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 672 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/LUX/1 Luxembourg United States of America [Follow-up question] What is the expected timetable for the second draft amendment referred to in paragraphs 5 and 7 of the answer to this question, which would extend a full term of protection to existing works, phonograms and performances from all WTO Members? Will it be simultaneous with the first draft amendment also referred to, which would apply only to EU members? Please provide any information that is available about the contents of this second draft amendment.
All efforts will be made to have a simultaneous timetable for all our amendments. The new laws will come into force three months after the date of publication.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America 5. Article 1 of Luxembourg's copyright law lists the works that are protected as literary and artistic works under the law. Computer programs, however, are not included within this list. As Article 10 of TRIPS requires that computer programs should be protected "as literary works", please explain how computer programs are protected under Luxembourg's law.
On 24 April 1996, a new law added the protection of "computer programs" expressly to the list of Article 1.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America 6. Article 1 of Luxembourg's copyright law grants protection to certain collections of works. However, because this article does not explicitly refer to databases of factual information (for which there is no underlying work) as protected subject matter, it is clear whether such databases are protected. Article 10 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 these databases of factual information are protected under Luxembourg Law.
Databases which constitute an intellectual creation according to the conditions of paragraph 5, Article 1, are protected as literary works (collections). Indeed the list of Article 1, paragraph 1 is not exhaustive.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America [Follow-up question] Please indicate whether Luxembourg's copyright law has been implemented so as to provide protection for databases, and provide any relevant case law, administrative decisions, or other authority.
There is no case law on this issue.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America 7. It does not appear that Luxembourg's copyright or neighbouring rights grant a rental right in these works. In view of this, please explain how Luxembourg complies with TRIPS Articles 11 and 14, which require that the rightholders of computer programs and phonograms be granted the right to control the rental of their work.
The rental right is not expressly excluded by the Luxembourgish law. However, the new draft amendments submitted to Parliament, in accordance with the EEC Directive No. 92/100 from 19 November 1992, provides expressly the rental right for authors and rightholders of neighbouring rights.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America [Follow-up question] Please indicate whether Luxembourg's copyright law has been implemented so as to provide a rental right in computer programs and phonograms, and provide any relevant case law, administrative decisions, or other authority.
It is considered that on the basis of Luxembourg copyright law a rental right is granted as regards computer programs and phonograms. There is no case law on this issue yet. This issue will be clarified in the draft amendment concerning rental rights.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America 8. Please explain what criminal and civil remedies for copyright infringement are available and why they are sufficient under TRIPS Articles 41, 45 and 61. In the response, please address, inter alia, whether infringers may be liable for attorney's fees and court costs; whether Article 29 of the Luxembourg copyright law and Article 15 of Luxembourg neighbouring right law require that an infringer have knowledge and intent in order to be liable for infringement, thereby precluding an innocent infringer from being liable under the copyright law; and whether Article 34 of the Luxembourg copyright law and Article 16 of the Luxembourg's neighbouring rights law prevent the Luxembourg government from initiating criminal proceedings against suspected pirates.
Luxembourg reserves its answer until the second semester 1997, because of the scheduled enforcement review in the WTO Council.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America 9. Article 12 of the Luxembourg neighbouring rights law grants a term of protection to phonogram producers and performers equal to twenty years from fixation of the phonogram or twenty years from when the performance took place. Article 14 of TRIPS requires that the term of protection be fifty years from the fixation of the phonogram and fifty years from when the performance took place. Please explain how Article 12 complies with the requirements of TRIPS Article 14.
The new draft amendment provides actually a protection of fifty years, according to the EC Directive 93/98/EEC of 29 October 1993.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America 10. Article 7 of Luxembourg neighbouring right law grants protection only to Luxembourg nationals and to those works originally fixed in Luxembourg. Please explain how this protection complies with the national treatment requirement in Article 3 of TRIPS, which requires that the phonograms of nationals of Member States be treated no less favourably than the phonograms of Luxembourg nationals.
According to the EC Directive 93/98 EEC and the new draft amendment, the duration of the protection is granted to works created in the European Union. The new draft of an amendment will extend the grant to works created in a WTO Member State. Article 17 of the neighbouring rights law provides however clearly that the effects of international conventions, such as the TRIPS Agreement, are prevailing.
24/10/1996
IP/Q/LUX/1 Luxembourg United States of America [General follow-up question] Luxembourg has stated that three draft amendments have been submitted to its Parliament, dealing with the transposition into national law of three European directives and the implementation of TRIPS obligations. Please confirm that action is expected in Parliament on these amendments this Autumn.
Yes.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 1. Please explain whether and how Dutch 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)). We note that Article 47 of the Netherlands’s Copyright Law grants protection only to Dutch nationals and to those works originally fixed in the Netherlands. Additionally, how is national treatment afforded with respect to the distribution of blank tape levies under the Dutch Copyright Law.
