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 673 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/NLD/1 Netherlands United States of America 9. Please explain how Articles 16, 16b, 17 and 17a of Dutch law which provide for potentially broad exceptions to the exclusive rights granted to the copyright owner comply 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.
(a)Article 16 of the Copyright Act provides for the use of works for teaching purposes. It is based on Article 10(2) of the (Paris Act of the) Berne Convention. Article 10(2) of the Berne Convention provides that the use of works for teaching purposes is a matter for national legislation provided the use is compatible with fair practice. Article 16 of the Copyright Act is within the limits set by Article 10(2) of the Berne Convention and within those set by Article 13 TRIPS. Also it does not differ widely from provisions in other national laws on this subject. (b)Articles 16b and following, and 17 of the Copyright Act provide for the right of reproduction of written works and for the exception for private use. The exception for private use falls within the scope of Article 9(2) of the Berne Convention, which provides that exceptions to the right of reproduction are, again, a matter for national legislation, provided the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder. The exceptions for private use which are granted in Articles 16b and 17 of the Copyright Act are not broader than those granted in other legislations. They are within the limits which are set by Article 9(2) of the Berne Convention and Article 13 TRIPS. (c)Article 17a of the Copyright Act provides that, in the general interest, a legal licence may be granted with respect to the publication of a work by means of radio or television broadcasting or the distribution by wire or otherwise and with respect to the production of phonograms. Article 17a is based on Articles 11bis(2) and 13 of the Berne Convention, which leave this matter to national legislation. Article 17a does not differ from similar provisions in other laws. Article 17a dates back till 1931, when it was included on behalf of radio broadcasting and the distribution by wire. The provision has never been applied.
24/10/1996
IP/Q/NLD/1 Netherlands United States of America [Follow-up question] Please explain whether and how the literal texts of the exceptions in Articles 16, 16b and 17 of the Netherlands Copyright Law have been limited in application or operation.
As stated in the original answer, the limitations mentioned in Articles 16, 16b and 17 of the Netherlands Copyright Act are within the limit set by the Articles 10(2) and 9(2) of the Berne Convention and consequently comply with Article 13 TRIPS. The mentioned articles of the Netherlands Copyright Act have seldom been applied (see for example: Supreme Court Decision of 22 June 1990, published in NJ 1991, 268; District Court of Amsterdam, Decision of 31 January 1980, published in Autersrecht 1980/2; District Court of Alphen aan de Rhijn Decision of 16 April 1985, published in AN I, 1987/2; Superior Court of Amsterdam, Decision of 20 November 1980, published in Autersrecht 1981/3). (b)Articles 16b and following, and 17 of the Copyright Act provide for the right of reproduction of written works and for the exception for private use. The exception for private use falls within the scope of Article 9(2) of the Berne Convention, which provides that exceptions to the right of reproduction are, again, a matter for national legislation, provided the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rightholder. The exceptions for private use which are granted in Articles 16b and 17 of the Copyright Act are not broader than those granted in other legislations. They are within the limits which are set by Article 9(2) of the Berne Convention and Article 13 TRIPS. (c)Article 17a of the Copyright Act provides that, in the general interest, a legal licence may be granted with respect to the publication of a work by means of radio or television broadcasting or the distribution by wire or otherwise and with respect to the production of phonograms. Article 17a is based on Articles 11bis(2) and 13 of the Berne Convention, which leave this matter to national legislation. Article 17a does not differ from similar provisions in other laws. Article 17a dates back till 1931, when it was included on behalf of radio broadcasting and the distribution by wire. The provision has never been applied.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 1. Please explain whether and how New Zealand 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)).
"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.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Does New Zealand law provide protection for works first published in a WTO Member country, even if the work was not created by a citizen or subject of a WTO Member country?
Yes, such protection is provided by virtue of Section 232(2)(c) of the Copyright Act (the Act).
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 2. Does New Zealand 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.
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).
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 3. Please explain whether and how New Zealand law 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.
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.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Does the reproduction right for phonograms provided by the New Zealand Copyright Act cover reproductions made by digital transmissions in the context of interactive services?
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.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 4. Please explain whether and how New Zealand 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. In your response, please explain the meaning and operation of Section 4(a) of the 1995 Order, as well as Sections 5(2), 6 and 28 of the First Schedule.
