Review of TRIPS Implementing Legislation - Search

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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.

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.

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Page 668 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/CAN/1 Canada United States of America 2. Does Canada 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.
24/10/1996
IP/Q/CAN/1 Canada United States of America 3. Please explain whether and how Canada 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 interactive services.
Copyright Act, Section 5(3), specifically provides copyright protection for sound recordings. Section 5(4) provides the owner of the copyright in the sound recording with the exclusive right to reproduce the sound recording in any material form. In the WIPO Experts Committees working on the possible Protocol to the Berne Convention and the possible New Instrument for the Protection of the Rights of Performers and Producers of Phonograms, there has yet to be any thorough discussion of the extent to which the reproduction right would apply to specific ephemeral "reproductions" effected as a necessary incident of a digital transmission. Whether such temporary reproductions are covered by the reproduction right is a question on which international consensus is lacking. Similarly, the point was not contemplated during the negotiations for TRIPS, where there is nothing to show that the reproduction right in Article 14(2) applies to a temporary reproduction in random access memory. Nothing in the Canadian Copyright Act precludes such a temporary reproduction from falling under the exclusive reproduction right. However, this point has yet to be clarified with respect to the reproduction right in the Canadian Copyright Act. With reference to the information highway and the new demands of the digital environment, this question has recently been the subject of some domestic discussion in terms of copyright works in general.
24/10/1996
IP/Q/CAN/1 Canada United States of America [Follow-up question] The answer to this question focuses primarily on temporary or ephemeral reproductions. Does the reproduction right provided for phonograms under Canadian law apply to digital delivery of a permanent reproduction?
Yes.
24/10/1996
IP/Q/CAN/1 Canada United States of America 4. Please explain whether and how Canada 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. Also, please indicate whether there any categories of works that would be protected by copyright in Canada which are not protected due to the operation of Section 77, and if so, please identify such categories.
Canada does provide retroactive protection to pre-existing works, phonograms and performances from WTO Member countries. The term is generally life plus fifty for most works with fifty years for sound recordings and performers' performances. With respect to sound recordings and all original literary, dramatic, artistic and musical works, Copyright Act, Section 5.(1.01) provides that "a country which becomes a [...] WTO Member after the date of the making or publication of a work shall, as of becoming a [...] WTO Member [...] be deemed to have been a [...] WTO Member at the date of the making or publication of the work [...]." However, the foregoing does not apply if copyright protection expired in the country of origin before that country became a WTO Member. A corresponding provision with respect to a performer's performance is contained in Copyright Act, Section 14.01(4). TRIPS, Article 70(7), does not have any effect with respect to Canada because our Copyright Act does not make protection conditional on registration.
24/10/1996
IP/Q/CAN/1 Canada United States of America 5. In Section 2 of the Copyright Act, “cinematograph” is defined to exclude, for purposes of Section 11.1 of that Act, “works where the arrangement or acting form or the combination of incidents represented give the work an original character”. Please explain the meaning of this definition and the relationship of these works to Section 11.1, which appears to relate to duration.
The rationale for the definition of "cinematograph" in Section 2 is to permit one copyright term (i.e. life plus fifty) for "scripted" cinematographic works and another copyright term (i.e. fifty years from the end of the calendar year of publication) for "unscripted" cinematographic works, e.g., most news footage and home videos.
24/10/1996
IP/Q/CAN/1 Canada United States of America 6. Please explain whether the listing of copyright rights in Section 3(1) of the Copyright Act, which explicitly includes certain types of adaptations, also encompasses the general right “of authorizing adaptations, arrangements and other alterations” required by Berne Article 12 (as incorporated through TRIPS Article 9.1)
Although the Canadian Copyright Act lacks a general adaptation right, the statute gives the author the exclusive right to convert a dramatic work into a novel or another non-dramatic work and to adapt a literary, dramatic, musical or artistic work by cinematograph. Canada complies with Article 12 of the Berne Convention via these rights and by the domestic reproduction right which has been given a very extensive scope by Canadian courts. Accordingly, the Canadian legal system handles by way of the reproduction right much of what some other countries handle by way of a general adaptation right. With respect to adaptation, it is also pertinent that the Canadian Copyright Act specifically gives the author moral rights to the integrity of his work.
24/10/1996
IP/Q/CAN/1 Canada United States of America [Follow-up question] Please explain how Canadian law handles by way of the reproduction right much of the adaptation right required by Berne Article 12, and to what extent.
