Exceptions and limitations to patent and copyright under the trips agreement in the context of ‘three step test’

While an international standard for minimum rights was an accepted phenomenon for more than a century, the international arena was very conscious on the fragile nature of limitations to the rights and preserved it as a sovereign privilege. But the TRIPS Agreement was very sturdy and obstinate that uniformity should reign in each and every aspect of intellectual property protection. Negotiators in the Uruguay Round of GATT recognized the absence of a well-defined international fair use standard, and the creation of such a standard was an issue in the drafting of the TRIPS Agreement.¹ Accordingly the TRIPS Agreement championed for a binding norm for limitations and exceptions. But the elevation of Berne standard into the TRIPS Agreement and that too on a uniform scale irrespective of the nature of rights and subject matter alarmed the legal scenario. Major concern was from the developing countries, who argued that TRIPS ignored the diversity of national needs and forced them to sacrifice the ‘policy space’ that richer countries had harnessed in their early stages of development. Adding fuel to the fire, a lot of literature sprang up this era preaching the sermon that the TRIPS Agreement had hoisted IPR to a new level of trade rights.2 It's really wondering that at what point of time IP was freed from trade. Since twelfth century onwards IP was closely linked to trade. The negotiating history of Berne and Paris was also not different from that of TRIPS. It was also an attempt by some developed countries to counter international piracy and counterfeiting. This paper examines the legitimacy of the argument of ‘vanishing of policy space’ is the context of TRIPS provisions on limitations and exceptions.