Examen de la legislación de aplicación del Acuerdo sobre los ADPIC - Búsqueda

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En el párrafo 2 del artículo 63 del Acuerdo sobre los ADPIC, se exige a los Miembros que notifiquen al Consejo de los ADPIC las leyes y los reglamentos hechos efectivos por el Miembro en cuestión y referentes a la materia del Acuerdo, con el fin de ayudar al Consejo en su examen de la aplicación del Acuerdo.

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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for the effective enforcement of the intellectual property rights covered by the Agreement. Please describe the structure of the judicial and administrative procedures in South Africa in which parties can enforce their intellectual property rights, at local, provincial and national levels, indicating the jurisdiction of each type of court or administrative body and explaining the interrelationships, if any, of the various types of courts and administrative bodies. Cite the laws or other authorities establishing the structure, including each type of court and administrative body.
Intellectual property rights can be enforced in South Africa by way of infringement proceedings in a court of law having jurisdiction. The relevant courts having jurisdiction in intellectual property infringement cases are: (a) The various provincial and local divisions of the High Court of South Africa have jurisdiction in cases of trademark, copyright and design infringement. Proceedings in the High Courts are regulated by the Supreme Court Act No. 59 of 1959 and the Rules of the Supreme Court. (b) The Court of the Commissioner of Patents has jurisdiction in cases of patent infringement (Section 8 of Patents Act No. 57 of 1978, Regulations 76-100 of the Patent Regulations). (c) The local and regional Magistrates' Courts of South Africa have jurisdiction in cases of copyright infringement where the quantum of the claim is below R 100,000. However, these "lower" courts are seldom, if ever, used in civil intellectual property cases. The proceedings in the Magistrates' Courts are regulated by the Magistrates' Courts Act No. 32 of 1944. (d) There are no administrative bodies having jurisdiction to enforce intellectual property rights in South Africa.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 2. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in each of the Courts and administrative bodies identified in response to question 1 and cite the legal authorities establishing those procedures.
Procedures in infringement actions NB: Please note that the superior courts in South Africa were previously known as the Supreme Court; they have now been named High Courts. The appeal court is known as the Supreme Court of Appeal. The procedure in infringement proceedings is in accordance with the law and Rules governing procedure in civil cases in the High Court. (a) The procedural steps for copyright and design infringement actions under the relevant High Court Rules are as follows: (1) The action is commenced by the issue of a combined Summons supported by a Power of Attorney and a Resolution (if the Plaintiff is a company). If the Power of Attorney is executed outside the Republic of South Africa it must be legalized. The combined Summons must be in the prescribed form and shall have annexed to it a statement of the material facts relied on by the Plaintiff in support of his claim. (2) Within ten Court days (which excludes Saturdays, Sundays and Public Holidays) from the service of the combined Summons on the Defendant, or within 21 days if the Defendant resides more than 80 kilometres from the nearest railway station, the Defendant must deliver a Notice of Intention to defend. (3) Within 20 Court days after the delivery of the Defendant's Notice of Intention to defend the Defendant must deliver his Plea setting out his defences plus any claim in reconvention. Failure by the Defendant to deliver such Plea and/or claim in reconvention within the prescribed time entitles the Plaintiff thereafter to serve notice on the Defendant requiring the Defendant to Plead within five Court days, failing which the Defendant is barred from pleading. (4) Within 15 Court days after delivery of the Defendant's Plea and/or Claim in Reconvention the Plaintiff must deliver his Replication and/or Plea to the Claim in Reconvention. (5) Within ten Court days from the delivery of the Plaintiff's Replication and/or Plea to the Claim in Reconvention the Defendant must file his Replication in Reconvention. (6) Any further pleadings must be delivered within ten Court days of any preceding pleadings. (7) Provision is made in the Rule for obtaining an interim interdict (i.e. a preliminary injunction) in appropriate cases, applying to have portions thereof struck out where appropriate, or excepting to pleadings. (8) After the close of pleadings there are certain interlocutory proceedings, e.g. Discovery Affidavits in which the parties must disclose all books and documents that may be relevant to the issues involved, inspection of the documents so disclosed, inspection