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 674 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/NZL/1 New Zealand United States of America 13. 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.
The criminal and civil remedies available in New Zealand for copyright infringement and the way in which the TRIPS Articles are implemented are shown in the attached table: [Part of the response is in Table format]
24/10/1996
IP/Q/SVK/1 Slovak Republic United States of America 1. Please explain whether and how the law of the Slovak Republic 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 the relevant provisions of the law of the Slovak Republic.
NA
24/10/1996
IP/Q/SVK/1 Slovak Republic United States of America 2. Does the Slovak Republic 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.
NA
24/10/1996
IP/Q/SVK/1 Slovak Republic United States of America 3. Please explain whether and how the Slovak Republic 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.
NA
24/10/1996
IP/Q/SVK/1 Slovak Republic United States of America 4. Please explain whether and how the Slovak Republic 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.
NA
24/10/1996
IP/Q/GBR/1 United Kingdom United States of America 1. Please explain whether and how the United Kingdom's 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 indicate how national treatment is afforded with respect to the distribution of levies for private copying under Article 44 of the Copyright Act.
In respect of copyright and those related rights provided for in Section 1 of Part II of the TRIPS Agreement, copyright works (and in UK law phonograms are treated as a category of copyright work) from other countries and foreign performances are given the same protection as works and performances of UK origin thus satisfying the national treatment requirements of Articles 3 and 9.1. UK copyright law is applied to works from other countries by orders made under Section 159 of the Copyright, Designs and Patents Act 1988; performers from countries designated in orders made under Section 208 of that Act enjoy protection in respect of their performances. The Copyright (Application to Other Countries) (Amendment) Order 1995 (SI 1995 No. 2987) and the Performances (Reciprocal Protection) (Convention Countries) Order 1995 (SI 1995 No. 2990) made under these Sections respectively gave effect to the UK's obligation to other WTO countries from 1 January 1996 where these obligations were not already met by existing Orders implementing the UK's obligations under other international copyright conventions or otherwise. UK copyright law has no provisions relating to the distribution of levies for private copying.
24/10/1996
IP/Q/GBR/1 United Kingdom United States of America [Follow-up question] Please explain whether and how any revenues generated from the imposition of private copying or blank tape levies in the United Kingdom are distributed on the basis of national treatment to rightholders on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder.
The UK has no blank tape, equipment or any other levy for private copying, which is why it answered that there are no provisions relating to the distribution of levies.
24/10/1996
IP/Q/GBR/1 United Kingdom United States of America 2. Does the United Kingdom 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.
The UK term of protection for producers of sound recordings and performers is 50 years from the end of the calendar year in which the recording is made (i.e. fixation) or the performance takes place respectively, that is the minimum term set out in Article 14.5 of TRIPS. If during this period the recording, or a recording of the performance, is released, the term expires 50 years from the end of the calendar year in which it is released. US producers and performers will only receive a term longer than 50 years, which can apply where a recording is not released in the year it is made or the year of the performance, if the term is not longer than that applying in the US.
24/10/1996
IP/Q/GBR/1 United Kingdom United States of America 3. Please explain whether and how the United Kingdom 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.
Under UK law, copyright in a sound recording gives the owner of copyright the exclusive right to copy the work (see Section 16(1)(a) of the 1988 Act) and action is possible for copyright infringement where unauthorised copying of the sound recording occurs. Moreover, Section 16(3)(b) specifically states that this restricted Act applies whether done directly or indirectly and regardless of whether any intervening Acts infringe copyright. This will cover copying of a sound recording from a digital transmission.
24/10/1996
IP/Q/GBR/1 United Kingdom United States of America [Follow-up question] Does the reproduction right for phonograms under United Kingdom law include in its scope reproductions made from broadcasts?
The UK has already said in its original answer that the reproduction right for an owner of copyright in a sound recording will cover copying of a sound recording from a digital transmission. Copying of a sound recording from a broadcast, whether digital or otherwise, will also be covered by the reproduction right for the same reasons as set out in the original answer.
24/10/1996
IP/Q/GBR/1 United Kingdom United States of America 4. Please explain whether and how the United Kingdom 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. Additionally, please describe the way in which Article 7 of the United Kingdom’s Copyright Orders will apply to those who relied on the public domain status of a work after copyright protection is restored, or is provided to a work that is still protected in its country of origin and has not had a full term of protection in the United Kingdom. In particular, we are interested in learning if there are any limitations on the activities of these reliance parties either in scope or duration.
