e-TRIPS Gateway (Beta)

1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and throughout) have been implemented.

In response to Canada's first question, Fiji submits information it had compiled with regard to its copyright law in relation to the questions in the Checklist of Issues on Enforcement as it covers most issues applicable to Fiji's law arising from Articles 41 - 61 of the TRIPS Agreement. (See document IP/N/6/FJI/1)

2. What protection does your Copyright legislation afford to "foreign works"?

Pursuant to s227(2), regulations maybe made by the Minister (in this instance the Attorney-General), applying a specified provision of the Act in relation to: "(a) persons who are citizens or subjects of a country or who are domiciled or resident in a place - as it applies in relation to persons who are Fiji Island citizens or are domiciled or resident in the Fiji (b) bodies incorporated under the law of a country or place - as it applies in relation to bodies incorporated under the law of the Fiji Islands or in the case of an audio-visual work, as it applies to a body which has its headquarters in a prescribed foreign country. (prescribed by regulations under this Act - s2) (c) works first published in a country or place - as it applies in relation to works first published in the Fiji Islands. (d) broadcasts made from, or cable programmes sent from a country or place - as it applies in relation to broadcasts made from or cable programmes sent from, the Fiji Islands." Generally these regulations would apply to Convention countries and maybe subject to specified exceptions and modifications or maybe applied generally or to a specified class of works. These Regulations are not in place as yet.

1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and throughout) have been implemented.

In response to Canada's first question, Fiji submits information it had compiled with regard to its copyright law in relation to the questions in the Checklist of Issues on Enforcement as it covers most issues applicable to Fiji's law arising from Articles 41 - 61 of the TRIPS Agreement. (See document IP/N/6/FJI/1)

1. Please describe if your legislation includes measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS Agreement. If yes, please explain how such measures are consistent with the provisions of the TRIPS Agreement.

The Patents Act [Cap 239], as alluded to earlier, makes an exception to the protection of patent rights under section 3A which allows persons to make, construct, use or sell the patented invention in respect of pharmaceutical product or substance solely for reasons related to the development and submission of information required under any laws of Fiji or of another country. There is no such provision in the Trademarks Act [Cap 240]. For the Copyright Act 1999, section 58 ( 1) (b) permits the use of copyright work for the service of the State in the interest of the safety or health of the public or any member of the public.

2. Please state how your legislation provides for the protection of the exclusive rights of authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS Agreement which requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the Berne Convention (1971).

Under section 14 of the Copyright Act 1999, literary, dramatical, musical or artistic works fall under copyright, however, rights to these works only exist when the same is recorded in writing or otherwise. The owner of the work has the exclusive right to copy, issues copies to the public, publicly perform, broadcast, communicate to the public and adapt the work. These are certain exemptions to these by virtue of Parts IV and IX of the Act. The exemptions are particularly in terms of public interest. The copyright exists at the end of 50 years after the end of the calendar year in which the author dies.

3. Please describe the protection accorded to authors of computer programs, databases or compilations of data.

Literary works includes computer programs and compilations (which would include data – see definition of compilation) as defined in section 1 of the Copyright Act 1999. Although Part IV gives provisions for exemptions to copyright work, for instance, research on private study does not apply to literary work that is a computer program. This means that rights of the owners of literary work in relation to computer programs have strict exclusive rights to their work.

4. Please state whether your legislation provides for a rental right and, if so, the works to which it applies.

Yes, under section 73 of the Copyright Act 1999, certain rental rights for works that include a computer program, sound recording or audio visual may be accorded to any person of an educational establishment or a prescribed library. However, this right is only applicable to such an establishment or library that does not provide rental of the work for the purpose of making profit and the work is subject the work has previously been put into circulation with the license of the copyright owner.

5. Please describe the rights granted to performers, producers of phonograms (sound recordings) and broadcasting organisations under your legislation.

Part X of the Copyright Act 1999 provides for performers rights. Section 164 of the Act, performance means a dramatic performance, musical performance, a reading or recitation of a literary work or a performance of a variety act or any similar presentation. There are certain exception, namely, performance in the course of activities of educational establishments, a reading, recital of any items of news and information, performance of a sporting activity or a participation in a performance as a member of an audience. Accordingly, a performer has exclusive right to his/her performance. The performance shall be made, broadcasted live or communicated to the public, in whole or in part, with the performer's consent. The Act further makes provision for the infringement of the performer's right if the performance was used without specific consent for such use. This is subject to certain exceptions including the use of the performance for the purpose of criticism, reviews and news reporting. Also, the rights to performers is subject to the copying of the performance for a course of instructions, for educational establishments, for parliamentary and judicial proceedings and any acts done under statutory authority.

6. Please state whether your legislation provides for any limitation or exception in relation to each of the rights described above in accordance with the relevant provisions of the Berne and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.

Yes, all the works that are accorded rights under the Copyright Act 1999 has certain exception by virtue of Part IV Copyright Act which is attached as Annex – 1 to this response.

7. Please state the terms of protection of each right described above and the work or subject matter to which it applies.

Please refer to Part X of the Copyright Act 1999 which is attached as Annex – 2 to this response.

8. Please state how your legislation grants the retroactive protection provided pursuant to Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS Agreement) and Article 14.6 of the TRIPS Agreement.

At present, there is no specific provision for the grant of retroactive protection provided pursuant to Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement in the Copyright Act.

9. Please give the definition of a sign under your national legislation and explain under what conditions it is protectable.

There is no definition of a sign in the Trademarks Act, however, 'mark' means a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination of these.

10. Please confirm whether or not services are a protectable subject matter in your trademark law. Please confirm if signs, such as trade names, are protectable. Please describe if elements such as sound, perfumes and containers are protectable.

Services and elements such as sound, perfumes and containers are not expressly protected under the Trademarks Act. Trademarks are defined as marks used or proposed to be used in connection with goods.

11. Please explain what the requirements of use are, if any, as a condition for a trademark registration. Please explain the definition of use and the conditions of maintenance of a registration in that respect.

The trademarks are used upon or in connection with goods and are for the purpose of indicating that they are the goods of the proprietor for their manufacture, selection, certification, dealing with or offering for sale. There is no express provisions for the use and conditions of maintenance of trademarks in the current Trademarks Act.

12. Please confirm whether or not your legislation permits that the registration of trademarks be indefinitely renewable.

No, the trademark, once registered shall be for a period of 14 years and may be renewed from time to time in accordance with the provisions of the Trademark Act.

13. Please describe the special requirements, if any, prescribed by your legislation concerning the use of a trademark.

There are no special requirements for the use of a trademark.

14. Please explain whether or not your trademark registration authority refuses a trademark application if it contains a geographical indication.

Section 14A of the Trademarks (Amendment) (Decree No. 2) Decree 2012 prohibits the registration of a trademark with the use of the word or mark 'Fiji' or any word that makes reference of implies geographic origins or words or marks making reference or implying an approval from the State for which the proprietor is entitled to disclaim all or any portion of such matter separately or together with other word unless the use of the word or mark or the use of a disclaimer on the word or mark is approved by the Minister.

15. Please give the definition of a geographical indication in your legislation.

At present, this is not defined in the Trademarks Act.

16. Please describe and explain the provisions of your legislation establishing a link, if any, between the characteristics of an indication and its geographical origin.

The only reference to geographic indications is referred to in section 14A of the Trademarks Act (please see response to No. 14 above).

17. Please describe how additional protection is granted by your legislation to wines and spirits. Please mention other types of products, if any, covered by this additional protection.

There are no additional protection granted by the Trademarks Act in relation to wines and spirits.