Article 329/A of the Criminal Code (Act No. IV of 1978 on the Criminal Code) qualifies violation of authors' rights and neighbouring rights as a crime in the following manner: "(1) That person causing financial prejudice by violating the right of the author on his literary, scientific or artistic work, or that of the performing artist on his performance, or that of the producer on his sound recording, or that of the radio or television broadcaster on his program, shall be deemed to commit a misdemeanour, and shall be imprisoned up to two years, punished to do work for the benefit of the public, or fined. "(2) The penalty for a felony shall be imprisonment up to three years, if the violation of authors' rights and neighbouring rights: (a) causes considerable financial prejudice (over Ft 2 000 000); (b) is committed in a businesslike manner. "(3) The penalty shall be imprisonment up to 5 years, if the violation of authors' rights and neighbouring rights is committed by causing particularly great financial prejudice (over Ft 6 000 000). "(4) That person, who commits the violation of authors' and neighbouring rights recklessly, shall be punished for a misdemeanour with imprisonment up to one year, or with work to be done for the benefit of the public or with fine." These provisions of the Criminal Code entered into force on 15 May 1993. Furthermore, under Article 329 of the Criminal Code, an infringement of rights to intellectual creations is committed when a person makes the false impression that he owns the intellectual creation, invention, innovation or industrial design of another person, and causes thereby pecuniary disadvantage to the entitled party, or, misusing his job at an economic organization, makes the utilization or assertion of an intellectual creation, invention, innovation or industrial design of another person dependent on his being given a share in the fee derived, or in the profit or gains originating therefrom. This sort of infringement is a felony and is punishable with imprisonment up to three years. As a result of an amendment to the Criminal Code in 1994, false indication of goods also amounts to a crime, which can be punished by imprisonment up to three years. Under the Criminal Code, seizure and forfeiture (confiscation) is possible in all cases. The basic rules are the following: the property must be confiscated which has been used or designed as an instrument for the perpetration of a crime, if it is owned by the perpetrator, and also otherwise, if its possession endangers public security; or which came into being through the perpetration of a crime; or which has been received by the perpetrator of a crime from the owner or from another person with the owner's consent, in return for the perpetration. That printed press material in which crime is realized must also be confiscated. In cases defined by the law, that property must be confiscated in respect of which the crime has been perpetrated, or which was the object of a given pecuniary advantage. In the case of violation of authors' rights and neighbouring rights, the tangible property owned by the offender in respect of which the offence has been committed, must be confiscated. Confiscation admissible even when the tangible property is not owned by the offender, but the owner has previously been aware of the commission of the offence (Article 329/A (5) of the Criminal Code). Under Article 296 of the Criminal Code false indication of goods is a crime: the person who markets goods of considerable quantity without the consent of a competitor with such characteristic external appearance, packaging or name from which the competitor or his goods having characteristic, features can be recognized, commits a felony, and is punishable by imprisonment up to three years. Furthermore, deception of consumers is committed when the person who in the interest of increasing the marketability of goods states before large publicity untrue facts in a way suitable for deception in respect of essential features of the goods, or gives information suitable for deception about an essential feature of the goods. It is a misdemeanour and punishable by imprisonment up to two years, labour in the public interest or a fine. For the purposes of applying these provisions the following qualify as essential features of goods: their composition, usability, their influence on health or environment, their treatment, origin, whether they meet legal requirements, standards or habitual requirements for such goods, as well as if the utilization of the goods requires the realization of conditions essentially differing from habitual ones.

Hungary has a "dualistic system" which means that international treaties must be promulgated in order to become part of Hungary's internal legal system. Under Article 7(1) of the Hungarian Constitution, the legal system of Hungary ensures the harmony between the international obligations undertaken by Hungary and the internal legislation. There is no provision in the Constitution which would preclude the self-executing effect of the provisions of international treaties. The Hungarian intellectual property legislation is in full compliance with the relevant international treaties. It is for this reason that the question whether a provision of an international treaty may be self-executive and invoked before the courts as a rule having precedence over national intellectual property legislation has never arisen in the Hungarian legal practice.

In Hungary, Government Decree No. 128/1997 (VII. 24.) Korm. on the measures in the field of customs administration procedures against infringements of intellectual property rights establishes the special customs procedures applicable in the case of infringement of copyright and neighbouring rights, geographical indications and trademarks. The Decree entered into force on 1 August 1997. It contains provision on the suspension of release of infringing goods, either upon the request of the right holder or as an ex officio action of the customs authorities in customs procedure. The Decree is in full harmony with the relevant provisions of the TRIPS Agreement. According to Section 5(5) of the Decree, the entitled person must prove within ten working days of receiving the notification that he has taken an action for infringement of trademark, geographical label or infringement of copyright or neighbouring rights, and has taken legal proceeding for an interim measure to be taken. This deadline may be prolonged by ten working days in a justified case. If the right holder has not proven his application for an interim measure the customs authority shall forthwith notify the person submitting the goods to customs clearance and following this, the customs goods shall be treated in accordance with the application of this latter person. At the same time it notifies the right holder about putting an end to the direct customs supervision.

