Review of TRIPS Implementing Legislation - Search

Reset
 
 

Article 63.2 of the TRIPS Agreement requires Members to notify the laws and regulations made effective by that Member pertaining to the subject matter of the Agreement to the Council for TRIPS in order to assist the Council in its review of the operation of the Agreement.

This page allows you to search Members' questions and answers on notified laws and regulations. You can consult search results on screen, download and print them in Excel format. You can also download individual documents.

* You do NOT have to select all the search fields below (only fill the search fields that are relevant to your query).
* Please note that selected search criteria are cumulative and will all be reflected in your search results.


Page 17 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/NLD/1 Netherlands United States of America [Follow-up questions] Please provide any case law or other authority holding that the TRIPS Agreement is a treaty the provisions of which can be relied upon in court by individuals, as described in the first paragraph of the answer to this question.
Because the TRIPS Agreement only entered into force in January 1996, there is no case law yet. However, the possibility of direct applicability of provisions of the Berne Convention was already accepted in a Supreme Court Decision in 1936 (Decision NJ 443 of 13 February 1936). Please confirm that all revenues generated from the imposition of blank tape levies in the Netherlands are distributed on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder. Under the Dutch system, different types of rightholders are represented by separate organizations, so payments are not made irrespective of the type of rightholder. The system provided for in the Netherlands is as follows. The Home Copy Foundation distributes the monies according to a schedule which has been approved by the Ministry of Justice. The schedule distinguishes between audio and video tapes. Three organizations receive audio revenues; four others are entitled to the video revenues. These private organizations in turn distribute amongst (organizations of) rightholders. The main organization, Stemra, has informed us that it does so both to (organizations of) Dutch and foreign rightholders. Stemra's own regulation provides for distribution on the basis of "rights and entitlements by force of law, treaty or regulation wherever in the world". They liaise with their counterparts in other countries.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 2. Does the Netherlands apply the "rule of the shorter term" to phonograms and performances from other WTO Members? If so, please explain how you justify such action under TRIPS Article 4.
No. The term of protection under the Act on Neighbouring Rights is 50 years.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 3. Please explain whether and how the Netherlands protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.
As to the first part of the question, we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(c)the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America [Follow-up question] Does the reproduction right for phonograms under current Netherlands law include in its scope reproductions made from broadcasts, as well as the digital transmission of both temporary and permanent reproductions?
As to the first part of the question we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(...) "(c) the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 4. Please explain whether and how the Netherlands provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter.
The provisions of Berne including its Article 18 have been applicable in the Netherlands since its accession on 1 November 1912. As from 1 January 1996 the term of protection under the Copyright Act is 70 years. Neighbouring rightholders are protected by the Act on neighbouring rights of 1993. The term of protection under the Act on neighbouring rights is 50 years. The protection extends to performances which took place before the Act entered into force. The same applies to phonograms which were made before that date. The wording of the relevant provision in the Act is quite general, which means that the protection could extend to fifty years before the Act went into force.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 5. Please explain the criminal and civil remedies available for copyright infringement and the extent to which they fully implement the obligations in TRIPS Articles 41, 45, 50 and 61. In the response, please specify, inter alia, whether these remedies may include the seizure, forfeiture and destruction of infringing articles and equipment used to make the infringing articles, as required by Articles 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50. In the response, please also specify how civil damages are measured and when and how attorney’s fees and court costs are awarded.
Further to its decision of 21 November 1995, the TRIPS Council has presented all Member States with a checklist of issues on enforcement (Doc. No. IP/C/5 of 30 November 1995) which fully covers your question 5. All lists will be reviewed in 1997.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 6. Please explain how databases are protected under Dutch law, in view of TRIPS Article 10 which requires that databases based on factual information that constitute intellectual creations by reason of the selection or arrangement of their contents be protected.
Databases that constitute works in the sense of the Copyright Act are protected as collective works under Article 5 of the Copyright Act. A database will constitute a work in the sense of the Copyright Act, if it is an intellectual creation by reason of the selection or arrangement of its contents.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 7. Article 10 of the Dutch Copyright Law lists the works that are protected as literary and artistic works under the law. Computer programs, however, are not included within this list. As Article 10 of TRIPS requires that computer programs be protected “as literary works”, please explain how computer programs are protected under Dutch law.