Copyright Act, Section 3(1)(b), gives the copyright owner the sole right in the case of a dramatic work, to convert it into a novel. In the case of a novel or other non-dramatic work, or of an artistic work, Section 3(1)(c) gives the copyright owner the sole right to convert it into a dramatic work, by way of public performance or otherwise. With respect to any literary, dramatic, musical or artistic work, Section 3(1)(e) gives the copyright owner the sole right to reproduce, adapt and publicly present the work by cinematograph. In Canada there has never been a case in which a defendant successfully argued that his secondary work is beyond the scope of the rights provided by Copyright Act, Section 3(1), where the reference to the sole right to produce or reproduce the work is very broad. To violate the author's reproduction right, the infringing copy does not have to look the same. Similarity and substantial copying are directly at issue in this context. Furthermore, an adaptation almost invariably begins with an act of reproduction. Letting the exception prove the rule, reference can be made to Section 27(2)(l) which establishes that copyright owners in computer programs have an exclusive adaptation right.
24/10/1996
IP/Q/CAN/1 Canada United States of America 7. Please explain how Canada reconciles the authority provided with regard to licenses for publication by other than the copyright owner through Sections 16 to 21 and 22 to 26 of the Copyright Act 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.
Copyright Act, Sections 16-26, were repealed by Section 59 of the World Trade Organization Agreement Implementation Act, the intellectual property provisions of which entered into force on 1 January 1996.
24/10/1996
IP/Q/CAN/1 Canada United States of America 8. Please explain how the operation of Sections 27(2)(e), 27(2)(f), 27(2)(h), and 27(3) of the Copyright Act complies 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.
These are de minimis exceptions of a nature common to the copyright laws of many countries. For example, Copyright Act, Section 27(2)(e), deals with newspaper reports of public lectures which in other countries, e.g., the USA would fall within the broad category of "fair use". It is well known that "fair dealing" under the Canadian Copyright Act is given a narrower interpretation than "fair use" under the corresponding USA statute. Also within the USA category of "fair use" would be the situation provided for by Canadian Copyright Act, Section 27(2)(f), which deals with the public recitation of a reasonable extract of a published work. With reference to the Cultural Property Export and Import Act as cited in Copyright Act, Section 27(2)(h), the relevant exception to the reproduction right is unlikely to affect foreign rightholders and is so limited as to easily meet the economic tests imposed by TRIPS, Article 13. With respect to the public performance of a musical work, Copyright Act, Section 27(3), is much narrower in scope than the classroom exception found in the USA Copyright Law and would accordingly have an easier time meeting the TRIPS, Article 13 tests than would the USA classroom exception.
24/10/1996
IP/Q/CAN/1 Canada United States of America [Follow-up question] We understand that every country's system has exceptions to rights. The question is, as to each: does it go too far? Our questions are not directed to "fair dealing" generally, but to specific exceptions in Canada's law. Please explain why these exceptions comply with the permissible limitations on rights in Berne and TRIPS. In particular: -Section 27(2)(e) (dealing with publication in newspaper of report of public lecture). Has the text of this section been limited in operation or application in any way, such as with regard to the topic of the lecture, the amount copied from the lecture, the commerciality of the use, or the effect on the market for the lecture? We note that this exception appears to go beyond "fair dealing" in a newspaper summary, as permitted under section 27(2)(a.1). -Section 27(2)(f) (dealing with public reading or recitation by one person of extract from public work). Has the text of this section been limited in operation or application in any way, such as with regard to purpose of the reading or recitation, or its commercial nature? -Section 17(2)(h) (dealing with reproduction for deposit in institutions). How are permissible reproductions limited by the Culture Property Export and Import Act? -Section 27(3) (complete exemption for public performance of musical works by churches, colleges or schools, and religious, charitable or fraternal organizations, whenever done for religious, educational or charitable objects). This is a big market for a category of commercially valuable works. Has the text of this section been limited in operation or application in any way, such as with regard to the type of the musical work, the place or context of the particular use, or any direct charge to the audience?
