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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.

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Page 19 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Questions 16(d) and (e): We would like to confirm that subpoint 3 of point 1 of Article 1256 grants protection to 1) authors of audiovisual works the maker of which has its headquarters or habitual residence in the US and 2) authors of works of architecture constructed in the US and 3) authors of artistic works incorporated in a building or structure located in the US
Yes, subparagraph 3, paragraph 1 of Article 1256 of the CC RF in accordance with the Berne Convention, both Russian Federation and the US are its members, grants protection to: (1) authors of audiovisual works the maker of which has its headquarters (in case of legal entities)or habitual residence (in case of individuals) in the US and (2) authors of works of architecture constructed in the US and (3) authors of any other artistic works incorporated in a building or structure located in the US
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 17: We would like clarification, specifically when a work is not used separately but within an audiovisual work. Since authors of musical compositions contained in audiovisual works are considered authors of the audiovisual work under Article 1263, does the author of the musical composition have a public performance right when that music is contained in the audiovisual works and communicated to the public via television broadcasting or exhibited in theaters under Article 1263, point 3?.
Paragraph 3 of Article 1263 of the CC RF assigns to the composer who is the author of a musical work (with or without lyrics) used in the audiovisual work only the right for "fair" remuneration for public performance, as well as for communication by wireless means or by wire of an audiovisual work. This right is not in any way connected to the right for public performance, including exhibition in theaters or communication to the public via television broadcasting. The authors of an audiovisual work on the base of the exclusive right alienation contract (Article 1234 of the CC RF) or on the base of a license contract (Article 1234 of the CC RF) transfers to the producer (creator of the audiovisual work) the right to use their work in the composition of a complex audiovisual work. Furthermore as we already mentioned, in accordance with Article 1240 of the CC RF the provisions of the license contract restricting the right to use an audiovisual work shall be invalid. Please note that we are talking about the use of an audiovisual work. Thus, by concluding contract with producer (the creator of an audiovisual work), authors transfer or grant him the rights for such a work as a whole, and therefore the producer has an exclusive right for public performance, including exhibition in theaters or communication to the public via television broadcasting.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 18: We would like to confirm our understanding. For audiovisual works created after August 2, 1993, the term of protection is 70 years following the death of the last surviving author (counting from January 1 of the year following the year of her death), and for audiovisual works created before August 3, 1993, the term of protection is 70 years after the date of publication.
In accordance with paragraph 2 of Article 1263 of the CC RF the authors of an audiovisual work are: 1) the director; 2) the author of the script; 3) the composer being the author of a musical work specifically created for the audiovisual work. Taking to account this provision, if an audiovisual work is created after August 2, 1993 the term of its protection is 70 years following the 1 January of the year following the year of death of the last surviving author At the same time, if an audiovisual work created after 2 August 1993 was published after the death of author (authors), the exclusive right to such work shall be effective during the course of 70 years after the work was made public, counting from 1 January of the year following the year of its publication, provided that the work was made public within the course of 70 years after the death of the author (paragraph 3 of Article 1281 of the CC RF). Regarding the works created before 3 August 1993 the term of protection is 70 years from the date of its legal publication, and 70 years from the date of its creation if it was not published.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-up to Question 20: We understand this to be a question related to TM-counterfeit goods but would like clarification about what "societal interests" would be considered appropriate for counterfeit goods to be recovered; what would happen to those goods; and who might benefit from that recovery (We do not understand the meaning of the phrase "subject by recovery to income of the Russian Federation.")
The provisions of clause 2 of article 1515 of the CC RF establish a removal from circulation of goods at the expense of an infringer. The exception is made for cases when commercialization of such goods is necessary for public interests. In this case a trademark which is being illegally used must be erased from goods, labels and packages at the expense of infringer. The public interest may be determined only by the Court or Governmental authority. For example, in the case of natural catastrophe or disaster. Expression «to the state revenue» according to the Article 1515 of the CC RF is not used. The «commerсialization» term is used in CC RF regarding not only for questions connected with commercial benefit, but in general sense regarding possibility of making a deal with such goods (including free deals) (Article 129 of the CC RF). In case a Court or any Governmental authority sets a necessity of use of goods for the public benefit, so in these cases there is no way to get commercial benefit.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-up to Question 21: Article 1312 refers back to Article 1302 and we therefore understand this Article to amount to an injunction. Is that a correct reading? Could you describe what Article 1312 adds to 1302 that is not inherent in Article 1302?