The Copyright Act was amended by Act of 7 July 1994 (Stb. 521). Computer programmes were then included within the list of Article 10. Also special provisions on computer programmes were laid down in the Articles 45h to 45n.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 8. Please explain how the Netherlands’s law complies with TRIPS Articles 11 and 14, which require that the rightholders of computer programs and phonograms be granted the right to control the rental of their work. It does not appear that the Netherlands’s copyright and neighbouring rights laws grant a rental right in these works.
The Copyright Act and the Act on Neighbouring Rights were amended by Act of 21 December 1995 (Stb. 653) and by Act of 21 December 1995 (Stb. 641). Rental rights in, inter alia, computer programmes and phonograms, were then granted. The Articles 12, 12a, 15c to 15g, 35d and 45d of the Copyright Act and the Articles 2a, 6, 7a, 8, 11, 15a 15d, 17, 19, 20, 27a and 32 of the Act on Neighbouring Rights provide for these rights.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 9. Please explain how Articles 16, 16b, 17 and 17a of Dutch law which provide for potentially broad exceptions to the exclusive rights granted to the copyright owner comply with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder.
(a)Article 16 of the Copyright Act provides for the use of works for teaching purposes. It is based on Article 10(2) of the (Paris Act of the) Berne Convention. Article 10(2) of the Berne Convention provides that the use of works for teaching purposes is a matter for national legislation provided the use is compatible with fair practice. Article 16 of the Copyright Act is within the limits set by Article 10(2) of the Berne Convention and within those set by Article 13 TRIPS. Also it does not differ widely from provisions in other national laws on this subject. (b)Articles 16b and following, and 17 of the Copyright Act provide for the right of reproduction of written works and for the exception for private use. The exception for private use falls within the scope of Article 9(2) of the Berne Convention, which provides that exceptions to the right of reproduction are, again, a matter for national legislation, provided the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder. The exceptions for private use which are granted in Articles 16b and 17 of the Copyright Act are not broader than those granted in other legislations. They are within the limits which are set by Article 9(2) of the Berne Convention and Article 13 TRIPS. (c)Article 17a of the Copyright Act provides that, in the general interest, a legal licence may be granted with respect to the publication of a work by means of radio or television broadcasting or the distribution by wire or otherwise and with respect to the production of phonograms. Article 17a is based on Articles 11bis(2) and 13 of the Berne Convention, which leave this matter to national legislation. Article 17a does not differ from similar provisions in other laws. Article 17a dates back till 1931, when it was included on behalf of radio broadcasting and the distribution by wire. The provision has never been applied.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America [Follow-up question] Please explain whether and how the literal texts of the exceptions in Articles 16, 16b and 17 of the Netherlands Copyright Law have been limited in application or operation.
As stated in the original answer, the limitations mentioned in Articles 16, 16b and 17 of the Netherlands Copyright Act are within the limit set by the Articles 10(2) and 9(2) of the Berne Convention and consequently comply with Article 13 TRIPS. The mentioned articles of the Netherlands Copyright Act have seldom been applied (see for example: Supreme Court Decision of 22 June 1990, published in NJ 1991, 268; District Court of Amsterdam, Decision of 31 January 1980, published in Autersrecht 1980/2; District Court of Alphen aan de Rhijn Decision of 16 April 1985, published in AN I, 1987/2; Superior Court of Amsterdam, Decision of 20 November 1980, published in Autersrecht 1981/3). (b)Articles 16b and following, and 17 of the Copyright Act provide for the right of reproduction of written works and for the exception for private use. The exception for private use falls within the scope of Article 9(2) of the Berne Convention, which provides that exceptions to the right of reproduction are, again, a matter for national legislation, provided the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder. The exceptions for private use which are granted in Articles 16b and 17 of the Copyright Act are not broader than those granted in other legislations. They are within the limits which are set by Article 9(2) of the Berne Convention and Article 13 TRIPS. (c)Article 17a of the Copyright Act provides that, in the general interest, a legal licence may be granted with respect to the publication of a work by means of radio or television broadcasting or the distribution by wire or otherwise and with respect to the production of phonograms. Article 17a is based on Articles 11bis(2) and 13 of the Berne Convention, which leave this matter to national legislation. Article 17a does not differ from similar provisions in other laws. Article 17a dates back till 1931, when it was included on behalf of radio broadcasting and the distribution by wire. The provision has never been applied.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 1. Please explain whether and how New Zealand law provides protection for works, phonograms and performances from other WTO Members, and whether and how it does so on the basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)).
