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 670 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/IRL/1 Ireland United States of America 2. Does Ireland 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.
S.I. No. 158 of 1995 European Communities (Term of Protection of Copyright) Regulations 1995 provides for 50 years protection for phonograms in line with the contents of Council Directive 93/98/EEC harmonizing the term of protection of copyright and certain related rights. The Performers Protection Act 1968 prevents the making of unauthorized records, films and broadcasts of performances. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend benefit of this Act 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 phonograms from other WTO Members in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 and provides protection for performances in the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996. These Orders extend copyright protection 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.
24/10/1996
IP/Q/IRL/1 Ireland United States of America 3. Please explain whether and how Ireland 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.
Section 17 of the Irish Copyright Act 1963 provides protection against both the direct and indirect reproduction of phonograms. However, section 13 of the Copyright Act 1963 provides for special exceptions in respect of records of musical works. This is an area which is being carefully looked at in preparing Ireland's new copyright legislation. This new piece of legislation will cover all of Ireland's international obligations. Section 43 of the Copyright Act 1963 confers power on the Irish Government to extend benefit of this Act to other countries. The Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 (which provides, inter alia, protection to phonograms) extends copyright protection 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. Digital transmission in the context of interactive services was not part of the negotiations which took place during the establishment of the TRIPS Agreement.
24/10/1996
IP/Q/IRL/1 Ireland United States of America [Follow-up question] Does the reproduction right for phonograms in the Irish Copyright Act include reproductions made from a broadcast or digital transmission?
Section 17(4) of the Copyright Act 1963 specifically sets out the acts restricted by copyright in a sound recording. These include reproductions made from a broadcast and, we believe, reproductions resulting from a digital transmission. As regards digital transmissions, this is a matter for interpretation by the Courts and there is no case law to date on this subject matter.
24/10/1996
IP/Q/IRL/1 Ireland United States of America 4. Please explain whether and how Ireland provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by Berne Article 18, as incorporated through Article 9.1 of TRIPS, and TRIPS Article 14.6, and give the date back to which protection extends as to each of these categories of subject matter.
Ireland provides full retroactive protection to works, phonograms and performances. Section 174 of part VI of the Industrial and Commercial Property (Protection) Act 1927 Preservation of existing copyrights states, inter alia: "(1)The repeal of the Copyright Act 1911 by this Act shall not save as is otherwise expressly provided in this part of this Act add no, derogate from, or otherwise affect any copyright or other right acquired before the 6th day of December 1921, under or by virtue of the Copyright Act 1911, or any order made thereunder." The Copyright Act 1963 makes new provision in respect of copyright and related matters. Section 38 of part VIII of the Copyright Act 1963 states: "(1)Except in so far as it is otherwise expressly provided in this Schedule, the provisions of this Act apply in relation to things existing at the commencement of those provisions as they apply in relation to things coming into existence thereafter. "(2)For the purposes of any references in this Schedule to works, sound recordings or cinematograph films made before the commencement of a provision of this Act, a work, recording or film, the making of which extended over a period, shall not be taken to have been so made unless the making of it was completed before the commencement of that provision." The Performers Protection Act 1968 prevents the making of unauthorized records, films and broadcasts of performances. Section 43 of the Copyright Act 1963, confers power on the Irish Government to extend benefit of this Act to other countries; section 12 of the Performers Protection Act 1968, provides similar powers in respect of performances. The Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 (which provides, inter alia, protection to works and phonograms) and the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996 (which provides protection for performances) extend protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1996.
24/10/1996
IP/Q/IRL/1 Ireland United States of America [Follow-up question] (i) Please explain the exceptions to retroactive protection referred to in paragraph 1 of Section 38 of Part VIII of the Irish Copyright Act. (ii) Does the Performers' Protection Act of 1968 apply to pre-existing performances, and if so, going back to what date?
The exceptions to retroactive protection referred to in paragraph I of Section 38 of Part VIII of the Irish Copyright Act are to be found in the First Schedule of the Act which relates to Transitional Provisions. (A copy of the First Schedule of the Act is attached). (i)The interpretation of these provisions is a matter for the Courts and, as far as we can ascertain, there has been no case law on these transitional provisions in the Irish courts. Until such time as there is, the interpretation of the precise content of the provisions will have to remain open. (ii)The Performers' Protection Act, 1968 does not apply to pre-existing performances.