of premises or processes where required, commissions to take evidence abroad, etc. In terms of the Rules of the Supreme Court it is essential that before a Plaintiff's attorney can set the action down for hearing he must arrange a pre-trial conference with the Defendant's attorney with a view to securing curtailment of the duration of the hearing by, e.g. appropriate admissions, disclosure of documents, etc. Before the trial each party must deliver to the other a summary of the opinions of each expert witness he intends to rely on and the reasons for such opinions as well as copies of any plans, diagrams, models, photographs, etc., on which it is proposed to rely in the action. (9) Finally, the matter is brought to trial before the Court at which oral evidence is given by witnesses who are subject to examination, cross-examination and re-examination. The time-limits referred to above can be, and in practice usually are, extended by consent of the parties or, failing such consent, the Court has power, in an appropriate case, to extend the time limits. The relevant provisions are set out in Rule 6 of the Uniform Rules of Court (for applications), and in Rules 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Rules for actions. (b) The procedure in patent infringement proceedings is in accordance with the law governing procedure in civil cases in the Transvaal Provincial Division of the High Court or in default thereof and where there is no relevant provision under the Patents Act No. 57 of 1978, in accordance with a direction given by the Commissioner of Patents. The procedural steps for patent infringement actions under the relevant High Court Rules are as follows: (1) The action is commenced by the issue of a combined Summons supported by a Power of Attorney and a Resolution (if the Plaintiff is a company). If the Power of Attorney is executed outside the Republic of South Africa it must be legalized. The combined summons must be in the prescribed form and shall have annexed to it a statement of the material facts relied on by the Plaintiff in support of his claim. (2) Within ten Court days (which excludes Saturdays, Sundays and Public Holidays) from the service of the combined Summons on the Defendant, or within 20 days if the Defendant resides more than 80 kilometres from the nearest railway station, the Defendant must deliver a Notice of Intention to Defend. (3) Within 20 Court days after the delivery of the Defendant's Notice of Intention to defend the Defendant must deliver his Plea setting out his defences, e.g. non-infringement and invalidity of the patent plus any claim in reconvention e.g. for revocation of the patent. Failure by the Defendant to deliver such Pleas and/or claim in reconvention within the prescribed time entitles the Plaintiff thereafter to serve notice on the Defendant requiring the Defendant to Plead within five court days, failing which the Defendant is barred from pleading. (4) Within 15 Court days after delivery of the Defendant's Plea and/or Claim in Reconvention the Plaintiff must deliver his Replication and/or Plea to the Claim in Reconvention. (5) Within ten days from the delivery of the Plaintiff's Replication and/or Plea to the Claim in Reconvention the Defendant must file his Replication in Reconvention. (6) Any further pleadings must be delivered within ten Court days of any preceding pleadings. (7) Provision is made in the Rules for obtaining an interim interdict (i.e. an interlocutory injunction) in appropriate cases, applying to have portions thereof struck out where appropriate, or excepting to pleadings. (8) After the close of pleadings there are certain interlocutory proceedings, e.g. Discovery Affidavits in which the parties must disclose all books and documents that may be relevant to the issues involved, inspection of the documents so disclosed, inspection of premises or processes where required, commissions to take evidence abroad, etc. In terms of the Rules of the High Court it is essential that before a Plaintiff's attorney can set the action down for hearing he must arrange a pre-trial conference with the Defendant's attorney with a view to securing curtailment of the duration of the hearing by, e.g. appropriate admissions, disclosure of documents, etc. Before the trial each party must deliver to the other a summary of the opinions of each expert witness he intends to rely on and the reasons for such opinions as well as copies of any plans, diagrams, models, photographs, etc., on which it is proposed to rely in the action. (9) Finally, the matter is brought to trial before the Commissioner of Patents at which oral evidence is given by witnesses who are subject to examination, cross examination and re-examination. The time-limits referred to above can be, and in practice usually are, extended by consent of the parties or, failing such consent, the Court has power, in an appropriate case, to extend the time limits. (c) There are generally two types of proceedings that may be instituted in trademark matters before the Court, namely, applications (motion proceedings) and actions (trial