A study on interpretation and application on the flexibility in the intellectual property: from the perspective of fair use doctrine in TRIPS and related DSR

• Main Authors: Chen, Hsiao-Wen, 陳曉雯
• Other Authors: LIU, KUNG-CHUNG
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/12923604061349069503

碩士 === 國立清華大學 === 科技法律研究所 === 101 === The exception clauses in TRIPS agreement are Articles 13, 17 and 30, which describe the exception and limitation to copyright, trademark and patent. The present study focus on the flexibility under exception clauses and start with reviewing DSB reports including U.S. Section 110(5) of Copyright Act , Canada-Patent Protection of Pharmaceutical Products and European Communities-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs. Each section compares the interpretations made by WTO panels with criticisms and speculative recalibrated proposals. This study also discusses the flexibility in Taiwan IP laws from the perspective of fair use. Inspect the interpretations of exception clauses made by our courts are restrained the flexibility as well as DSB reports or not. As to the most important object of the exception clauses is a balance of rights and obligations, it is also the content in the Article 7 of TRIPS agreement. However, the fair use doctrines in Taiwan IP laws are translated from foreign legal systems. This kind of legislation makes achieving local balance more difficult. By comparative jurisprudence, the study suggests that the fair use doctrines might have more flexible space. Finally, the study concludes the exception clauses could be defined not only one objection but also one flexibility factor in IP laws. The court shall have a positive attitude to exercise of judicial discretion and try to reasonably limit IP rights.