No reply is given to this question, as it refers to issues that are being dealt with in consultations with the United States in the framework of the WTO or to matters which – because they relate to such issues – may have a direct impact on the consultations.

At the end of 2000, the Office of the Chief of Cabinet was pursuing its investigation into the matter with extremely positive results, which means that the issue of avoiding infringements of copyright in this sphere is on the way to being settled. A number of provinces such as Santa Fe, Cordoba and Buenos Aires, which rank among the country's principal software users, have put an end to irregularities. Efforts are continuing at both public and private level in order to regularize the situation.

There are no special requirements related to border measures. The applicable national legislation is the Argentine Code of Civil and Commercial Procedure, which provides for the possibility of filing a request for a precautionary measure, stating the right for which protection is claimed, the measure applied for and the provision of the law on which it is founded, and confirming that the relevant requirements, in particular regarding the measure requested, have been met. Articles 24, 83 and 79 apply in matters pertaining to industrial designs, patents and copyright law, respectively. A reading of these Articles makes it clear that, under Argentine legislation, the suspension of release of prima facie counterfeit goods may be requested as a precautionary measure.

See the reply to question 15 above.

In addition to the procedures under the core codes and each of the special laws, it should be mentioned that, as criminal actions concerning patents, copyright and trademarks are public prosecution proceedings, the Public Prosecutor's Office is empowered to institute such proceedings and must initiate them ex officio, pursuant to Article 5 of the Argentine Code of Criminal Procedure.

No, Argentine Customs may suspend clearance only by judicial order (and not on the basis of a sworn declaration filed with the administrative authority).

Jurisdiction for hearing cases of criminal infringement of industrial property rights lies with the federal criminal courts (Jueces Federales en lo Criminal y Correccional). The relevant articles and laws are the following: (a) Articles 75, 76, 77 and 78 of the Law on Patents and Utility Models; (b) Articles 31 and 38 of the Trademark Law; (c) Article 21 of Decree No. 6.673/63 on Industrial Designs. The national criminal courts have jurisdiction as regards procedures relating to infringements of copyright and related rights, and are empowered to order rapid and effective precautionary measures in order to preserve evidence of infringement of such rights. This is provided for in Articles 71, 72, 72 bis, 75, 76 and 79 of Law No. 11.723. Precautionary measures may be ordered without prior notification of the alleged infringer.

See the reply to question 18 above.

See the reply to question 18 above.

Statistical data available from administrative sources is as follows for the year 2000: (a) Industrial designs A total of 1,738 applications for registration, including 1,248 original applications and 490 applications for renewal, were filed in 2000. Registrations were granted for 1,709 of these applications, including 1,233 original applications and 476 applications for renewal. (b) Patents and utility models In 2000, the National Patents Office received 7,033 applications, including 6,636 for patents and 397 for utility models. A total of 4,224 applications were processed, with the following results: - Granted: 1,864 - Withdrawn: 1,830 - Refused: 30 - Abandoned: 500 (c) Trademarks In 2000, the Trademarks Office recorded 57,723 applications for new trademarks and 3,989 applications for renewal, i.e., a total of 61,712. As many as 52,021 applications were processed, with the following results: - New trademarks granted: 36,640 - Renewed: 8,046 - Abandoned: 3,177 - Withdrawn: 1,367 - Lapsed: 1,884 - Refused: 822 (d) Copyright and related rights A total of 157 civil and criminal actions claiming protection of intellectual property of software were brought in 2000. Judicial search orders or orders to make findings inaudita altera parte were issued, thus making it possible to ascertain infringement and to continue examining the merits of the complaints. These actions led to prosecutions and convictions for software piracy, subject to punitive sanctions on grounds of omission and fines.

The Executive does not have the requested information in hand at present.

The three following intellectual property rights-related laws provide for measures aimed at preventing violation of intellectual property rights: - the 1992 Trade Marks Law No.37 in its Chapter VI on Penalty (Articles 37-43); - the 1992 Copyright Law in its Chapter VIII (Articles 38-44) on Penalty; - the 1992 Patent and Design Law in its Chapter V on Preventive Measures, Offences and Penalty (Articles 58-61) lay down measures to prevent any infringement unlawful act which violate the owner right of intellectual property. These laws also provide for remedy measures like preventive seizure, confiscation, destruction of products and equipment as well as removing of the effects of the illegal acts and compensation. Damages compensation for the holder of rights The 1992 Trade Marks Law, Articles 40 and 43, and Patent Law, Article 61, provide for compensation. The Civil Transactional Law also provides for compensation. Other remedies The 1992 Trade Marks Law, Articles 41-43, provides for measures to remove goods outside the channels of commerce through the seizure and confiscation procedures. The removal of trademark and the product and equipment if needed. The 1992 Patent Law, Articles 58-61, provides for the same provisions. The 1992 Copyrights Law, Article 43, provides for confiscation measures and the closing of the institution violating copyright. The draft amendment will provide more detailed measures to enforce copyrights as reflected in the TRIPS Agreement. Right of information Article 41 of the Trade Marks Law provides that the court could order, within the procedure of seizure, to provide information on the third persons involved in the production and distribution of the infringing products. Judicial appeal The 1992 Trade Marks Law, Article 40, provides for the possibility for the owner of a trademark to access to the judicial procedures in order to enforce its rights. The Civil Transactions Law Article 282 provide the owner with the right of appeal through the judicial system in order to enforce its rights. The Evidence Law provides for an equitable and fair access to judicial procedures. The balance of the rights and obligations of both parties' claims and the opposing party is ensured. The basic principle of this law is that the claimant must provide evidence to substantiate his claim and the evidence must be relevant to the action. The court can order the evidence be produced if it is under control of the opposing party. The court can also call on the party to question him regarding the changes or alterations made to the element of evidence. Compensation for the opposing party The Civil Transactional Law provides for compensation for the opposing party who has been subject to abusive procedures relating to enforcement. Preventive customs procedures Customs Departments are allowed to take measures at the borders to prevent any violation of intellectual property rights in accordance with the above-mentioned laws as well as under Customs regulations. These measures could be taken either following the demand of the right holder or the judicial order.

