《反假冒贸易协定》边境措施研究

进入后TRIPs时代,发达国家不满足于TRIPs协定的正义框架,不断在国际社会通过"场所转换"提高TRIPs的保护标准,并在2011年达成《反假冒贸易协定》。该协定中的边境措施在实体法和程序法层面均有新的要求和较高的保护标准。这些措施将增加我国转运货物被查扣的风险,给我国出口企业造成负面影响。我国应尽早研究对策,采取抵制立场以防患于未然,同时,联合发展中国家,使知识产权国际保护重回WTO多边体系。     

TRIPs协定与中国知识产权的法律保护

知识产权是人们对智力劳动成果所享有的权利,TRIPs协定将知识产权保护纳入多边贸易体制 整体的WTO框架之中,因而TRIPs协定在WTO中具有特殊的地位和意义。TRIPs协定是形成 企业技术创新机制的外在动力,是完善中国知识产权立法保护的基础,是强化中国知识产权执法 的契机,必须根据WTO规则TRIPs协定的要求,进一步改革知识产权的审判方式,完善证据制 度,设立经济安全防范机制,确认知识产权损害赔偿责任。     

试论TRIPs协议地理标记的产权界定

世界贸易组织(WTO)的建立对产权界定的影响体现在两个方面,一方面是WTO的规定是否完 全界定了权利;另一方面是成员国的国内法的规定是否符合WTO的最低要求。首先分析TRIPs 协议对地理标记产权界定的现状及存在的问题,然后以经济学的方法分析了当原产地和地理来 源地冲突时产权界定的原则;最后对完善我国地理标记立法提出了相应的建议。     

WTO成员方认可《TRIPs协议修正案》的法经济学分析

与一般强制许可相比,《TRIPs协议修正案》下的强制许可,其生产成本更高。由于受到竞争、竞售药品、生产成本、风险、市场大小、药品捐赠等经济因素的影响,许多通用药品制造公司不愿意援引《修正案》及其所涉强制许可制度生产并且出口药品。多个经济因素的存在,都会影响到WTO成员方对《修正案》的认可。     

Influence of WTO decisions on international intellectual property

Legal context: The task of harmonization in the IP framework is currently atrisk. This conclusion is shown by the way EU Member States have recentlyenacted Directive 2001/29 on the harmonization of certain aspectsof copyright and related rights on the information society.Particularly, no Member State seems to have considered the interpretationof the three-step test of the Berne Convention given in 2000by the WTO panel, notwithstanding its importance. Moreover, three recent opinions of the French Cour de Cassation,the French Conseil Constitutionnel, and the German Federal Courtof Justice appear not to have endorsed the WTO's interpretationof the three-step test. This scenario confirms the impressionthat the international framework is devoid of any degree ofharmonization. Key points: Although the aims of certainty and predictability in the internationaltrading system are among its main tasks, the World Trade Organizationhas not yet tackled the plight of harmonization, preferringa political approach to smooth conflicts and disputes. Yet,the World Trade Organization has recently taken important stepsthat seem to herald a new attitude. In United States—Sections301-310 of the Trade Act of 1974, the World Trade Organizationdismissed the traditional deference towards national legislations.In addition, at international and national levels, the AlleghenyLudlum and Softwood Lumber cases aligned their interpretationsto that of the World Trade Organization.     

Special and Differential Treatments provisions in the TRIPs negotiations

Legal context: This article reviews the current status of World Trade Organization(WTO) negotiations on Special and Differential Treatments (S&DT)of developing countries in TRIPs, referred to here as the agreementon compulsory licensing. Key points: The main thrust of the article is that, although the negotiationshave reached equilibrium, there are still some open questionswhich may prove problematic in the future. Practical significance: The most important remaining question to be borne in mind bypractitioners is how the results reached might be incorporatedin TRIPs and made permanent, this impacting future pratice.     

