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