It is possible to apply for a suspension by the customs authority for the release into free circulation of goods, which constitute infringements to the IPRs defined in the Copyright and Neighbouring Rights and Trademarks draft Laws. This is possible pursuant to Article 47 of the draft Copyright and Neighbouring Rights Law and Article 35 of the draft Trademarks Law respectively. The relevant Articles provide that the General Directorate of Customs (the customs authority) has authority both on its own initiative and upon application by the right holder or the public prosecutor to suspend clearance and release into free circulation of goods if convinced on the basis of prima facie evidence that such goods constitute an infringement of any of the IPRs of the right holder. The authority of the customs authority applies to both imports and exports. The administrative procedure referred to above does not preclude the right to resort to the court in the first place. The authority of the customs authority to suspend the release into free circulation of goods, which constitute infringements of IPRs, does not apply to goods in transit or to de minimis imports or goods put on the market in another country by or with the consent of the right holder.

The relevant provisions are the following Articles in the respective IPR draft Law: a) Patents and Utility Models: Article 41 b) Geographical Indications: Article 12 c) Protection of Trade Secrets: Article 7 d) Industrial Designs: Article 19 e) Layout-Designs of Integrated Circuits: Article 18 f) Protection of Breeders of New Varieties of Plants: Article 25 g) Trademarks: Article 38 h) Copyright and Neighbouring Rights: Article 52

Both Article 47 of the draft Law on Copyright and Neighbouring Rights and Article 35 of the draft Law on Trademarks exclude de minimis imports.

Draft Laws for all forms of intellectual property provide for criminal sanctions for infringement of IPRs. The penalty is imprisonment for a term not less than 3 months and not more than one year or a fine of not less than BD 500 and not more than BD 2000 or to both fine and imprisonment. If the offender repeats an offence, the upper limit of both the fine and imprisonment are doubled and in addition the court has the authority to order the closure of the premises, at which the offence was facilitated, for a period between 15 days to six months and to order the verdict to be published in at least one daily newspaper at the expense of the offender. The relevant legal provisions within the draft Laws are: a) Patents and Utility Models: Article 41 b) Geographical indications: Articles 2 and 12 c) Protection of Trade Secrets: Article 7 d) Industrial designs: Article 19 e) Layout-Designs of Integrated Circuits: Article 18 f) Protection of Breeders of New Varieties of Plants: Article 25 g) Trademarks: Article 28 h) Copyright and Neighbouring Rights: Articles 49 to 52 All the above provisions also provide that the court has authority to order the seizure, forfeiture and destruction of infringing goods and any materials and implements, which have been used for the commission of the offence.

Berne "communication" rolls together the aspect of telecommunication, e.g., broadcasting, with the aspect of performance in public. In the Canadian Copyright Act "telecommunication" is used etymologically in the sense of a communication from afar as opposed to a performance in front of the public, i.e. a live audience. The definition of "telecommunication" in Section 2 is so broad as to be technologically neutral. This feature ensures that the Copyright Act's communication right is already well adapted to the exigencies of the digital environment.

The Copyright Act gives authors the exclusive right to perform the work in public and the exclusive right to communicate the work to the public by telecommunication. These two aspects fully satisfy Berne requirements with respect to providing the author with the exclusive right to communicate his work to the public.

Berne Convention, Article 11(1)(i), requires authors of dramatic, dramatico-musical and musical works to enjoy the exclusive right of authorizing the public performance of their works, including such public performance by any means or process. Section 3(1) of the Copyright Act gives the copyright owner the sole right to perform the work, or any substantial part thereof in public. This is the basis of the right of public performance under the Canadian Copyright Act. The right to communicate the work to the public by telecommunication is provided in Section (3)(1)(f). The act of communicating a work to the public by telecommunication does not constitute the act of performing the work in public, nor does it constitute an authorization to do the act of performing the work in public.

No. Canada complies with TRIPS, Article 14(3), via copyright not broadcasters' rights. The Copyright Act does not give broadcasters a right in their broadcasting signals. However, as a copyright owner, the broadcaster may own the copyright in his "broadcast day" as an original compilation of the works making up all or part of the broadcast programming.

Under the Copyright Act, the simultaneous retransmission of local signals is not an infringement of copyright in the works carried in the original broadcast. Like many other countries, Canada does not provide copyright protection for the simultaneous retransmission of local signals which, by definition, are already available to the public via the primary transmission. Therefore, under the Canadian Copyright Act, copyright owners do not have any rights arising from the retransmission of local broadcast signals. The simultaneous retransmission of the entirety of local broadcast signals carrying copyright works does not conflict with the author's normal exploitation of his work and does not unreasonably prejudice his legitimate interests. Under the Canadian Copyright Act, the simultaneous retransmission of distant broadcast signals is not an infringement of the copyright in the works carried in the original broadcast if the retransmitter has paid the applicable royalties and complied with any terms and conditions fixed under the authority of the Copyright Act.

