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/Q/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1, IP/Q4/ARM/1 Armenia Suiza 8. Does your legislation provide for any restrictions for obtaining provisional measures? If so, what are these restrictions? Please cite the relevant provisions of law.
The Legislation of RA does not provide any restrictions for obtaining provisional measures in the sphere of Intellectual Property Rights.
23/04/2005
IP/Q/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1, IP/Q4/ARM/1 Armenia Suiza 9. Please describe the provisional measures provided for in your legislation, including those useful to combat counterfeiting and piracy. Please describe the procedures that must be followed and cite the relevant provisions of law.
Article 98 of the Civil Procedure Code sets out "means of securing the action": 1. The following are the means of securing the action: a) to impose an arrest on the defendant's property or financial assets in the amount of the complaint; b) to prohibit the committal of certain actions by the defendant; c) to prohibit the committal of certain actions by other persons in relation to the object of the dispute; d) to prevent the sale of property, in case of bringing a case concerning the lifting of the arrest on the property. e) To impose an immediate or in 5 days arrest on the plaintiff's property, which is possessed by the defendant. 2. When necessary, the court is entitled to apply several means of securing the action. 3. In case of provision of the action concerning the seizure of financial assets, the defendant is entitled to pay the amount demanded by the plaintiff to the deposit account of the enforced execution service. Article 44 "The measures of ensuring the claim on infringement of copyright and neighbouring rights" of the "Law on Copyright and Neighbouring Rights" of the Republic of Armenia: The court may, in accordance with the provisions defined by the Civil Procedure Code of the Republic of Armenia, upon the request of the persons participating in the case or on his own initiative, undertake measures of ensuring the claim, to seize all allegedly counterfeit copies of the works and phonograms, as well as the materials and the equipment intended for their creation and reproduction, to prohibit the performance of certain acts. In case of the infringement of copyright and neighbouring rights for which criminal liability is proved, the court, with the purposes of ensuring the civil claim submitted or to be submitted in future, shall be entitled to seize all allegedly counterfeit copies, as well as the materials and the equipment intended for their creation and reproduction, and, if necessary, to confiscate and, if not claimed by the plaintiff, destroy them. Article 65 "Providing evidence" of the Civil Procedure Code of the Republic of Armenia: 1. The persons who have grounds to fear that presenting necessary evidence can become impossible or difficult, are entitled to make a motion to the court in charge of the case in relation to the provision of this evidence. 2. The motion concerning the provision of evidence must indicate the evidence which must be provided, the facts for the establishment of which this evidence is necessary, and the reasons which are the grounds for the motion. 3. Based on the results of discussion of the motion the court makes a decision. 4. The decision concerning the provision of evidence is carried out immediately, as envisaged in the procedure established in the law of the Republic of Armenia on "Enforced implementation of court acts". 5. After the decision concerning the provision of evidence is carried out, Court informs the Person participating in the case with notification, if the latter is unaware of the decision. The Notary also provides evidences before suing the case in the court, in accordance with the Civil Procedure Code and the "Law on Notary" of RA. Article 99 "Execution of decision to use provisional remedy" of the Civil Procedure Code of the Republic of Armenia: The court decision on the use of provisional remedy is executed without delay, as envisaged in the Law of the Republic of Armenia on the Enforced Execution of Court Acts.
24/04/2005
IP/Q/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1, IP/Q4/ARM/1 Armenia Suiza 10. Please describe the measures provided by your legislation to combat counterfeiting and piracy at the border. Please explain whether the competent authorities are empowered to act ex officio and, if so, please indicate the enforcement actions that may be taken. Please cite the relevant provisions of law.
These issues are regulated in accordance with provisions of Article 39 of the Civil Procedure Code of the Republic of Armenia, which states that Customs authorities are in charge of combating counterfeiting and piracy at the border based on the owner's request. In compliance with the Legislation of RA the competent authorities are not empowered to act ex officio.
25/04/2005
IP/Q/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1, IP/Q4/ARM/1 Armenia Suiza 11. Please describe how your legislation meets the requirements of Article 41 of the TRIPS Agreement. Please cite the relevant provisions of law.
