Patents and the R＆D and genetic diagnostic test exceptions 159
5.1 Introduction 159
5.2 Potential obstacles set by biotech patents to the progress of science and technology 163
5.2.1 Challenges created by gene patents 163
5.2.2 Patents on genes associated with disease and genetic tests 168
5.2.3 Genes and unique resources 171
5.2.4 Research tools 172
5.2.4.1 Definition 172
5.2.4.2 Problems caused by granting patents on research tools 173
5.2.5 Tragedy of the anti-commons 176
5.2.6 Royalty stacking 177
5.3 Research use exception and freedom in science and technology 178
5.4 Research use exceptions adopted by some members of the international community 182
5.5 The R＆D and genetic diagnostic test exceptions 190
5.5.1 General rules applicable to both exceptions 192
5.5.1.1 Rule I: Mandatory character of the exceptions 192
5.5.1.2 Rule II: Duty to inform 193
5.5.1.3 Rule III: Guarantee of access to biological materials 193
5.5.1.4 Rule IV: Prohibition of reach-through patent claims and contractual clauses 193
5.5.1.5 Rule V: Establishment of a patent clearing house 195
5.5.1.6 Rule VI: De-bureaucratization of the procedures for granting compulsory licenses 197
5.5.1.6.1 Compulsory licensing for unique research tools 199
5.5.1.6.2 Compulsory licensing of blocking patents 200
5.5.2 R＆D exception - first component: uses focused on generating knowledge on the subject matter of the patent and developing new innovations 201
5.5.3 R＆D exception - second component: scientific and humanitarian uses 204
5.5.4 R＆D exception - third component: dual inventions, when used as research tools 205
5.5.4.1 Differential treatment and graduated rates 207
5.5.5 R＆D exception - fourth component: unique research tools 209
5.6 Assessment of the lawfulness of the R＆D exception 211
5.6.1 First step: assessment of the limited character of the exception 211
5.6.2 Second step: assessment of the reasonableness of the interference caused by the exception 212
5.6.2.1 Proposals of exceptions governed by the TRIPS compulsory licensing system 214
5.6.2.2 Proposals based on the "fair use" defense 216
5.6.2.3 Proposals of sui generis patent exceptions 219
5.6.2.3.1 Janice Mueller's proposal 219
5.6.2.3.2 Rochelle Dreyfuss's proposal 221
5.6.2.3.3 Rebecca Eisenberg's proposal 223
5.6.2.4 Conclusions on the proposals examined 225
5.6.3 Third step: assessment of the reasonableness of the degreeof harm caused by the R＆D exception 226
5.7 The genetic diagnostic test exception and its functioning 227
5.8 Assessment of the lawfulness of the genetic diagnostic test exception in the light of art. 30 TRIPS 231
5.8.1 First step: assessment of the limited character of the exception 231
5.8.2 Second step: assessment of the reasonableness of the interference caused by the exception 233
5.8.2.1 Proposal of Lynn Rivers 233
5.8.2.2 Proposals based on a compulsory licensing scheme 234
5.8.3 Third step: assessment of the reasonableness of the prejudice caused by the exception 235
6 Trademarks and the parody and criticism exception 237
6.1 Introduction 237
6.2 Some cases involving conflicts between the exclusive right conferred by trademarks and freedom of expression 240
6.2.1 Laugh It Off case 240
6.2.2 Areva case 243
6.2.3 Esso case 245
6.2.4 Danone case 247
6.2.5 "Guarana Power" case 248
6.2.6 Brazilian Olympic Committee case 250
6.2.7 Tata Sons case 252
6.2.8 Lessons to be drawn from the cases 255
6.3 Proposal of a parody and criticism exception 258
6.3.1 Assessment of the legality of the parody and criticism exception 262
7 Industrial designs and the repair exception 266
7.1 Introduction 266
7.2 ANFAPE case 268
7.2.1 SDE's ruling 271
7.2.2 Efforts to reverse SDE's ruling 276
7.3 European proposal for a repair exception 282
7.4 Assessment of the lawfulness of the European repair exception 287
7.4.1 First step 287
7.4.2 Second step 288
7.4.3 Third step 290
8 Copyright and the educational exception for underprivileged students and researchers 292
8.1 Introduction 292
8.2 The broadening of exclusive rights and the Brazilian Copyright Act of 1998 297
8.2.1 The cumbersome Brazilian private copying exception 301
8.2.2 The response of the Brazilian government 309
8.3 Proposal for an educational exception for underprivileged students and researchers 312
8.3.1 Assessment of the legality of the proposed educational exception 315
8.3.1.1 Assessment of the special character of the exception 315
8.3.1.2 Assessment of the ability of the exception to conflict with the normal exploitation of the affected works 318
8.3.1.3 Assessment of the unreasonable character of the prejudice caused by the exception to the legitimate interests of copyright holders 319
Concluding remarks on Part Ⅱ 320
Final remarks 326
Bibliography 330
Index 351