"No less favourable treatment of nationals", as required by TRIPS Article 3, is accorded to WTO Members by Section 232 of the Copyright Act 1994 with respect to copyright and moral rights and Section 204 of the Copyright Act 1994 with respect to performers' rights. Section 232 provides for an Order in Council to be made by the Governor-General so that the provisions of the Copyright Act 1994, except Part IX, apply to citizens or subjects (domiciled or resident) of Convention or other countries in the same way as the provisions apply to citizens, domiciled or resident, in New Zealand. Section 204, which relates to performers' rights, provides for an Order in Council to be made by the Governor-General so that the provisions of Part IX of the Copyright Act 1994 apply to any Convention or other country. An Order in Council has been made by the Governor-General in respect to both Sections 204 and 232 of the Act. This Order is the Copyright (Application to Other Countries) Order 1995 which came into force on 1 January 1996. That Order contains three schedules listing the countries to which the Copyright Act applies. The First Schedule includes all countries which are parties to one, some or all of the Berne Convention, the Universal Copyright Convention or the Agreement Establishing the World Trade Organization. The Second and Third Schedules relate to parties to the World Trade Organization Agreement.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Does New Zealand law provide protection for works first published in a WTO Member country, even if the work was not created by a citizen or subject of a WTO Member country?
Yes, such protection is provided by virtue of Section 232(2)(c) of the Copyright Act (the Act).
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 2. Does New Zealand apply the "rule of the shorter term" to phonograms and performances from other WTO Members? If so, please explain how you justify such action under TRIPS Article 4.
If the question is referring to Berne Article 7, then the answer is no. New Zealand does not apply the "rule of the shorter term". New Zealand provides the conventional term of protection to phonograms and performances from other WTO Members. For phonograms this is 50 years from the end of the calendar year in which the work is made or 50 years from the end of the calendar year in which the phonogram is made available (Section 23). For performances the term of protection is 50 years from the end of the calendar year in which the performance takes place (Section 193).
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 3. Please explain whether and how New Zealand law protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.
TRIPS Article 14.2 provides for the producers of phonograms to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. A producer may be either the performer or a person, by virtue of a recording contract, who owns the copyright. Copyright in phonograms (sound recordings) is provided for in Section 14 of the Copyright Act 1994. A sound recording is defined under Section 2 of the Act as any medium on which a recording is made or any method by which sounds are reproduced or produced. The owner of copyright has exclusive rights under Section 16 of the Act. These include the rights to copy the work, issue copies to the public and authorize any other person to do either of these. Copyright is infringed by copying, either directly or indirectly. "Broadcast" and "cable programme" collectively include both wireless and non-wireless transmission means and are inclusive of analogue and digital means. A performer's rights are infringed by the use of an illicit recording in a public performance or by inclusion in a broadcast or cable programme, or by copying a recording, either directly or indirectly, if it is known, or it can be reasonably expected, that the performer has not given his/her consent. Domestic or private use does not constitute infringement. New Zealand law, therefore, gives effect to TRIPS Article 14.2.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Does the reproduction right for phonograms provided by the New Zealand Copyright Act cover reproductions made by digital transmissions in the context of interactive services?
Reproduction of a phonogram can infringe the rights of an owner of copyright where a person does any restricted act in relation to these rights without the licence of the copyright owner. A restricted act can relate to the whole or a substantial part of the work and be either direct or indirect (Section 28 of the Act). The acts restricted by copyright include the copying of a work, issuing of copies of a work to the public, broadcasting the work or including the work in a cable programme service, and authorizing another person to do any of these acts. In terms of the right concerning broadcasting or including the work in a cable programme service the following matters should be noted: -broadcasting is defined in a manner which can include digital transmission (Section 2(1) of the Acts refers); and -cable programme service includes the sending of visual images, sounds or other information by means of a telecommunication system (which is defined as a system for conveying such images, sounds or other information by electronic means) - Section 2(1) and Section 4(1) of the Act refer. An unauthorized reproduction of a phonogram made by digital transmission in the context of interactive services will, therefore, constitute infringement.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 4. Please explain whether and how New Zealand provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter. In your response, please explain the meaning and operation of Section 4(a) of the 1995 Order, as well as Sections 5(2), 6 and 28 of the First Schedule.