Article 1302 of the CC RF refers to measures to secure a claim for copyright infringement, including court injunction for a person to take specific actions (e.g. reproduction, sale, import) with the purpose of introducing into commercial circulation copies of a work suspected to be counterfeit. Article 1312 of the CC RF extends the provisions of Article 1302 of the CC RF with relations in the field of related rights, which means the possibility of a court injunction for a person to take specific actions listed in Article 1302 of the CC RF, not only in relation to works protected by copyright but also in relation to objects of related rights. Provisions of Article 1312 of the CC RF do not add new or limit any provisions of Article 1302 of the CC RF.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Additional Follow-Up to Question 3: This is likely a translation problem, but we would like to confirm our understanding of your explanation of Article 1232 and therefore will restate our previous question: Would a foreign author who enters a license contract have to register the license contract in Russia? If a foreign author does not register the license contract in Russia, what consequences, if any, would the failure to do so have on the validity of the license?
If in question 3 author is considered as citizen who created a work of science, literature or arts (object of copyright) by his creative work, it is necessary to take into consideration that the Civil Code of the Russian Federation (hereinafter – CC RF) does not require the state registration of the license contract under which the author or other rightholder of work provides or undertakes to provide the right to use this work to the other party. At the same time it should be borne in mind that the in CC RF the term "author" is used not only in relation to the authors of works (objects of copyright). The CC RF also establishes provisions for the authors of other results of intellectual activity, for example, the authors of Topographies of Integrated Circuits (Article 1450 of the CC RF). According to para 2 of Article 1460 of the CC RF, if the topology of integrated circuits has been registered in the Federal executive authority on intellectual property (Article 1452), a granting of right to use topology under a license contract shall be subject to state registration in the manner prescribed by Article 1232 of the CC RF. In this case, it is necessary to take into account para 6 of Article 1232 of the CC RF. This para stipulates that if the requirement of state registration of granting of right to use an integrated circuit layout to another person under a license contract was not met, the granting of right to use is considered invalid.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Additional Follow-Up to Question 4: The Russian Federation notes that portions of the Russian Civil Code correspond to Article 14bis of the Berne Convention. Article 14bis permits countries to establish, by legislation, ownership of cinematographic works. If a country has established among the copyright owners in the cinematographic work the authors who have brought contributions to the making of the cinematographic work, such country may provide that authors who contribute to cinematographic works cannot object to certain uses of the works (e.g., reproduction, distribution, public performance) in the absence of any contrary or special stipulation. The Russian Federation's answer to our question does not appear to address the specific language of Article 14bis "in the absence of any contrary or special stipulation." The Russian Civil Code appears to prohibit contrary and special stipulations (which 14bis(2)(c) permits a country to require in writing). As an example: In the U.S., music composers maintain the right of public performance in their contracts when their musical works are used in motion pictures, and then license the public performance of their music when the motion picture is communicated to the public via television or cable. This does not appear to be a possibility under your law. Please explain how Russian law complies with Article 14bis(2)(b).
The provisions of Part 4 of the CC RF contain the references to the "contrary or special conditions" as provided by Article 14 bis (2) (b) of the Berne Convention. According to subpara 4 of para 2 of Article 1263 of the CC RF the producer of audiovisual work shall be entitled to an audiovisual work as a whole, unless otherwise follows from the contracts concluded by him with the authors of an audiovisual work (director, script writer and composer). In this case, the right to use audiovisual work will oblige the user to obtain the consent not only from the producer of an audiovisual work, but also from the author of such work.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Additional Follow-Up to Question 10: We would like to confirm our understanding of the application of the three-step test to exceptions for parody and caricatures. The Russian Federation's response noted that courts are generally guided by the three-step test when considering parodies and caricatures. Please confirm our understating that in Russian law, parodies and caricatures are generally considered to comprise exceptions to copyright law, but that courts must apply the three step test when considering whether the parody or caricature exception is applicable in any particular case. Also, please confirm our understanding of the Russian case referenced in the Government's response. It appears that the court decided that the defendant's use of the musical work was an infringement because the musical work was not a subject of parody even though the music video itself was a parody.
