Article 18 of the Berne Convention is incorporated into French law as a result of the ratification of the Convention and of the Universal Convention of 1952. Consequently, a work protected by copyright in its country of origin may claim protection. Hence, only works that have fallen into the public domain are not protected. All phonograms whose protection has not expired in the country of origin are protected with respect to uses made subsequently to the entry into force of the French Law of 3 July 1985 (1 January 1986).

The respective draft Law for each form of intellectual property rights implements the provisions of Articles 41-61 of the TRIPS Agreements. Details are available in Bahrain's responses to the Checklist of Issues on Enforcement available as document IP/N/6/BHR/1.

Articles 59 and 60 of the draft Law on Copyright and Neighbouring Rights provide for the works which are protected within the scope of the said Law. With respect to literary, artistic and scientific works, Article 59 provides: 1) The provisions of this Law on the protection of literary, artistic and scientific work shall apply to: a) Works of authors who are nationals of, or have their domicile in, the State of Bahrain; b) Works first published in the State of Bahrain, and works first published in another country and also published in the State of Bahrain within 30 days, irrespective of the nationality or residence of their authors; c) Cinematographic works, the producer of which has his headquarters or domicile in the State of Bahrain; and d) Works of architecture erected in the State of Bahrain and other artistic works incorporated in a building or other structure located in the State of Bahrain. 2) The provisions of this Law shall also apply to works that are eligible for protection in the State of Bahrain by virtue of and in accordance with any international convention or other international agreement to which the State of Bahrain is party. With respect to performers, phonograms and broadcasts, Article 60 provides: 1) The provisions of this Law on the protection of performers shall apply to: a) Performers who are nationals of the State of Bahrain; b) Performers who are not nationals of the State of Bahrain but whose performance: i) Take place in the territory of the State of Bahrain, or; ii) Are incorporated in phonograms that are protected under this Law, or; iii) Have not been fixed in a phonogram but are included in broadcasts qualifying for protection under this Law. 2) The provisions of this Law on the protection of phonograms shall apply to: a) Phonograms the producers of which are nationals of the State of Bahrain; b) Phonograms first fixed in the State of Bahrain; and c) Phonograms first published in the State of Bahrain. 3) The provisions of this Law on the protection of broadcasts shall apply to: a) Broadcasts of broadcasting organisations the headquarters of which are situated in the State of Bahrain, and; b) Broadcasts transmitted from transmitters situated in the State of Bahrain. The provisions of this Law shall also apply to performers, producers of phonograms and broadcasting organisations that are eligible for protection by virtue of and in accordance with any international convention or other international agreement to which the State of Bahrain is party.

The draft laws are likely to be enacted within the next four to six months. This is dependent on the legislative workload during the next few months. However, it should be pointed out that claims may be based on the provisions of the TRIPS Agreement even without the enactment of the draft laws as the TRIPS Agreement forms part of the national legislation as Bahrain ratified the latter in 1994 by Legislative Decree No. 7.

