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1 Introduction1

1.1 Relationship between sustainable development and access to knowledge1

1.2 Role of intellectual property rights in restricting access to knowledge12

1.3 Purpose and plan of the work15

1.4 Methodological approach24

Part Ⅰ Determining the normative meaning of the general exception clauses of the TRIPS Agreement27

2 The customary rules of treaty interpretation and the elements in light of which the general exception clauses of TRIPS should be interpreted29

Introduction29

2.1 Ordinary meaning attributable to the terms of the treaty32

2.2 Principle of good faith33

2.2.1 Principle of effectiveness in the interpretation of treaties34

2.2.2 Doctrine of abuse of rights36

2.3 Object and purposes of the WTO system and the TRIPS Agreement39

2.3.1 General objectives of the WTO system41

2.3.2 Specific objectives of the TRIPS Agreement42

2.3.3 Article 8 of the TRIPS Agreement and the guiding principles of the general exception clauses44

2.3.3.1 Objectives pursued by the exceptions to IPRs45

2.3.3.2 The necessity standard46

2.3.3.2.1 The transformation of the necessity standard into a proportionality test54

2.3.3.2.2 The necessity standard in the context of art. 8 of the TRIPS Agreement61

2.3.3.3 The consistency standard of art. 8 of the TRIPS Agreement63

2.3.3.3.1 Additional obligations that shall be observed by copyright exceptions64

2.3.3.3.2 Additional obligations that shall be observed by the exceptions to the rights conferred by trademarks66

2.3.3.3.3 Additional obligations that shall be observed by the exceptions to the rights conferred by protected industrial designs66

2.3.3.3.4 Additional obligations that shall be observed by the exceptions to the exclusive rights conferred by a patent67

2.3.3.3.4.1 Guarantee of protection to all categories of inventions that shall be protected by all WTO Members67

2.3.3.3.4.2 Minimum term of protection of patents68

2.3.3.3.4.3 Respect for the area occupied by the TRIPS compulsory licensing system68

2.3.3.3.4.4 Non-discrimination based on national origins, the field of technology and the manner of exploitation of the invention70

2.4 Context of the general exception clauses of the TRIPS Agreement74

2.4.1 Interpretative agreements and subsequent State practices75

2.4.2 Rules of international law applicable in the relations between the parties78

2.4.2.1 Principle of proportionality82

2.5 Supplementary means of interpretation87

3 Determining the normative meaning of arts. 17, 26(2) and 30 of the TRIPS Agreement90

3.1 Introduction90

3.2 Art. 30 of TRIPS according to Canada - Pharmaceutical Patents90

3.2.1 The first step of the test of art. 3091

3.2.2 The second step of the test of art. 3093

3.2.3 The third step of the test of art. 3095

3.2.4 Obstacles created by Canada - Pharmaceutical Patents96

3.3 Refraining the meaning of art. 30 in the light of the treaty interpretation rules of the VCLT97

3.3.1 The first step of the test97

3.3.2 The second step of the test100

3.3.3 The third step of the test103

3.3.4 Summary of the normative meaning of art. 30 resulting from the application of the general rule of interpretation of theVCLT107

3.4 Assessment test of the legitimacy of exceptions to the rights conferred by trademarks (art. 17)108

3.5 Assessment test of the legitimacy of exceptions to the rights conferred by protected industrial designs (art. 26.2)114

4 Determining the normative meaning of art. 13 of the TRIPS Agreement and art. 9(2) of the Berne Convention117

4.1 Introduction117

4.2 Art. 13 of TRIPS according to US - Section 110(5) Copyright Act121

4.2.1 First step: exceptions shall be confined to certain special cases121

4.2.2 Second step: exceptions shall not conflict with a normal exploitation of the affected works122

4.2.3 Third step: exceptions shall not unreasonably prejudice the legitimate interests of the copyright holders concerned124

4.2.4 Why US - Section 110(5) Copyright Act is legally irrelevant to future disputes124

4.3 Interpreting art. 13 TRIPS and art. 9(2) BC in accordance with the customary rules of treaty interpretation127

4.3.1 The first step127

4.3.2 The second step130

4.3.3 The third step136

4.3.4 Aids offered by the records of the Stockholm Revision Conference140

Concluding remarks on Part Ⅰ148

Part Ⅱ Putting to the test the capacity of the general exception clauses of the TRIPS Agreement to promote the pillars of sustainable development157