IMF、WB和WTO的比较研究

被誉为世界经济三大支柱的国际货币基金组织、世界银行和关贸总协定 ,自成立以来 ,已走完了半个世纪的风雨历程。它们都对二战后世界经济的复苏和振兴起到了举足轻重的作用。然而 ,关贸总协定及世界贸易组织发展更为迅猛 ,从三大支柱中脱颖而出。展望世界经济发展前景 ,惟有加强三大支柱自身的改革和彼此之间的协调与合作 ,世界经济才能鼎足而立。     

It's patently absurd — benefit sharing genetic resources from the sea under UNCLOS,the CBD and TRIPs

Abstract

The United Nations Convention on the Law of the Sea (UNCLOS) establishes a scheme of sovereignty over parts of the seas. The resources of the seas within state jurisdiction covered by UNCLOS are then accessed and shared according to the scheme set out in the Convention on Biological Diversity (CBD), which relies, in part, on patenting according to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPs). The key findings of this paper are that patents compliant with TRIPs are unlikely to achieve the objects of sharing the benefits from exploiting the genetic resources of the seas because of the significant gaps in UNCLOS and the failure to take into account broad patent claims by non‐residents in benefit sharing arrangements. Consequently, the reliance by the international community on UNCLOS and the CBD for the regulation of benefit sharing, undermines the internationally agreed mandate that the genetic resources of the seas are to be shared and used for the benefit of all.     

知识产权侵权行政责任及其归责原则探析--兼析TRIPs协议的相关条款

知识产权保护中公权力的介入,意味着其侵权行为,不仅应当承担民事责任,还需要承担行政和刑事责任.过错责任作为法律责任归责的基本原则,是知识产权侵权行政责任的基本归责原则.过错推定作为过错存在的判断方式,既能够适合行政责任追究的特点,也与过错责任原则并行不悖.讨论过错责任的例外,应以区分行政责任的处罚责任和其他责任为前提.为制止违法行为蔓延对行政秩序的损害,其他行政责任的无过错适用,可以认为是过错责任的例外.鉴于TRIPs协议的有关条款对我国相关立法的影响,进一步对TRIPs协议的有关条款进行比较分析,从行政法理论和与TRIPs协议协调与适应两方面,对我国相关立法和执法实践进行探讨是必要的.     

Making drugs available at affordable prices: how universities' technology transfer offices can help developing countries

Legal context: In recent years, the prices at which medicines are soldin, and to, developing countries has become a hot politicalsubject affecting the international pharmaceutical industry.Specific legislative measures have followed the political debate,including (1) the EU Regulation 816/2006 on ‘compulsorylicensing of patents relating to the manufacture of pharmaceuticalproducts for export to countries with public health problems’and (2) the The Doha Declaration adopted by the Fourth MinisterialConference of the World Trade Organisation (WTO) in 2001, andthe subsequent Decisions by the WTO General Council to implementthe Declaration in August 2003 and to amend the TRIPs (Trade-RelatedAspects of Intellectual Property Rights) Agreement in December2005. Universities are increasingly considering whether to includeterms in their licence agreements with pharmaceutical companiesthat address this issue. Key points and practical significance: Universities may wish to consider whether it is part of theirmission to negotiate special terms in licence agreements tobenefit the developing world. Where universities decide that,in principle, they wish to include ‘humanitarian-licensing’clauses in their licence agreements, they need to find a formof words that is likely to achieve their objectives and be acceptableto pharmaceutical industry licensees. This article considerssome of the options and suggests some specimen wording.     

专利药品差别定价制理念与适用

《TRIPs协议修正案》的出台有一定的历史背景。它的诞生也会对差别定价制产生显著的进一步影响。该《修正案》的出台促使了全球差别定价制的发展。差别定价制中的发达国家完全补偿类型、发展中国家支付专利使用费补偿类型和最不发达国家零补偿类型也会受到该《修正案》的影响。这些影响的构成有一定的政治、经济和法律原因。     

The status of WTO non-members: A review in light of the 6 December 2005 proposed amendment to the TRIPs Agreement

