The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and was started in 1993 (so far only for "sound recording", excluding "visual recording"). The compensation is collected by a collective society called the SARAH (Society for the Administration of Remuneration for Audio Home Recording), which began the distribution of compensation money in 1994. The compensation is distributed to three collective societies in Japan, namely those of (1) music copyright owners, (2) performers and (3) producers of phonograms. These Japanese collective societies then distribute part of the compensation to their overseas counterparts in accordance with the negotiated contracts based on the statistical outcomes and data of sampling surveys. We have been informed that the three collective societies have already reached contracts with their overseas counterparts, except for one. Negotiation between the Japanese performers' organization and its counterpart in the United States is still in process.

The legal basis of "boarder measures" can be found in the Japanese Copyright Law and the Customs Tariff Law. Article 113 of the Japanese Copyright Law, stipulates that it is deemed an infringement on a copyright to import into Japan, for distribution, objects made by an act which would constitute an infringement on copyright at the time of such importation if they were made in Japan. The importation of objects made by copyright infringement is prohibited by Article 21 of the Japanese Customs Tariff Law and shall be punished by Article 109 of the Japanese Customs Law. As for the due procedures, special requirements related to border measures are provided by Articles 21bis and 21ter of the Customs Tariff Law. Provisions on "provisional measures" can be found in the Code of Civil Preservative Procedure which is one of general laws related to civil remedies. The Code is included in WTO document IP/N/1/JPN/1 titled "Notification of Laws and Regulations under Article 63.2 of the Agreement", which was issued on 1 March 1996.

The Austrian legislation immediately provides protection for works, phonograms and performances from other WTO Members on the basis of TRIPS Articles 3 and 9.1. This is expressly acknowledged by the relevant provisions of the Copyright Statute, saying that the protection under this law for works as well as for performances and for phonograms is subject to international treaties. This also applies to the distribution of blank tape levies under Article 42 of the Copyright Statute, as the said provisions on the protection of foreigners contain no exception with regard to the blank tape levy. The relevant provisions of the Copyright Statute read as follows: Article 96.1: "For the works of foreign authors (Article 10.1) not protected under Article 94 or Article 95, copyright protection shall be afforded, subject to international treaties, on condition that the works of Austrian authors are also protected in approximately the same way in the State of which the foreign author is a national, but in any event to the same extent as works of nationals of that State...". Article 97.1, 2: "Recitals and performances of works of literature and music that take place in this country shall be protected underthe provisions of Articles 66 to 72, irrespective of the nationality of the persons whose authorization is required under Article 66, paragraphs 1 to 5 for the recording of the recital or the performance on a device recording images or sounds. In the case of recitals and performances that take place abroad, Articles 66 to 72 shall apply in favour of Austrian nationals. Foreigners shall be protected in respect of such recitals and performances, subject to international treaties, on condition that the recitals and performances of Austrian nationals are also protected in approximately the same way in the State of which the foreigner is a national but, in any event, to the same extent as recitals and performances of nationals of that State...". Article 99.1, 2, 3, 5: "Sound recordings shall be protected in accordance with Article 76, regardless of whether and how they are published, if the producer is an Austrian national. Article 98.2 shall apply by analogy. Other sound recordings shall be protected in accordance with Article 76.1, 2 and 4 to 6 if they have been published in Austria. Sound recordings of foreign producersthat have not been published in Austria shall be protected under Article 76.1, 2 and 4 to 6,subject to international treaties, on condition that the sound recordings of Austrian producers are also protected in approximately the same way in the State of which the foreign producer is a national but in any event to the same extent as the phonograms of nationals of that State... Protection under Article 76.3 may be claimed by foreigners, in any event, only in accordance with international treaties".