The Copyright Act 1994 provides protection for works, phonograms and performances before commencement of the Act as well as at the commencement of the Act. The First Schedule of the Act details the circumstances in which protection prior to the commencement of the Act will occur. This can include protection in terms of the Copyright Act 1913 and the Copyright Act 1962. In the light of this each case needs to be considered on its own facts. Accordingly, only the general principles which apply are discussed in this response. Protection for works made prior to the commencement of the 1994 Act is provided to WTO Members through Section 230(3) of the Act and through the Copyright (Application to Other Countries) Order 1995. The response to question 1 provides further details on the Order. The Order also clarifies which foreign works are protected in New Zealand as follows: -A foreign work does not qualify for copyright by reference to author if published before the 1962 Act commenced (clause 4(a)), since New Zealand did not provide for such protection to its own nationals prior to this date. Such protection is, however, available after the 1962 Act commenced (clauses 5(1)(a) and 6); -Irrespective of whether a work qualifies for copyright by reference to author, a foreign work will qualify for protection if it is first published in a prescribed foreign country (clauses 7(a) and 8). Protection by reference to country of first publication is not limited in time; -Sound recordings are also covered (clause 9(1)(a)); and -Clause 12 of the Order is a transitional provision which continues protection for any foreign work where copyright existed under New Zealand law immediately before the commencement of the Act but which falls outside the Order. Section 230(3) of the Act applies if: -copyright existed under the 1962 Act immediately before the commencement of the 1994 Act (refer also to clauses 3 and 4 of the First Schedule of the 1994 Act); or -the work is protected in the Convention country and protection had not expired in the Convention country before the commencement of the 1994 Act; or -the work is first published in a Convention country. Where the work is a performance, reciprocal protection is required in the Convention country (Section 204(3) of the 1994 Act). Provision is also made for prior existing works to qualify for copyright after commencement of the 1994 Act if either of the three circumstances in Section 230(3) above apply (clause 5(1) of the First Schedule refers). There are exceptions to this principle. These include the following: -A work which is first published in New Zealand before 1 April 1963, and which was published elsewhere more than 14 days before being published in New Zealand, is not protected (clause 5(2) of the First Schedule). This provision is a transitional provision covering the Copyright Act 1913 which required simultaneous publication to be no more than 14 days (at this time the Berne Convention did not provide for 30 days). The transitional provision ensures that protection is not provided to works which did not qualify under the 1913 Act; -Works which are first protected under the 1962 Act, that is films, broadcasts and typographical arrangements are excepted (clause 6 of the First Schedule). As New Zealand did not provide specific protection for these works (although protection was provided for the individual works comprising a film) prior to the commencement of the 1962 Act, the 1994 Act maintains this exception which applies to both New Zealand and foreign works. The exception is qualified, however, by providing that the 1994 Act will apply in respect to a film that was made before the commencement of the 1962 Act and was an original dramatic work in terms of the 1913 Act; and to a photograph in a film made before the commencement of the 1962 Act and which is an original dramatic work in terms of the 1913 Act (clause 12 of the First Schedule of the 1994 Act); and -Where a work is an artistic work made before the commencement of the 1962 Act; the work is protected under the Designs Act; and the work has been industrially applied it is not protected (clause 28 of the First Schedule). This limits the scope of dual protection for designs consistent with a subsequent amendment to the 1962 Act. In terms of the First Schedule to the 1994 Act (clause 17), protection available for works before commencement of the 1994 Act includes the following: -Literary, dramatic, musical or artistic works (other than a photograph): -generally: 50 years from the death of the author; -computer generated: 50 years from the end of the calendar year in which the work is made; -joint authorship: -published before 1 April 1963: the longer of the period of the life of the first author plus 50 years or 50 years from the life of the author who dies last; -published after 1 April 1963 but before commencement of the Act: 50 years after death of the last author; -unknown authorship: -published before commencement: 50 years from the end of the calendar year in which the work is first made available to the public by an authorized act; -unpublished at commencement: 50 years from the end of the calendar year in which the new copyright provisions came into force or if during that period the work is first made available to the public then as applying to a published work; -Sound recordings: 50 years from the end of the calendar year in which the recording is made; and -Performances: 50 years from the end of the calendar year in which the performance takes place.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Please clarify the answer to this question. In particular, please explain: (1) the relationship between the 1995 Order, Section 230(3) of the Copyright Act, and the First Schedule, in dealing with retroactive protection for existing works; (2) whether works by nationals of WTO Member countries, which were not first published in a WTO Member country, created before the 1962 Act commenced, are protected by copyright in New Zealand; (3) back to what date sound recordings from WTO Member countries are protected in New Zealand; (4) back to what date performances by nationals of WTO Member countries or that took place in WTO Member countries are protected in New Zealand; (5) which works are not protected today in New Zealand because they are of a type that did not qualify for protection under prior law, including the 1913 Act and the 1962 Act.