proceedings). (1) Applications (motion proceedings) - An application for relief is brought on notice of motion supported by affidavit evidence. - Copies of the notice and all annexes are served on every respondent. - If the respondent does not give timeous notice of any intention to oppose, the applicant may place the matter on the roll for hearing and seek the order on the specified date. - If the respondent intends opposing the application, he or she must file a notice of intention to oppose and then deliver an answering affidavit, if any, together with any supporting documents. - Once the answering affidavit is filed, the applicant may deliver a replying affidavit. - Application is then made for a hearing date and the matter is set down for argument. - If the application cannot properly be decided on affidavit, the Court may dismiss the application or make any appropriate order with a view to ensuring a just and expeditious decision. (2) Actions (trial proceedings) - An action is commenced by the issuing out of a summons and is normally accompanied by particulars of claim which comprise a statement of the material facts relied on by the plaintiff in support of his or her claim. - If the defendant intends to defend the action, he or she must deliver a notice of intention to defend within the prescribed time. - If a foreign defendant is involved, the plaintiff may first find it necessary to attach property in South Africa to found or confirm jurisdiction. The Act makes specific provision for the attachment of registered trademarks for this purpose. - If no notice of intention to defend is delivered, the plaintiff may apply for an order to be granted on an unopposed basis. - After the delivery of a notice of intention to defend, the defendant must deliver a plea setting out its defences and any counter-claim. - Failure by the defendant to deliver a plea within the prescribed time entitles the plaintiff to serve notice on the defendant requiring the defendant to plead within a certain time (notice of bar), failing which the defendant is barred from pleading. - After delivery of the defendant's plea and/or counter-claim the plaintiff may deliver a replication and plea to any counter-claim. - After the delivery of the plaintiff's replication and/or plea to the counter-claim the defendant must file a replication in reconvention. - After the close of pleadings, there are certain procedures, including discovery (in which the parties must disclose all documents and tapes which may be relevant to the issues involved), inspection of the documents so disclosed, inspection of premises or process where required, requests of particulars for trial and commissions to take evidence abroad. - Before the matter is set down for hearing, the plaintiff's attorney must arrange a pre-trial conference with the defendant with a view to securing curtailment of the duration of the hearing. - Before the trial, each party must deliver to the other a summary of the opinions of any expert witnesses on whom it intends to rely and the reasons for such opinions as well as copies of any plans, diagrams, models, photographs, etc. on which it is proposed to rely in the action. - Finally, the matter is brought to trial at which oral evidence is given by witnesses who are subject to examination, cross-examination and re examination. Both parties are then given an opportunity to argue their cases and, having heard the argument, the Court will in due course hand down its judgement.
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 3. Please identify any requirement that a foreign party must meet to initiate a proceeding in the Courts and administrative bodies identified in answer to question 1 that is not required of a national or resident of South Africa and cite the legal authorities providing for those differences.
A foreign party is not required to meet any requirement not applicable to a national or resident of South Africa in order to institute proceedings for enforcement, except that the local party is entitled to ask for a (bank) guarantee that costs will be paid in the event of a cost order against the foreign party.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 4. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards against abuse of judicial and administrative enforcement procedures, including provision for adequate compensation for injury suffered because of such abuse. Please describe the means available under the law of South Africa to prevent abuse of judicial and administrative procedures or to remedy damages suffered as a result of such abuse and cite the legal authorities for those means.
No specific indemnification provisions against abuse of enforcement procedures exist. However, if a defendant is wrongfully sued or joined in civil proceedings in the Courts, it will be able to set the proceedings aside and will be awarded its legal costs (on the punitive scale if appropriate) and any damages which it might have suffered as a result. Furthermore, in certain instances, the Court may require a plaintiff to furnish security for costs and/or damages.