The draft legislation will introduce the following eight dedicated laws: 1. Trademarks 2. Patents and Utility Models 3. Plant Varieties 4. Copyright and Neighbouring Rights 5. Industrial Designs 6. Geographical Indications 7. Layout-Designs of Integrated Circuits 8. Trade Secrets The following are the key improvements introduced by the draft legislation in respect of TRIPS obligations (reference should be made to the text of the draft legislation for a full and complete account of the key improvements): 1. Trademarks The draft Law provides the protection required under Article 16 of the TRIPS Agreement to well-known marks for both goods and services. The registration will be for ten years instead of seven years (renewable for similar periods indefinitely as provided in the existing law). The draft Law also introduces border measures for the protection of trademarks as required under Section 4 of the TRIPS Agreement and enhances the provisions for provisional measures to be in line with Article 50 of the TRIPS Agreement. The draft Law also enhances the provisions for criminal sanctions to be fully in line with Article 61 of the TRIPS Agreement and increases the penalties available under the existing Law. 2. Patents The draft Law will supersede the existing Patents and Industrial Designs Law which was enacted in 1955. It can be said that the draft Law will ensure the availability of a modern and comprehensive Law, for the protection of patents , in line with the requirements of the TRIPS Agreement. The draft Law defines patentability in detail and outlines certain exclusions which do not go beyond those allowed under paragraphs 2 and 3 of Article 27 of the TRIPS Agreement. The rights of the patent owner are enhanced in the draft Law to be in line with Article 28 of the TRIPS Agreement. The draft Law introduces a non-voluntary licensing regime within the limitations and the safeguards provided under Article 31 of the TRIPS Agreement. The draft Law provides for a term of protection of 20 years and introduces the principle of the reversal of the burden of proof as required under Article 34 of the TRIPS Agreement. The draft Law also introduces the concept of provisional measures with the particulars required under Article 50 of the TRIPS Agreement. 3. Plant Varieties The draft Law introduces a new dedicated regime which is not available under the current legislation. The draft Law is based on the UPOV Model Law. 4. Copyright and Neighbouring Rights The draft Law will revamp the existing Law by introducing protection to neighbouring rights and increasing the existing term of protection to be in line with Articles 12 and 14 of the TRIPS Agreement. The draft Law ensures that the limitations and exceptions do not go beyond those allowed under the TRIPS Agreement and specifically states that these should not unreasonably prejudice the legitimate interests of the right holder. The draft Law also ensures that computer programs and databases are provided the protection required under the TRIPS Agreement. Moreover, the draft Law introduces the principle of rental rights as required under Article 11 of the TRIPS Agreement. The draft Law also addresses the issue of retroactive protection as required under Article 14.6 of the TRIPS Agreement. The draft Law also introduces border measures for the protection of copyright as required under Section 4 of the TRIPS Agreement and enhances the provisions for provisional measures to be in line with Article 50 of the TRIPS Agreement. The draft Law also enhances the provisions for criminal sanctions to be fully in line with Article 61 of the TRIPS Agreement and increases the penalties available under the existing Law. 5. Industrial Designs The draft Law will supersede the existing Patents and Industrial Designs Law which was enacted in 1955. It can be said that the draft Law will ensure the availability of a modern and comprehensive Law for the protection of industrial designs in line with the requirements of the TRIPS Agreement. The draft Law revamps the definition of industrial designs to be in line with Article 25.1 of the TRIPS Agreement and introduces the possibility of multi-applications for registration, which should be useful for textile designs. The draft Law revamps and enhances the scope of protection provided to Industrial designs to be in line with the requirements of Article 36 of the TRIPS Agreement. The draft Law also introduces the concept of provisional measures with the particulars required under Article 50 of the TRIPS Agreement. 6. Geographical Indications The draft Law incorporates all the provisions of the TRIPS Agreement as the existing legislation on this matter is only Article 61 of the Law of Commerce which prohibits the unlawful use of a geographical indication and consider such unlawful use as a form of unfair competition. 7. Layout-Designs of Integrated Circuits The draft Law will provide a new legislation dedicated to the protection of layout-designs of integrated circuits and fully incorporates Articles 35 to 38 of the TRIPS Agreement. The existing legislation does not specifically address layout-designs of integrated circuits. 8. Trade Secrets The draft Law will provide a new piece of legislation dedicated to the protection of trade secrets and incorporates the provisions of Article 39 of the TRIPS Agreement, including tests and data submitted to government authorities for obtaining marketing approval of pharmaceutical or of agricultural products which utilise new chemical entities.

The Austrian legislation immediately provides protection for works, phonograms and performances from other WTO Members on the basis of TRIPS Articles 3 and 9.1. This is expressly acknowledged by the relevant provisions of the Copyright Statute, saying that the protection under this law for works as well as for performances and for phonograms is subject to international treaties. This also applies to the distribution of blank tape levies under Article 42 of the Copyright Statute, as the said provisions on the protection of foreigners contain no exception with regard to the blank tape levy. The relevant provisions of the Copyright Statute read as follows: Article 96.1: "For the works of foreign authors (Article 10.1) not protected under Article 94 or Article 95, copyright protection shall be afforded, subject to international treaties, on condition that the works of Austrian authors are also protected in approximately the same way in the State of which the foreign author is a national, but in any event to the same extent as works of nationals of that State...". Article 97.1, 2: "Recitals and performances of works of literature and music that take place in this country shall be protected underthe provisions of Articles 66 to 72, irrespective of the nationality of the persons whose authorization is required under Article 66, paragraphs 1 to 5 for the recording of the recital or the performance on a device recording images or sounds. In the case of recitals and performances that take place abroad, Articles 66 to 72 shall apply in favour of Austrian nationals. Foreigners shall be protected in respect of such recitals and performances, subject to international treaties, on condition that the recitals and performances of Austrian nationals are also protected in approximately the same way in the State of which the foreigner is a national but, in any event, to the same extent as recitals and performances of nationals of that State...". Article 99.1, 2, 3, 5: "Sound recordings shall be protected in accordance with Article 76, regardless of whether and how they are published, if the producer is an Austrian national. Article 98.2 shall apply by analogy. Other sound recordings shall be protected in accordance with Article 76.1, 2 and 4 to 6 if they have been published in Austria. Sound recordings of foreign producersthat have not been published in Austria shall be protected under Article 76.1, 2 and 4 to 6,subject to international treaties, on condition that the sound recordings of Austrian producers are also protected in approximately the same way in the State of which the foreign producer is a national but in any event to the same extent as the phonograms of nationals of that State... Protection under Article 76.3 may be claimed by foreigners, in any event, only in accordance with international treaties".