(1) Section 230(3) of the Act, together with Section 204, provides for the protection of foreign works in New Zealand. The countries which qualify for the protection provided for in Section 230(3) are listed in the schedules to the 1995 Order as provided for in Section 232(2) of the Act. The 1995 Order also clarifies the way in which foreign works are protected under the Act. Section 235 of the Act provides for the transitional provisions in the First Schedule to the Act to have effect for the purposes of the Act. The First Schedule applies to all works, both domestic and foreign. The Schedule contains the transitional and savings provisions ensuring consistency between the 1994 Act and previous legislation. It also makes provision for works which span the commencement of the 1994 Act and earlier legislation. This includes retroactive protection. (2)Prior to 1962 New Zealand only provided for works to qualify for copyright by reference to first publication in New Zealand or a prescribed foreign country. Works of the type mentioned in the supplementary question may, therefore, not qualify for copyright although it should be noted that the list of prescribed foreign countries is broader than just WTO Members. It also includes members of the Berne Convention and the Universal Copyright Convention and therefore currently includes some members of these conventions who are not yet members of the WTO. (3) Either December 1945 or a later date, if within that period, it is made available to the public (Section 23(1)). (4) Either December 1945 of the term provided for in another country where this has not already expired (Section 170(2)). (5) - Sound recordings before the commencement of the 1913 Act unless copyright already existed. - Performances before 1945. - Artistic works intended for industrial application before the commencement of the 1962 Act. - Cinematograph films before the commencement of the 1962 Act (although copyright was possible in the works comprising a film for example, the dramatic work). - Television and sound broadcasts made in New Zealand before the commencement of the 1962 Act and television and sound broadcasts made overseas before the commencement of the 1994 Act. - Typographical works before the commencement of the 1962 Act. - Anonymous or pseudonymous works before the commencement of the 1962 Act. - Models before 1985.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 5. Please explain how the scope of protection granted to cinematographic works under Section 34(1) of the Copyright Act 1994 is consistent with the requirements of the Berne Articles 2(1) and 14bis, as incorporated through TRIPS Article 9.1, given that the scope of rights does not appear to be co extensive with the rights in literary and artistic works generally. For example, there does not appear to be an adaptation right provided through this Section for cinematographic works.
New Zealand provides copyright protection for cinematographic works by virtue of Section 14 of the Copyright Act 1994 which includes dramatic works (screen plays), musicals, sound recordings and films as original works to which copyright applies. Section 16 of the Act provides copyright owners with exclusive rights in respect to their works. These include rights in respect to copying a work, showing the work in public and broadcasting the work or including the work in a cable programme service. In respect to adaptation, a copyright owner of a literary, dramatic or musical work has an exclusive right to make an adaptation of his/her work (Sections 16 and 34 refer). This includes an adaptation of a screen play. In respect to films, no specific adaptation right is provided since it is considered that an "adaptation" of a film is not possible without infringing one of the rights already existing in the work. This could, for example, involve adapting the screen play in which case the author's rights will have been infringed or adapting the music in which case there could be an infringement associated with the words or the performance. If the film is copied, then this will be a breach of the copyright owner's exclusive right in regard to copying. It is possible that a new work could be created, in which case it will become an original work entitled to copyright.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Under New Zealand law, if an adaptation of a work made without authorization qualifies as an original work otherwise subject to copyright protection, can it still constitute an infringement?
An adaption of the type mentioned in the original response is one where infringement could occur if a substantial part of the existing work is being used in the creation of the new work. Nevertheless, copyright can exist in the new work.
24/10/1996

Page 17 of 677   |   Number of documents : 13533

 
Reset