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 5. Article 41.2 addresses, among other things, the cost of judicial and administrative enforcement proceedings. Please describe any fees charged by judicial or administrative officials for filing legal actions involving intellectual property or for pursuing such actions once initiated, cite the legal authorities for such fees, and provide copies of the documents used to inform the public of such fees.
No fees are charged by judicial officials to file or prosecute legal actions involving intellectual property rights, except for the stamp duty payable on the issue of summons (which is the same for all matters, also those other than intellectual property).
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 6. Article 41.2 also addresses the timeliness of judicial and administrative enforcement proceedings. Please cite to the legal authorities establishing any time limits for judicial and administrative proceedings and, if it has not already been done, provide copies of the laws or regulations in question.
(a) No specific legal provisions exist governing the length or cost of legal proceedings. The Rules of Court set out clear time-limits for the various stages of civil proceedings. Extensions may be agreed to inter partes or the Court might grant extensions or condone late service in appropriate circumstances which will lengthen the duration of the proceedings. (b) The essential time-periods are set out in Rule 6 of the Uniform Rules of Court (for applications) and Rules 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Rules for actions. No statistical data is available on the actual duration of proceedings or their cost.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 7. Please explain any provisions in the enforcement system in South Africa that ensure expeditious remedies. In addition, please explain what provisions are available to prevent deliberate delays by the parties to a proceeding and indicate the circumstances in which such provisions will be applied.
Please see the reply to question 6 above.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 8. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably be in writing, the better to determine the reasoning on which the decision is based. Please state, with regard to each type of court and administrative body identified in question 1, whether judges or administrative officials must render their decisions in writing and cite the legal authorities requiring such written opinions.
Proceedings in the High Courts are recorded electronically, and litigants may apply for transcriptions of the recordings. Judgements are generally given in writing.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 9. Article 41.3 also requires that decisions on the merits of a case be based only on evidence in respect of which parties had an opportunity to be heard. Please state, with regard to each type of court and administrative body identified in question 1, what factors may be considered by a judge or administrative official in rendering a decision and cite the legal authorities establishing the basis on which judges and administrative officials may reach decisions.
As indicated in the answer to question 2 above, evidence in motion proceedings is generally by affidavit unless the Court directs otherwise. In actions, evidence is given orally. The evidence of expert witnesses as well as copies of plans, diagrams, etc. have to be made available to the other party before trial. Witnesses who give oral evidence are subject to cross-examination. In coming to a decision, a judge in the first place evaluates the evidence tendered in court, but he may take cognisance of other laws of the country, e.g. the provisions of the Constitution of South Africa.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 10. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial and administrative decisions in intellectual property enforcement proceedings. Please describe what legal limitations, if any, are placed upon the ability of a party to an intellectual property enforcement proceeding to have both procedural rulings and final decisions reviewed by a separate judicial authority, and cite the legal authorities providing for such reviews.
All procedural rulings and final decisions on the merits of South African courts are subject to review and/or appeal, with the exception of temporary interdicts (interlocutory injunctions). The current legal position in South Africa is that an interlocutory injunction (temporary interdict) is not subject to review nor to appeal. It is submitted that this position is not in conflict with Article 41.4, inasmuch as the decision in regard to an interlocutory injunction is not a decision on the merits of a case. An interlocutory injunction is based on a balance of convenience, and the merits of the case are specifically not decided. To succeed with a temporary interdict, the claimant merely has to show, prima facie, that there is a right which is or is about to be infringed, and that the balance of convenience favours the granting of a temporary interdict pending the finalization of the main proceedings. Furthermore, an interlocutory injunction is exactly that, namely a temporary order pending further court action; if such further court action does not follow within a reasonable period, the interlocutory injunction can be discharged. The order normally specifies a return date by which cause must be shown as to why the temporary interdict should not be made permanent, thus creating an opportunity for the respondent to state his case. The system is safeguarded against abuse in that the Court requires to be satisfied that the balance of convenience is in favour of the granting of such an interdict, and in considering this aspect the Court will consider the status and financial position of both parties, and will make the decision on the basis of the least measure of interference with the activities of a party.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 11. Article 42 requires that defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures followed by each type of court and administrative body identified in question 1 for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceeding and cite the legal authorities establishing these procedures.