Legal context: After almost four years of debate, the World Trade Organization(WTO) has finally proposed to amend Article 31 of the TRIPsAgreement as part of the international endeavour to tackle theconflict between drug patent rights and the right of victimsof public health crises to have access to affordable drugs.The proposed amendment, Article 31bis introduces a special compulsorylicence regime for the purpose of manufacture and export ofcheaper pharmaceutical products from some Members of the WTOto those which have no or insufficient capacity to manufacturethese products. Key points: This article discusses the status, in light of the proposedamendment, of non-members of the WTO that are otherwise membersof other health-related international organizations (like theWorld Health Organization), which have been striving to finda solution to this conflict alongside the WTO. The article providesbackground information on the drug patent-public health debate,and discussion of Article 31bis and compulsory licensing. Practical significance: The discussion on the status of non-members of the WTO in lightof the proposed system will help the reader to understand thatlimiting the benefits of the system to Members of the WTO might,contrary to the spirit and the history of the proposal, leavenon-members behind in the global fight against public healthcrises. The article will show that without directly violatingthe TRIPs Agreement and the proposed amendment, non-memberscan also participate in the global fight against public healthcrises and thus benefit as many victims of these crises as possible.     

The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements

The Agreement Establishing the World Trade Organization reservesthe right to adopt ‘authoritative interpretations’of the multilateral trade agreements to the Ministerial Conferenceand the General Council. Given that, to date, this instrumenthas not been used, the present article intends to highlightits structural importance for the balance of powers within thelegal system of the World Trade Organization. It identifiesthe use that could and should be made of it and reviews thepractice so far. The article attempts to explain the reasonsfor the present lack of authoritative interpretations in theWorld Trade Organization and presents several options for thefuture. At the outset, this article explores the parametersthat are relevant for this discussion, notably the possiblescope and legal effects of an authoritative interpretation.Important questions are whether an authoritative interpretationis legally binding on all WTO Members, whether it may modifythe existing law or whether the rules of treaty interpretationare relevant in the formulation of an authoritative interpretation,and whether its validity can be challenged in dispute settlement.     

知识产权国际造法新趋势

在 TRIPs 协议产生后十余年的时间里,知识产权国际造法活动明显加快。在WTO 体制之外,不少国际组织、机构和论坛围绕着如何处理保护知识产权与维护生物多样性、合理开发植物基因资源、促进公共健康、维护人权之间的关系等问题,对 TRIPs 协议所确立的一系列高标准的知识产权规则提出了批判,探讨和制订了一系列软法性质的、倡导人权和维护社会公共利益的知识产权新规则。这些活动打破了 WTO 和 WIPO 在国际法层面上对知识产权立法权的垄断,反映了国际社会对知识产权私权利之外的人权、公共健康等社会权益的日益重视,势必对未来知识产权国际立法和国内立法产生深远影响。     

Legal Problems of Making Regional Trade Agreements with Non-WTO-Member States

In pursuing regional economic integration with non-WTO-membereconomies, a WTO member must be aware that WTO compliance isunder question. An exchange of preferential treatment betweenthe WTO-member party and non-WTO-member parties gives rise toa violation by the WTO member of the MFN treatment obligationof the WTO Agreement. In the case of integration in the servicesector, consistency with WTO jurisprudence is guaranteed, whereasin integrating the goods sector, WTO consistency can only beguaranteed when the non-WTO-member parties are least-developedcountries. Furthermore in the TRIPs sector, the WTO complianceis not questionable only when the RTA reconfirms original rightsand duties arising under the TRIPs Agreement. Thus, in orderto be consistent with WTO jurisprudence, regional integrationagreements in the area of trade in goods need to be approvedby a two-thirds majority of the WTO members, before they comeinto force. Or, the WTO member could encourage the non-WTO-memberstate to join the WTO before their RTA comes into force. Onthe other hand, in the case of economic integration in the servicesector, as non-WTO-member status of any counterpart economiesdoes not act as a legal impediment, the WTO members may pursuemore active negotiations, while remaining consistent with WTOjurisprudence. In drafting and negotiating on IPR chapters underRTAs, WTO members must be vigilant not to mutually exchangea higher level of IPR protection than that stipulated underthe TRIPs Agreement.     