See Annex. [Note from the Secretariat: Please consult the document to view the above-mentioned annex.]
26/04/2005
IP/Q/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1, IP/Q4/ARM/1 Armenia Suiza 12. Please indicate the authorities responsible for the application of the measures provided by your legislation to combat counterfeiting and piracy. Please explain whether the competent authorities are empowered to act ex officio and, if so, please indicate the enforcement actions that may be taken. Please cite the relevant provisions of law.
The Legislation of RA does not stipulate competent authorities to combat counterfeiting and piracy. In compliance with the Legislation of RA the competent authorities are not empowered to act ex officio.
27/04/2005
IP/Q/ARM/1, IP/Q2/ARM/1, IP/Q3/ARM/1, IP/Q4/ARM/1 Armenia Suiza 13. Please describe any new initiatives that are planned to improve the enforcement of intellectual property rights in your country, particularly initiatives to combat counterfeiting and piracy. Is there a particular action plan in place?
It is planned to establish a special subdivision in the Police structure during this year, which will improve the enforcement of Intellectual property rights in the country, particularly it will combat counterfeiting and piracy.
28/04/2005
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Australia 1. How does your country provide protection for new plant varieties as required under Article 27.3(b)? If your legislation is based on the UPOV system, on which UPOV Act was it modelled? Can new plant varieties be protected by patent in your country?
Antigua and Barbuda has decided to create a sui generis system of protection for plant varieties. It has made plant varieties an exception for protection under section 2 of the Patent Bill. A bill has not yet been drafted for the administration of these rights as discussions are still being conducted as to what system would best suit the right holders' particular needs. The OECS countries are also examining the best possible system to ensure that all the countries implement similar systems. The Trinidad model, which is based on the UPOV model, is also being examined. Caricom has also placed an obligation under Protocol 3 of its Trade Agreement on the member States to ensure that all legislation pertaining to intellectual property be harmonized.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Canadá 1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and throughout) have been implemented.
The system for enforcement of all rights including intellectual property is provided through a combination of statutes and the Common Law. The following is a checklist of the measures either in place or will be in place to ensure the enforcement of rights. Civil and Administrative Procedures and Remedies In all the legislation on Intellectual Property, the High Court of Justice has jurisdiction over these matters. The persons who have the right to assert intellectual property rights are spelt out, for instance, in the Patent Act in section 34: "On the request of the owner of the title of protection, or of a licensee if he has requested the owner to institute court proceedings for a specific relief and the owner has refused or failed to do so, the court may grant and injunction to prevent infringement, an imminent infringement, or an unlawful act referred to in Sections 40(2) and 41, award damages and grant any other remedy provided for in the general law." This provision is found in the various Bills on intellectual property. In the Copyright Bill and the Integrated Circuit Topography Bill, additional remedies are spelt out and these include the payment of royalties, confiscation and destruction of illegal goods. An Attorney-at-law who is resident and practising in Antigua and Barbuda must represent the affected parties. Where the Bills are silent as to procedure, the Eastern Caribbean Civil Procedure Rules and the regulations to the various Bills (the drafting of which is still to be completed) provides for the relevant procedures. In the case of urgent remedies such as an interim injunction, the Rules provide for a quick process in Part 17, which deals with interim measures. Upon an application without notice to the respondent or an ex parte application, the right holder may be granted such an injunction that will either prevent an infringement or stop it. The right holders have remedies in criminal law as well, where infringement is deemed to be an offence in all the statutes and a fine and/or imprisonment is the penalty. For instance, in section 34(3) of the Patents Bill an infringer is liable on summary conviction to a fine of EC$100,000 and to imprisonment for a term of three years. Under the Copyright Bill, the right holder must notify the relevant authorities of an offence being committed under the Act. The Director of Public Prosecutions has conduct of these matters in the High Court. The Police will be given authority to act accordingly by a Magistrate after the Magistrate is satisfied by information given on oath that there is reasonable cause to believe that an offence has been committed under the Act. This is provided for in section 140 of the Bill. Appeals from this court and the High Court are made to the Court of Appeal and then to the Privy Council, being the final Court of justice.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Canadá 2. What protection does your copyright legislation afford to "foreign works"?