We confirm your understanding of three-step test applied to exceptions for parodies and caricatures. In relation to the case on the claim of "Pervoe muzykalnoe izdatelstvo" (English: "First music publishing company"), LLC to "MTF Production", LLC the court concluded that the subject of parody was certain elements (dances) of music band performance, recorded by technical means. It was dancing at the center of stage number. Musical works (with text) accompanying the parody performance are not the subject of parody and thus their use resulted in a violation of the copyrights of right holders.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Additional Follow-Up to Question 13: The Russian Federation's response explains that under the Russian Civil Code exclusive rights for works from a database and rights for a database itself are separate and "not absorbing each other." Please confirm our understanding that a copyrighted work that happens to be included in a database retains its separate copyright and that the right in the database only protects the overall selection, coordination and arrangement.
According to Article 1260 of the CC RF the author of database owns the copyright in the selection or arrangement of materials (compilation). The inclusion of the work in the database requires the consent of the author or other right holder of the original work. Author of the work, included in a database, has the right to use his work, regardless of the database, unless otherwise provided by the contract with the author of the database
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Additional Follow-Up to Question 17: As explained in the further follow up to Question 4, the Russian Federation notes that portions of the Russian Civil Code correspond to Article 14bis of the Berne Convention. Article 14bis permits countries to establish, by legislation, ownership of cinematographic works. If a country has established among the copyright owners in the cinematographic work the authors who have brought contributions to the making of the cinematographic work, such country may provide that authors who contribute to cinematographic works cannot object to certain uses of the works (e.g., reproduction, distribution, public performance) in the absence of any contrary or special stipulation. The Russian Federation's answer to Questions 4 and 17 does not appear to address the specific language of Article 14bis "in the absence of any contrary or special stipulation." The Russian Civil Code appears to prohibit contrary and special stipulations (which 14bis(2)(c) permits a country to require in writing) and the response suggests that such provisions would be invalid. As an example: In the U.S., music composers maintain the right of public performance in their contracts when their musical works are used in motion pictures, and then license the public performance of their music when the motion picture is communicated to the public via television or cable. This does not appear to be a possibility under your law. Please explain how Russian law complies with the provision in Berne Convention Article 14bis(2)(b) which allows authors who contribute to cinematographic works to make a special stipulation retaining the right to object to certain uses of their work (e.g., public performance).
The provisions of Part 4 of the CC RF contain the references to the "contrary or special conditions" as provided by Article 14 bis (2) (b) of the Berne Convention. According to subpara 4 of para 2 of Article 1263 of the CC RF the producer of audiovisual work shall be entitled to an audiovisual work as a whole, unless otherwise follows from the contracts concluded by him with the authors of an audiovisual work (director, script writer and composer). In this case, the right to use audiovisual work will oblige the user to obtain the consent not only from the producer of an audiovisual work, but also from the author of such work.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Additional Follow-Up to Question 20: Please provide examples, if any, of instances when courts or other governmental authorities determined that counterfeit goods should be recovered for societal interests.
There are no any court decisions providing that counterfeit goods should be recovered for societal interests. However, in the enforcement practice of customs authorities there are cases when counterfeit goods seized in the framework of administrative proceedings, after the court decision to confiscate the subject of an administrative offense, are not destroyed, and passed with the consent of the right holder to the social institutions (orphanages, hospitals, nursing homes, etc.), provided that these products are not dangerous for life and health of consumers.
09/02/2016
IP/Q4/MNE/1, IP/Q/MNE/1, IP/Q2/MNE/1, IP/Q3/MNE/1 Montenegro United States of America 1. Article 27(3) of the TRIPS Agreement provides that Members are not required to provide patent protection for plant varieties, but that if such protection is not afforded, then an effective sui generis system is required. It is noted that Montenegro's patent law precludes patent protection for plants. How does Montenegro provide intellectual property protection for plants?