24/10/1996
IP/Q/IRL/1 Ireland United States of America 5. It is not clear whether computer programs are protected as literary works under Article 8 of the Copyright Act, and whether compilations of data in machine readable form are protected. Please explain whether and how computer programs and databases and other compilations are protected under Irish law.
Computer programmes are protected as literary works in Irish law. Council Directive No. 91/250/EEC which protects computer programmes as literary works was transposed into Irish law by S.I. No. 26 of 1993 European Communities (Legal Protection of Computer Programmes) Regulations 1993. This protection for computer programmes as literary works was further encompassed in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996, which extends copyright protection 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. Section 2(1) of the Copyright Act 1963 defines "literary work" as including any written table or compilation. The acts restricted by the copyright in a literary, dramatic or musical work are detailed in section 8(6) of the Act. Directive 96/9/EC of the European Parliament and of the Council on the Legal Protection of Databases must be implemented into Irish law. This will be done in the context of our new Copyright Act which is currently being prepared.
24/10/1996
IP/Q/IRL/1 Ireland United States of America 6. Please identify and explain the provision of Irish law that provides a rental right for producers of sound recordings, cinematographic works and computer programs, as required by TRIPS Articles 11 and 14.4.
There are no provisions in Irish law at present which provide a rental right for producers of sound recordings, cinematographic works and computer programmes. This is another area which is being carefully examined in the context of Ireland's current overall review of copyright and the preparation of our new Copyright Act. Indeed, EU Council Directive of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be implemented into Irish law in this new legislation.
24/10/1996
IP/Q/IRL/1 Ireland United States of America [General follow-up question] In response to questions 1, 3 and 6, Ireland has indicated that it is carefully examining certain areas of its laws in preparing a new comprehensive piece of copyright legislation, in order to fully implement all of Ireland's international obligations. Please indicated the expected timetable for this new legislation, and as to each of the areas identified in the answers to the noted questions, provide whatever information is available as to the changes that will be made to Irish law.
(i) With regard to the expected timetable for Ireland's new legislation, Ireland is currently in the process of drafting Heads of Bill for the Parliamentary Draftsman, who will draw up an appropriate bill. It is our intention to have these draft Heads completed and submitted to the Parliamentary Draftsman by the end of this year. A bill will then be brought before Parliament as soon as possible thereafter. Additional resources have been assigned to this task and Ireland is treating this as a matter of priority. (ii) With regard to any changes that will be made to Irish Law, it is not possible to give an absolute indication of what will be contained in the final text, as this matter must go before Parliament. However, the bill will take account of the necessity to comply with our international obligations.
24/10/1996
IP/Q/ITA/1 Italy United States of America 1. Please explain whether and how Italian 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 6.1). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under the relevant provision of the italian copyright law.
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.
24/10/1996
IP/Q/ITA/1 Italy United States of America [Follow-up question] The answer did not make clear whether national treatment is provided with respect to the private copying levies established by Italian law. Please confirm that all revenues generated from these levies in Italy are distributed on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder.
The private copying levies are paid to the SIAE, which distributes them among authors' and producers' associations; the producers' associations share out 50 per cent of the proceeds they have collected to artists' and performers' associations. There is no discrimination between Italian and foreign rightholders.
24/10/1996
IP/Q/ITA/1 Italy United States of America 2. Does Italy apply the "rule of the shorter term" to phonograms and performances from other WTO Members, and if so please explain how this is consistent with the obligations set forth in TRIPS Article 4.
The term of protection of the rights of performers, producers of phonograms, etc. has been extended to 50 years by Law No. 52 of February 1996, Article 17 (amended by Article 9 of D.L. No. 331 of 22 June 1996 which is being converted into law); Law No. 52 has enforced the EEC Directive No. 93/98 (Articles 3, 1 and 2).
24/10/1996
IP/Q/ITA/1 Italy United States of America [Follow-up question] Please confirm that Italy does not apply the rule of the shorter term to phonograms and performances.
The 50 years term applies to all WTO Members in respect of producers of phonograms as well as artists and performers, as provided in Article 14 of the TRIPS Agreement.
24/10/1996
IP/Q/ITA/1 Italy United States of America 3. Please explain whether and how Italy protects against the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context with respect to each category of subject matters.