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.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America [Follow-up questions] Please provide any case law or other authority holding that the TRIPS Agreement is a treaty the provisions of which can be relied upon in court by individuals, as described in the first paragraph of the answer to this question.
Because the TRIPS Agreement only entered into force in January 1996, there is no case law yet. However, the possibility of direct applicability of provisions of the Berne Convention was already accepted in a Supreme Court Decision in 1936 (Decision NJ 443 of 13 February 1936). Please confirm that all revenues generated from the imposition of blank tape levies in the Netherlands are distributed on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder. Under the Dutch system, different types of rightholders are represented by separate organizations, so payments are not made irrespective of the type of rightholder. The system provided for in the Netherlands is as follows. The Home Copy Foundation distributes the monies according to a schedule which has been approved by the Ministry of Justice. The schedule distinguishes between audio and video tapes. Three organizations receive audio revenues; four others are entitled to the video revenues. These private organizations in turn distribute amongst (organizations of) rightholders. The main organization, Stemra, has informed us that it does so both to (organizations of) Dutch and foreign rightholders. Stemra's own regulation provides for distribution on the basis of "rights and entitlements by force of law, treaty or regulation wherever in the world". They liaise with their counterparts in other countries.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 2. Does the Netherlands apply the "rule of the shorter term" to phonograms and performances from other WTO Members? If so, please explain how you justify such action under TRIPS Article 4.
No. The term of protection under the Act on Neighbouring Rights is 50 years.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 3. Please explain whether and how the Netherlands protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.
As to the first part of the question, we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(c)the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America [Follow-up question] Does the reproduction right for phonograms under current Netherlands law include in its scope reproductions made from broadcasts, as well as the digital transmission of both temporary and permanent reproductions?
As to the first part of the question we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(...) "(c) the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 4. Please explain whether and how the Netherlands provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter.
The provisions of Berne including its Article 18 have been applicable in the Netherlands since its accession on 1 November 1912. As from 1 January 1996 the term of protection under the Copyright Act is 70 years. Neighbouring rightholders are protected by the Act on neighbouring rights of 1993. The term of protection under the Act on neighbouring rights is 50 years. The protection extends to performances which took place before the Act entered into force. The same applies to phonograms which were made before that date. The wording of the relevant provision in the Act is quite general, which means that the protection could extend to fifty years before the Act went into force.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 5. Please explain the criminal and civil remedies available for copyright infringement and the extent to which they fully implement the obligations in TRIPS Articles 41, 45, 50 and 61. In the response, please specify, inter alia, whether these remedies may include the seizure, forfeiture and destruction of infringing articles and equipment used to make the infringing articles, as required by Articles 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50. In the response, please also specify how civil damages are measured and when and how attorney’s fees and court costs are awarded.
Further to its decision of 21 November 1995, the TRIPS Council has presented all Member States with a checklist of issues on enforcement (Doc. No. IP/C/5 of 30 November 1995) which fully covers your question 5. All lists will be reviewed in 1997.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 6. Please explain how databases are protected under Dutch law, in view of TRIPS Article 10 which requires that databases based on factual information that constitute intellectual creations by reason of the selection or arrangement of their contents be protected.
Databases that constitute works in the sense of the Copyright Act are protected as collective works under Article 5 of the Copyright Act. A database will constitute a work in the sense of the Copyright Act, if it is an intellectual creation by reason of the selection or arrangement of its contents.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 7. Article 10 of the Dutch Copyright Law lists the works that are protected as literary and artistic works under the law. Computer programs, however, are not included within this list. As Article 10 of TRIPS requires that computer programs be protected “as literary works”, please explain how computer programs are protected under Dutch law.
The Copyright Act was amended by Act of 7 July 1994 (Stb. 521). Computer programmes were then included within the list of Article 10. Also special provisions on computer programmes were laid down in the Articles 45h to 45n.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America 8. Please explain how the Netherlands’s law complies with TRIPS Articles 11 and 14, which require that the rightholders of computer programs and phonograms be granted the right to control the rental of their work. It does not appear that the Netherlands’s copyright and neighbouring rights laws grant a rental right in these works.
The Copyright Act and the Act on Neighbouring Rights were amended by Act of 21 December 1995 (Stb. 653) and by Act of 21 December 1995 (Stb. 641). Rental rights in, inter alia, computer programmes and phonograms, were then granted. The Articles 12, 12a, 15c to 15g, 35d and 45d of the Copyright Act and the Articles 2a, 6, 7a, 8, 11, 15a 15d, 17, 19, 20, 27a and 32 of the Act on Neighbouring Rights provide for these rights.
24/10/1996

Page 672 of 677   |   Number of documents : 13533

 
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