The governing legislation for this area is the Copyright Bill. According to section 5: "(1) Unless otherwise specifically provided in this Act, copyright does not subsist in any work unless it satisfies the requirements specified in this part as respects: - (a) the category of work; and (b) either: (i) the qualification of the author; or (ii) the country or place of first publication, or in the case of a broadcast or cable programme, the country or place where it is made or from which it is sent, as the case may be." Section 8 then goes on to provide a more detailed explanation for the term "country or place": "(1) A literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition qualifies for copyright protection if, having regard to section 3, it is first published in Antigua and Barbuda or a specified country. (2) A broadcast qualifies for copyright protection if it is made from a place in Antigua and Barbuda or a specified country by a broadcasting organization in possession of a valid licence granted to it under any law in Antigua and Barbuda or a specified country regulating broadcasting. (3) A cable programme qualifies for copyright protection if it is sent from a place in Antigua and Barbuda or in a specified country in accordance with the law in force regulating transmission by cable." Therefore, protection may be provided equally for those in the State and those out of the state in specified countries. This position is further defined in section 144(1)-(3): "(1) Subject to the provisions of this section the Minister may by order provide that in respect of any country specified in the order, any provisions of this Act so specified shall apply: (a) in relation to persons who are citizens or habitual residents of that country as they apply to persons who are citizens or habitual residents of Antigua and Barbuda; (b) in relation to bodies incorporated or established under the law of that country as they apply in relation to bodies incorporated or established under the laws of Antigua and Barbuda; (c) in relation to literary, dramatic, musical or artistic works, sound recordings, films and editions first published in that country as they apply in relation to such works, sound recordings, films and editions first published in Antigua and Barbuda; (d) in relation to broadcasts made from or cable programme sent from that country as they apply in relation to broadcasts made from or cable programmes sent from Antigua and Barbuda; (e) in relation to performances taking place in that country or given by an individual who is a citizen or habitual resident of that country, as they apply in relation to performances taking place in Antigua and Barbuda or given by an individual who is a citizen or habitual resident of Antigua and Barbuda. (2) An order made under this section applying any provisions of this Act in relation to any country may apply that provision: (a) without exception or modification or subject to such exceptions and modifications as may be specified in the order; (b) generally or in relation to such classes of works or other classes of case as may be so specified. (3) An order shall not be made under this section in relation to any country unless the country is: (a) a Convention country; or (b) a country as to which the Minister is satisfied that provision has been or will be made under its law in respect of the class of works or (as the case may be) the performances, to which the order relates, giving adequate protection to the owners of copyright under this Act or, as the case may be, to Antigua and Barbuda works and performances as defined in section 145 (4). (4) In this section 'Convention country' means a country which is a party to a Convention relating to copyright or performers' rights, as may be appropriate, to which Antigua and Barbuda is also a party." As long as the given country falls within these criteria the protected works from there will receive the same protection as is available under the law for those works done in Antigua and Barbuda.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Canadá 3. We understand that draft intellectual property legislation on copyright and related rights, integrated circuits, trademarks, geographical indications and patents is being prepared. (a) When is such legislation likely to be effectively implemented?
The projected date for implementation is 31 December 2001. The drafts are presently before Parliament.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Canadá (b) What are the key improvements introduced by such draft legislation in respect of TRIPS obligations?
Generally, the draft legislation has incorporated all the provisions that must be included in accordance with TRIPS. The fundamental rules on national and most-favoured-nation treatment have been dealt with in all the draft Bills on intellectual property. Provisions for the protection of public health and other public interests and the prevention of abuse of intellectual property rights that are consistent with the provisions of the TRIPS Agreement have been included. The Enforcement provisions have been strengthened and where the present legislation has been silent, the new drafts have attempted to make clear the rights conferred on the right holder in terms of the use of the rights and the remedies available in the event of an infringement. In the Copyright Bill, provision is made for the competent authorities to act upon notice of any infringement covered by the Bill, and this also covers border issues. The introduction of the Geographical Indications Bill, the Integrated Circuits Topography Bill, and the Unfair Competition Bill further enhance the level of protection afforded to intellectual property right holders. A sui generis system will be created for the administration of rights to the creation of new varieties of plant. The legislation presently in existence are the Trade Marks Act, the Patent Act, the Copyright Act, the Registration of United Kingdom Trade Marks, the Registration of United Kingdom Patents.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 1. Please describe, in relation to each form of intellectual property covered by the TRIPS Agreement, including plant variety protection, the manner in which national treatment and most-favoured-nation treatment are provided to nationals of other WTO Members.