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.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Please clarify the answer to this question. In particular, please explain: (1) the relationship between the 1995 Order, Section 230(3) of the Copyright Act, and the First Schedule, in dealing with retroactive protection for existing works; (2) whether works by nationals of WTO Member countries, which were not first published in a WTO Member country, created before the 1962 Act commenced, are protected by copyright in New Zealand; (3) back to what date sound recordings from WTO Member countries are protected in New Zealand; (4) back to what date performances by nationals of WTO Member countries or that took place in WTO Member countries are protected in New Zealand; (5) which works are not protected today in New Zealand because they are of a type that did not qualify for protection under prior law, including the 1913 Act and the 1962 Act.
(1) Section 230(3) of the Act, together with Section 204, provides for the protection of foreign works in New Zealand. The countries which qualify for the protection provided for in Section 230(3) are listed in the schedules to the 1995 Order as provided for in Section 232(2) of the Act. The 1995 Order also clarifies the way in which foreign works are protected under the Act. Section 235 of the Act provides for the transitional provisions in the First Schedule to the Act to have effect for the purposes of the Act. The First Schedule applies to all works, both domestic and foreign. The Schedule contains the transitional and savings provisions ensuring consistency between the 1994 Act and previous legislation. It also makes provision for works which span the commencement of the 1994 Act and earlier legislation. This includes retroactive protection. (2)Prior to 1962 New Zealand only provided for works to qualify for copyright by reference to first publication in New Zealand or a prescribed foreign country. Works of the type mentioned in the supplementary question may, therefore, not qualify for copyright although it should be noted that the list of prescribed foreign countries is broader than just WTO Members. It also includes members of the Berne Convention and the Universal Copyright Convention and therefore currently includes some members of these conventions who are not yet members of the WTO. (3) Either December 1945 or a later date, if within that period, it is made available to the public (Section 23(1)). (4) Either December 1945 of the term provided for in another country where this has not already expired (Section 170(2)). (5) - Sound recordings before the commencement of the 1913 Act unless copyright already existed. - Performances before 1945. - Artistic works intended for industrial application before the commencement of the 1962 Act. - Cinematograph films before the commencement of the 1962 Act (although copyright was possible in the works comprising a film for example, the dramatic work). - Television and sound broadcasts made in New Zealand before the commencement of the 1962 Act and television and sound broadcasts made overseas before the commencement of the 1994 Act. - Typographical works before the commencement of the 1962 Act. - Anonymous or pseudonymous works before the commencement of the 1962 Act. - Models before 1985.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 5. Please explain how the scope of protection granted to cinematographic works under Section 34(1) of the Copyright Act 1994 is consistent with the requirements of the Berne Articles 2(1) and 14bis, as incorporated through TRIPS Article 9.1, given that the scope of rights does not appear to be co extensive with the rights in literary and artistic works generally. For example, there does not appear to be an adaptation right provided through this Section for cinematographic works.
New Zealand provides copyright protection for cinematographic works by virtue of Section 14 of the Copyright Act 1994 which includes dramatic works (screen plays), musicals, sound recordings and films as original works to which copyright applies. Section 16 of the Act provides copyright owners with exclusive rights in respect to their works. These include rights in respect to copying a work, showing the work in public and broadcasting the work or including the work in a cable programme service. In respect to adaptation, a copyright owner of a literary, dramatic or musical work has an exclusive right to make an adaptation of his/her work (Sections 16 and 34 refer). This includes an adaptation of a screen play. In respect to films, no specific adaptation right is provided since it is considered that an "adaptation" of a film is not possible without infringing one of the rights already existing in the work. This could, for example, involve adapting the screen play in which case the author's rights will have been infringed or adapting the music in which case there could be an infringement associated with the words or the performance. If the film is copied, then this will be a breach of the copyright owner's exclusive right in regard to copying. It is possible that a new work could be created, in which case it will become an original work entitled to copyright.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Under New Zealand law, if an adaptation of a work made without authorization qualifies as an original work otherwise subject to copyright protection, can it still constitute an infringement?
An adaption of the type mentioned in the original response is one where infringement could occur if a substantial part of the existing work is being used in the creation of the new work. Nevertheless, copyright can exist in the new work.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 6. Please explain how Sections 12(6) and 76 of the Copyright Act comply 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.
Sections 12(6) and 76 of the Copyright Act allow the Crown to use copyright works associated with medicines imported under the Medicines Act without infringing copyright. This enables the Crown to import legitimately produced copies of off-patent medicines where a medicine is not being supplied to the New Zealand market or is only available on unreasonable terms. The Crown can, therefore, ensure that the New Zealand public is not deprived of the benefits of the medicine. (This power has not been used by the Crown.) Accordingly, these provisions are not encompassed by Berne Article 9(2), which does not cover distribution rights. Neither is it covered by TRIPS Article 13 by virtue of TRIPS Article 6 (exhaustion of intellectual property rights).