Copyright works, including phonograms (which are treated as such - see answer to question 1), and performers from other countries are protected as explained in answer to Question 1. There is no single date to which the protection extends back since protection is always future protection but is given in respect of an existing copyright work or recording of a particular performance after it has qualified for protection in respect of any period which continues to subsist calculated from the date prior to qualification on which the work or recording of that performance was made, as required by TRIPS. Whether protection exists therefore depends upon whether the term, which would have applied to a particular work or recording of a performance had it always been protected, has expired. Existing sound recordings made from at least as long ago as 1946 may be protected in the UK. The Copyright, Designs and Patents Act 1988 (which has been amended by the Duration of Copyright and Rights in Performances Regulations 1995) in paragraph 12 of Schedule 1 confirms the term of protection in the Copyright Act 1956 for sound recordings made before 1 June 1957 (i.e. the date of commencement of the 1956 Act). The 1956 Act in paragraph 11 of Schedule 7 gives a term of 50 years from making for sound recordings made before commencement of the Act. The 1995 Regulations may result in sound recordings made before 1946 being protected. For literary, dramatic, musical and artistic works, under the 1995 Regulations mentioned above, protection may apply to existing works where the author died 70 years ago, i.e. in 1926. The 1988 Act, which the 1995 Regulations amend, confirmed the protection for works made before commencement of that Act in paragraph 12 of Schedule 1 by reference to Sections 2 and 3 of the 1956 Act, which should be read in the light of the transitional provisions in Schedule 7 of the 1956 Act with regard to works existing before commencement of the 1956 Act. The Copyright (Application to Other Countries) Order 1993 as amended by the 1995 Order mentioned above gives effect to retroactive protection, subject, of course, to the term of protection having not already ceased, for all copyright works from all WTO countries. The 1995 Order does not restore any copyright because Article 18 of Berne does not require works that have already fallen into the public domain through expiry of copyright protection to be protected. Article 7 of the 1993 Order (amended by the 1995 Order) gives some protection to those who have or may be about to use a work newly protected by copyright. Article 7 allows the continued doing of certain acts unless the copyright owner pays compensation as settled by arbitration in the absence of agreement. How long the Act can be continued would depend on whether the Act fell within the scope of the Article. It would ultimately be for the courts to decide whether this is the case in any particular circumstances. As far as performers rights are concerned, the 1995 Order mentioned above in reply to Question 1 grants reciprocal protection, i.e. the same as that applying under Part II of the Copyright, Designs and Patents Act 1988 to UK performers (except where there are limitations on this reciprocity as is indicated in the relevant Order). TRIPS Article 14.6 requires Article 18 of Berne to extend only to those rights of performers in sound recordings granted by TRIPS. By definition, the only right relevant here is the right to authorise the reproduction of a fixation of a performance. Section 180(3) in Part II of the 1988 Act ensures that insofar as rights in recordings are concerned, those rights apply after qualification to recordings of performances made prior to qualification except that no act carried out in relation to such a recording either prior to qualification, or after qualification but in pursuance of arrangements made before qualification, can be an infringement of rights arising after qualification. As with copyright, the extent to which existing performances are protected depends on whether the term of protection, had the performance always been protected, has already expired.
24/10/1996
IP/Q/GBR/1 United Kingdom 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 Article 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50. Please also explain how civil damages are measured in the case of computer program infringement and when and how attorney’s fees and court costs are awarded.
It is the UK's understanding that questions relating to the enforcement of intellectual property rights are to be considered later in the scrutiny process. Nevertheless, we would refer you to the UK's response to the checklist on enforcement which will be circulated shortly for details on the enforcement of intellectual property rights in the UK. Should you require any further clarification or if you have any follow-up questions then we would be pleased to discuss them on a bilateral basis or later in the scrutiny process when issues relating to enforcement are addressed.
24/10/1996
IP/Q/FRA/1 France United States of America 1. Please explain whether and how French 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 the relevant provisions of your law.
In accordance with Article 55 of the Constitution, international agreements are directly incorporated into the internal legal system. France has been a party to the Berne Convention since 5 December 1887. The two fundamental rules laid down by the Berne Convention in favour of authors, national treatment and moral rights, are therefore granted to foreign authors. Levies for private copying for American authors of musical and audiovisual works are paid through collective management companies responsible under the law for collecting and distributing the levies.
22/10/1996
IP/Q/FRA/1 France United States of America 2. Does France 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.
The Law of 3 July 1985 (Article L-211.4, Intellectual Property Code) fixes the duration of protection for neighbouring rights of performers and producers of phonograms at 50 years. France complies with the provisions of European Directive No. 93/98 of 29 October 1993, which provides for the same duration (Articles 3.1 and 2).
22/10/1996
IP/Q/FRA/1 France United States of America 3. Please explain whether and how France 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.
Article L-213.1 of the Intellectual Property Code protects producers of phonograms by granting them the right to authorize reproduction of fixations and thus complies with the provisions of the Rome Convention (Article 7), ratified on 3 July 1987, Directive No. 92-100 of 1 November 1992 (Article 7) and Article 14.2 of the TRIPS Agreement. Reproduction covers any physical fixation and direct or indirect reproduction. All phonograms whose protection has not expired are protected with respect to reproduction carried out subsequently to the entry into force of the Law of 3 July 1985 (1 January 1986). In 1996, any phonogram published after or in the course of the month of January 1946 is protected.
