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 675 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/ZAF/1 South Africa European Union 2. Are computer programs protected “as literary works” (Article 10 of the TRIPS Agreement)? If not, how are they protected and is the scope of protection the same?
Computer programs, which prior to the amendment of the Copyright Act in 1992 were a species of literary work, currently enjoy protection under the Copyright Act 1978, in the same way as literary works but constitute a separate category of works. In terms of Section 43(a)(ii) of the Copyright Act, this principle does not apply however to any computer programs made prior to September 1965. The term "computer program" is defined to mean: "a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, direct its operation to bring about a result". A "computer program" is by definition excluded from being a "literary work". This means that once a work falls within the definition of "computer program" it ceases to be (insofar as it may have been) a literary work. At present the following acts are comprised in the copyright in a computer program: (a)reproducing the computer program in any manner or form; (b)publishing the computer program if it was hitherto unpublished; (c)making an adaptation of the computer program; (d)reproducing or publishing an adaptation of the program; (e)letting or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program. A Bill to amend the Copyright Act presently pending before the legislature will add the following restricted acts to the above mentioned list: (a)broadcasting the computer program; (b)causing the computer program to be transmitted in a diffusion service, unless such service transmits a lawful broadcast including the computer program, and is operated by the original broadcaster; (c)doing, in relation to an adaptation of a computer program, any of the other restricted acts. Once the aforegoing amendment is made to the Copyright Act, the protection enjoyed by computer programs will be broader than that enjoyed by a literary work and will incorporate all the restricted acts applicable to a literary work.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 3. To what extent are computer data bases protected as compilations (Article 10 of the TRIPS Agreement)?
Literary works are capable of protection under the Copyright Act. The definition of a "literary work" includes "tables and compilations". Provided they meet all the requirements for the subsistence of copyright, databases are capable of protection as literary works by virtue of their being compilations. One of the requirements for the subsistence of copyright in a literary work is that the work is written down, recorded or otherwise reduced to material form (Section 2(2) of the Copyright Act). A database stored in a computer would satisfy this requirement and is therefore protected.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 4. Do all works for which the terms are not calculated with reference to the life of a natural person enjoy protection for the term required by Article 12 of the TRIPS Agreement?
Yes. Sections 3(2)(b) - (f) of the Copyright Act provide for 50 years of protection from the end of the year in which: -cinematograph films, photographs and computer programs are made available to the public with the consent of the owner of the copyright or, failing such an event within 50 years from the making of the work, 50 years from the end of the year in which the works are made; -sound recordings are first published; -broadcasts first take place; -programme-carrying signals are first emitted to a satellite; -published editions are first published
04/10/1996
IP/Q/ZAF/1 South Africa European Union 5. Does reproducing a broadcast as contemplated in Section 10(a) of the Copyright Act, 1978, cover all forms of making fixations of a broadcast (Article 14(3) of the TRIPS Agreement)?
Yes. Section 10(a) of the Copyright Act grants to the owner of the copyright in a broadcast the exclusive right to reproduce, directly or indirectly, the broadcast in any manner or form, including, in the case of a television broadcast, making a still photograph from the broadcast. This includes the making of a cinematograph film, a sound recording or other material fixation of a broadcast.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 6. Is a television broadcast protected against the communication to the public of a fixation thereof (Article 14(3) of the TRIPS Agreement)?
The Copyright Act does not provide for a right of "communication to the public" in respect of the fixations of television broadcasts. The Act grants the right of reproduction as referred to above, rebroadcasting and transmission in a diffusion service in respect of broadcasts.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 7. Are performances of performers protected for the term required in Article 14(5) of the TRIPS Agreement?
The 20 year term of protection provided for in Section 7 of the Performers' Protection Act does not comply with TRIPS Article 14.5. However a Bill amending the Act in this respect is currently pending before the legislature. The amended Section 7 will read as follows: "The prohibition against the use of a performance as provided for in Section 5 shall commence upon the day when the performance first took place or, if incorporated in a phonogram, when it was first fixed on such phonogram, and shall continue for a period of 50 years calculated from the end of the calendar year in which the performance took place or was incorporated in the phonogram, as the case may be."
04/10/1996
IP/Q/ZAF/1 South Africa European Union 8. Are performances made in all WTO Members or by performers who are nationals of all WTO Members protected (Article 3 of the TRIPS Agreement)?
See reply to question 1.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 9. Does the Copyright Act, 1978, comply with Articles 1 to 21 of the Paris text of the Berne Convention as required by Article 9(1) of the TRIPS Agreement? More particularly: 9.1 Does Section 12(7) read together with Section 18 comply with the provisions of Article 10bis(1) Berne Convention?