Austrian law provides - as already indicated in the answer to question 1 - that all revenues generated from the imposition of blank tape levy schemes which have to be distributed to rightholders are - in principle - distributed on the basis of national treatment to all rightholders from all WTO Members. The blank tape levy issubject to compulsory collective management and Article II, paragraph 6 of the Federal Law of 1980 amending the Copyright Act provides that collective societies distributing equitable remuneration under this title shall transfer to institutions for social and cultural purposes the greater part of the overall revenue from such remuneration, less the relevant administrative costs. In practice, 51 per cent are transferred to the said institutionsso that 49 per cent remain for distribution to rightholders. This restriction concerns the scope of the right to equitable remuneration as such and applies to all rightholders including Austrian nationals.

The rule of reciprocity only applies if there is not an international agreement which provides for national treatment. National treatment is granted to WTO origin works under Articles 96, 97 and 99 of the Austrian law.

Austria does not apply the "rule of the shorter term" to performances and phonograms from other WTO Members.

Protection against both, direct and indirect reproduction is granted by the first sentence of Article 76.1 of the Copyright Statute, which reads as follows: "Any person who records acoustic performances on a device for the repeated reproduction of sounds (the producer) shall have, within the limitations specified by this Act, the exclusive right to multiply and distribute the sound recording. Multiplication shall be deemed to include the use of a sound recording for reproduction on another sound recording. In the case of sound recordings that are commercially produced, the owner of the enterprise shall be deemed the producer". The question also refers to "reproduction by digital transmission in the context of interactive services". This is a notion which is unknown to the Austrian Copyright Statute and which moreover is ambiguous. However, transmission as such is no act of reproduction, but acts of reproduction may occur as preparatory acts as well as in the course of a transmission and as a result of a transmission. All these acts of reproduction are covered by the above-mentioned provision.

The reproduction right for phonograms under Austrian law includesindirectreproduction made from a broadcast since this falls under the use of a sound recording for reproduction on another sound recording expressly mentioned in Article 76.1 of the copyright statute.

The full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, is provided by the provisions on the applicability of the Copyright Statute quoted in the answer to question 1. This means that protection extends back to 1926 with respect to works (year in which the author died) and back to 1916 with respect to performances (year in which the performance took place) and to phonograms (year of the fixation or publication).

It is true that Article 14bis BC grants an exclusive right of public performance to the author of a cinematographic work and that the Berne Convention does not expressly permit an exception with regard to this right. Nevertheless, it is commonly acknowledged that national legislation may provide so-called minor exceptions with regard to the minimal rights under the Berne Convention without express permission; this rule also applies to the minimal rights under Article 14bis BC. Minor exceptions are limitations which only slightly affect the right without prejudicing it in substance. The legal licence contained in Article 56 d.1 of the Copyright Statute issuch a minor exception, compatible with the Berne convention. However, whether Article 56 d.1 of the Copyright Statute is actually compatible with Article 14bis BC is not relevant for the following reasons: Authors from other member states of the Berne Union may invoke minimal rights granted by theBerneConvention immediately,the relevant provisions oftheBerneConvention have the precedence of application in relation to possibly diverging national legislation. In other words, in Austria the relevant provisions oftheBerneConvention are self executing and diverging provisionsin the national legislation only apply to Austrian nationals. Austria's Supreme Court has recently confirmed this in a fundamental judgement (SC 31/01/1995 - "Ludus tonalis").

There are no special limitations on the grant of the legal license contained in Article 56 d.1 of the copyright statute. Lending of videocassettes is not covered by this provision since this is not a performance. The provision is not aimed at permitting the electronic transmission of cinematographic works to individual rooms but it cannot be excluded that courts interpret it in this sense. The compulsory license is limited to the showing of cinematographic works in public areas of inns and hotels provided that only lodging guests of the inn or hotel have access. A rightholder might challenge this provision under the general conditions of Austrian law on civil actions but it would have to be in the context of a particular controversy. The TRIPS provisions on national treatment and on most-favoured-nation treatment are self-executing in the sense explained in the answer to question 1.