Articles 3 and 4 of the general provisions of the TRIPS Agreement give the scope of protection that must be accorded to Member States. While the national treatment clause forbids discrimination between a Member's own nationals and the nationals of other Members, the most-favoured-nation treatment clause forbids discrimination between nationals of other Members. In respect of the national treatment obligation, the exceptions allowed under the pre-existing intellectual property conventions of WIPO are also allowed under TRIPS. The relevant provisions have been included in the draft legislation of Antigua and Barbuda. In section 5 of the Industrial Designs Bill the right to registration is given to anyone who comes within the scope of the section. The level of protection is the same for all right holders from the Member States. Another example is where the date of priority is considered in the determination of a filing date; the Registrar is required under the relevant provisions to accept the date of priority after receiving proof of a prior registration whether international or otherwise. This is seen, for example, in section 4(2) of the Trademarks Bill. This requirement is applied to applications from all Member States. Provisions within the Trademarks Bill and the Patent Bill that cater solely for Members of the Patent Cooperation Treaty and the Protocol to the Madrid Agreement are allowed under Article 4 as the exception. Under the Geographical Indications Bill, protection is given to geographical indications even before they are registered in accordance with the conditions spelt out in section 4 of the draft bill. In the Integrated Circuits Topography Bill, the definition of "national" refers to a citizen or a resident of any country that is a Member State. Under section 4, which deals with conditions for registration, the creators eligible to file an application include nationals from Member States or intergovernmental organizations who are parties to a convention as specified within the Bill. A sui generis system will be designed for the registration of plant varieties since the Patent Bill prohibits the patenting of plant life.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 2. Please explain in detail how the copyright law of Antigua and Barbuda complies with Article 9 of the TRIPS Agreement requiring that Members comply with all Articles 1 through 21 of the Berne Convention (1971), except Article 6bis, since Members do not have rights or obligations relating to the latter Article under the TRIPS Agreement.
Copyright legislation in Antigua and Barbuda is governed by the Copyright Act of … does comply with the above-mentioned Articles. These Articles deal predominantly with the subject-matter eligible for protection, the terms of protection available, those on whom rights are conferred, what rights are conferred and the limitations of those rights. These issues are dealt with in detail in many different sections within the Copyright Bill. Part I of the Bill is the interpretation section of the Bill. Section 2 contains definitions of the terms used in the Bill. This includes definitions of the subject-matter covered in Article 2 of the Berne Convention, in particular, which deals with "Protected Works". Sections 3 and 4 which also fall within Part I deal with the definitions of publication and broadcasting respectively as is required by Article 3. Article 3 is further encompassed by section 5 which contains the same three criteria for protection as can be seen in the above-mentioned article. Section 5 is the first section that may be found in Part II of the Bill. This part encompasses sections 5-13 and sets the categories of works protected by copyright, the qualifications for protection and the nature and duration of the rights conferred under the Article. Section 6 governs what subject-matter may be considered qualified or eligible for protection. Section 7 deals with who is eligible for protection, namely the "author", and defines who may fall under the definition of this term depending on the protected work that is being dealt with. Section 8 considers the places from where protection may be sought. As is seen in Article 5, this section covers each of the items of this article completely. Section 9 expands on the nature of the protection that copyright gives. It deals with both the economic and moral rights though the latter is not mandatory. The economic rights however are examined in full in this section describing in full the exclusive rights of the author. Consequently, this section covers those exclusive rights seen in Articles 8, 9, 11, 12, 13 and 14. Sections 10-13 cover the duration of copyright protection or what is referred to in Article 7 as the term of protection. These sections provide not only the duration afforded to the several different types of protected works but also deal with the situations where there is more than one author or right holder, as in Article 7bis. Part IV deals with the issue of ownership of the copyright. This part is made up of sections 22-28. Section 22 is a very important section it declares in subsection (1): "The author of a protected work is the original owner of any copyright in that