In the case of infringement proceedings, whether by way of application or action, the notice of motion or the combined summons has to be served on every respondent by the applicant/plaintiff. The Court has to be satisfied that proper service took place. Receipt of service is usually endorsed on the original notice of motion/summons under the signature of the respondent or his authorized agent.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 12. Article 42 also requires that parties to intellectual property enforcement proceedings must be able to be represented by counsel and must not be subject to overly burdensome requirements to appear personally. Please describe any limitations under South Africa’s laws on the ability of a party in such a proceeding to be represented by independent legal counsel and any requirements imposed on the party to appear personally in a proceeding. Please cite the legal authorities providing such limitations and imposing such requirements.
Parties may personally represent themselves in the High Court or may be represented by an attorney (having the right of appearance) or an advocate of the High Court of South Africa. There is no requirement for mandatory personal appearance. If the right holder needs to give essential evidence in a trial action, a personal appearance in that sense is necessary. See also: Section 19(3) Patents Act No. 57 of 1978; Section 13 Designs Act No. 195 of 1993.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 13. Under Article 42, parties are to be entitled to substantiate claims and present relevant evidence. Please describe any limitations under the law of South Africa on a party’s ability to substantiate a claim or to present relevant evidence and cite the legal authority providing such limitations.
There are no limitations as envisaged in this question in the field of intellectual property law. There are, however, certain protective provisions such as Section 67(3) of Patents Act No. 57 of 1978 providing that a person need not disclose secret process information, if it appears to the Commissioner that it would be unreasonable to do so, in cases of an alleged infringing product made by a process for obtaining a new product.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 14. Article 42 requires, with one narrow exception, that there be a means to identify and protect confidential information during judicial and administrative intellectual property enforcement proceedings. Please describe the means provided under the law of South Africa for parties to identify and have protected confidential information required to be presented in order to prove their claims and cite the legal authorities providing for such identification and protection.
The protection of confidential information brought forward as evidence may be ordered by the High Court or the Court and the Commissioner of Patents in terms of their inherent powers. The litigant wishing to protect such information may make application to the Court (if agreement with the opposing party is not possible) for appropriate directions. Experience indicates that the Courts are generally sympathetic to such approaches in appropriate circumstances. Section 67 of the Patents Act, 1978, also contains certain provisions regarding non-disclosure of secret processes.15
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials be able to order a party to an intellectual property enforcement proceeding to produce relevant evidence in that party’s control identified by the opposing party when the latter party has presented reasonably available evidence in support of its claims. Please describe how and in what circumstances judges and administrative officials may order production of relevant evidence in intellectual property enforcement proceedings and cite the legal authorities providing for such orders.
Discovery and production of documents and tape recordings in the High Court of South Africa, and in the Court of the Commissioner of Patents, is dealt with in Rule 35 of the Uniform Rules of Court. Discovery will only be ordered after the institution of proceedings and generally only after the close of pleadings. In special cases, (such as the "Anton Piller" situation), the Court may order, on an ex parte basis, that certain evidence be taken into the possession of a sheriff for its preservation pending the institution of civil proceedings. Statutory provisions for Anton Piller-type orders have been enacted in the Counterfeit Goods Act No. 37 of 1997, in Section 11.
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 16. Information ordered to be produced, referred to in question 15, must be protected if it is confidential. Please describe the means provided under the law of South Africa for protecting such information and cite the legal authority providing for such protection, if those means differ from those described in answer to question 14.
Please see the reply to question 14 above.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 17. Article 43.2 provides that, in the event a party refuses to provide information ordered by the judicial or administrative officials, those officials may be authorized to make preliminary and final determinations adverse to that party. Please describe what sanctions may be imposed on a party that refused to provide ordered information and under what circumstances those sanctions are imposed, citing the legal authority for those sanctions.
