The concept of civil penalties does not exist in Japanese legislations. The Civil Code stipulates that, in principle, a sufferer (copyright owner) has the burden of proof with regard to the amount of damage when claiming compensation. However, as it is not easy to prove the amount of damage caused by infringement of copyright, the Japanese Copyright Law has an exceptional provision that turns such burden of proof to the infringer to protect copyright owners. Article 114 of the Copyright Law stipulates as follows: (i)In the case where an owner of copyright, right of publication or neighbouring rights claims compensation for damages from a person who has infringed intentionally or negligently any of these rights, the profits, if any, obtained by the infringer from that infringement shall be presumed to be the amount of damages suffered by such an owner. (ii)The owners of copyright and neighbouring rights may claim compensation for damages from a person who has infringed intentionally or negligently their copyright or neighbouring rights, the amount of damages suffered being that corresponding to the ordinary amount of money which would be received by them through the exercise of these rights. (iii)The provision of the preceding paragraph shall not prejudice any claim to compensation for damages in excess of the amount mentioned therein. In such case, the court may take into consideration the absence of any bad faith or gross negligence on the part of the infringer in fixing the amount of damages.

(1) Article 114 of the Copyright Law stipulates the presumption of the amount of damages caused by infringements and corresponds adequately to Article 45 of the TRIPS Agreement which stipulates "damages". Article 112 of the Copyright Law provides for the right of demanding cessation against infringements and corresponds adequately to Article 46 of the TRIPS Agreement which stipulates "other remedies". Furthermore, Article 119 of the Copyright Law provides for penal punishments against infringements and corresponds adequately to Article 61 of the TRIPS Agreement. Article 112(2) of the Copyright Law provides for the seizure and the destruction of infringing articles and equipment used to make the infringing articles and Article 19 of the Penal Code provides for forfeiture. (2) A copyright owner may claim civil remedies, such as compensation by filing a civil case to the court against a person who infringed his/her copyright. The outline of the procedure in regard to the provisional measures is as follows: The procedure for the provisional measures is initiated by the request of a party concerned. Following the hearings from the party (or both parties), the court determines whether the legal requirements for adopting the provisional measure are met. If the court determines to adopt the measure, the order of preservative measure is served on the defendant. The defendant may request the court the annulment of the order by raising of an objection. In addition, based on the request from the defendant, the court which issued the order shall fix a certain reasonable period and require the applicant: (i)to file the case on the merits and to provide written evidence of filing the case on the merits within such period. (ii)to provide written evidence of pendency of case within such period, if the case is already filed. In case the applicant fails to provide such evidence within the required period, the defendant may request the court the annulment of the order of preservative measure.

(i) As for ex parte injunctive relief, the Code of Civil Preservative Procedures provides for "provisional orders regarding objects concerned" and "provisional orders deciding a provisional status" as provisional measures which courts may order. (ii) The provisional order regarding objects concerned may be issued where a court concludes there is a possibility that the applicant would not be able to exercise, or would come to face extreme difficulties in exercising, its right because of a change in the situation of such objects (Article 23.1 of the Japanese Code of Civil Preservative Procedures). It is not always necessary for the court to give an opportunity to the adverse party to present its opinion prior to the issuance of provisional order. (On the other hand, a court shall hold a hearing which both parties concerned may attend before the court renders decision of injunction as the final measure.) (iii) The provisional order deciding a provisional status may be issued where a court concludes that such an order is necessary for avoiding extreme damage or imminent danger which the applicant would suffer regarding the legal relations at issue (Article 23.2 of the Japanese Code of Civil Preservative Procedures). In principle, the court shall hold a hearing or interrogation which the adverse party may attend prior to the issuance of the order. However, where the court considers it would be impossible to accomplish the purpose of the request for the provisional order if it held such a hearing or interrogation, the court may issue the provisional measure without holding the hearing or interrogation (Article 23.4 of the Japanese Code of Civil Preservative Procedures). (iv) As for the number of cases in which injunctive relief is requested based on copyright, and the length of time necessary to complete the procedures, statistics are not available, and we do not have specific figures. However, it is our recognition that this system is functioning well.