work unless there is an agreement to the contrary." This therefore leaves room within its definition for the transferral or assignment of the rights mentioned above, and the rest of the section gives the rules, which govern just that. Part V of the Bill includes sections 29-50. Within it sections 29-35 show how a copyright may be infringed, the remedies and actions available to the right holders and that of the exclusive licensee. This Part also addresses the presumptions that are made under the law (sections 44-45), the possible criminal offences resulting from infringements (sections 46-48) and the restrictions on and possible actions against the importation of infringing works or articles. Articles 15 through 17 are covered by this part. Part VI (sections 51-86) deals with the possible exceptions to infringement of copyright. Part VI is very extensive and deals with a multitude of exceptions. These encompass use for educational purposes, in libraries and archives, public administration and adaptations. These coincide with the free uses given in Article 10. The reservation of the right of the country to make special agreements with other countries under Article 20 is covered by section 144, which gives the minister responsible for the Act such power. It will be noted then that the Bill encompasses the salient issues of Articles 1-21 of the Berne Convention and as a result complies with Article 9 of the TRIPS Agreement.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 3. Please explain how the copyright law of Antigua and Barbuda protects computer programs as literary works and complications of data as required by Article 10 of the TRIPS Agreement.
According to the interpretation section of the Copyright Bill, section 2, the term "literary works" is defined as follows: "literary work" means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes: a written table or compilation; a computer program;" Computer programs and compilations accordingly receive similar protection to that of other literary works. Section 6 of the Bill further states: "(1) Copyright is a property right which, subject to the provisions of this section, may subsist in the following categories of work: (a) original literary, dramatic, musical or artistic works;" Computer programs through their status as literary works do receive protection. Subsection 2 goes on to state that compilations of data are also protected stating: "(2) A compilation of data or other material (database), whether in machine-readable or other form, is eligible for protection as a literary work, but such compilation shall be regarded as original only if, by reason of the selection or arrangement of its contents, the compilation constitutes the author's own intellectual creation; but such protection does not extend to any data or other material forming part of the compilation and is without prejudice to any copyright subsisting in any such data or other material." As a result both computer programs and compilations of data are protected works. However, while according to section 10 the duration of protection for literary works is fifty years from the end of the calendar year of the author's death the term for that of computer programs is fifty years form the end of the calendar year that the work is done. Subsection 4 states: "(3) Subsections (1) and (2) do not apply to computer generated work, the copyright in which expires at the end of the period of the fifty years from the end of the calendar year in which the work was made." Since this provision refers to "computer generated work" it is submitted that compilations of data if computer generated will accordingly be afforded the latter duration of protection.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and cinematographic works be available. Please cite to the corresponding provision of the copyright law of Antigua and Barbuda.
Rental rights for computer programs and cinematographic works are governed by section 78 of the Copyright Bill. Subsection (1) states: "The Minister may by order, subject to affirmative resolution, provide that in such cases as may be specified in the order, the rental to the public of copies of sound recordings, films or computer programs shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal." Further, section 9 states: "(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a work shall have the exclusive right to do or to authorize other persons to do any of the following acts in Antigua and Barbuda: (a) to copy the work; (b) to issue copies of the work to the public sale, rental, public lending or otherwise of the original or copy of the work that has not already been subject to a distribution authorized by the owner of the copyright; (c) to rent or lend to the public the original or a copy of an audio visual work." This section therefore gives the owner of the copyright some rental rights outside of those, which may be granted by the Minister.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 5. Please state the length and terms of protection the copyright law of Antigua and Barbuda provides for a work other than a photographic work or a work of applied art and cite to the relevant provision of law.