Compilations of data enjoy copyright protection under Article 6 oftheCopyright Statute, which reads as follows: "Compilations which constitute an original intellectual production by reason of the combination ofseparate contributionsinto a homogenous whole,shall enjoy copyright protection as collective works, the copyright, if any in the contributions shall not be affected". The term "contributions", used by the said provision is not restricted to works eligible for copyright protection, but also comprises mere data.

For the time being, databases are only protected as collective works in the meaning of Article 6 of the Copyright Statute.

The question concerns provisions contained in Part III of the TRIPS Agreement relating to the enforcement ofintellectual property rights which will be subject to a review procedure by the Council of TRIPS scheduled for the second half of 1997. Therefore, at this stage, no answer is given.

By virtue of the following provisions, protection is accorded to natural and legal persons who are nationals of, or have their domicile in, the State of Bahrain or other State which is a member of WTO or extend similar treatment to the nationals of the State of Bahrain: a) Article 5 of the draft Law on Patents and Utility Models. b) Article 4 of the draft Law on Trademarks. c) Article 4 of the draft Law on Industrial Designs. d) Article 3(a) of the draft Law on Layout Designs of Integrated Circuits. e) Article 3 of the draft Law on the Protection of Breeders of New Varieties of Plants. With respect to the draft Law on the Protection of Geographical Indications, Article (1) defines the Geographical Indications the subject of the draft Law as: "Any indication which identifies a good as originating in the territory of a member of WTO or a state which accords the State of Bahrain similar treatment, or a specific region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to that geographical origin." With respect to undisclosed information, the draft Law on the Protection of Trade Secrets does not contain any limitation as to whose trade secrets the Law is applicable. As to Copyright and Neighbouring Rights, Articles 59 and 60 of the draft Law provides: Article 59: 1) The provisions of this Law on the protection of literary, artistic and scientific works shall apply to: a) Works of authors who are nationals of, or have their domicile in the State of Bahrain; b) Works first published in the State of Bahrain, and works first published in another country and also published in the State of Bahrain within 30 days, irrespective of the nationality or residence of their authors; c) Cinematographic works, the producers of which have their headquarters or domicile in the State of Bahrain; and d) Works of architecture erected in the State of Bahrain and other artistic works incorporated in a building or other structure located in the State of Bahrain. 2) The provisions of this Law shall also apply to works that are eligible for protection in the State of Bahrain by virtue of and in accordance with any international convention or other international agreement to which Bahrain is party. Article 60: 1) The provisions of this Law on the protection of performers shall apply to: a) Performers who are nationals of the State of Bahrain; b) Performers who are not nationals of the State of Bahrain but whose performance: i) Take place on the territory of the State of Bahrain, or; ii) Are incorporated in phonograms that are protected under this Law, or; iii) Have not been fixed in a phonogram but are included in broadcasts qualifying for protection under this Law. 2) The provisions of this Law on the protection of phonograms shall apply to: a) Phonograms the producers of which are nationals of the State of Bahrain; b) Phonograms first fixed in the State of Bahrain; and c) Phonograms first published in the State of Bahrain. 3) The provisions of this Law on the protection of broadcasts shall apply to: a) Broadcasts of broadcasting organisations the headquarters of which are situated in the State of Bahrain; and b) Broadcasts transmitted from transmitters situated in the State of Bahrain. 4) The provisions in this Law shall also apply to performers, producers of phonograms and broadcasting organisations that are eligible for protection by virtue of and in accordance with any international convention or other international agreement to which the State of Bahrain is party.