WTO框架下完善我国知识产权滥用规制制度的若干思考

防止滥用知识产权是WTO框架下的TRIPs协议确立的一项基本原则。我国对于知识产权滥用的规制既要充分利用TRIPs给予成员的立法空间,又要符合TRIPs协议的要求。我们应该就TRIPs协议中已经规定的对限制竞争行为的禁止、专利强制许可、滥用知识产权执法程序等几个方面来建立和完善规制知识产权滥用的制度,以全面履行TRIPs协议。     

Who shall live when not all can live? Intellectual property in accessing and benefit-sharing influenza viruses through the World Health Organisation

This article addresses the development of the World Health Organisation's (WHO) arrangements for accessing viruses and the development of vaccines to respond to potential pandemics (and other lesser outbreaks). It examines the ongoing "conflict" between the United Nations' Convention on Biological Diversity (CBD) and the World Trade Organisation's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in the context of the debates about the paramountcy of intellectual property, and the potential for other (equity and development) imperatives to over-ride respect for intellectual property and TRIPS. The article concludes that the same intellectual property fault lines are evident in the WHO forum as those apparent at the CBD and the WTO fora, and an ongoing failure to properly address questions of equity and development. This poses a challenge for the Australian Government in guaranteeing a satisfactory pandemic influenza preparation and response.     

Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures

The World Trade Organization (WTO) Appellate Body has noted that the precautionary principle will be relevant to the interpretation of the WTO Agreement on Sanitary and Phytosanitary Measures in various ways, although the Appellate Body has declined to determine the status of the precautionary principle for international law or to find that it has been written into the SPS Agreement. The Appellate Body's awareness of precaution, the dynamics of scientific research and the nature of scientific uncertainty is to be welcomed. This awareness is helpful in dealing with new and emerging issues, such as the question of when a risk assessment relied upon by a WTO member becomes outdated by virtue of subsequent scientific developments. If maintained, an overly rigid approach to risk assessment, with a tight temporal focus, will inadequately acknowledge the natural processes of flux in the development of scientific knowledge.     

Intangible heritage: traditional medicine and knowledge governance

Legal context: Although traditional medicine constitutes a component part ofthe identity of the cultural communities concerned, this formof intangible cultural heritage is vulnerable in a globalizingworld where little place is left for the protection of beliefsystems. Key points: While much has been written on traditional knowledge and IPrights, less scholarly attention has focused on the culturaldimension of traditional medicine. Further, no solution hasbeen reached on the best way to ensure its protection. Thiscontribution attempts to establish a linkage between differentsectors of international law, addressing the complex interplaybetween traditional medicine, intended as a special form ofintangible cultural heritage, and international knowledge governance. While the TRIPS Agreement adopts only proprietary approachesto knowledge governance, it has been questioned whether, inthe case of pharmaceuticals, other non-proprietary approacheswould be preferable. Different approaches will be put forwardand the Draft Treaty on Medical Research and Development willbe considered. This would provide a better framework for safeguardingand diffusing traditional medicine. Practical significance: Protecting and promoting traditional medicine may help curingdiseases spread all over the world. Thus, beyond its culturalaspects, the practical importance of traditional medicine liesin its capacity to promote the right to health and human dignity.     

The GATT‐WTO system: Environmental friend or Foe?

Abstract

The GATT‐WTO system has been attacked for being at best indifferent to the environment and at worst hostile to it. However, rather than being an environmental foe, the GATT‐WTO system is environmentally‐friendly in many respects. Several World Trade Organization agreements — the Agreement on Agriculture, the Agreement on Technical Barriers to Trade, the Agreement on Subsidies and Countervailing Measures and the Agreement on Sanitary and Phytosanitary Measures — not only permit but encourage WTO member‐countries to implement national programs and laws to protect the environment free from WTO interference. Multilateral initiatives through organizations such as the WTO, as opposed to unilateral bullying, are the surest way of securing robust legal protections for the environment.