The 1992 Copyrights Law, Articles 37-44, provides for preventive measures and penalty including confiscation, the closing of the institution violating copyright and prison measures and compensation. The draft amendment will provide more detailed measures to enforce copyrights as referred to in the TRIPS Agreement. The obligations arising from Article 9 of the TRIPS Agreement (Berne Convention, Articles 1-21 except Article 6bis) will be met through the extension of the scope in terms of the various categories and subjects of copyright as well as the nature of the protection. Computer programs are protected by the 1992 Copyright Law No. 40. Article 2 of this law mentions computer programs under the scope of protection. The draft amendment will introduce under the above-mentioned scope computer programs applications as well as compilations of data. The rental right is available under the existing law through the right of free exploitation provided for in the Article 14 of the 1992 Copyright Law. The draft amendment will introduce clearly the exclusive rights to exploit, under the rental right, literary works, including computer programs and cinematography work. The term of protection of copyright other than photography work is determined by the period of life of the owner and 25 years after his death. The draft amendment will extend this period to 50 years.

The 1992 Copyrights and Neighbouring Rights law No. 40 stipulates in its Article 4 that the copyrights shall be registered in the Ministry of Information and Culture and non-deposit of the work does not prejudice any of the protection aspects of the rights decided by the law. Article 33 stipulates that the Ministry of Information and Culture establishes a system for registration of copyrights and any actions that will occur on them. The bylaw of the 1992 Copyrights Law indicates the administrative procedures to be followed by the owners in pursuing depositing or registering actions.

The 1992 Copyrights Law No. 40 determines in its Article 14, as follows, the actions allowed without the consent of the owner of copyright: - the personal use of the work through copying or translating it. - The use of the work in the educational system with the purpose of the clarification through copies, programmes and reproductions for educational, cultural and religious purposes. The use must be in the necessary limit, provided that this will not seek any monetary profit and the name of the author and the origin of the work be indicated. - Quotation of paragraphs with the purpose of clarification, explanation and criticism and to the extent usually observed and necessary to reach the set objective, provided that the name of the author and the origin of the work be indicated. - Copying information and political, economic, social, cultural and religious press articles related to current events and their publication by newspapers as well as broadcasting works of like nature provided that the origin be mentioned. - Copying any audio or visual work relating to current events presented in broadcasting news and publishing it in the limit of the set objective and with the mention of the name of the author. - Public libraries, non-commercial documentation centers, educational and cultural and scientific institutes may copy protected works in the limit of the necessary needs, provided that this will not prejudice the author’s rights. - Newspapers and other news agencies may publish presentations made during judicial procedures and other similar works presented to the public, provided that the name of the author be mentioned. The amendments of the 1992 Copyrights law envisage reorganizing these provisions to cope with the TRIPS Agreement. The envisaged amendments are presented as follows: Without prejudice to literary rights of the author stipulated in the mentioned law, the author after the publication of his work must not prohibit a third person to perform one of the following acts: - To make a sole copy from the work for the merely non-commercial or professional but personal use, except the works of the fine and applied arts unless were located in public place. The works of architecture are also excepted. - To make a sole copy of computer programme with acknowledgement of its legitimate acquisitor who has a unit to derive from, provided that such act occurs in the limits of the licensed purpose or the purpose to retain or substitute at the time of losing the original, been damaged or became invalid to use. - Copying protected works to use them in judicial procedures or analogous to them within the limits required by such procedures provided that the source and the author name be mentioned. - Taking a sole copy of the work with acknowledgement of records house or archives, libraries, or documentation centers who do not seek direct or indirect profit all in the following two cases: (i) copying must be for the purpose of preservation of the original, or to exchange it for a lost, destroyed unsuitable to use or unobtainable copy against reasonable conditions; (ii) the purpose for copying must be in reply to application by a natural person to use it for research or study provided that it must be granted for one time or for interrupted periods of time provided that obtaining a license became impossible in accordance with the provisions of the law. - Quotation of short paragraphs, derivation or reasonable analysis of the work for the purpose of criticism, discussion, or information provided mentioning the source and the author’s name. - Performing the work in family meetings or by students in an educational institute against no direct or indirect remuneration. - Presenting the fine arts, applied and plastic arts works or architectural works in broadcasting programmes, if such works are permanently present in far places. - Reproduction of written, sound or audio-visual short excerpts for cultural, religious, educational or vocational training purposes provided that copying be in reasonable limits of its purpose and that the name of the author and the title of the work be mentioned wherever is possible and that the copying authority does not aim at direct or indirect profit and that license for copying was unobtainable in accordance with the provision of the law. Also under the same amendments, the author has no right to prohibit the copying made by newspapers, periodicals, broadcasting organizations within the limits justified by the aimed purpose to publish any of the following: - Excerpts of his available works to the public in a legal manner. This applies also on communicating excerpts from audio or visual works during current events, broadcasting or communicating them to the public by any other medium. The source and author’s name must be mentioned. - The published essays relating to discussion of issue preoccupying the public opinion in certain time, as long as no notification of prohibition was served at the time of publication provided that the source and author’s name must be mentioned. - Addresses, lectures, speeches recited in open sessions of parliamentary or judicial councils and public meetings as long as such lectures and speeches are addressed to the public and copied within the limits of copying the current news. All these restrictions on the economic rights of the authors are applied on the holders of neighbouring rights.

