Exceptions to Intellectual Property Rights: Lessons from WTO-Trips Panels
AbstractTRIPS sets out that intellectual property rights are in principle absolute and that national law may provide exceptions under certain limited circumstances only. WTO-TRIPS panels have made use of the possibility, pursuant to Articles 13 and 30 TRIPS, to declare certain national copyright or patent protection, respectively, excessively lenient. In the course of these proceedings, a three-step test methodology has been formulated that might be considered for application on both economical and legal grounds in other areas of intellectual property, notably in trademark law (Article 17 TRIPS) and in designs and models law (Article 26 TRIPS). The paper, based on a review of WTO case law, concludes that WTO-TRIPS panels reinforce the monopolist position of the intellectual property right holder, thereby leading to further limitations of innovation in the digital economy. |