Article 72 of the Law No. 633/1941 provides (according to the EEC Directive No. 92/100) that "the producer of a phonographic record or of any other similar contrivance for reproducing sounds or voices shall have the exclusive right, for the period and under the conditions laid down in the following articles, to reproduce, by whatever duplication process, and distribute the said record or contrivance of his production". Moreover, according to the same article, (paragraph 2) "The producer of a phonogram has also the exclusive right to lease and loans, as well as the right to authorize the lease and loan of the phonograms of his production. This right is not exhausted with the sale or distribution, in whatever form, of the phonograms". According to Article 73 of the same law, "The producer of the phonographic record or of any similar contrivance for reproducing sounds or voices, as well as the artists who interpreted or performed the interpretation or the performance recorded or reproduced on the said contrivances, shall be entitled, independently of the rights of distribution, lease and loan pertaining to them, to remuneration in exchange for the utilization, for purposes of gain, of the record or of the similar contrivance through broadcasting, cinematography, television, in public dancing parties, in public premises and on the occasion of any further public utilization of the said contrivances. The producer shall be entitled to exercise the aforesaid right, and shall share out the remuneration among the artists who acted, interpreted or performed the work". The artists who interpret or perform and the producer of the phonogram which was utilized shall be entitled according to Article 73bis to fair remuneration also when the utilization as per Article 73 was not effected for purposes of gain. According to Article 80 of the Law No. 633/1941 (as modified by Article 13 of the Dlgs No. 685/1994) artists who interpret or perform shall have the exclusive power, regardless of any remuneration to which they may be entitled for their live artistic performances: (a)to authorize recording of their artistic performances; (b)to authorize reproduction, whether direct or indirect, of the recordings of their artistic performances; (c)to authorize broadcasting by air and communication to the public, in whatever form and manner, of their live artistic performances, unless the latter were intended for broadcasting by radio or television or are already the subject or a recording for broadcasting purposes; (d)to authorize distribution of the recordings of their artistic performances; (e)to authorize lease or loan of the recordings of their artistic performances and of the reproduction thereof: The Rome Convention has been ratified by Italy; on June 1995, Italy confirmed some of the reservations already notified, as foreseen by the Convention; among these, the reservation relating to Article 5.3 of the Berne Convention. Consequently, Italy is protecting phonograms on the basis of the criterion of "fixation", this criterion being considered more clear and rigorous compared to the other two criterions of nationality and publication. It should also be remembered that, with Law No. 406 of 5 May 1975, Italy ratified the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.
24/10/1996
IP/Q/ITA/1 Italy United States of America [Follow-up question] Does the reproduction right for phonograms under Italian law include reproductions made from broadcasts, as well as the digital transmission of both temporary and permanent reproductions?
Under Article 13 of the Italian Copyright Law No. 633/1941, the authors' right of reproduction "has for its object the multiplication of copies of the work by any means". The wording therefore applies to all kinds of reproduction, including those made from broadcasting or by digital means. Article 72 of the law specifically provides the same rule for the reproduction of phonograms. The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at national and international level.
24/10/1996
IP/Q/ITA/1 Italy United States of America 4. Please explain whether and how Italy 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 matters.
Article 18 of the Berne Convention reserves the protection to works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. Paragraph 2 of the same article excludes that a work that has fallen into the public domain in the country where the protection is claimed, could be protected anew on the basis of the new terms of the minimal duration of the protection provided for by the Berne Convention. Article 70 of the TRIPS Agreement recalls Article 18 of the Berne Convention so far as the works, phonograms and performances in conformity with the established criteria are concerned, thus implying that the protection must be given to all works which are not fallen into the public domain, as to the neighbouring rights. Article 10.2 of EEC Directive No. 93/98 establishes however that the new long duration of the protection there provided for in favour of copyright and neighbouring rights "applies to any work and subject matter which is protected in at least one of the Member States at the date of 1 July 1995". Article 17 of the Law of 26 February 1996, No. 52 (integrated by Article 9 of the D.L. of 22 June 1996, now being converted into law), actuating such a directive, after having increased the terms of duration of the protection of copyright and neighbouring rights, in conformity with the EEC Directive, has extended the new terms previously into force (Article 17.2), provided always that in application of such terms the aforesaid works and right fall into protection at the date of 29 June 1995 (Article 9.2 of the D.L. No. 331/1996): this means that the protection for neighbouring rights goes back to 30 June 1945 and to 30 June 1926 for copyright.