Montenegro provides protection for new plant varieties under the UPOV system of special protection (sui generis) which it has chosen in accordance with the options of the World Trade Organisation and the provisions of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) under which it is required that all Member States of the WTO must provide the protection of plant varieties through patents or sui generis system (such as UPOV), or a combination thereof. During the process of accession to the WTO and EU, Montenegro has adopted the Law on Protection of Plant Varieties ("Official Gazette of the Republic of Montenegro", No. 48/07 and "Official Gazette of Montenegro", No. 48/08), which for the first time regulates the area of protection of intellectual property rights of breeders, creators of plant varieties, regulates the terms and procedures for the protection of plant varieties as well as rights and obligations of the holders of plant breeders’ rights. State authority in charge of direct implementation and activities in this area is Phytosanitary Administration of Montenegro, Department for Seeds and Planting Material, Protection of Plant Varieties and GMO, and is in charge of administrative activities, development of legislation and international relations in this area.
10/01/2014
IP/Q4/MNE/1, IP/Q/MNE/1, IP/Q2/MNE/1, IP/Q3/MNE/1 Montenegro United States of America 2. Article 51 of the TRIPS Agreement provides for the suspension of release by customs authorities of goods suspected of bearing a counterfeit trademark or of being a piratical copyright work, either at the request of a right holder. Could an update be provided on the implementation of the Regulation on TRIPS Border Measures, including applications filed by rights owners to suspend the release of suspected counterfeit and piratical goods and interdiction efforts?
The Customs Administration is dealing with the goods under suspicion of infringing the intellectual property right in accordance with the provisions of the Article 67, Paragraph 3 of the Customs Law ("Official Gazette of the Republic of Montenegro", No. 07/02, 38/02, 72/02, 21/03, 31/03, 29/05, 66/06 and "Official Gazette of Montenegro", No. 21/08) and Regulation on measures of customs authority with the goods under suspicion of infringing the intellectual property rights ("Official Gazette of Montenegro", No. 33/11). Regulation on measures of customs authority with the goods under suspicion of infringing the intellectual property rights ("Official Gazette of Montenegro", No. 33/11) is harmonised with the basic principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights of the World Trade Organisation (TRIPS). The Regulation on measures of customs authority with the goods under suspicion of infringing the intellectual property rights stipulates the conditions for undertaking actions with goods suspicious of infringing an intellectual property right, procedure for undertaking such actions, as well as measures for protection of intellectual property rights undertaken by the customs authority in cases when the goods are found to infringe the intellectual property rights. In accordance with the Regulation customs authority may suspend customs procedure and detained the goods based on application for action of right holder and ex-officio.The customs authority may, in accordance with the Regulation, undertake the actions when goods suspicious of infringing an intellectual property right is: declared for release for free circulation, export or re export, found during the control of goods entering or leaving the customs territory of Montenegro, placed under a suspensive customs procedure or placed in free zone or free warehouse. The Regulation on measures of customs authority with the goods under suspicion of infringing the intellectual property rights covers the protection of trademark, copyright or related right, industrial design, patent, supplementary protection certificate, plant variety, designation of origin or geographical indication and topography of semi-conductors. Regarding the data related to the lodged applications for action for protection of intellectual property rights, please note that 44 applications for action for protection of intellectual property rights were lodged to the Customs Administration in 2011. 39 applications were adopted and five applications were rejected due to formal irregularities. In 2012, 42 applications were lodged to the Customs Administration, out of which 41 applications for action for protection of Intellectual Property Rights were adopted by the Customs Administration and 1 was rejected due to formal irregularites. In 2013, up to 31st of October, 52 applications were lodged to the Customs Administration, out of which 46 applications were adopted, three applications were rejected due to formal irregularities, while three applications are being processed. 3. Article 52 of the TRIPS Agreement provides that a right holder initiating the procedures of TRIPS Article 51 shall be required to provide adequate evidence to satisfy authorities there is a prima facie an infringement. Could information be provided as to what Montenegro requests, such as any application fee, what is the length of time for which an accepted application is valid, and whether applications are filed at a central office or at ports of entry? The provisions of Articles 4, 5 and 6 of the The Regulation on measures of customs authority with the goods under suspicion of infringing the intellectual property rights stipulate the proofs submitted by the right holder to this Administration when addressing with the application for action for protection of intellectual property rights. Namely, the right holder who wishes to protect an intellectual property right shall submit to the Customs Administration the application for action for protection of intellectual property rights,to the address of its headquarters at Oktobarske revolucije No. 128 Podgorica. The application is lodged in two copies in the form found in the annex to the Regulation (Annex 1) and it is filled in accordance with the Instructions