Yes, save for the reference in Article 10bis(1) Berne to "the communication to the public by wire". Section 12(7) allows for the reproduction in the press and the broadcasting of the works referred to.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 9.2Has any provision been made for the application of Article 10bis(2) Berne Convention?
Yes. Sections 12(1) and 15(4) of the Copyright Act provide that copyright in literary and artistic works shall not be infringed by any fair dealing with such works for the purposes of reporting current events in a newspaper, magazine or similar periodical, or by means of broadcasting or in cinematograph film. In the case of reporting current events in a newspaper, magazine or similar periodical, the Act provides that the source shall be mentioned, as well as the name of the author if it appears on the work concerned.
04/10/1996
IP/Q/ZAF/1 South Africa European Union 9.3Is provision made for the “droit de suite” referred to in Article 14ter Berne Convention?
The Copyright Act makes no provision for the "droit de suite" referred to in Article 14ter of the Berne Convention.
04/10/1996
IP/Q/CZE/1 Czech Republic Switzerland 1. Please indicate whether there are any border measures, criminal remedies and provisional measures in the Czech legislation.
In the Czech Republic the amendment of the Copyright Act has been in force since 22 April 1996. As the Czech representative said at the beginning of this review, the notification will be made as soon as an official translation of this Act is finished. The new Article 53a is as follows: (1) Authors, performing artists and phonogram producers, or persons authorized to exercise their rights pursuant to this Act, may require from customs authorities information about the contents and volume of import of goods, which are of the nature of reproductions of works or their sound, visual or audiovisual recordings, or goods, which is to serve for production of such recordings as their carrier (blank carriers), and to examine customs documents for the purpose of establishment, if import of such goods for dissemination in the market is in compliance with this Act. (2) The customs authority shall at a written request of persons authorized pursuant to paragraph 1 suspend the procedure of release of goods for free circulation for ten working days, if there is a justified suspicion that with import of such goods the rights pursuant to this Act would be violated. In justified cases the period of suspension of the procedure may be extended by further ten working days. (3) Should the importer of goods mentioned under paragraph 1 not prove within the term pursuant to paragraph 2 that his import is in compliance with provisions of this Act, the customs authority shall not release the goods in free circulation. (4) Provisions of paragraph 1 through 3 shall apply analogously also for export of goods mentioned in paragraph 1. The Czech legislation contains also civil and criminal remedies. According to the special protection of copyrights and rights of performing artists, as stipulated in the Copyright Act No. 35/1965 in conjunction with Section 39, paragraph 1 of this Act, the author whose right was infringed may demand, on the basis of Civil Law, that the infringement of his/her right is prohibited, the consequences of such infringement or abuse are removed (corrected) and the author receives the appropriate compensation. If, as a result of such an infringement, a substantial injury in kind has been caused, the author shall be entitled to receive a monetary compensation provided another form of compensation has turned out to be inadequate. The amount of such monetary compensation shall be determined by the court. As for civil and judicial procedures, the court may ban the distribution of tangible publications which were wrongfully used and order the illegal user to destroy the respective publications at his/her expense. Criminal procedure enables in the case of infringements of copyright to involve imprisonment up to two years, monetary fine, or seizure of the thing. If the culprit has, through the infringement, received a substantial benefit or the scope of his/her act is substantial, the punishment is from 6 months to 5 years imprisonment, monetary fine or forfeiture of the thing.
04/10/1996
IP/Q/ZAF/1 South Africa Switzerland 1. Article 28 deals with the restriction of importation of copies. Article 55 of the TRIPS Agreement provides for precise time limits for suspension (10 working days renewable for another 10 working days but no more). The period of restriction of importation in Article 28 of the Copyright Act is to be specified in the notice to the Commissioner for Customs and Excise. No figure is given. Can one construe that the time limits as required by TRIPS Article 55 will apply even though the Copyright Act does not expressly mention them?
The whole question of Section 4 of the TRIPS Agreement is dealt with in the Counterfeit Goods Bill which is pending before the legislature and which is expected to pass into law before the end of this year. The time periods required by Article 55 TRIPS are prescribed in the Counterfeit Goods Bill and Section 28 of the Copyright Act must in future be read together with the relevant provisions of the Counterfeit Goods Act, once it has become law. The Counterfeit Goods Bill deals inter alia with the restriction of the importation of articles which infringe copyright or registered trademarks. Accordingly, the period specified in the notice to the Commissioner for Customs and Excise would be that of the TRIPS Agreement.
04/10/1996
IP/Q/CZE/1 Czech Republic United States of America 1. Please explain whether and how the law of the Czech 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 Czech Republic.
