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Exceptions and Limitations to Intellectual Property Rights with Special Reference to Patent and Copyright Law

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Exceptions and Limitations to Intellectual Property Rights with Special Reference to Patent and Copyright Law EXCEPTIONS AND LIMITATIONS TO INTELLECTUAL PROPERTY RIGHTS WITH SPECIAL REFERENCE TO PATENT AND COPYRIGHT LAW Thesis submitted to Cochiin Uniiversiity of Sciience and Technollogy for the award of the degree of Doctor of Philosophy in The Faculty of Law By SALEENA K. B Under the guidance of Prof. Dr. N. S. GOPALAKRISHNAN (Director, IUCIPRS, CUSAT) SCHOOL OF LEGAL STUDIES COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN-682 022 2011 School of Legal Studies Cochin University of Science and Technology Kochi – 682 022, Kerala, India Ph: 91-484-2862487 (O), 2577542 (R) Prof. Dr. N. S. GOPALAKRISHNAN Fax: 91-484-2575463(Direct), 2577595 Professor HRD Chair on IPR E-mail:[email protected] ; [email protected] This is to certify that this thesis entitled “Exceptions and Limitations to Intellectual Property Rights with Special Reference to Patent and Copyright Law” submitted by Ms. Saleena K.B for the degree of Doctor of Philosophy, is to the best of my knowledge, the record of bonafide research carried out under my guidance and supervision from 13.09.2006 at School of Legal Studies, Cochin University of Science and Technology. This thesis or any part thereof has not been submitted elsewhere for any other degree. Cochin Dr. N. S. Gopalakrishnan 19/10/2011 (Research Guide) This is to certify that the important research findings included in the thesis entitled “Exceptions and Limitations to Intellectual Property Rights with Special Reference to Patent and Copyright Law” have been presented in a research seminar at School of legal Studies, Cochin University of Science and technology on 2nd May 2011. Saleena K. B (Research Scholar) Dr. N. S. Gopalakrishnan (Research Guide) Dr. V. S. Sebastian (Director, School of Legal Studies) Cochin 19/10/2011 I declare that the thesis entitled “Exceptions and Limitations to Intellectual Property Rights with Special Reference to Patent and Copyright Law” for the award of the degree of Doctor of Philosophy is the record of bonafide research carried out by me under the guidance and supervision of Prof. (Dr.) N. S. Gopalakrishnan, Director, Inter University Centre for Intellectual Property Rights Studies, School of Legal Studies, CUSAT. I further declare that this work has not previously formed the basis of the award of any degree, diploma, associate-ship or any other title or recognition. Cochin 19/10/2011 Saleena K. B Limitations and exceptions are woven into the fabric of intellectual property law not only as specific exceptional doctrines (“fair use” or “fair dealing,” “specific exemptions,” etc.), but also as structural restrictions on the scope of rights, such as provisions for compulsory licensing of patents for needed medicines. Despite their importance in countering expansive trends in intellectual property, limitations and exceptions are under threat, especially from efforts to recast international law as a constraint on the exercise of flexibilities in domestic legislation. Hues and cries for access to knowledge and access to medicine from the four corners of the world was a real eye opener for me towards this research. It was the complexity of the issues involved that attracted my attention while selecting this topic for my doctoral thesis. The timely interventions of my supervising guide Prof. Dr. N. S. Gopalakrishnan helped me a lot to correctly focus upon the intricacies involved in this area. At this moment of the fruitful accomplishment of the targeted study, I would like to first place on record, my profound gratitude to Prof. Dr. N. S. Gopalakrishnan, my Supervising Guide, who was always there with me during all my frustrations, both academic and personal. His academic interventions sharpened my thoughts, understandings and attitudes towards the topic while his personal interventions were a major driving force for me to complete this task. I extend my sincere thanks to the generous financial support provided by the Ministry of Human Resource Development, Government of India under its IP Outreach Scheme, which was a great help in overcoming financial hurdles. My special thanks are due to Dr. T. G. Agitha, Research Officer, IUCIPRS, CUSAT, and Mrs. Prabha S Nair, Research Officer, IUCIPRS, CUSAT, for sparing their valuable time for me in completing the work. The help rendered by the Director, School of Legal Studies, CUSAT, and the office and library staff of the department are also remembered in this regard. I also acknowledge my sincere gratitude to Dr. G Sadashivan Nair and Dr. A. M Varkey for extending their valuable service as my Research Committee members. With much gratitude, I acknowledge the co-operation, sufferings and sacrifices of my family members who stood with me all the way in this venture. Their role in materialising this work is beyond words. Finally, I thank my friends and all others who have directly and indirectly joined hands with me for the successful completion of this thesis. Saleena K. B Chapter 1 INTRODUCTION ...................................................................... 