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 7. Please explain the meaning and application of the “incidental copying” exception in Sections 41 and 175.
Incidental copying, whether accidental or intentional, of a copyright work is provided for so long as the focus of the work containing the copied item is not that of the included item. It should be noted, however, that the deliberate copying of certain works is specifically excluded. The intention, therefore, is not to unreasonably prejudice the legitimate interests of the author (Berne Article 9(2)). By way of an example, the reporting of a news event, which included a television broadcast present in the background, and therefore incidental to the broadcast, would not infringe copyright in the broadcast which was accidentally shown.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 8. Please explain how the provisions of Sections 44 to 48, 68, 70, 71, 79, 81, 87, 186 and 188 comply with Berne Articles 9(2) and 10(2) and TRIPS Articles 13 and 14.6, which restrict the scope of permissible limitations on exclusive rights.
New Zealand considers that Sections 44-48, 68, 70, 71, 79, 81, 87, 186 and 188 comply with Berne and TRIPS, by virtue of being permitted exceptions and limitations on the rights granted under these two treaties for the reasons outlined below: -Sections 44-48 are concerned with educational purposes. Provision is made in certain circumstances for copying to be done for educational purposes; the performing, playing or showing a work in public for educational purposes; and the recording of a broadcast or cable programme for educational purposes. These limitations on owners' rights are, however, tightly prescribed including, in the case of copying of a sound recording or recording a broadcast or cable programme, not permitting the copying or recording where licenses are available under a licensing scheme. Sections 44-48 do, therefore, comply with Berne Articles 9(2) and 10(2) and TRIPS Article 13; -Section 68 is intended to deal with the situation where, for example, there is a speech or oration delivered without any notes. As copyright can only vest in a tangible expression of a work, this provision enables the speaker to obtain copyright by virtue of the speech or oration having been written down or broadcast while also enabling the writer or broadcaster, as the recorder, an opportunity to use the recording. Such use is, however, subject to limitations including the right of the speaker to prohibit the recording; The provision is considered necessary in order to comply with Berne Articles 2(1), 7(1), 8, 9(1), 10(1), and 10bis(1). The limitations in Section 68(1) are considered to provide appropriate protection for the copyright owner in terms of Berne Article 9(2) and TRIPS Article 13; -Section 70 concerning a public reading or recitation complies with Berne Articles 9(2) and 11ter since it is limited to a reading: -by one person only; -only to a reasonable extent; -which provides sufficient acknowledgement; and -which, if it involves a sound recording or broadcast, is using mainly material other than the public reading or recitation; -Section 71, concerning abstracts of scientific or technical articles, is in compliance with Berne Article 9(2) and TRIPS Article 13 in that abstracts are not a reproduction of the work and do not, therefore, conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author; The abstracts are intended to aid in the dissemination of information. It is arguable that the abstracts are original works in their own right and, therefore, enjoy copyright protection; -Section 79 permits educational establishments and libraries to rent non-infringing copies of computer programmes, sound recordings or films for non-profit reasons. As TRIPS Article 11 is only concerned with "commercial rental", this exception is permissible; -Sections 81 and 186 relate to the playing of a sound recording in a club, society or other organization which is primarily concerned with religion, education or social welfare, which is not established for profit and where any proceeds from admission are applied for the benefit of the club, society or organization. As these provisions only provide for playing sound recordings and not reproducing sound recordings they are not inconsistent with Berne or with TRIPS Articles 14.1 and 14.2. In respect to TRIPS Article 13, the purpose and nature of the limitations are consistent with this Article; and -Section 188 provides for the playing or showing of a broadcast or cable programme to an audience not paying for admission to the place where the broadcast or cable programme is heard. It includes, for example, prisons and clubs or societies but does not include hotels, motels or camping grounds. The limitation on this exception is in terms of TRIPS Article 14.6 and is consistent with TRIPS Article 13.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] Please explain how the texts of the exceptions contained in the sections listed in this question have been limited in operation or application, so as to bring them within the permissible limitations on rights set forth in Berne and TRIPS.
The exceptions referred to in this question fall within the permissible limitations on rights envisaged in Berne and TRIPS either because the exceptions have been tightly proscribed, for example, Sections 44-48 of the Act relating to education or because the exception by its nature does not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of an author, for example, abstracts of scientific or technical articles.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 9. Please explain the meaning and application of the phrase “available under a licensing scheme” in Section 45(5), 48(2), 88(3) and 91(4).
