International Trade In Intellectual Property Restrictions

The limitations on intellectual property rights in international trade include fair use, compulsory license, statutory license, exhaustion of rights and regulations from the competition law. They are regulative rules, which help balance the interests of holders and users of intellectual property rights. They are also the key issues which developed countries and developing countries have negotiated for a long time. The purpose of this dissertation is to explore the rules of the limitations on intellectual property rights in international trade. Besides introduction and conclusion, this dissertation includes five chapters.In introduction, different views about the limitations on intellectual property rights are analyzed. The limitations on intellectual property rights are different from the scope of intellectual property rights. They are regulative rules, the purpose of which is to regulate the relations between intellectual property rights and other legitimate interests. The necessity of the limitations on intellectual property rights is studied on the basis of the WTO dispute settlement cases and the global public health crisis. The limitations on intellectual property rights are also classed in introduction.In chapter 1, the history and status quo are studied about the limitations on intellectual property rights in international trade. In the part of the history, early intellectual property laws including The Statute of Monopolies in 1624 and The Statute of Anne in 1709 are studied. The birth of modern intellectual property regime saw the limitations on intellectual property rights. But at the initial stage of the regime, the limitations on intellectual property rights were undeveloped, which was determined by the role of intellectual property rights in property rights system and social economy. In the part of status quo, the two main lines and their interactions in modern international intellectual property protection are studied. Then the limitations on intellectual property rights, including fair use, compulsory license, statutory license, exhaustion of rights and regulations from the competition law, are analyzed from the prospect of international treaties.In chapter 2, the theories of the limitations on intellectual property rights are studied. Intellectual property rights are regarded as private rights and this is the result of the development of the society. In the history of legal development, it was supported by various theories. The system of the limitations on intellectual property rights is an important mechanism in international trade to balance the interests of intellectual property rights holders and intellectual property rights users. It is also an important legal method to balance the interests of the nations which have great diversities in economic development and in cultural traditions. As the nature of intellectual property rights is concerned, besides the personal rights, property rights and human rights which have been studied in the current literatures, intellectual property rights also have the nature of trade. In the birth and development of intellectual property rights, trade played an important role. In the current intellectual property rights regime, an important feature is the marriage between international trade and intellectual property rights. The purpose of the marriage is to enhance the binding force of international intellectual property treaties.In chapter 3, the limitations on patent rights in international trade are studied. First, Article 30 of the TRIPS Agreement is analyzed combined with Canada-Patent Protection of Pharmaceutical Products case in the WTO. The first step of the so-called 'three step test' is in fact a general requirement and other two steps really do the testing job. Then compulsory license of patent is analyzed. From the view of history, the use of compulsory license has become more difficult and Article 31 of the TRIPS Agreement is the embodiment of this trend. This situation is slightly changed because of the global public health crisis and it is caused by many factors. But this does not change the trend of compulsory license of patent. China's Patent Law should be modified so as to concord with Doha Declaration, General Council's Decision and the Amendment of Article 31 of TRIPS Agreement. The Methods of Compulsory License of Patent Concerning Public Health by China's National Intellectual Property Bureau has its shortcomings. In this chapter, the exhaustion of patent rights and parallel importation are also studied.In chapter 4, the limitations on trademark rights are studied. First, the fair use of the trademark is analyzed from the view of international law and comparative law. The structure of Article 17 of the TRIPS Agreement is expounded. The fair use of trademark includes both 'descriptive fair use' and 'nominative fair use'. China's Trademark Law should be modified as far as the fair use of trademark is concerned. In this chapter, the exhaustion of trademark rights and parallel importation are also studied. National exhaustion has full legal reasons, but international exhaustion does not.In chapter 5, the limitations on copyright in international trade are studied. Article 13 of the TRIPS Agreement is analyzed combined with United States-Section 110(5) of The US Copyright Act case in the WTO. The first step of the so-called 'three step test' is in fact a general requirement and other two steps really do the testing job. The relationship between copyright exceptions and collective administration of copyright is also studied. In this chapter, compulsory license, statutory license and exhaustion of copyright are also analyzed.In sum, the limitations of intellectual property rights in international trade are regulative rules. They are changed with the development of the economy and culture. The limitations on intellectual property rights in international trade balance the interests of intellectual property rights holders and users. They play an important role in the realization of the goal of intellectual property regime.