South African judicial authorities are very hesitant to order persons to disclose, verbally or by way of a written statement, particular information (as opposed to making available, through discovery or in special ex parte situations, specific documents and evidence). Such a practice in civil proceedings is generally unconstitutional in terms of the Constitution of South Africa. In the criminal context, the Counterfeit Goods Act, 1997, contains certain provisions regarding disclosure of information by a defendant.
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 18. Article 44.1 requires that judicial and administrative officials be able to enjoin or otherwise prevent infringing activity by a party, including by preventing the entry of infringing goods into the channels of commerce in their jurisdiction. Please describe authority of the judges and administrative officials identified in question 1 to order parties to stop infringements and to prevent infringing goods from entering the channels of commerce in their jurisdiction immediately after clearance of such goods through customs. In addition, please cite the legal authorities authorizing such actions.
The relevant South African Courts are empowered to give relief in the form of an interdict (injunction) to stop infringement and to prevent infringing products to enter the market and the channels of commerce generally, by prohibiting the sale and/or offering for sale of such products. The Courts can also order the delivery up of infringing products; and in the case of trademark infringement, the removal of the infringing mark from all products, or where this is not possible, the delivery up of such products. See, e.g.: Section 65(3) Patents Act No. 57 of 1978; Section 34(3) Trade Marks Act No. 194 of 1993; Section 24(1) Copyright Act No. 98 of 1978; Section 35(3) Designs Act No. 195 of 1993.
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 19. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use by third parties authorized by the government, limiting the remedy for infringement to payment of adequate remuneration as provided in Article 31(h). Please describe any such limitations on remedies in the laws of South Africa and cite the legal authorities providing for those limitations.
The following provisions in South African intellectual property legislation are relevant to the subject-matter of this question: Patents Act No. 57 of 1978: - Section 4 Use by a Minister of State for public purposes (this Section has not to date been invoked). - Section 55 Compulsory licence in the case of a dependent patent (no record could be found of a successful application under this section). - Section 56 Compulsory licence in case of an abuse of patent rights (no record of successful application). - Section 78 The Minister (of Trade and Industry) may acquire an invention or a patent on behalf of the State (not yet invoked). - Section 79 The Minister of Defence may acquire, on behalf of the State, an invention or patent relating to armaments or defined in the Armaments Development and Production Act, 1968 (not yet invoked). - Section 15C of the Medicines and Related Substances Control Act 101 of 1965: the Minister of Health may determine that certain patent rights shall not apply to certain specified medicines (Act passed but not yet in force). Designs Act No. 195 of 1993: - Section 21 Compulsory licence in the case of an abuse of design rights (not yet invoked). Copyright Act No. 98 of 1978: - Section 45 The Minister (of Trade and Industry) may make regulations to prohibit or authorize the circulation, presentation or exhibition of certain works (not yet invoked). - Section 45A The Minister may make regulations regarding the reproduction or adaptation of certain artistic works (this section is not yet in operation).
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IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 20. Article 45.1 requires that judicial and administrative officials be able to order an infringer to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please describe the authority of the judges and administrative officials identified in question 1 to order a party found to be infringing to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please explain the factors considered in establishing the amount of the compensation and cite the legal authorities authorizing such compensation orders.
In terms of the Patents Act, 1978 (as amended), the Trade Marks Act, 1993 (as amended), the Copyright Act, 1978 (as amended) and the Designs Act, 1993 (as amended), and the Rules governing procedure in the High Court and the Court of the Commissioner of Patents, these Courts are empowered, in cases of infringement, to order damages to be paid by the infringing party. All four of the Acts make provision for the award of damages (the normal basis being the actual patrimonial loss suffered) or, in lieu of damages, the payment of a reasonable royalty which would have been payable by a licensee for the use of the intellectual property right concerned. The Copyright Act also contains provisions (Section 24(3)) for the award of punitive damages. Damages may only be recovered by way of action. The Courts are also authorized to direct that an enquiry into damages is to be held for purposes of determining the amount of any damages or reasonable royalty to be paid.
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