5 Patents and the R＆D and genetic diagnostic test exceptions159

5.1 Introduction159

5.2 Potential obstacles set by biotech patents to the progress of science and technology163

5.2.1 Challenges created by gene patents163

5.2.2 Patents on genes associated with disease and genetic tests168

5.2.3 Genes and unique resources171

5.2.4 Research tools172

5.2.4.1 Definition172

5.2.4.2 Problems caused by granting patents on research tools173

5.2.5 Tragedy of the anti-commons176

5.2.6 Royalty stacking177

5.3 Research use exception and freedom in science and technology178

5.4 Research use exceptions adopted by some members of the international community182

5.5 The R＆D and genetic diagnostic test exceptions190

5.5.1 General rules applicable to both exceptions192

5.5.1.1 Rule I: Mandatory character of the exceptions192

5.5.1.2 Rule II: Duty to inform193

5.5.1.3 Rule III: Guarantee of access to biological materials193

5.5.1.4 Rule IV: Prohibition of reach-through patent claims and contractual clauses193

5.5.1.5 Rule V: Establishment of a patent clearing house195

5.5.1.6 Rule VI: De-bureaucratization of the procedures for granting compulsory licenses197

5.5.1.6.1 Compulsory licensing for unique research tools199

5.5.1.6.2 Compulsory licensing of blocking patents200

5.5.2 R＆D exception - first component: uses focused on generating knowledge on the subject matter of the patent and developing new innovations201

5.5.3 R＆D exception - second component: scientific and humanitarian uses204

5.5.4 R＆D exception - third component: dual inventions, when used as research tools205

5.5.4.1 Differential treatment and graduated rates207

5.5.5 R＆D exception - fourth component: unique research tools209

5.6 Assessment of the lawfulness of the R＆D exception211

5.6.1 First step: assessment of the limited character of the exception211

5.6.2 Second step: assessment of the reasonableness of the interference caused by the exception212

5.6.2.1 Proposals of exceptions governed by the TRIPS compulsory licensing system214

5.6.2.2 Proposals based on the "fair use" defense216

5.6.2.3 Proposals of sui generis patent exceptions219

5.6.2.3.1 Janice Mueller's proposal219

5.6.2.3.2 Rochelle Dreyfuss's proposal221

5.6.2.3.3 Rebecca Eisenberg's proposal223

5.6.2.4 Conclusions on the proposals examined225

5.6.3 Third step: assessment of the reasonableness of the degreeof harm caused by the R＆D exception226

5.7 The genetic diagnostic test exception and its functioning227

5.8 Assessment of the lawfulness of the genetic diagnostic test exception in the light of art. 30 TRIPS231

5.8.1 First step: assessment of the limited character of the exception231

5.8.2 Second step: assessment of the reasonableness of the interference caused by the exception233

5.8.2.1 Proposal of Lynn Rivers233

5.8.2.2 Proposals based on a compulsory licensing scheme234

5.8.3 Third step: assessment of the reasonableness of the prejudice caused by the exception235

6 Trademarks and the parody and criticism exception237

6.1 Introduction237

6.2 Some cases involving conflicts between the exclusive right conferred by trademarks and freedom of expression240

6.2.1 Laugh It Off case240

6.2.2 Areva case243

6.2.3 Esso case245

6.2.4 Danone case247

6.2.5 "Guarana Power" case248

6.2.6 Brazilian Olympic Committee case250

6.2.7 Tata Sons case252

6.2.8 Lessons to be drawn from the cases255

6.3 Proposal of a parody and criticism exception258

6.3.1 Assessment of the legality of the parody and criticism exception262

7 Industrial designs and the repair exception266

7.1 Introduction266

7.2 ANFAPE case268

7.2.1 SDE's ruling271

7.2.2 Efforts to reverse SDE's ruling276

7.3 European proposal for a repair exception282

7.4 Assessment of the lawfulness of the European repair exception287

7.4.1 First step287

7.4.2 Second step288

7.4.3 Third step290

8 Copyright and the educational exception for underprivileged students and researchers292

8.1 Introduction292

8.2 The broadening of exclusive rights and the Brazilian Copyright Act of 1998297

8.2.1 The cumbersome Brazilian private copying exception301

8.2.2 The response of the Brazilian government309

8.3 Proposal for an educational exception for underprivileged students and researchers312

8.3.1 Assessment of the legality of the proposed educational exception315

8.3.1.1 Assessment of the special character of the exception315

8.3.1.2 Assessment of the ability of the exception to conflict with the normal exploitation of the affected works318

8.3.1.3 Assessment of the unreasonable character of the prejudice caused by the exception to the legitimate interests of copyright holders319

Concluding remarks on Part Ⅱ320

Final remarks326

Bibliography330

Index351