TRIPS, Article 11, applies to the "commercial rental" of computer programs and TRIPS, Article 14(4) to the "commercial rental" of phonograms. With respect to both computer programs and phonograms, the Canadian Copyright Act provides an exclusive rental right which applies subject to certain criteria implementing the TRIPS reference to the qualification "commercial". This word is in part translated by the Canadian reliance on the yardstick of "motive of gain". In practical terms, it is difficult to conceive of a commercial rental where there is no motive of gain. Accordingly, the Canadian formula meets the requirements of TRIPS, Articles 11 and 14(4).

There is yet no case law because the legislation came into force only on 1 January 1994. Practically speaking, the law's effect has been to put an end to the business of renting our sound recordings and software in Canada. As might be expected, libraries continue to make sound recordings available in terms of public lending. "Motive of gain" is possibly more favourable to the rightholder because it is arguably broader than the TRIPS reference to "commercial". For example, "motive of gain" might catch a charity deciding to rent out sound recordings as a fund-raising exercise.

In Canada, the rental of cinematographic works is governed by the business arrangements effected between the owners of copyright in cinematographic works and an extensive system of rental outlets. Whether domestic or foreign, the copyright owners in cinematographic works are largely pleased with the present system and have not, to any significant extent, asked for the introduction of an exclusive rental right with respect to their films. Similarly, the owners of the copyright in cinematographic works have not complained to the Canadian government about widespread copying of their works nor have they alleged that renting is materially impairing their exclusive reproduction right. In this regard, Canada's Copyright Act is fully consistent with the requirements of TRIPS, Article 11: Rental Rights.

With respect to the situation described, copyright under the Canadian Copyright Act would expire 75 years after the making of the work.

Yes, the term of 75 years from making would apply. In examining whether Canada's legislation on this point is consistent with TRIPS, Article 12, it was taken in account that TRIPS, Article 12, applies with respect to categories of works. However, Berne Article 7(3) and Section 6 of the Canadian Copyright Act apply with respect to the much more limited case of circumstances of authorship. In any event, the economic impact here is not likely to be very significant because we are discussing the very narrow case of anonymous or pseudonymous works left unpublished for more than a quarter of a century.

The TRIPS border enforcement measures apply with respect to pirated copyright and counterfeit trademark goods. The relevant section of the Copyright Act only applies in narrowly defined circumstances and with respect to the importation of copies which were legitimately made in the country of manufacture, notwithstanding any rights under the Canadian Copyright Act.

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.

There is nothing in the Canadian Copyright Act that imposes business practice on "les sociétés de gestion canadiennes" with respect to how they organize the distribution of monies owed to foreign authors. Some of the Canadian societies do, however, indicate the process in general terms. Generally, they make payments to foreign collectives which then distribute the revenues to the authors in that country. For example, SOCAN, the Society of Composers, Authors and Music Publishers of Canada, indicates that "under the terms of the [Canadian] Copyright Act, [it] collects tariff fees from the users on behalf of its members and foreign copyright owners it represents in Canada. These fees are then systematically distributed as performance royalties to creators and publishers whose works have been performed and which SOCAN has identified and credited through its own procedures. When [the Canadian creator's] work is performed and identified overseas, SOCAN forwards the monies received from foreign societies directly to ... the [Canadian] copyright owner. And when a foreign work is performed here, SOCAN sends royalties to the copyright owner's own domestic society". CANCOPY acts on behalf of artists, writers and publishers with respect to the reproduction right. A licensing fee or royalty is collected and given back to the artist, writer or publisher. CANCOPY represents published works from around the world through agreements with international reproduction rights organizations. (As recently as July 1996, CANCOPY signed a reciprocal agreement with a collective in another European country in which the two organizations agreed to represent each other in their own country as well as collect and exchange royalties). Generally, royalties collected in Canada are distributed directly to Canadian affiliates regardless of the country of publication. Royalties collected abroad are distributed to Canadian rightholders through CANCOPY. For further information, SOCAN material can be accessed at its WEB page: httb://www.socan.ca/ and CANCOPY at http://cancopy.com/.