The dispositions of the Berne Convention, the Rome Convention and the TRIPS Agreement are of direct applicability in Luxembourg law. Luxembourg has no provisions on levies for private copying.

Yes, TRIPS is self-executing in Luxembourg. Yes, it is possible to sue on the basis of the TRIPS Agreement but there is no case law yet.

Luxembourg does not apply the "rule of the shorter term" to phonograms and performances.

Article 3 of the Law of 29 March 1972 and Article 8 of the Law of 23 September 1975 protects reproduction in general and no other text excludes indirect reproduction expressly. The draft of a new amendment provides to introduce the terms "direct" and "indirect" in those Articles in order to avoid any controversial interpretation.

Luxembourg legislation provides for a broad definition of the reproduction rights. There is no case law about the interpretation of "reproduction" in the sense indicated by the question.

The Luxembourg Law applies to all works and services which are not expired (épuisés) at the date of its coming into force, which means three months after the date of publication at the Official Journal Memorial. The expression "expired" (épuisés) concerns all prior works and services, whose period of protection has not come to an end ("non tombés dans le domaine public" according to Article 18 of the Berne Convention). The date back to which full retroactive protection is provided, has to be calculated in respect to the date of entry of the TRIPS Agreement, which was 1 January 1996. Our actual legislation on authors' rights protects works when the death of the author or the last living co author is later than 1 January 1946. The new draft amendment provides an extension until 1 January 1926 for EU Members. A second draft amendment will extend the protection to all WTO Member States. Our actual legislation on neighbouring rights protects works of performers and phonogram producers created or produced after 31 December 1975. The new draft amendment provides an extension until 31 December 1945 for EU Members. A second draft amendment will extend the protection to WTO Member States.

All efforts will be made to have a simultaneous timetable for all our amendments. The new laws will come into force three months after the date of publication.

On 24 April 1996, a new law added the protection of "computer programs" expressly to the list of Article 1.

Databases which constitute an intellectual creation according to the conditions of paragraph 5, Article 1, are protected as literary works (collections). Indeed the list of Article 1, paragraph 1 is not exhaustive.

There is no case law on this issue.

The rental right is not expressly excluded by the Luxembourgish law. However, the new draft amendments submitted to Parliament, in accordance with the EEC Directive No. 92/100 from 19 November 1992, provides expressly the rental right for authors and rightholders of neighbouring rights.

It is considered that on the basis of Luxembourg copyright law a rental right is granted as regards computer programs and phonograms. There is no case law on this issue yet. This issue will be clarified in the draft amendment concerning rental rights.

Luxembourg reserves its answer until the second semester 1997, because of the scheduled enforcement review in the WTO Council.

The new draft amendment provides actually a protection of fifty years, according to the EC Directive 93/98/EEC of 29 October 1993.

According to the EC Directive 93/98 EEC and the new draft amendment, the duration of the protection is granted to works created in the European Union. The new draft of an amendment will extend the grant to works created in a WTO Member State. Article 17 of the neighbouring rights law provides however clearly that the effects of international conventions, such as the TRIPS Agreement, are prevailing.

Yes.

Following Article 93 of the Dutch Constitution, a provision in an international treaty to which the Netherlands has become a party can be relied upon in court by individuals provided such provision is in its contents addressed to such individuals and sufficiently clear; that is, no further measures by the national legislative authorities are warranted. Article 47 of the Copyright Act is relevant only in cases where the author is neither a national of a Union (and now: WTO) country nor has published for the first time in such country. Blank tape levies are collected by the independent non profit "Home Copy Foundation" (Stichting De Thuiskopie). For practical reasons, the Home Copy Foundation distributes the levies not to each individual rightholder, but among representative organizations. These organizations in their turn pay out the monies received among the rightholders they represent.