Although the Canadian Copyright Act lacks a general adaptation right, the statute gives the author the exclusive right to convert a dramatic work into a novel or another non-dramatic work and to adapt a literary, dramatic, musical or artistic work by cinematograph. Canada complies with Article 12 of the Berne Convention via these rights and by the reproduction right which has been given a very extensive scope by Canadian courts. Accordingly, the Canadian legal system handles by way of the reproduction right much of what some other countries handle by way of a general adaptation right. With respect to adaptation, it is also pertinent that the Canadian Copyright Act specifically gives the author moral rights to the integrity of his work.

Under Section 3 of the Canadian Copyright Act, the right to publish a work together with the right to publicly present a work by cinematography together fulfil the obligations of TRIPS, Article 9(1), and Berne Convention, Article 14.

In this respect, any relevant right of the author would have been licensed or assigned to the maker of the cinematographic work. Canada does not interpret the Berne Convention in a fashion that requires authors to be given a distribution right on the same footing as, e.g., the rights of public performance and communication to the public. Our reading is that any relevant distribution right is limited to a right of first distribution which implicitly passes to the maker of the cinematographic work by reason of the author's consent to adaptation.

The Canadian Copyright Act does not confer the ownership of copyright on all of the individuals (e.g., screen writers, cinematographers, etc.) who bring contributions to the making of the cinematographic work. With respect to the cinematographic work, moral and economic rights belong to the film's author. With respect to any underlying copyright work included in the cinematographic work, moral and economic rights remain with the author of the underlying work, subject to the normal rules with respect to licensing and assignment. Although the Copyright Act is fully equipped in this regard, it should be recalled that the moral rights in the Berne Convention have not been carried over into TRIPS.

Although the point is clear from case law, the Copyright Act nowhere explicitly provides that the protection accorded to compilations of data or other material does not extend to the data or material itself. With respect to compilations of data or other material, Canada's laws are fully consistent with TRIPS requirements.

TRIPS, Article 11, applies to the "commercial rental" of computer programs and TRIPS, Article 14(4) to the "commercial rental" of phonograms. With respect to both computer programs and phonograms, the Canadian Copyright Act provides an exclusive rental right which applies subject to certain criteria implementing the TRIPS reference to the qualification "commercial". This word is in part translated by the Canadian reliance on the yardstick of "motive of gain". In practical terms, it is difficult to conceive of a commercial rental where there is no motive of gain. Accordingly, the Canadian formula meets the requirements of TRIPS, Articles 11 and 14(4).

There is yet no case law because the legislation came into force only on 1 January 1994. Practically speaking, the law's effect has been to put an end to the business of renting our sound recordings and software in Canada. As might be expected, libraries continue to make sound recordings available in terms of public lending. "Motive of gain" is possibly more favourable to the rightholder because it is arguably broader than the TRIPS reference to "commercial". For example, "motive of gain" might catch a charity deciding to rent out sound recordings as a fund-raising exercise.

In Canada, the rental of cinematographic works is governed by the business arrangements effected between the owners of copyright in cinematographic works and an extensive system of rental outlets. Whether domestic or foreign, the copyright owners in cinematographic works are largely pleased with the present system and have not, to any significant extent, asked for the introduction of an exclusive rental right with respect to their films. Similarly, the owners of the copyright in cinematographic works have not complained to the Canadian government about widespread copying of their works nor have they alleged that renting is materially impairing their exclusive reproduction right. In this regard, Canada's Copyright Act is fully consistent with the requirements of TRIPS, Article 11: Rental Rights.

With respect to the situation described, copyright under the Canadian Copyright Act would expire 75 years after the making of the work.

Yes, the term of 75 years from making would apply. In examining whether Canada's legislation on this point is consistent with TRIPS, Article 12, it was taken in account that TRIPS, Article 12, applies with respect to categories of works. However, Berne Article 7(3) and Section 6 of the Canadian Copyright Act apply with respect to the much more limited case of circumstances of authorship. In any event, the economic impact here is not likely to be very significant because we are discussing the very narrow case of anonymous or pseudonymous works left unpublished for more than a quarter of a century.

The TRIPS border enforcement measures apply with respect to pirated copyright and counterfeit trademark goods. The relevant section of the Copyright Act only applies in narrowly defined circumstances and with respect to the importation of copies which were legitimately made in the country of manufacture, notwithstanding any rights under the Canadian Copyright Act.