Austrian law provides - as already indicated in the answer to question 1 - that all revenues generated from the imposition of blank tape levy schemes which have to be distributed to rightholders are - in principle - distributed on the basis of national treatment to all rightholders from all WTO Members. The blank tape levy issubject to compulsory collective management and Article II, paragraph 6 of the Federal Law of 1980 amending the Copyright Act provides that collective societies distributing equitable remuneration under this title shall transfer to institutions for social and cultural purposes the greater part of the overall revenue from such remuneration, less the relevant administrative costs. In practice, 51 per cent are transferred to the said institutionsso that 49 per cent remain for distribution to rightholders. This restriction concerns the scope of the right to equitable remuneration as such and applies to all rightholders including Austrian nationals.

The rule of reciprocity only applies if there is not an international agreement which provides for national treatment. National treatment is granted to WTO origin works under Articles 96, 97 and 99 of the Austrian law.

Austria does not apply the "rule of the shorter term" to performances and phonograms from other WTO Members.

Protection against both, direct and indirect reproduction is granted by the first sentence of Article 76.1 of the Copyright Statute, which reads as follows: "Any person who records acoustic performances on a device for the repeated reproduction of sounds (the producer) shall have, within the limitations specified by this Act, the exclusive right to multiply and distribute the sound recording. Multiplication shall be deemed to include the use of a sound recording for reproduction on another sound recording. In the case of sound recordings that are commercially produced, the owner of the enterprise shall be deemed the producer". The question also refers to "reproduction by digital transmission in the context of interactive services". This is a notion which is unknown to the Austrian Copyright Statute and which moreover is ambiguous. However, transmission as such is no act of reproduction, but acts of reproduction may occur as preparatory acts as well as in the course of a transmission and as a result of a transmission. All these acts of reproduction are covered by the above-mentioned provision.

The reproduction right for phonograms under Austrian law includesindirectreproduction made from a broadcast since this falls under the use of a sound recording for reproduction on another sound recording expressly mentioned in Article 76.1 of the copyright statute.

The full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, is provided by the provisions on the applicability of the Copyright Statute quoted in the answer to question 1. This means that protection extends back to 1926 with respect to works (year in which the author died) and back to 1916 with respect to performances (year in which the performance took place) and to phonograms (year of the fixation or publication).

It is true that Article 14bis BC grants an exclusive right of public performance to the author of a cinematographic work and that the Berne Convention does not expressly permit an exception with regard to this right. Nevertheless, it is commonly acknowledged that national legislation may provide so-called minor exceptions with regard to the minimal rights under the Berne Convention without express permission; this rule also applies to the minimal rights under Article 14bis BC. Minor exceptions are limitations which only slightly affect the right without prejudicing it in substance. The legal licence contained in Article 56 d.1 of the Copyright Statute issuch a minor exception, compatible with the Berne convention. However, whether Article 56 d.1 of the Copyright Statute is actually compatible with Article 14bis BC is not relevant for the following reasons: Authors from other member states of the Berne Union may invoke minimal rights granted by theBerneConvention immediately,the relevant provisions oftheBerneConvention have the precedence of application in relation to possibly diverging national legislation. In other words, in Austria the relevant provisions oftheBerneConvention are self executing and diverging provisionsin the national legislation only apply to Austrian nationals. Austria's Supreme Court has recently confirmed this in a fundamental judgement (SC 31/01/1995 - "Ludus tonalis").

There are no special limitations on the grant of the legal license contained in Article 56 d.1 of the copyright statute. Lending of videocassettes is not covered by this provision since this is not a performance. The provision is not aimed at permitting the electronic transmission of cinematographic works to individual rooms but it cannot be excluded that courts interpret it in this sense. The compulsory license is limited to the showing of cinematographic works in public areas of inns and hotels provided that only lodging guests of the inn or hotel have access. A rightholder might challenge this provision under the general conditions of Austrian law on civil actions but it would have to be in the context of a particular controversy. The TRIPS provisions on national treatment and on most-favoured-nation treatment are self-executing in the sense explained in the answer to question 1.

