TRIPS協定之例外條款──以概括型例外條款為中心

Abstract

TRIPS協定對於每種個別的智慧財產權，分別設有例外條款。目前學說上對於這些例外條款的探討，大多集中於個別爭端解決案件的檢討，少有全面性的理論探討。事實上這些條款的規定本身，呈現概括型與列舉型兩種截然不同的規定方式。其中概括型例外條款並不考慮智財權利例外所欲達成的政策目的是否足以支持其限制範圍，也不考慮該限制措施是否為達成該政策目的之必要手段，更不考慮智財保護與該等公益目的在該個案上之相對重要性。加上爭端解決機構在相關案件裁決中，將概括型例外條款的要件解釋得相當嚴苛。這使得TRIPS協定所容許的例外範圍更形狹小。如此是否過度著重保護智慧財產，忽略例外條款本應扮演的智財權與其他公益間之中介調節閥之功能，同時無法適切保護智慧財產本身，實在令人懷疑。過於嚴苛的例外條款，也可能窒死智財法制本身檢討改革的空間。在分析評論前述問題之後，本文簡短評估可能的解決方向，指出修正TRIPS協定雖然充滿現實困難，卻是唯一足以解決現存問題之途徑。

Each item of intellectual property protected in the TRIPS Agreement has its own exception clauses. These clauses regulate the width and scope of exceptions to those private rights and have become one of the focal points of disputes between member economies. Moreover, these clauses are not only related to IP protection, but also interact with other public values of individual members, such as morality, public health, nutrition, environment, dissemination of technology, and development of vital sectors. Consequently, these provisions are critical adjusting valves that strike the proper balance between IP protection and other socio-economic policy goals, and in the meantime demonstrate the normative complex of IP protection in both developed and developing countries. Despite their crucial positions in the TRIPS Agreement, not all of the exception clauses are well drafted. Some of them are general exceptions, governing all variety of exceptions that are attached to a specific type of intellectual property, encompassing copyright, trademarks, industrial design, and patents. This group of exception clauses is characterized by vague wording, and the controlling criteria embodied in these provisions—the so-called “three-step” and “two-step” tests—contain no concrete standards and are hardly distinguishable from each other. The panel reports of the Dispute Settlement Body (DSB) fleshed out these criteria and clarified the vagueness to some extent, but meanwhile laid down interpretations that are excessively restrictive. The panel reports have been criticized as too grammatical and too intrusive to members’ sovereignty, since the ruling ignored relevant provisions of the TRIPS Agreement such as Articles 7 and 8.1, the objective and principle clauses. The reports also ignored contending policy goals and public interests that member economies may pursue by way of exceptions to IP rights. Given the key role of the TRIPS Agreement in the field of international IP regulation and the deficiencies present in its texts and DSB interpretations thus far, those general exceptions are in need of careful examination and consideration so as to find an adequate way to address their current problems.