Sections 10 through 13 govern the length and terms of protection of protected works under copyright law in Antigua and Barbuda. The duration of copyright protection for literary works etc. is governed by section 10 of the Bill, which states: "(1) Subject to this section, copyright in any literary, dramatic, musical or artistic work expires at the end of the period of fifty years from the end of the calendar year in which the author dies. (2) Where the authorship of a work referred to in subsection (1) is unknown, copyright in that work expires at the end of the period of fifty years from the end of the calendar year in which the work was either made, was first made available to the public or first published whatever date is the latest, but subsection (1) does not apply if the identity of the author becomes known after the end of that period." It must be mentioned however, that although in section 2 of the Bill computer programs are considered to be within the meaning of literary works, they are not afforded the same length and terms of protection as they are governed by subsection (4), which is concerned with computer generated works. It goes as follows: "(4) Subsections (1) and (2) do not apply to computer generated work, the copyright in which expires at the end of the period of the fifty years from the end of the calendar year in which the work was made." Where a copyright is held by joint owners, according to subsection (5)(a), the reference in subsection (1) to the date of death of the author refers, where all the authors' identities are known, to the date at which the last of the authors died. Where one or more of the authors' identities are unknown this date is that of the last of the known authors to die. Further subsection (5)(b) states that the reference is subsection (2) of the act to the identity of the author becoming know shall here be construed as a reference to the identity of any of the authors becoming known. The terms and length of protection for sound recordings and film is governed by section 11, which states: "(1) Copyright in a sound recording or film expires at the end of the period of fifty years from the end of the calendar year in which it was made or, where it is made available to the public before the end of the period, fifty years from the end of the calendar year in which it is so made available. (2) For the purposes of subsection (1) a sound recording or film is made available to the public when: (a) It is first published, broadcast or included in a cable programme service; (b) In the case of a film or film sound-track, the film is first shown in public; but determining whether a sound recording or film has been made available to the public, any unauthorized act shall be disregarded." The duration of copyright protection in broadcasts and cable programmes is covered by section 12. It goes as follows: "(1) Copyright in a broadcast or cable programme expires at the end of the period of fifty years from the end of the calendar year in which the broadcast was made or the programme included in a cable programme service. (2) Copyright in a repeat broadcast or a repeat cable programme expires at the same time as copyright in the original broadcast or cable programme; and accordingly, no copyright arises in respect of a repeat broadcast or a repeat cable programme service after the expiry of the copyright in the original broadcast or cable programme. (3) Reference in subsection (2) to a repeat broadcast or a repeat programme means one which is a repeat of a broadcast previously made or as the case may be, of a cable programme previously included in a cable programme service." The final category dealt with in the Bill is that of typographical arrangements. According to section 13 this copyright expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 6. Please describe the protection the copyright law of Antigua and Barbuda provides for performers, and the term of the protection.
Protection under copyright law for performers is found in Part IX of the Bill namely "Rights in Performances". This part gives extensive rights to performers and also provides for limitation of those rights. According to section 107(1) rights in performances are conferred on: "(a) a performer, requiring his consent to the exploitation of his performance; and (b) a person having recording rights in relation to a performance, requiring his consent to the making of a recording of that performance. These rights are so conferred independent of any copyright in or moral rights relating to any work used or performed in the performance, according to subsection (2)(a)." Part IX subsequently stipulates the rights possessed by performers and the relevant possible infringements. These sections run from 108 through 114. These vest in the performer certain rights and state where and to what extent consent is needed as against infringement through recordings, use of the recordings, broadcasts of the performance, importation of illicit recordings etc. Exceptions to these infringements and the remedies against them are also included in Part IX. The duration of these rights are addressed in section 129, which states the following: "129. The rights conferred by this Part continue to subsist in relation to a performance until the end of the period of fifty years from the end of the calendar year in which the performance takes place."
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms. Article 14.2 requires that producers of phonograms are to have the right to authorize or prohibit the commercial rental to the public of originals or copies of their phonograms. Please describe how the copyright law of Antigua and Barbuda implements these obligations and indicate the term of protection.