22/10/1996
IP/Q/FRA/1 France United States of America 4. Please explain whether and how France 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.
Article 18 of the Berne Convention is incorporated into French law as a result of the ratification of the Convention and of the Universal Convention of 1952. Consequently, a work protected by copyright in its country of origin may claim protection. Hence, only works that have fallen into the public domain are not protected. All phonograms whose protection has not expired in the country of origin are protected with respect to uses made subsequently to the entry into force of the French Law of 3 July 1985 (1 January 1986).
22/10/1996
IP/Q/CZE/1 Czech Republic European Union 1. Could the Czech Republic specify in detail the provisions in the Copyright Act which may limit the exclusive rights of the rightholder (Article 13 of the TRIPS Agreement).
The Czech Copyright Act contains several basic principles which should be clarified prior to the answer. According to Article 14, paragraph 1 a work may be used only upon the author's permission, should it not be permitted directly by the law. Paragraph 2 further stipulates that the author's permission following from the law may not be excluded or reduced by agreement between the parties. Paragraph 3 sets up that a work may be used without the author's permission only in cases specified in Article 15. These principles apply partially also to the rights of performers. The Czech Copyright Act has no limitations and no exceptions to the exclusive author's right regarding non-voluntary licences for the sound recording of musical works corresponding to Article 13, paragraph 1 of the Berne Convention and has no non-voluntary licences for primary broadcasting and satellite communication corresponding to Article 11bis, paragraph 2 of the Berne Convention. Exceptions and limitations according to Articles 9(2), 10 and 10bis of the Berne Convention are implemented in Article 15 of the Czech Copyright Act and do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the authors. The permitted use of the work for private copying according to Article 15, paragraph 2a does not apply to computer programs. On the other hand, regarding private copying the equitable remuneration is granted from unrecorded carriers. Exclusive right of performers is limited by cases of free usage of performances and legal licences. The user does not need any approval and is not obliged to pay a fee for using the performance for user's personal need (in such a case the performers are entitled to get remuneration from unrecorded carriers) and for using the performance from a recording or phonograms exclusively for scientific or educational purposes and within the framework of reporting about actual event by photograph, film, radio or television (so-called unpaid reporting licence). The user does not need approval, however, he is obliged to pay a fee in respect of making the recording of performer's performance realized for broadcasting organization provided that the recording is taken by this organization by its own means for its own broadcasting, and further in case of broadcasting the performance by radio or television provided that it is done from recording or phonogram which was made with performer's approval. Sound recording can be used only with approval of a producer who is entitled to get remuneration. Producer's approval is necessary for broadcasting of sound recordings and phonograms by radio or television, for making the reproductions of sound recordings or phonograms for other than own personal need, for public performance of sound recordings or phonograms, for lending and rental of sound recordings or phonograms. Producer of phonograms is entitled to get remuneration also from unrecorded carriers and rental. Radio or TV programme may be rebroadcasted, recorded for other than own personal need, and such recording may be further reproduced or otherwise communicated to the public only with the approval of the organization having realized the programme. Broadcasting organizations have the right for compensation except for that case when they transmit broadcasting of other broadcasting organizations. Unpaid reporting licences and licences for scientific and educational purposes are used both for producers of phonograms and broadcasting organizations.
04/10/1996
IP/Q/CZE/1 Czech Republic European Union 2. How is the notion "normal exploitation of the work" defined in the Copyright Act or other related laws (Article 13 of the TRIPS Agreement)?
The notion "normal exploitation of the work" is not directly defined in the Copyright Act. The reason is that the exceptions and limitations, which are always considered as an interference with the exclusive right of authors, are confined to certain special cases indicated in Article 15. The exceptions and limitations cannot be interpreted to a larger extent. The Copyright Act contains provisions regarding the exercise of author's right, for which publishers of a collection of the works, cartographic works and periodicals as well as producers of a film or a work expressed in similar manner are authorized. According to Article 17, also the employer has the right to exercise the author's rights regarding the work created by the employee for fulfilment of his duties resulting from his employment. By this means, the Copyright Act grants the justified interests of rightholders and users. In connection with the contracts on dissemination of work we use normal exploitation of the work as regards the form, purpose and extent of dissemination of a work. Especially author's permission to use the work in a manner which is agreed in a contract, may not be extended to the use of work which parties to the contract could not have in mind or to that one which was unknown at the time of conclusion of a such contract.
04/10/1996
IP/Q/CZE/1 Czech Republic European Union 3. Did the Czech Republic apply, as of 15 April 1994, a system of equitable remuneration of rightholders in respect of the rental of phonograms, and if so, is it the intention of the Czech Government to continue this practise (Article 14/4 of the TRIPS Agreement)?