for filling in the form and submission of the application for action for protection of an intellectual property right, which is also an integral part of the Regulation. Application and Instructions can be downloaded from the web site of Customs Administration http://www.upravacarina.gov.me/ (in Montenegrin and English). The application must contain information that enables the customs authority to easily recognise the goods related to the application, specifically: correct and detailed technical description of the goods, all information in possession of the right holder related to the type or manner of infringement of the intellectual property right, name and address of contact persons for administrative and technical issues. The applicant can also provide other available data on: value of original goods; location of the goods or destination of the goods; details based on which the shipment or packaging of the goods can be identified; expected date of arrival or forwarding of the goods; type of transport; importer, exporter or holder of the goods; country or countries where the goods are produced, as well as transport routes; technical and other differences, if known, between the original goods and the goods suspected of infringing intellectual property rights. The right holder shall be obliged to accompany the application with the proof that its right has been registered and valid in Montenegro. Excerpt from the relevant register shall also be considered to be a proof. If the application is lodged by authorised user of the right, it shall also be obliged to lodge document that proves the acquisition of right of usage. If the application is lodged by the representative of the right holder, it shall be obliged to lodge the authorisation for representation, i.e. the power of attorney by which the right holder is explicitly authorising the agent to represent it at the customs authority of Montenegro in matters of protection of an intellectual property right. Applications for action shall be accompanied by a declaration from the right-holder, in accordance with the Article 6 of the Regulation, accepting liability regarding the damages that might occur with the procedure if the initiated procedure is terminated due to an act or omission by the right-holder or in the event that the goods in question are subsequently found not to infringe an intellectual property right. With such declaration, the right holder is obligated to bear expenses related to the storing and keeping the goods withheld under the customs control. Declaration should be made on special form found in Annex 2, making the integral part of the Regulation. No fee is paid for lodging of the application for action for protection of intellectual property rights. Customs Administration, within 30 working days following the lodging of the application, is making the decision on undertaking actions for protection of intellectual property rights and submits it to the applicant in written form. When the circumstances order for urgent undertaking of actions and when the application contains sufficient data related to the shipments, suspicious of containing goods infringing the intellectual property rights, the customs administration is adopting the decision within three working days following the day of lodging of application at the latest. Actions for protection of intellectual property rights are approved for a period not exceeding one year following the adoption of the decision. Approved period can be extended for one year, following the written request of the right-holder, which was submitted prior the expiry of approved period, and if all previous expenses, charged to the right holder have been paid. 4. Article 61 of the TRIPS Agreement provides for criminal procedures and penalties, sufficient to act as a deterrent, for willful trademark counterfeiting or copyright piracy on a commercial scale. Could information be provided on the disposition of criminal cases involving trademark counterfeiting or copyright piracy and the criminal penalties and jail time ordered in those cases? For the requested criminal offenses against intellectual property, in the period from 2009 to 2013, criminal proceedings were conducted before Montenegrin courts only for the criminal offense of Unauthorised Use of Copyrighted Work or an Object of a Related Right under Article 234 of the Criminal Code of Montenegro ("Official Gazette of the Republic of Montenegro", No. 70/03, 13/04, 47/06 and "Official Gazette of Montenegro", No. 40/08, 25/10, 32/11 and 40/13). We note that the Criminal Code does not stipulate the criminal offense of trademark counterfeiting for which the information is requested, as well as that using another's trademark is an act of execution of criminal offense of Abuse of Trade Name under Article 271 of the Criminal Code, but not the criminal offense itself. In relation to criminal proceedings in respect of the criminal offense under Article 234 of the Criminal Code, please note the following: In 2011, the Basic Court in Niksic pronounced one guilty verdict by which the accused was found guilty and sentenced to three months in prison, two years on probation. In 2012, the Basic Court in Niksic pronounced one guilty verdict by which the accused was found guilty and sentenced to three months in prison, one year on probation. In 2013, the Basic Court in Herceg Novi pronounced one guilty verdict by which the accused was found guilty and sentenced to three months in prison, two years on probation. All three verdicts are final.
10/01/2014
IP/Q4/MNE/1, IP/Q/MNE/1, IP/Q2/MNE/1, IP/Q3/MNE/1 Montenegro United States of America 3. Article 52 of the TRIPS Agreement provides that a right holder initiating the procedures of TRIPS Article 51 shall be required to provide adequate evidence to satisfy authorities there is a prima facie an infringement. Could information be provided as to what Montenegro requests, such as any application fee, what is the length of time for which an accepted application is valid, and whether applications are filed at a central office or at ports of entry?