01 - 15 Chapter 2 PHILOSOPHICAL JUSTIFICATION FOR LIMITATIONS AND EXCEPTIONS .......................................... 16 - 70 Chapter 3 LIMITATIONS AND EXCEPTIONS TO PATENTS – PRE – PARIS SCENARIO .......................................................... 71 - 106 Chapter 4 EXCEPTIONS AND LIMITATIONS TO PATENTS: PARIS AND THE POST PARIS ERA ........................................ 107 - 131 Chapter 5 LIMITATIONS AND EXCEPTIONS TO COPYRIGHT – PRE BERN SCENARIO ............................................................ 132 - 167 Chapter 6 EXCEPTIONS AND LIMITATIONS TO COPYRIGHT IN BERNE AND POST – BERNE ERA ........................................... 168 - 205 Chapter 7 EXCEPTIONS AND LIMITATIONS TO PATENT AND COPYRIGHT UNDER THE TRIPS AGREEMENT ..................... 206 - 251 Chapter 8 EXCEPTIONS AND LIMITATIONS TO PATENT AND COPYRIGHT IN THE POST – TRIPS ARENA ......................... 252 - 309 Chapter 9 CONCLUSION ......................................................................... 310 - 327 BIBLIOGRAPHY .............................................................. 328 - 377 ABBREVIATIONS .......................................................... 378 Introduction Chapter - 1 Chapter 1 INTRODUCTION To be acceptable, any system of intellectual property rights has to strike a balance, on the one hand, between providing incentives and rewards to the right holder, and on the other hand facilitating access to and widespread diffusion and adoption of fruits of creativity and innovation. Thus the challenge is to create and fine tune the balance between the interests of the inventor or creator and that of society in an optimum manner. The unlimited grant or exercise of rights without corresponding and appropriate limitations and exceptions has serious adverse long-term implications not only for development priorities, but indeed for the creative and innovation process itself. As users, creators themselves need an appropriate level of access, and as potential creators, users also require an appropriate incentive structure. Limitations and exceptions are positive enabling doctrines that function to ensure that intellectual property law fulfills its ultimate purpose of promoting essential aspects of the public interest. By limiting the private right, limitations and exceptions enable the public to engage in a wide range of socially beneficial uses of information otherwise covered by intellectual property rights — which in turn contribute directly to new innovation and economic development. Thus exceptions and limitations to intellectual property constitute a notion that lies at the very heart of the ratio legis of legislation of all intellectual property laws, whether in common law or civil law countries. While intellectual property grants corresponds to a monopoly that society 1 Introduction Chapter - 1 grants to authors or inventors over their creative work, exceptions and limitations to these exclusive rights appear to be a form of quid pro quo, allowing individuals, under certain conditions, to use a work without requiring authorization from the owner of the right, which shows that in granting the owner a monopoly, account has been taken of the need to balance the interests of both parties, namely the right holder and society, which undertakes to protect the author’s or inventors creative work. While remaining as the core facet and pendulum of intellectual property rights, the legislative and judicial approach towards limitations and exceptions were very crucial and delicate for each and every IP systems. Consequently a country’s specific system of limitations and exceptions seems to be a sacrosanct feature of domestic intellectual property policy tuned to meet the domestic exigencies and remained as a potent weapon in the armory of the sovereign. The principle of balance is most certainly the value which best reflects the expectations of society in respect of intellectual property systems. To maintain this balance between rights holders and users, between authors and other rights holders, and also among the rights holders themselves, the intellectual property system makes use of a set of principles both at the pre-grant and post-grant phase. While at the pre-grant phase the requirement of substantive elements like originality, novelty, obviousness and utility were insisted to maintain a robust public domain, at the post-grant stage the task was accomplished by a numerous set of limitations and exceptions. In our context of study ‘limitations and exceptions’ refers to
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