Sections 45, 48, 88 and 91 of the Copyright Act 1994 allow copying in some particular circumstances. However, if a licensing scheme for copyright owners is in operation such copying can only be undertaken in terms of the license. For example, schools are permitted to copy broadcasts under Section 48(1). Once a licensing scheme is established they will no longer be able to do so under Section 48(2) unless they comply with the requirements of the license. A licensing scheme is defined in the Act (Section 2), as a scheme which sets out: "(a)the classes of cases in which the operator of the scheme, or the person on whose behalf the operator acts, is willing to grant copyright licences; and (b)the terms on which copyright licences would be granted in those classes of cases ..."
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 10. Please explain how Section 192 complies with TRIPS Article 14.1, which requires performers to have the right to prevent the unauthorized reproductions of fixations of their performances.
Section 192 of the Copyright Act 1994 provides that an independent tribunal, the Copyright Tribunal, may make an order giving consent to the making of a copy of a recording. In making any order under the Section, the Tribunal must consider a number of matters. These matters include consideration of whether the withholding of consent by the performer relates to the protection of any legitimate interests of the performer and whether payment should be made to the performer. New Zealand considers that the applicable Rome provision is Article 15.2. This permits limitations in respect to the rights of performers where similar limitations are provided for in respect to copyright. As New Zealand provides for licensing schemes in regard to copyright (Section 153 of the Act refers), Rome Article 15.2 permits similar limitations in respect to performers. [Follow-up question] To the extent that compulsory licenses are granted in New Zealand for the reproduction of fixations of live performances or other sound recordings, what criteria are applied to the grant of such licenses and what limitations are incorporated into such licenses? How is the grant of such licenses consistent with TRIPS Article 13? The making of an order by the Copyright Tribunal requires that the Tribunal has regard to a number of matters before making an order thereby ensuring consistency with TRIPs Article 13. These include the following matters (section 192 of the Act): - There has been compliance with the serving or publication of notices. - The performer's reasons for withholding consent do not include the protection of any legitimate interests of the performer. - The recording from which it is proposed to make a copy was made with the performer's consent and is lawfully in the possession of the person proposing to make the copy. - The making of a copy of the recording is consistent with the obligations of the parties to the arrangement under which the recording was made or is otherwise consistent with the purposes for which the recording was made. If an order is made after taking these matters into account and the parties do not agree on payment, then the Tribunal shall make an order as it sees fit.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 11. Please explain how Section 92 of the Copyright Act complies with Berne Article 2(3), which provides that translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.
Section 92 of the Copyright Act 1994 is intended to ensure that where an adaptation which is itself a literary, dramatic or musical work, that any act done in respect to that adaptation will not infringe copyright in the original work. It should be noted that Section 82 does not diminish the rights conferred by Berne Articles 2(3) and 12, in respect of adaptations, to any greater extent than that permitted with respect to the original works from which an adaptation is made.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America 12. Please explain whether and how New Zealand law protects computer programmes and other works from being loaded into a computer and displayed on a monitor without authorization, as required by TRIPS Article 10.1, and by Berne Articles 9(1) and 11 to 14, as incorporated through TRIPS Article 9.1.
Computer programmes are protected under the Copyright Act 1994 by virtue of: -being a literary work (Section 2(1)(a) "Literary work" refers); -copyright existing in original literary works (Section 14(1)(a) refers); -copyright owners having exclusive rights including the right to copy a work (Section 16(1)(a) refers) which includes reproducing or recording the work in any material form (Section 2(1) "Copyright" refers) and the right to adapt a work (Section 16(1)(g) refers) which, in the case of a computer programme, includes conversion of it into a different computer language or work (Section 2(1) "Adaptation" refers); and -copyright infringement occurring where a person, other than the copyright owner, does any restricted act (Section 29 refers). These provisions meet the requirements of both Berne and TRIPS.
24/10/1996
IP/Q/NZL/1 New Zealand United States of America [Follow-up question] (1) Does the reproduction right for computer programmes and other works under New Zealand law cover temporary reproductions in the memory of a computer? (2) Does New Zealand law provide protection against the unauthorized display of a work on a computer screen or monitor?
It is an infringement of the rights of an owner of copyright to copy the owner's work (Section 30 of the Act). In relation to a literary work (which includes computer programmes) copying is defined as including the storing of a work "in any medium by any means" (Section 2(1) "copying" of the Act refers). This definition of copying would, therefore be applicable to a situation involving the storing of a work in a computer memory or displaying a work on a computer screen.
24/10/1996

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