General remarks As indicated in the questions, they are partly based on an outdated version of the Danish Copyright Act. The present Act on Copyright (Law No. 395 of 14 June 1995) came into force on 1 July 1996. The full text in English was notified to the TRIPS Council in April 1995. The application of the Danish Copyright Act with respect to WTO Members is governed by Section 17 of Ordinance No. 964 of 12 December 1995. Answer As regards the protection of works Section 17(1) of the Ordinance in general applies the principle of national treatment. As regards the protection afforded by the TRIPS Agreement to performing artists and producers of phonograms Section 17(2) applies the principle of national treatment. According to Sections 18 and 19 of the Ordinance blank tape levy, cf. Sections 39-49 of the Danish Copyright Act, is afforded to works, performances, photographs etc., originating in the European Economic Area and with respect to works, performances, photographs etc., originating in other countries, provided that in the country in question a remuneration scheme has been implemented for blank tapes which provides a possibility for payment of remuneration to Danish rightholders.

(a)Protection for protected subject matter from other WTO Members. As the Marrakesh Agreement Establishing the World Trade Organization and annexed Agreements included provisions which belong to the field of legislation, the Parliament of Finland has enacted a law on accepting such provisions in the Agreement and annexed Agreements. This acceptance included the TRIPS Agreement. The law pronounces that the provisions are in force for Finland. According to the constitutional norms the respective substantive laws have to be brought into accordance prior to the entering into force of such a law. A similar law was enacted by the Parliament when the Berne Convention (1971) was brought into force for Finland in 1986. (b)National Treatment An unequivocal national treatment is accorded to all WTO Members as far as copyright and neighbouring rights provided for in the TRIPS Agreement are concerned. (c)Distribution of levies under Chapter 2a of the Finnish Copyright Act There is no right to compensation for private copying in the Finnish Copyright Act. No one can make a claim to receive remuneration, as no rights are involved. The Act provides for an obligation to the manufacturers and importers of blank recording material to pay a levy. The obligation to pay the levy was adopted in accordance with the clause in the Constitution of Finland concerning the imposing payment obligations to the citizen. The proceeds of the levy are used to compensate private copying according to a decision made yearly by the Ministry of Education and Culture. The compensations are paid out to the beneficiaries by organizations representing a large number of them. Nothing precludes distribution to foreign beneficiaries. There is, however, no obligation to do so.

Ireland provides protection for works and phonograms in the Copyright Acts 1963 1987 and provides protection for performances in the Performers Protection Act 1968. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend the benefit of the Irish Copyright Acts to other countries. Section 12 of the Performers Protection Act 1968 provides similar powers in respect of performances. Irish law provides protection, inter alia, for works and phonograms from other WTO Members on the basis of national treatment in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 and provides protection for performances on the basis of national treatment in the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996. These Orders extend protection under the Copyright Acts 1963 87 and under the Performers Protection Act 1968 to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994. There are, however, some of Articles 1 21 of the Berne Convention which Ireland has not so far acceded to. The Paris Act of 1971 introduced amendments to the Convention on (1) translations of official works, (2) protection of architectural works, (3) moral rights of authors, (4) anonymous and pseudonymous works, (5) ownership of rights in film and (6) the recognition of bodies established to protect the rights of unknown authors of unpublished works. The Copyright Acts 1963 1987 do not contain provisions that cover these aspects of the Paris Act. The Irish Government, however, is currently deeply involved in a review of its copyright legislation and is actively preparing a new Copyright Bill which will cover all of Ireland's international obligations. Irish law does not provide for levies for private copying. However, this is another of the areas which we are carefully examining in preparing our new comprehensive piece of copyright legislation.

Articles 185 189 of Law No. 633/1941 provide the principles regulating the protection of foreign authors, on the basis of the same treatment for the national authors. It should be considered that the ratification of an international agreement or convention implies automatically the inclusion of all the rules of the agreement or convention in the national legislation, without any further requirements. So, the provisions of Article 5.1 of the Berne Convention and Article 3.1 of the TRIPS Agreement are part of the Italian legislation. The same principle applies to the rights of the artists, etc. The right for the remuneration for private copying in favour of the authors and the producers of audiovisual works and of videograms is regulated by Article 3, Law No. 93 of 5 February 1992. The remuneration is fixed on the basis of a percentage of the wholesale price to dealers of blank audio and videotapes or other audio and video carriers (audio cassettes, video cassettes and other carriers) and of audio recording equipments; the remuneration is due by whoever manufactures or imports in the territory of the State, for commercial purposes, blank tapes or other blank audio or video carriers, or audio recording equipments. The remuneration is paid to Società Italiana degli Autori de Editori (SIAE) that will distribute it, net of cost, to the authors and to phonographic producers.

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.

"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.

Yes, such protection is provided by virtue of Section 232(2)(c) of the Copyright Act (the Act).

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).

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.

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.

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.