| "Protection" and "Limitation" are two parallel clues of the intellectual property rights(IPRs)legal system,and the latter has been more important in the international protection system with the background of nearly two decades' implementation of TRIPS and the establishment of basic institutions.Over the years,many countries'modification of intellectual property rights law involves limitations and exceptions which will impact on fruits the multilateral system has achieved if no regulation is made.Furthermore,as the significance of IPRs for international economic activities becomes more and more obvious,conflicts between trade-linked problems like human rights and IPRs are deepened.By combing articles of laws and conventions of representative countries and areas,it can be found that human rights and intellectual property rights are two comparatively highlight fields where regulating rights-constrain legislation is made.Practice of human rights law provides experience that regulation by "constraining-the-constraint" article is useful and effective.This article has strong governing and generalizating power,and provides leeway and scope for self-governing power and uniformity.Therefore,regulating and governing can be realized to some extent in the complicated human rights field.Due to the close connection between human rights and intellectual property rights and the same problem they faced up with that how to regulate complicated and various limitations and exceptions,mode and experience can be learned and borrowed from each other.Nowadays,except items where concensus has been concluded,the "three-step test"article is applied to directly or indirectly by referencing TRIPS when intellectual property rights limitations and exceptions are mentioned in multilateral trade conventions,pure intellectual property rights agreements,regional trade agreements or investment agreements.Because the multilateral trade convention has a broad range of members,mandatory jurisdiction and implementation system,its "three-step test"article has become the core article of the regulation system for intellectual property rights constraint.Domestic laws of representative countries and areas show that the "constraining-the-constraint"mode is widely applied and the "three-step test"sense and principle is absorbed into the original different regulating systems because of the development of "three-step test"article in TRIPS and other conventions.Furthermore,though lack of effects the multilateral and many regional conventions involved intellectual property rights have prescribed human rights articles like public health and the trend is still developing;rights articles of domestic constitutions of countries(areas)are applied directly or indirectly in the resolution of intellectual property rights disputes.Hence,conclusion can be made that human rights laws and "three-step test"articles constitute the basic legal framework of intellectual property rights constraint regulation system which reflects the fundamental framework for this regulation system.The fundamental framework,covering a wide range of situations,has an expectable and relative stable order realized by the function of "three-step test"articles with their generalization and inclusion power,and therefore has a kind of function similarly to constitution that promoting members'laws to develop to the same direction on basic elements as much as possible.The analysis of the judicial process of the fundamental framework shows that the constraint from human rights laws nowadays is mainly reflected in the articles of property rights,life and health,expression freedom and communication freedom etc.,which has been practiced in judicial cases of European Human Rights Court and representative countries." Three-step test"articles have super strong power of generalization and include various limitations and exceptions as a kind of "constraining-the-constraint" article,which has been certified by multilateral and members' judicial cases.All of the limitations and exceptions of IPRs prescribed in members laws over which conventions have jurisdiction are subject to the constraint of the aforementioned basic framework.Hence,this regulating framework functions similar to the constitution.It contains context of arrangement about rights,obligations and a variety of interests,establishing basic rules and principles for members to adjust,create limitations and exceptions and laying down boundary.As far as the internal of the framework is concerned,the constaint of IPRs resulting from human rights laws is far away from "three-step test" articles in the respects of quantity,content and judicial effects,and has not been applied directly in international multilateral system.As a result,"three-step test" has become the most focus article of the regulation system.It is the "controlling-center" with significant constitutional sense and function.Its institution and content is a substantive standard as well as methodology.The article adopts "certain cases","limited","normal exploitation","unreasonable prejudice","third party" etc.as fundamental logic elements to position in order to generalize and exercise control over various complicated limitations and exceptions.It also has partial human rights requirements and other public policies consideration absorbed into the intellectual property area so that provides comparative sufficient scope to members' regulating discretion.Multilateral cases of the past give lessons and need to be corrected quickly that panels did not give an comprehensive understanding of the legal position and generalization function of"three-step test" articles,not give right decisions about the public policy problems either.The article not only has strong power to generalize limitations and exceptions in terms of these elements,but also includes principles of human rights protection,due process,no right abuses,proportionality etc.which are standards of testing the legitimacy of substantive laws in its application and explanation.Consequently,it has a function similar to substantive constitution.With the stagnation of multilateral system,this constitutional structure,especially the "three-step test" article,plays an important role in resolving the public health problem,meeting challenges and satisfying requests brought about by new technology and new business mode,breaking up TRIPS stagnation,promoting arguments of developing countries institutionalized and countering unjust strong protection.This constitutional function also has strategic implication for the future development of IPRs law.Based on the analysis of their own constitutional function,WTO and WIPO function differently as well as support each other,which makes the international rules of IPRs transform from "waiver rules" into "active cooperation rules".The fundamental framework and its constitutional function also provides valueable lessons to the improvement of fair use system in Chinese copyright law and the arrangement of limitations and exceptions in Chinese patent law and trademark law as well as their application to abide by conventions obligations.In the application of exception articles,the "three-step test" standard should be adopted according to conventions so as to strengthen the uniformity trend of limitations and exceptions in order to accumulate much more " objective practices" based on China's positions and strive for the power of discourse.This fundamental regulation framework for IPRs limitations and its constitutional function should also be considered in our trade negotiations and article design and arrangement process of regional and multilateral RTAs to establish reasonable leeway and scope for public policies. |
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