The provisions of Articles 4, 5 and 6 of the The Regulation on measures of customs authority with the goods under suspicion of infringing the intellectual property rights stipulate the proofs submitted by the right holder to this Administration when addressing with the application for action for protection of intellectual property rights. Namely, the right holder who wishes to protect an intellectual property right shall submit to the Customs Administration the application for action for protection of intellectual property rights,to the address of its headquarters at Oktobarske revolucije No. 128 Podgorica. The application is lodged in two copies in the form found in the annex to the Regulation (Annex 1) and it is filled in accordance with the Instructions for filling in the form and submission of the application for action for protection of an intellectual property right, which is also an integral part of the Regulation. Application and Instructions can be downloaded from the web site of Customs Administration http://www.upravacarina.gov.me/ (in Montenegrin and English). The application must contain information that enables the customs authority to easily recognise the goods related to the application, specifically: correct and detailed technical description of the goods, all information in possession of the right holder related to the type or manner of infringement of the intellectual property right, name and address of contact persons for administrative and technical issues. The applicant can also provide other available data on: value of original goods; location of the goods or destination of the goods; details based on which the shipment or packaging of the goods can be identified; expected date of arrival or forwarding of the goods; type of transport; importer, exporter or holder of the goods; country or countries where the goods are produced, as well as transport routes; technical and other differences, if known, between the original goods and the goods suspected of infringing intellectual property rights. The right holder shall be obliged to accompany the application with the proof that its right has been registered and valid in Montenegro. Excerpt from the relevant register shall also be considered to be a proof. If the application is lodged by authorised user of the right, it shall also be obliged to lodge document that proves the acquisition of right of usage. If the application is lodged by the representative of the right holder, it shall be obliged to lodge the authorisation for representation, i.e. the power of attorney by which the right holder is explicitly authorising the agent to represent it at the customs authority of Montenegro in matters of protection of an intellectual property right. Applications for action shall be accompanied by a declaration from the right-holder, in accordance with the Article 6 of the Regulation, accepting liability regarding the damages that might occur with the procedure if the initiated procedure is terminated due to an act or omission by the right-holder or in the event that the goods in question are subsequently found not to infringe an intellectual property right. With such declaration, the right holder is obligated to bear expenses related to the storing and keeping the goods withheld under the customs control. Declaration should be made on special form found in Annex 2, making the integral part of the Regulation. No fee is paid for lodging of the application for action for protection of intellectual property rights. Customs Administration, within 30 working days following the lodging of the application, is making the decision on undertaking actions for protection of intellectual property rights and submits it to the applicant in written form. When the circumstances order for urgent undertaking of actions and when the application contains sufficient data related to the shipments, suspicious of containing goods infringing the intellectual property rights, the customs administration is adopting the decision within three working days following the day of lodging of application at the latest. Actions for protection of intellectual property rights are approved for a period not exceeding one year following the adoption of the decision. Approved period can be extended for one year, following the written request of the right-holder, which was submitted prior the expiry of approved period, and if all previous expenses, charged to the right holder have been paid.
10/01/2014
IP/Q4/MNE/1, IP/Q/MNE/1, IP/Q2/MNE/1, IP/Q3/MNE/1 Montenegro United States of America 4. Article 61 of the TRIPS Agreement provides for criminal procedures and penalties, sufficient to act as a deterrent, for willful trademark counterfeiting or copyright piracy on a commercial scale. Could information be provided on the disposition of criminal cases involving trademark counterfeiting or copyright piracy and the criminal penalties and jail time ordered in those cases?