The Czech legislation provides protection for works and performances from other WTO Members on the basis of national treatment according to Article 50 paragraphs 2, 4 and 5. Relevant provisions of the Copyright Act read as follows: (2) To works of foreign nationals the provisions of this Act shall apply pursuant to international treaties, and if no such treaties exist, their reciprocity shall be guaranteed. (4) Copyright relating to the works of foreign nationals may not last longer than that in the country of origin of the work. (5) Above mentioned provisions shall apply per analogiam also to performing artists and their performances. The international treaty mentioned in paragraph 2 is inter alia the TRIPS Agreement. We would like to stress that the Czech Copyright Act provides protection for work of foreign authors and for performers on the level of national treatment and to the extent provided by international agreements to which the Czech Republic is a contracting party. The rights of producers of phonograms and broadcasting organizations are protected on the basis of international agreements or if the reciprocity is granted. The Copyright Act involves the provisions regarding private copying in Article 13 paragraphs 2 and 3. The remuneration for private copying is granted to authors, performers, producers of phonograms and broadcasting organizations. Broadcasters shall not enjoy such a right in the case that they transmit broadcasting of other broadcasters. The remuneration is subject to the collective administration and for blank tapes two collective organizations operating in this field. The remuneration is provided on the basis of blank tapes' sales price's percentage. Collective societies distribute the remuneration to authors, performers and producers of phonogram's broadcasters and also to foreign collective societies on the basis of their agreement.
04/10/1996
IP/Q/CZE/1 Czech Republic United States of America 2. Does the Czech 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?
The Czech Republic does not apply the "rule of the shorter term" to phonograms and performances from other WTO Members. The term of protection of performers is fifty years starting from the end of the year in which a recording of performance was made. The same period is adopted for producers of phonograms and it starts at the end of the year when such recording was made.
04/10/1996
IP/Q/CZE/1 Czech Republic United States of America 3. Please explain whether and how the Czech 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.
According to Article 46 of the Czech Copyright Act, in which rights of phonograms producers are stipulated, the permission of the phonogram's producer is required for broadcasting of sound recordings and phonograms by radio or television, for production of reproduction of phonograms for other than own personal use, for public performance of sound recording and for lending and rental. Reproduction of phonograms by digital transmission in the context of interactive services is not expressis verbis in our Copyright Act but as we have a very broad provision regarding publication of the work, it can be used also for the digital transmission providing that the exclusive permission of authors, performers and producers is available.
04/10/1996
IP/Q/CZE/1 Czech Republic United States of America 4. Please explain whether and how the Czech 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.
The Czech Republic provides full protection to works, phonograms and performances from other WTO Members as required by TRIPS Articles 9.1, 14.6 and 70.2. Author's works are protected fifty years after their death, it means since 1946. The right of phonogram producers is protected fifty years since the end of the year in which the sound recording was made, it means since 1946 as well. The right of performers is protected fifty years starting at the end of the year in which recording of performance was made.
04/10/1996
IP/Q/ZAF/1 South Africa United States of America 1. Please explain whether and how South African 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 South African law.
See reply to EC question 1.
04/10/1996
IP/Q/ZAF/1 South Africa United States of America [Follow-up questions] (a) In the answer to this question, South Africa indicates that foreign sound recordings are protected under South African law only to the extent that the law of their country of origin protects South African sound recordings. Please explain how this condition of reciprocity is consistent with TRIPS Article 3, which requires national treatment for all WTO Members with respect to the rights provided for phonograms under the TRIPS Agreement.
The position regarding sound recordings is not consistent with TRIPS Article 3 and will be rectified. Such rectification can be achieved by way of an amendment to the existing regulations and can be accomplished before the end of the year.
04/10/1996
IP/Q/ZAF/1 South Africa United States of America (b) What is the expected timetable for extending the scope of Section 4 of the Performers' Protection Act to include all WTO Members? Will the extension provide protection to all performances of performers who are nationals of WTO Members?
The extension of the scope of Section 4 of the Performers' Protection Act to include all WTO Members must be brought about by an amendment to the Act itself. It is envisaged that such an amendment will take place in 1997 and will have retroactive effect.
04/10/1996
IP/Q/ZAF/1 South Africa United States of America 2. Does South Africa 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 term of protection in the case of a sound recording or phonogram is 50 years from the date on which the sound recording is first published (Section 3(2)(c) of the Copyright Act). This term applies irrespective of the country of origin of the sound recording. By the same token the term of protection granted to performers in respect of their performances under the Performers' Protection Act is 20 years calculated from the end of the calender year in which the performance took place or, if the performance was incorporated in a sound recording, the year in which it was so incorporated (Section 7 of the Performers' Protection Act). Here too the term is the same for foreign and South African performances. Accordingly, South Africa does not apply the "rule of the shorter term" to phonograms and performances from other WTO Members. (See in this regard also our answer to United States question 9 and European Communities question 7).
04/10/1996

Page 675 of 677   |   Number of documents : 13533

 
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