从TRIPS协议弹性条款谈起

TRIPS规则直接影响到各成员方的贸易利益,也极大地影响着社会公共利益。所以,TRIPS协议的产生和实施都围绕着成员间利益冲突的协调和平衡。本文通过分析协议的利益平衡安排,区分并比较专为发展中国家设置的特殊条款和允许各成员伸缩处理的弹性条款对利益平衡的不同作用,从中得出对“利益平衡”的寻求关键在于弹性条款的灵活运用,特别是发展中国家要充分利用TRIPS协议的弹性条款,在其设置的弹性空间中保护自身利益,寻求权利和义务的平衡。最后以此指导中国对TRIPS规则的转化和适用,使中国的知识产权立法更加完善。

In the era of knowledge economy, the close connection between the intellectual property rights and the world trade makes the TRIPS out. TRIPS' rules directly affect every member's trading benefits, and also greatly affect their public benefits. Therefore, TRIPS agreement comes out from the WTO members' negotiation and is used to settle their benefits conflicts. But TRIPS itself don't mean benefits balance. Running after the balance lies in every member's efforts, especially, the developing countries shall make full use of the flexibility of the TRIPS' articles——in this way to protect the developing benefits, and get the balance of right and obligation. China as a developing country also needs to implement TRIPS in a reasonable way. At last, try to seek benefits balance from TRIPS agreement and integrate the intellectual property law of China.