Kur, Annette --- "Limitations and Exceptions Under the Three-Step-Test – How Much Room to Walk the Middle Ground?" [2011] ELECD 206; in Kur, Annette (ed), "Intellectual Property Rights in a Fair World Trade System" (Edward Elgar Publishing, 2011)

Book Title: Intellectual Property Rights in a Fair World Trade System

Editor(s): Kur, Annette

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800099

Section: Chapter 5

Section Title: Limitations and Exceptions Under the Three-Step-Test – How Much Room to Walk the Middle Ground?

Author(s): Kur, Annette

Number of pages: 54

Extract:

5. Limitations and exceptions under
the three-step test ­ how much room
to walk the middle ground?
Annette Kur

1. INTRODUCTION

This chapter will briefly outline the role and functions of limitations
and exceptions within the system of intellectual property (IP) law.
Furthermore, it will investigate the origins as well as the current inter-
pretation of the three-step test, with a critical focus on the evaluation of
the WTO panel decisions dealing with Art. 13 and Art. 30 (and, to some
extent, Art. 17 TRIPS). In addition, it will be explained why and how the
interpretation by the WTO panels is not doing full justice to the inherent
flexibilities of the test, whose potential for a more balanced understanding
in the context of TRIPS and other international instruments will be set out
in the conclusion.


2. DEFINITIONS AND SYSTEMATIC
CONSIDERATIONS

2.1. What are we Talking About?

There is no doubt that it lies in the very nature of IP rights to be
"limited".1 They have a beginning and an end, both in time2 and in the
space occupied by them. The dimensions of the latter are determined by


1 See e.g. Ricketson & Ginsburg (2006) at 756 pointing out the fact that

during the negotiations leading up to the Berne Convention, delegates were
reminded by Numa Droz that "limits to absolute protection are rightly set by the
public interest".
2 With the notable exception of trademarks: although the duration of regis-

tration is typically limited to 10 ...