In addition to specific laws related to the protection of public health and nutrition, including the Anti-fraud and Defraud Law, Civil Law, the 1992 Patent and Design Law No. 44 in Section one on Patents and Utility Certificates (Article 6) stipulates that neither a patent nor a utility certificate shall be granted for the following: - plant or animal research, or biological processes for the production of plants or animals, with the exception of microbiological processes and products thereof, - chemical inventions related to foodstuffs, drugs or pharmaceuticals, unless such products are made by means of special chemical process, in which case protection shall extend only to the process and not to the products of the processes, - scientific principles and discoveries, - inventions related to national defense, - inventions, which, if disclosed or exploited, would be contrary to public policy and morality. It is to be noted however that, in order to be consistent with the provisions of the TRIPS Agreement, the draft amendment of the 1992 Patent and Design Law No. 44 will introduce new elements by eliminating the mention of the second above-mentioned sub-paragraph (ii) as exception from granting patent. In addition, the amendment will introduce diagnostic, therapeutic and surgical methods for the treatment of humans or animals among exceptions from granting patent as provided for in Article 27 of the TRIPS Agreement. Furthermore, Section two of the 1992 Patent Law provides for compulsory licences and the reasons of obtaining them in addition to the procedure stipulated in Article 29 under which they are granted. These provisions are also amended to bring the above-mentioned Law in conformity with Articles 30 and 31 of the TRIPS Agreement and to facilitate reading and understanding thereof. The new elements introduced through the amendment are mainly related to the non-exclusivity of compulsory licenses, their restriction to the local market, and the fair compensation for the patent owner. The efforts to be exerted within reasonable period of time for obtaining voluntary license, the prohibition to transfer compulsory licenses and other conditions are also introduced through the amendment to conform to the TRIPS provisions. The public emergency, the public interest and non-commercial uses are also mentioned as grounds of granting compulsory licences.

The 1992 Copyrights Law No. 40 lays down provisions to protect the exclusive rights of authors in relation with their literary and artistic works and determine the scope of the protection. The 1992 Copyrights Law, Articles 37-44, provides for preventive measures and penalty including confiscation, the closing of the institution violating copyright and prison and compensation. The draft amendment will provide additional measures to allow enforcement of copyrights as referred to in the TRIPS Agreement. The obligations contained in Article 9 of the TRIPS Agreement (Berne Convention Articles 1-21 except Article 6bis) will be met through the extension of the scope of copyright in terms of categories and subjects covered as well as the nature of the protection.

The 1992 Copyrights Law No. 40 protects computer programs. Article 2 of this law mentions computer programs under the scope of protection. As mentioned in the answer to question no. 2, Articles 37-44 provide for preventive measures and penalty in order to enforce and protect the owner rights, including computer programs. The draft amendment will bring computer programs applications as well as databases into the scope of copyright protection. It will introduce in clear terms the exclusive rights to exploit literary works, including computer programs, databases and compilation of data.

The rental right is available under the existing law through the right of free exploitation provided for in Article 14 of the 1992 Copyright Law. The rental right applies to all copyrights except for the computer program if the program does not constitute itself the main subject of the rental. It does not apply also to cinematography works unless the rental right is affecting their normal exploitation.

The 1992 Copyright Law includes the rights of producers of phonograms and broadcasting organisations under the protection of copyrights. However, the broadcasting of normal news and events do not fall under the umbrella of the protection unless they are assembled an innovative way or were subject to a personal effort that deserves protection.