[Notes on Article 6, contd.]
IPIC/DC/3 page 38
84.
In view of the many and competing proposals in this area, the text of the draft Treaty seeks to reduce the many possible alternatives to essentially two, in order to facilitate the negotiations. These two alternatives for the definition of the grounds pursuant to which non-voluntary licenses may be allowed are set out in item (i) of paragraph (3). Pursuant to Alternative A, non-voluntary licenses could be allowed where necessary "in the public interest." Such a provision would, for example, permit a non-voluntary license for defense purposes. It would find its justification in the theory that the public interest must always prevail. The main difficulty with Alternative A would lie in the interpretation, in any concrete case, of the notion of public interest, and the consequent possibility of lack of uniformity in the application of the Treaty throughout the Contracting Parties. 85. Alternative B of item (i) of paragraph (3) would allow non-voluntary licenses to be granted where necessary "to prevent any abuse, by the holder of the right, of his rights, or to safeguard public health or public safety." The grounds specified in Alternative B are more specific and more objective than the general and often subjective criterion of the public interest contained in Alternative A. Pursuant to Alternative B, in order to obtain a non-voluntary license, it would have to be shown that such a license was necessary to prevent an abuse of the rights by the holder of the right, an example of such an abuse being the manipulation by the holder of the right of a market in which, as a consequence of his right, he holds a dominant position, or that such a license was necessary to safeguard public health or public safety.
86. If agreement on one of either Alternative A or Alternative B, or some other formula, proves to be impossible, a possible compromise might lie in a provision which would permit Alternative A to be used, by way of reservation, by any developing country.
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Several other features of the provision contained in item (i) of paragraph (3) may be noted. First, the provision would require that any non-voluntary license that is granted should be a non-exclusive license. Secondly, an alternative is given in lines 3 and 4 of the provision as to whether the grant of the non-voluntary license should be possible only if serious and unsuccessful efforts have been made to obtain the authorization of the holder of the right to perform any otherwise prohibited act. Thirdly, the non-voluntary license must be granted subject to the payment of an equitable remuneration by the third party to the holder of the right, which remuneration must, in the absence of agreement between the third party and the holder of the right, be fixed by the granting authority.
88.
Item (ii) of paragraph (3) permits other derogations from the exclusive rights of the holder of the right secured by paragraph (1) of Article 6 on the ground that the holder of the right has violated legislation designed to secure free competition and to prevent abuses of dominant market position, that is, characteristically, that he has violated antitrust legislation. This provision contemplates that measures other than a non-voluntary license might be awarded in certain circumstances. Such other measures might be, for example, the order of a court allowing the use of an otherwise protected layout-design, or the revocation of the right.
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