Phonograms or sound recordings as they are referred to in the Copyright Bill are listed under section 6(1)(b) as a category of work which may be protected. Further according to section 2: "'author' in relation to a work, means the natural person who creates it, being in relation to: (e) a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken;" The producer of the sound recording is therefore considered to be the author of the sound recording for the purposes of the legislation. Consequently the producer receives all the protection of that of an author. According to section 22(1) the author of a protected work is the original owner of any copyright in that work unless there is an agreement to the contrary. So barring any contrary arrangement the copyright owner of the sound recording is the producer as such he/she too will receive the benefits under section 9. "(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a work shall have the exclusive right to do or to authorize other persons to do any of the following acts in Antigua and Barbuda (a) to copy the work; (b) to issue copies of the work to the public sale, rental, public lending or otherwise of the original or copy of the work that has not already been subject to a distribution authorized by the owner of the copyright;" Section 31 further provides that the copyright in a work is infringed by any person who, without the licence of the copyright owner, does, in relation to that work, any of the acts which the copyright owner has the exclusive right to do pursuant to section 9. This infringement includes those who have what they know or believe to be infringing copies or an article for making the same, according to section 31(3) and (4). "(3) Copyright in a work is infringed by a person who, without the license of the copyright owner: (a) possesses in the course of a business; (b) sells or lets for hire or offers or exposes for sale or hire; (c) exhibits in public or distributes in the course of a business; or (d) distributes otherwise than in the course of a business, to such an extent as to affect prejudicially the copyright owner; an article which is, and which be knows or has reason to believe is an infringing copy of the work. (4) Copyright in a work is infringed by a person who, without the license of the copyright owner: (a) makes; (b) imports into Antigua and Barbuda; (c) possesses in the course of a business; or (d) sells or lets for hire or offers for sale or hire; an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies." These provisions therefore protect against unauthorized reproduction across the board. In answering the second part of the question it must be noted that section 9(1)(b) above also gives rental rights to producers. These rights are further protect in section 78(1): "The Minister may by order, subject to affirmative resolution, provide that in such cases as may be specified in the order, the rental to the public of copies of sound recordings, films or computer programs shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal."
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 8. Please confirm that, under the trademark law of Antigua and Barbuda, any sign or combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings is capable of constituting a trademark, as required by Article 15.1 of the TRIPS Agreement and cite the relevant provisions of law or regulations.
There is no definition of a sign but the definition of "mark" is provided for under the Trademark Bill of 2001. Section 2 of the Bill provides as follows: "'mark' means any visible sign capable of distinguishing the goods ('trademark') or services ('service mark') of an enterprise."
28/04/2003
IP/Q/ATG/1, IP/Q2/ATG/1, IP/Q3/ATG/1, IP/Q4/ATG/1 Antigua y Barbuda Estados Unidos de América 9. Please describe the procedure followed to register a trademark in Antigua and Barbuda, citing the relevant provisions of law, and describe the rights that the owner of a registered mark can exercise.
Section 5(1)(b) of the Bill requires the Registrar to examine the applications as to compliance with the requirements of section 1(i) and section 2(2)(i) to (vi). In accordance with section 4(1), the application shall contain a request, a reproduction of the mark and a list of goods and services for which registration of the mark is requested. The examination procedure set out in this subsection requires the Intellectual Property Registry to carry out a search amongst its records of registered marks as objections to the registration of the mark sought to be registered. Under subsection 2, the Registrar having been satisfied that the requirements are fulfilled in the application shall forthwith cause it to be published in the Gazette for the purpose of opposition proceedings. Subsection 2(b)-(d) sets out the procedure for processing oppositions. After the application has been published and until the mark is registered, the applicant has the same rights and privileges he would have had the mark been registered (subsection 2, paragraph e). Once there is no opposition or the opposition has failed, the Registrar will proceed to register the application, issue a certificate of registration, and publish a reference to the registration. Otherwise, he has to refuse the application (see section 4). The rights conferred to the registered owner of a mark are contained in section 6(1)-(4) of the Bill: "(1) The use of a registered mark, in relation to any goods or services for which it has been registered, by any person other than the registered owner shall require the agreement of the latter. (2) The registered owner of a mark shall, in addition to any other rights, remedies or actions available to him, have the right to institute court proceedings against any person who infringes the mark by using, without his agreement, the mark as aforesaid or who performs acts which make it likely that infringement will occur. The right shall extend to the use of a sign similar to the registered mark and use in relation to goods and services similar to those for which the mark has been registered, where confusion may arise in the public. (3) The rights conferred by registration of a mark shall not extend to acts in respect of articles which have been put on the market in Antigua and Barbuda by the registered owner or with his consent."
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