The draft Law on Copyright and Neighbouring Rights will supersede the Copyright Law which was enacted in 1993. The draft Law implements Articles 9 to 14 of the TRIPS Agreement. Although not required under the TRIPS Agreement, the draft Law implements Article 6bis of the Berne Convention as Bahrain is party to the said convention. The draft Law also implements many of the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Article 2 of the draft Law on Copyright and Neighbouring Rights provides: "The original works of literature, arts and science shall enjoy protection under this Law whatever their value, type or purpose of their production or mode of expression, without a need for compliance with any formal procedure." Paragraph 2 of Article 2 provides that computer programmes whether in source or object code are protectable. Similarly, Paragraph 3 of Article 2 provides that databases whether or not computer readable are protectable. Moreover, Paragraph 13 of Article 2 provides that derivative works are protectable. Article 1 defines derivative works as: "Works derived from other existing works, such as translations, musical arrangements, compilation of works, including databases, whether or not computer readable, and collections of expressions of folklore, which, by reason of the arrangement and selection of their contents, are considered creative." In addition to providing for criminal sanctions against infringements of copyright and neighbouring rights as detailed in the draft Law, Article 50(3) provides for criminal sanction against disabling or altering any electronic protection used by the author or the neighbouring right owner.

Article 5(d) of the draft Law on Copyright and Neighbouring Rights provides that the author and his successor in title has exclusive right to authorise or prohibit the use of one or more copies of his work by others for rental or lending to the public. Article 7 provides that such right with respect to computer programs does not apply where the program itself is not the essential object of the rental or lending. Article 7 further provides that the right does not apply with respect to cinematographic works unless such rental or lending has led to widespread copying of such work which is materially impairing the exclusive right of reproduction.

With respect to the scope of protection, Article 5 of the draft Law on Copyright and Neighbouring Rights provides: An author and his successors shall have the exclusive right to financially exploit his work by any means and shall have in particular the exclusive right to authorize or prohibit the following acts in relation to his work: a) Publishing, broadcasting and producing the work to the public; b) Reproduction by all means including photography, cinematography and recording; c) Translation, adaptation, arrangements or other transformation of the work; d) Use of a copy or more of the work for the purpose of rental or lending to the public or any other act in relation to making the work available to the public; e) Public performance of the work by reading or recital or acting or singing or any other mean; and f) Distribution to the public by sale, rental, public lending or otherwise of the original or a copy of the work that has not already been authorized by the author. By virtue of Articles 28 and 29 of the draft Law, the financial rights of an author are protected during his lifetime and for 50 years after his death, or the death of the last person of the authors remaining alive if there is more then one author. The 50 years period is calculated starting from the first day of the Gregorian calendar year following the actual date of death of the author or the last author remaining alive as the case may be. By virtue of Article 31 of the draft Law, the rights with respect to a work which does not bear the author's name or which bears a pseudonym shall be protected for 50 years starting from the first day of the Gregorian calendar year following the year during which the work was published or made available to the public for the first time, whichever comes last, unless the identity of the author is known or revealed in which case the term of protection shall be for his life time and 50 years thereafter starting from the first day of the Gregorian calendar year following the year during which he died. Article 30 provides that the financial rights relating to authors of a collective work, other then applied art, shall be protected for 50 years starting from the first day of the Gregorian calendar year following the year during which the work was published or made available to the public for the first time which ever comes last, and where the author is a natural person, the term shall be calculated according to the rule provided under Article 28 and 29 referred to above. Article 30 further provides that the rights relating to a work published for the first time after the death of the author shall lapse after 50 years starting from the first day of the Gregorian calendar year following the year during which the work was published or made available to the public for the first time, whichever comes last.

Article 15 of the draft Law on Copyright and Neighbouring Rights provides: "Performers shall enjoy in respect of their performances the following exclusive rights: 1. To broadcast or communicate their unfixed performances to the public. 2. To fix their unfixed performances on phonograms. 3. To reproduce their fixed performances on phonograms. 4. Authorise commercial rental or lending to the public of an original or copies of their fixed performances." Article 34 of the draft Law on Copyright and Neighbouring Rights provides: The term of protection to a performance is for a period of 50 years computed from the first day of the Gregorian calendar year following the year in which the performance was first fixed on a phonogram or, in the absence of such fixation, the year in which the performance took place.