Compilations of data enjoy copyright protection under Article 6 oftheCopyright Statute, which reads as follows: "Compilations which constitute an original intellectual production by reason of the combination ofseparate contributionsinto a homogenous whole,shall enjoy copyright protection as collective works, the copyright, if any in the contributions shall not be affected". The term "contributions", used by the said provision is not restricted to works eligible for copyright protection, but also comprises mere data.

For the time being, databases are only protected as collective works in the meaning of Article 6 of the Copyright Statute.

The question concerns provisions contained in Part III of the TRIPS Agreement relating to the enforcement ofintellectual property rights which will be subject to a review procedure by the Council of TRIPS scheduled for the second half of 1997. Therefore, at this stage, no answer is given.

By virtue of the following provisions, protection is accorded to natural and legal persons who are nationals of, or have their domicile in, the State of Bahrain or other State which is a member of WTO or extend similar treatment to the nationals of the State of Bahrain: a) Article 5 of the draft Law on Patents and Utility Models. b) Article 4 of the draft Law on Trademarks. c) Article 4 of the draft Law on Industrial Designs. d) Article 3(a) of the draft Law on Layout Designs of Integrated Circuits. e) Article 3 of the draft Law on the Protection of Breeders of New Varieties of Plants. With respect to the draft Law on the Protection of Geographical Indications, Article (1) defines the Geographical Indications the subject of the draft Law as: "Any indication which identifies a good as originating in the territory of a member of WTO or a state which accords the State of Bahrain similar treatment, or a specific region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to that geographical origin." With respect to undisclosed information, the draft Law on the Protection of Trade Secrets does not contain any limitation as to whose trade secrets the Law is applicable. As to Copyright and Neighbouring Rights, Articles 59 and 60 of the draft Law provides: Article 59: 1) The provisions of this Law on the protection of literary, artistic and scientific works shall apply to: a) Works of authors who are nationals of, or have their domicile in the State of Bahrain; b) Works first published in the State of Bahrain, and works first published in another country and also published in the State of Bahrain within 30 days, irrespective of the nationality or residence of their authors; c) Cinematographic works, the producers of which have their headquarters or domicile in the State of Bahrain; and d) Works of architecture erected in the State of Bahrain and other artistic works incorporated in a building or other structure located in the State of Bahrain. 2) The provisions of this Law shall also apply to works that are eligible for protection in the State of Bahrain by virtue of and in accordance with any international convention or other international agreement to which Bahrain is party. Article 60: 1) The provisions of this Law on the protection of performers shall apply to: a) Performers who are nationals of the State of Bahrain; b) Performers who are not nationals of the State of Bahrain but whose performance: i) Take place on the territory of the State of Bahrain, or; ii) Are incorporated in phonograms that are protected under this Law, or; iii) Have not been fixed in a phonogram but are included in broadcasts qualifying for protection under this Law. 2) The provisions of this Law on the protection of phonograms shall apply to: a) Phonograms the producers of which are nationals of the State of Bahrain; b) Phonograms first fixed in the State of Bahrain; and c) Phonograms first published in the State of Bahrain. 3) The provisions of this Law on the protection of broadcasts shall apply to: a) Broadcasts of broadcasting organisations the headquarters of which are situated in the State of Bahrain; and b) Broadcasts transmitted from transmitters situated in the State of Bahrain. 4) The provisions in this Law shall also apply to performers, producers of phonograms and broadcasting organisations that are eligible for protection by virtue of and in accordance with any international convention or other international agreement to which the State of Bahrain is party.

The draft Law on Copyright and Neighbouring Rights will supersede the Copyright Law which was enacted in 1993. The draft Law implements Articles 9 to 14 of the TRIPS Agreement. Although not required under the TRIPS Agreement, the draft Law implements Article 6bis of the Berne Convention as Bahrain is party to the said convention. The draft Law also implements many of the provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Article 2 of the draft Law on Copyright and Neighbouring Rights provides: "The original works of literature, arts and science shall enjoy protection under this Law whatever their value, type or purpose of their production or mode of expression, without a need for compliance with any formal procedure." Paragraph 2 of Article 2 provides that computer programmes whether in source or object code are protectable. Similarly, Paragraph 3 of Article 2 provides that databases whether or not computer readable are protectable. Moreover, Paragraph 13 of Article 2 provides that derivative works are protectable. Article 1 defines derivative works as: "Works derived from other existing works, such as translations, musical arrangements, compilation of works, including databases, whether or not computer readable, and collections of expressions of folklore, which, by reason of the arrangement and selection of their contents, are considered creative." In addition to providing for criminal sanctions against infringements of copyright and neighbouring rights as detailed in the draft Law, Article 50(3) provides for criminal sanction against disabling or altering any electronic protection used by the author or the neighbouring right owner.