With respect to Section 27(2)(e), the relevant Berne/TRIPS test would be the impact on the rightholder not whether the use is commercial or non-commercial. A report in a newspaper is likely to enhance, not diminish, the economic returns from lecturing. In any event, the lecturer can close the exceptions by posting the stipulated notice. Furthermore, the exception is limited to a "report" (i.e., not a verbatim reproduction) in only one medium. To date, there has been no complaint from lecturers with respect to this feature in our Copyright Act. For Section 27(2)(f), the relevant test is again not commercial or non-commercial use, but rather whether the limitation hurts the rightholder. In this regard, the public recitation of an extract from a novel is likely to enhance the author's returns from sales of copies of the book. This practice does not unreasonably interfere with the normal commercial exploitation of the work. The stipulation of a "reasonable extract" is an appropriate limitation in this context where the lost economic value to the rightholder is not significant. It would appear that there is no Canadian case law with respect to this provision. The exception in Section 27(2)(h) is necessary inter alia because our Copyright Act gives perpetual protection to unpublished manuscripts. It is difficult to conceive of a case where the use of this exception would fail to meet the tests set out in Berne, Article 9(2), and TRIPS, Article 13. However, it is possible to conceive of instances where the rightholder would benefit, e.g., via the official preservation of a cinematographic work otherwise totally lost. With respect to Section 27(3), it should be observed that churches tend to use public domain works and, if otherwise, there is a reluctance to interfere with religious worship. Use for an educational object by colleges or schools is comparable to educational exceptions in other countries, e.g., the USA. When a school holds a dance it must apply to the relevant Canadian copyright collective which provides a performance licence on a reduced tariff. There may be some problem with respect to unauthorized use by charitable and fraternal organizations which is an aspect that will be looked at afresh.
24/10/1996
IP/Q/CAN/1 Canada United States of America 9. 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 Article 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50.
In an appropriate case, the plaintiff may obtain an ex parte "Anton Piller" order permitting the plaintiff's solicitor to enter the defendant's premises without warning to search for infringing goods and relevant documents. Governed by the same factors as in other actions, interlocutory injunctions are available where just and equitable in the circumstances. A successful plaintiff is generally entitled to a final injunction in addition to the other civil remedies available for infringement of copyright, such as damages and an account of profits. Exemplary damages may be awarded in copyright actions where the defendant has wilfully and flagrantly ignored the plaintiff's legal rights and the process of the court. Copyright Act, Section 38, specifically provides for delivery up and conversion of infringing copies. There are criminal offences and punishment with respect to direct and indirect infringement and prohibitions of making or possessing a plate for the purpose of making infringing reproductions. Furthermore, the court is given power to deal with infringing reproductions, fixations or plates which may be ordered destroyed or delivered up to the copyright owner. Finally, the Criminal Code includes offenses of fraud, conspiracy, and unauthorized use of computers and mischief in relation to computers. These Criminal Code provisions have had some incidental effect with respect to protecting the rights of copyright owners.
24/10/1996
IP/Q/CAN/1 Canada United States of America [Follow-up question] Do remedies for infringement include forfeiture and destruction of equipment used to make infringing articles, in both the civil and criminal contexts?
Copyright Act, Section 42(3), provides the required authority in the criminal context. In the civil context, the applicable TRIPS obligations are satisfied by Section 38, which allows the copyright owner to take proceedings for recovery of possession of both plates and infringing copies.
24/10/1996
IP/Q/DNK/1 Denmark United States of America 1. Please explain whether and how Danish 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)). In particular, please explain how national treatment is afforded with respect to the distribution of blank tape levies under Articles 39 to 46 of the Danish Copyright Law.
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.
24/10/1996
IP/Q/DNK/1 Denmark United States of America [Follow-up question] Please explain how the conditioning on reciprocity of the remuneration to foreign rightholders from the blank tape levy under Danish law is consistent with the national treatment requirements of Berne and TRIPS. In addition, how are the levies distributed so as to give the appropriate share to rightholders from other WTO Member countries?
The Danish levy system is - in relation to foreign rightowners - implemented in special provisions in Sections 18 and 19 in Ordinance No. 964 of 12 December 1995. It is hereby indicated that the provisions have no link to the existing international copyright conventions. In practice the criteria used in Sections 18 and 19 for payment to non-EU rightowners have the effect that foreign rightowners are treated in the same manner as Danish rightowners on the sole condition that in the country in question a remuneration scheme for blank tapes - regardless of its scope -has been implemented, which provides a possibility for payment of remuneration to Danish rightowners. The general framework of the Danish levy system is laid down in Sections 39 and 40 of the Copyright Act of June 1995 which are worded as follows: "Section 39: (1) Anyone who for commercial purposes produces or imports sound tapes or videotapes or other devices on to which sound or images can be recorded shall pay remuneration to the authors of the works mentioned in subsection (2). (2) The remuneration shall be paid for tapes, etc., which are suitable for production of copies for private use, and only for works which have been broadcast on radio or television, or which have been published on phonogram, film, videogram, etc. (3) Administration and control, including collection, shall be carried out by a joint organization representing a substantial number of Danish authors, performers and other rightholders, including record producers, etc., and photographers, and which is approved by the Minister for Culture. The Minister may request to receive all information about collection, administration and distribution of the remuneration. (4) The organization lays down guidelines for payment of the remuneration to the beneficiaries so that to the greatest possible extent distribution will take place in accordance with the copying actually made. One third of the annual amount for payment shall, however, be used to support purposes common to the authors and others within the groups represented by the organization, cf. subsection (3). Section 40: For 1993, the remuneration per minute playing time for sound tape is DKK 0.045 and for videotape DKK 0.0625. The remuneration shall be adjusted annually by the rate adjustment percentage, cf. Act on a rate adjustment percentage."
