The Interpretation Of Exception Clauses Of The TRIPS Agreement

The exception clauses of the TRIPS Agreement are different from the exception clauses of the GATT 1994 and the GATS,and don't include all clauses of the TRIPS Agreement which could produce the effectiveness of limiting the exclusiveness of intellectual property rights.The Exception Clauses of the TRIPS Agreement include Article 13 of copyright exception,Article 17 of trademark exception,Article 26(2)of industrial design protection exception and Article 30 of patent rights exception,covering four exceptions clauses.These exception clauses can produce the effect of limiting the exclusiveness of intellectual property rights,which prescribe the strict applicable conditions.Part of the WTO members,in the WTO dispute cases with the relevant exception clauses of the TRIPS Agreement,stated the view that such as the objectives and principles of the TRIPS Agreement should be used directly to explain the exception clauses,and asked for the TRIPS Council to explain Article 30 of the TRIPS Agreement in the TRIPS Council meetings,and wanted to implement the exception clauses of the TRIPS Agreement directly in order to protect public health.The WTO members in the course of explaining the exception clauses,showed the will to explain the exception clauses of the TRIPS Agreement without the applicable conditions.This was in conflict with the demands of the WTO Dispute Settlement Body that WTO rules on interpretation should uphold the principle of literal interpretation priority.These WTO members have showed the tendency of the extensive interpretation of the exception clauses of the TRIPS Agreement in the process.The WTO members which were trying to explain the exception clauses of the TRIPS Agreement expansively include both the developing countries and the developed countries.The tendency of the TRIPS Agreement to strengthen the protection of the great-power countries of the intellectual property rights,which are the developed countries,the polybasic objectives of the TRIPS Agreement and the dateless,non-regional and gratuitous characteristics of the exception clauses of the TRIPS Agreement and the positive role of intellectual property rights to promote economic development motivate not only the developing countries but also the developed countries hope to make the most of the exceptions clauses of the TRIPS Agreement.Faced with the strict applicable conditions of the exception clauses of the TRIPS Agreement,these factors become the motives of these WTO members to expand the interpretation of the exception clauses of the TRIPS Agreement.The difference with the applicable conditions of the exception clauses of the TRIPS Agreement,the definiteness of the contents of the exception clause and the ambiguity of the language provide some free space to for these WTO members to expand the interpretation of the exception clauses of the TRIPS Agreement.In view of the WTO members' right to formulate the international law,the intentions of these WTO members to expand the interpretation of the exception clauses of the TRIPS Agreement should be paid attention to If the WTO members'interpretation of the exception clauses of the TRIPS Agreement could exceed the reasonable limitation,the result would lead to the consequences of the exception becoming the principle,and should damage the stability of the TRIPS Agreement.And since the 1995 establishment of the WTO,the TRIPS agreement became the basis agreement for the international protection of intellectual property rights.The developing countries have completed the transformation of the national intellectual property law to be consistent with the TRIPS Agreement and are actively leading the change activities of the TRIPS agreement,but the United States and other countries,which possess of the intellectual superiority,are trying to get rid of the bound by the TRIPS Agreement,and are formulating more favorable new guidelines for the international protection of intellectual property rights.Once the TRIPS Agreement would lose the of stability,the developing countries with the disadvantaged position of intellectual property rights could only discuss intellectual property rights with the United States and other powers on which build a platform,and then would passively accept the criteria of the new international protection of intellectual property rights again.The current regulation of WTO legal interpretation was established on the base of Article 31 and Article 32 of the Vienna Convention on the Law of Treaties,but because of the difference between the TRIPS Agreement and GATT1994,the regulation of WTO legal interpretation,which nuclear objective is to interpret GATT1994,couldn't resolve the legal interpretation of the exception clauses of the TRIPS Agreement effectively.Facing the WTO members' demands of expanding the interpretation of the exception clauses of the TRIPS Agreement,a special rule of the interpretation of the exception clauses of the TRIPS Agreement should be established.The principle of legitimacy and the theory of the benefit balance should be the principle of the interpretation,and the meanings of interpretation should include the semantic interpretation,teleological interpretation and uniform interpretation in the system of the interpretation of the exception clauses of the TRIPS Agreement.When using the principle of the benefit balance to interpret the exception clauses of the TRIPS Agreement,one aspect of the matter should be the personal profit of the owner of the intellectual property,and another aspect of the matter should be the direct or indirect manifestation of the public's interest,without generating a new unbalance on account of the principle of the benefit balance.In the meantime,the legal interpretation of the exception clauses of the TRIPS Agreement should not only be loyal to the literal meaning of the legal terminology,but also ensure the uniformity of the interpretation of the same legal terminology in the different clauses.In the course of interpreting the exception clauses of the TRIPS Agreement,the principle of legitimacy should be prior to the principle of benefit balance,and the semantic interpretation should be prior to the teleological interpretation,which should be prior to the uniform interpretation.On the base of the interpretation of the exception clauses of the TRIPS Agreement explained by DSB,the exception clauses of the TRIPS Agreement could be interpreted further according to the rule of the interpretation of the exception clauses of the TRIPS Agreement.We should interpret the "legitimate rights","unreasonable prejudice","normal exploitation","unreasonable conflict/conflict""certain special cases","limited exceptions","third party","consider" and other vague language of the applicable conditions of the exception clauses of the TRIPS Agreement uniformly,following the vague language needed to explain,when interpreting the different exception clauses of the TRIPS Agreement.Also according to the rule of the interpretation of the exception clauses of the TRIPS Agreement,we could see that Australia plain packaging for tobacco products,which has triggered the series of WTO dispute cases,is the improper interpretation of Article 17 of the TRIPS Agreement,and is not coincident with Article 17.In Chinese legal system of Intellectual property rights,Article 22 of Chinese copyright law provides for copyright exception,and Article 69 of Chinese patent law provides for the exception to patent rights,but Chinese trademark law doesn't provide trademark exception.At present,the relevant judicial interpretations of the Supreme People's Court and some court sentences have showed the situation of interpreting expansively the exception clauses of Chinese intellectual property law.The national exception clauses of the IPR should be perfected and interpreted according to the rule of the interpretation of the exception clauses of the TRIPS Agreement,and the expanding the interpretation of the national exception clauses of the IPR should be controlled within the reasonable limitation,in order to regulate the interpretation of the exception clause in the reasonable limitation.