Yes. The Decree of the Ministry of Culture No. 115/1991 Coll. contains the provisions regarding right of authors, performers and producers of phonograms on equitable remuneration in respect of the rental of phonograms. This Decree grants one common remuneration of 10% of the price of rental of phonograms to authors, performers and producers of phonograms. This remuneration is managed by the Collecting Societies. The position of the producers of phonograms was further strengthened by the last amendment of the Copyright Act in 1996. According to Article 45, the permission of the phonogram producer is required for lending and rental of phonograms. Producers of phonograms at this time prefer sale of phonograms to rental. Since 1 January 1996, the new Act No. 237/1995 Coll. on Collective Administration of author's rights is in force. The intention of the Czech Government is, therefore, to continue in this practise.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 1. Are all signatory countries’ works afforded protection on a national treatment basis (Article 3 of the TRIPS Agreement)? More particularly: 1.1 Have all signatory countries been listed in Schedule 1 to General Notice No. 126/1999? 1.2 Is national treatment afforded to all Members in respect of sound recordings?
The works eligible for protection under the Copyright Act 1978 are literary works, musical works, artistic works, cinematograph films, sound recordings (phonograms), broadcasts, programme-carrying signals, published editions and computer programs. In terms of Sections 3(1) and 4(1) of the Copyright Act, works first published in South Africa or works made available by qualified persons (being persons who are citizens of, or are domiciled or resident in South Africa, in the case of individuals, or bodies corporate organised and existing under the laws of South Africa, in the case of juristic persons) enjoy copyright. In terms of Section 37 of the Act, the relevant Minister has made regulations in terms of which the Act applies also to works originating from scheduled countries (being countries listed in Schedule 1 to the regulations, which are contained in General Notice No. 136 of 1989). More particularly, the Minister has provided the following: -in relation to literary, musical or artistic works, cinematograph films, sound recordings, published editions and computer programs first published in scheduled countries, the act will apply in the same way as it applies to those types of works first published in South Africa; -the Act will apply to persons who are citizens of or are domiciled or resident in a scheduled country in the same way as it applies to persons who are citizens of or domiciled or resident in South Africa; -the Act will apply also to bodies incorporated under the laws of a scheduled country as it applies in relation to bodies incorporated under the laws of South Africa. The list of scheduled countries was last revised in Government Notice 1290 in the Government Gazette 16867 of 15 December 1995. The list is reproduced in the Annex. The list has again recently been revised and is now awaiting publication in the Government Gazette. The list will be revised from time to time to ensure that all new WTO Members who may not be listed are included. Subject to what follows, this effectively means that works emanating from scheduled countries are protected in exactly the same way under the Copyright Act as are works emanating from South Africa. Exceptions apply in the case of broadcasts, sound recordings and published editions. The protection granted in terms of the regulations to foreign sound recordings and published editions is subject to the qualification that works of this nature originating from a foreign country will only enjoy protection in South Africa to the extent that protection in the nature of, or related to, copyright is granted in that country to such works first published in South Africa or made by a South African qualified person, and such works do not enjoy any wider protection in South Africa than is enjoyed by South African works in their country of origin. By consequence the right to enforce a particular restricted act only exists to the extent that the law of the country of origin provides for that restricted act in its own law. In order to qualify for protection under the Performers' Protection Act, a performance must take place, be broadcast live, or be first recorded in South Africa or a country which is a party to the Rome Convention and which grants reciprocal rights to performers in respect of their performances in South Africa (Section 4 of the Act). Steps have been undertaken to extend the scope of Section 4 of the Act to include all WTO Members not parties to the Rome Convention. Regarding the question (by the US) regarding national treatment with respect to the distribution of levies for private copying, the following: Section 12(1) of the Copyright Act read with Sections 15(4), 16, 17, 18, 19A and 19B exempts from infringement any "fair dealing" with a work for purposes of private study, personal private use, criticism or review of a work or reporting current events. This is subject to the proviso that no dealing for purposes of research or private study or use with a cinematograph film, sound recording or computer program is exempted. Further exemptions from infringement in the case of private copying are contained in Chapter 1 of the Copyright Regulations 1978, read together with Section 13 of the Copyright Act. Where private copying does not fall within any of the aforementioned exemptions and is unauthorized, infringement of copyright occurs. A licence is therefore required for private copying in these instances. There is no organized licensing scheme for private copying in place nor are there any collecting agencies operating in this field in South Africa. Accordingly no levies (other than negotiated licence fees) are collected or distributed for private copying in South Africa at the present time. The question of national treatment in respect of such levies does therefore not arise.
04/10/1996

Page 674 of 677   |   Number of documents : 13533

 
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