24/10/1996
IP/Q/DNK/1 Denmark United States of America 2. Does Denmark 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.
Denmark does not apply any comparison of terms with respect to the protection afforded by the TRIPS Agreement to performances and phonograms.
24/10/1996
IP/Q/DNK/1 Denmark United States of America 3. Please explain whether and how Denmark 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.
According to Section 66 (1) of the Danish Copyright Act sound recordings may not be reproduced without the consent of the producer until 50 years have elapsed after the end of the year in which the recording was made. This is understood to include indirect reproduction e.g. made on the basis of a broadcast or interactive transmission. According to Section 86 (2) the protection concerning recording and copying applies to all sound recordings regardless of origin.
24/10/1996
IP/Q/DNK/1 Denmark United States of America [Follow-up question] Please provide case law or other authority supporting the statement in the second sentence of the answer, that the reproduction right under Section 66(1) of the Danish Copyright Act includes reproductions made on the basis of a broadcast or interactive transmission.
As stated in the Danish answer to question 3 from the United States, Article 66(1) in the Danish Copyright Act of 14 June 1995 covers both direct and indirect reproduction of phonograms including reproductions made on the basis of a broadcast or interactive transmission. This is confirmed in the preparatory work (lovforslag n L 119 fremsat den 18 Januar 1995) where it is stated, inter alia, that the law is implementing Article 7 in the EEC Directive 92/100 concerning rental and lending rights where it is expressly stated that producers of phonograms shall enjoy an exclusive right to authorize the direct and indirect reproduction of their phonograms.
24/10/1996
IP/Q/DNK/1 Denmark United States of America 4. Please explain whether and how Denmark 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.
According to Section 90 (1) the Danish Copyright Act applies also to works and performances and phonograms etc., made before the coming into force of the present Act. The term of protection for works is 70 years after the year of the author's death cf. Section 63 of the Copyright Act. The protection of the works by authors who died in 1926 will consequently expire by the end of the year 1996. Comparison of terms is used according to Section 2 of the Ordinance. The term of protection for performances and recordings is 50 years after the year the recording was made cf. Sections 65 and 66. The protection of recordings made in 1946 will consequently expire by the end of the year 1996.
24/10/1996
IP/Q/DNK/1 Denmark 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.
Denmark is of the opinion that answers to this question should be postponed to be given in connection with the review concerning enforcement which is scheduled to take place in 1997.
24/10/1996
IP/Q/DNK/1 Denmark United States of America 6. Article 10 of TRIPS requires that databases based on factual information that constitute intellectual creations by reason of the selection or arrangement of their contents be protected. Please explain whether and how databases are protected under Denmark’s copyright law and how such protection operates in conjunction with Article 49 of Denmark’s Copyright Law, which provides that “productions in which a great number of items of information have been compiled” are protected for ten years.
A database can be protected as a work according to Section 1 of the Copyright Act or if it consists of protected works it can be protected as a composite work according to Section 5 of the Act. In both cases the database is protected on the condition, that the compilation is the authors own creative effort and expresses his individuality. Quite a different matter is the protection provided for in Section 71 for catalogues, tables or other similar productions in which a large number of information items have been compiled. Those may not be reproduced without the authorization of the producer until 10 years have elapsed from the year in which the production was made public. However, the protection expires 15 years after the end of the year in which the work was produced. This is a "related right", i.e. a production outside copyright which operates for the benefit of the producer and has its main function in case such a compilation (also in the form of a database) does not meet the criteria for copyright protection. However, the provision also states that if a production of its kind, or a part thereof, is subject to copyright, copyright protection may also be claimed.
24/10/1996

Page 668 of 677   |   Number of documents : 13533

 
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