For the requested criminal offenses against intellectual property, in the period from 2009 to 2013, criminal proceedings were conducted before Montenegrin courts only for the criminal offense of Unauthorised Use of Copyrighted Work or an Object of a Related Right under Article 234 of the Criminal Code of Montenegro ("Official Gazette of the Republic of Montenegro", No. 70/03, 13/04, 47/06 and "Official Gazette of Montenegro", No. 40/08, 25/10, 32/11 and 40/13). We note that the Criminal Code does not stipulate the criminal offense of trademark counterfeiting for which the information is requested, as well as that using another's trademark is an act of execution of criminal offense of Abuse of Trade Name under Article 271 of the Criminal Code, but not the criminal offense itself. In relation to criminal proceedings in respect of the criminal offense under Article 234 of the Criminal Code, please note the following: In 2011, the Basic Court in Niksic pronounced one guilty verdict by which the accused was found guilty and sentenced to three months in prison, two years on probation. In 2012, the Basic Court in Niksic pronounced one guilty verdict by which the accused was found guilty and sentenced to three months in prison, one year on probation. In 2013, the Basic Court in Herceg Novi pronounced one guilty verdict by which the accused was found guilty and sentenced to three months in prison, two years on probation. All three verdicts are final.
10/01/2014
IP/Q/MDV/1, IP/Q2/MDV/1, IP/Q3/MDV/1, IP/Q4/MDV/1 Maldives United States of America 1. Articles 7(a) and 8(c) appear to be inconsistent with the Berne prohibition on formalities required for an author to enforce copyright. Although the law states that registration is not required, Articles 7(a) and 8(c) appear to require certain formalities in order for a right holder to convey to a court that the work is his creation. The author is understood to either need to either register copyright or provide the court with a sealed, self-addressed copy of the work mailed to the author. Is this a correct understanding, and if it is, how are these requirements not formalities under Berne?
There is no formal requirement that authors are required either to register their rights or provide a sealed self-addressed envelope. The reasons for both Articles 7(a) and 8(c) are that in the absence of strong laws on evidence, and other supportive laws, as well as a general understanding of intellectual property rights by members of the judiciary, the Maldivian stakeholders were concerned that even if the Copyright Act recognized automatic protection, they would struggle defending their rights at a Maldivian court of law. Articles 7(a) and 8(c) are by no means mandatory – the purpose of those Articles are to encourage the courts to consider certain types of evidence. Both provisions were put forward by the stakeholders, and the Ministry of Economic development had authorized the inclusion of these provisions. The protection of IP rights would be effective in a country which has all the necessary laws in place. By simply allowing the Maldivian courts to recognize registration or self-addressed envelopes under the Copyright Act does not mean that such means guarantee protection at the courts. If there is compelling evidence against a piece of work albeit registration, that piece of work should not be recognized as the original work.
13/02/2013
IP/Q/MDV/1, IP/Q2/MDV/1, IP/Q3/MDV/1, IP/Q4/MDV/1 Maldives United States of America 2. Is the right referred to in Article 10(a)(IX) a right of making available?
Yes, it is a right of making available. We further recognize that the use of the word "publicizing" is inconsistent with the local language [Dhivehi] wording used in the Copyright Act during translation. We will make the appropriate changes to the submitted text.
13/02/2013
IP/Q/MDV/1, IP/Q2/MDV/1, IP/Q3/MDV/1, IP/Q4/MDV/1 Maldives United States of America 3. Article 12(b)(5) limits exceptions to cases where "reproduction would affect the normal proceedings the work may generate." It appears that this language is substituted for the second clause of the three-step test: "certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." However, the meaning of the substitute language is not clear and does not match the meaning of the TRIPS language. Can you please provide further information?
We recognize that the wording in Article 12(b)(5) of the unofficial English translation of the Copyright Act is inconsistent with Dhivehi wording of the Copyright Act which complies with the TRIPS Agreement. We will make the appropriate changes to the submitted text.
13/02/2013
IP/Q/MDV/1, IP/Q2/MDV/1, IP/Q3/MDV/1, IP/Q4/MDV/1 Maldives United States of America 4. Article 27(b) appears to contain a typographical error "shall be paid by the producer to the producer to the performer or performers."
Yes, there is a typo in the statement. The statement should read as "shall be paid by the producer to the performer or performers". We will make the appropriate changes to the submitted text.
13/02/2013
IP/Q/MDV/1, IP/Q2/MDV/1, IP/Q3/MDV/1, IP/Q4/MDV/1 Maldives United States of America 5. The exceptions in Article 29 should be limited to certain special cases which do not conflict with a normal exploitation of the performance, sound recording or broadcast and do not unreasonably prejudice the legitimate interests of the performer, of the producer of the phonogram or of the broadcasting organization.
We will take due consideration of the expressed opinion.
13/02/2013

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