24/10/1996
IP/Q/ITA/1 Italy United States of America 5. Please explain the criminal and civil remedies available for copyright infringements and the extent to which they fully implement the obligations in TRIPS Articles 41, 46, 50 and 61. In response, please specify, inter alia, whether and how these remedies may include the seizure, forfeiture, and destruction of infringing articles and equipment used to make infringing articles and equipment used to make the infringing articles, as required by TRIPS Articles 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50. Additionally, please explain whether and how the system for measuring civil damages complies with TRIPS Articles 41.1 and 46.1, and how remedies and penalties awarded in italian civil and criminal cases provide the deterrent effect required by TRIPS Articles 41 and 61.
These aspects will be examined in the second half of 1997.
24/10/1996
IP/Q/ITA/1 Italy United States of America 6. Please explain how the Italian copyright law provides protection for compilations or collections of unprotected materials, as required by TRIPS Article 10.
The compilations of data or other materials that, due to their selection or disposition of their contents constitute intellectual creations, find protection, in terms of "copyright" under the EEC Directive on the legal protection of databases, approved in March 1996. Italian law, at the moment, is protecting the collection, or anthologies of various works already "per se" protected (Articles 3 and 38, and subsequent of the Law No. 633/1941) in conformity with what is provided for by Article 2.5 of the Berne Convention. Italy, however, is obliged to implement the EEC Directive within the terms therein indicated (December 1997) and thus implementation of Article 10 of the TRIPS Agreement shall, of course, be in conformity with what is provided for in the aforesaid EEC Directive.
24/10/1996
IP/Q/JPN/1 Japan United States of America 1. Please explain whether and how Japanese 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 levies for private copying under Article 30(2) and 104bis et seq., of the Copyright Law.
The Japanese Copyright Law provides protection for works, phonograms, performances and broadcasting from other WTO Members. In concrete terms, Articles 6, 7, 8 and 9 respectively provides protection for the works, performances, phonograms and broadcasting which are granted protection under the Japanese Copyright Law. All these provisions cover the works, phonograms, performances and broadcasting from other WTO Members. This protection is provided on the basis of the principle of national treatment required by Articles 3 and 9.1 (incorporating Berne Article 5(1)) of the TRIPS Agreement. Namely, as to works, the Japanese Copyright Law grants to works from other WTO Members all the rights stipulated in the Japanese Copyright Law for Japanese works. As to performers, producers of phonograms and broadcasting organizations, the Japanese Copyright Law grants to performers, producers of phonograms and broadcasting organizations of other WTO Members all the rights stipulated in the TRIPS Agreement in accordance with its Article 3, which provides that "this obligation (national treatment) only applies in respect of the rights provided under this Agreement". The "right to compensation for private recording" stipulated in Articles 30(2) and 104bis of the Japanese Copyright Law is granted to all right owners protected under the Japanese Copyright Law including those in other WTO Members. This legislation does not discriminate between Japanese and foreign right owners, and therefore it does not pose any problem in the light of the principle of national treatment.
24/10/1996
IP/Q/JPN/1 Japan United States of America [Follow-up question] How are the levies for private copying under Articles 30 and 104bis of the Japanese copyright law distributed so as to give the appropriate share to rightholders from other WTO Member countries?
The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and started in 1993 (so far only for "sound recording", excluding "visual recording"). The compensation is collected by a collective society called 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 a part of the compensation to their overseas counterparts through negotiations and 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.
24/10/1996
IP/Q/JPN/1 Japan United States of America 2. It appears that Article 95.3 of the Copyright Law applies the “rule of the shorter term” to phonograms and performances from other WTO Members. Is this true? If so, please explain how this is consistent with the obligations set forth in TRIPS Article 4.
Article 4 of the TRIPS Agreement provides for the most-favoured-nation treatment with regard to the protection of intellectual property. However, Article 4(b) stipulates that "(any advantage, favour, privilege or immunity) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country" are exempted from this obligation. On the other hand, Article 95(3) of the Japanese Copyright Law stipulates the application of reciprocity with respect to the term of the protection for the right to secondary use fees of commercial phonograms of performers. This provision is based on the declaration of reservation which Japan made in accordance with Article 16.1(a)(iv) of the Rome Convention, and therefore, is consistent with Article 4(b) of the TRIPS Agreement. This means that the provision of Article 95(3) is consistent with the TRIPS Agreement.
24/10/1996

Page 670 of 677   |   Number of documents : 13533

 
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