Damages awarded by Hungarian courts to successful plaintiffs in cases involving intellectual property rights vary from case to case, depending on the circumstances. Whether damages awarded by the court are adequate to compensate for the injury the right holder has suffered because of an infringement can only be judged on a case by case basis. It seems obvious that plaintiffs in cases involving intellectual property rights are not satisfied with the damages the court awards to them in each and every case. However, it does not appear well founded to state that it is typical of Hungarian courts to award only "quite modest" damages to successful plaintiffs in intellectual property cases. Under Article 35(2) of Act No. XXXIII of 1995 on the Protection of Inventions by Patents (hereinafter referred to as the "Patent Act"), the patentee may, in addition to other remedies, claim damages in accordance with the rules of civil liability. Similar provisions can be found in all other intellectual property laws of Hungary. Therefore, Article 355 of the Civil Code (Act No. IV of 1957) is the legal authority determining the factors to be considered in establishing the amount of compensation. It reads as follows: "(1) The person liable for the damage shall restore the original state, and if it is not possible, or if the damaged person does not so wish for a well founded reason, he shall compensate for the pecuniary and non pecuniary damage of the damaged person. "(2) Damage shall be compensated for in cash, unless the circumstances justify compensation in kind. Compensation in kind may be especially justified if the object of compensation for damages is produced by the person causing the damage, too, or it is otherwise at his disposal. "(3) An annuity can also be stipulated as compensation. Usually, an annuity shall be ordered if compensation is aimed at the support or supplementing the support of the damaged person or his relative entitled to be supported by him. "(4) Under the title of compensation for damages, the decrease in value of the property of the damaged person and pecuniary advantage lost due to the circumstance having caused the damage, as well as the indemnity or costs necessary for lessening or eliminating the pecuniary and non pecuniary damages sustained by the damaged person shall be compensated for." Therefore, Hungarian law complies with Articles 41.1 and 45.1 of the TRIPS Agreement.

Civil procedures for enforcing intellectual property rights take, under current court practice, approximately one year from the initiation of the procedure through the issuance of a judgement by the court of first instance. The average length of time involved in the disposition of a criminal case involving intellectual property right infringements is one to two years. In our view, Hungarian law implements Article 41.2 of the TRIPS Agreement which states that "enforcement procedures shall not entail unwarranted delays". There are two kinds of time-limits established by Hungarian law for judicial and administrative proceedings. On the one hand, time-limits are established for courts or administrative bodies. On the other hand, time-limits are also set for the parties. As to the former, it is only customs administration procedures in which time-limits for the customs authorities apply. Provisions of the latter kind can be found not only in the Border Measures Decree (Government Decree No. 128/1997 (VII. 24.) Korm. on Borders Measures Applicable against Infringement of Intellectual Property Rights in Customs Administration Procedures) but also in the Code of Civil Procedure (Act No. III of 1952) and the Code of Criminal Procedure (Act No. I of 1973). In the Code of Criminal Procedure some time-limits are established for the inspecting authorities and for the prosecutor as well. However, neither the Code of Civil Procedure nor the Code of Criminal Procedure contains any time-limit to be respected by courts in the course of their proceedings. Time-limits in customs administration procedures: - Article 5(1) of the Border Measures Decree establishes a time-limit of five working days following the filing date of the application for the customs authorities to render a decision on the merits of the case. - The applicant must verify within ten working days following the receipt of the decision by the customs authorities ordering the direct supervision of the infringing goods that a civil action for infringement has been instituted by the applicant, in which an application for a provisional measure by the court has been submitted. That time-limit can be extended by another ten working days when justified (Article 5(4) of the Border Measures Decree). Time-limits in criminal procedures: - The inspecting authorities must, based on the denouncement of the crime, decide on the commencement or refusal of the investigation within three days following the filing date of the denouncement. This time-limit can be extended, if circumstances so require, by fifteen plus fifteen plus thirty days by the heads of inspecting authorities (Article 126(1) of the Code of Criminal Procedure). - A criminal investigation has to be terminated within two months following the ordering thereof. This time-limit may, in appropriate cases, be extended by two plus two months and, after that, by the Director of Public Prosecutors (Article 131 of the Code of Criminal Procedure). - The inspecting authorities must forward the documentation to the prosecutor within eight days following the date of notice on the termination of the investigation (Article 145(1) of the Code of Criminal Procedure). - The prosecutor must examine the documentation and accordingly decide on the continuation of the case within fifteen days. In extraordinary circumstances, this time-limit can be extended by another fifteen days (Articles 145(2) and 145(4) of the Code of Criminal Procedure). - In the court phase, the judge, within eight days following the submission of the documentation, decides on the continuation of the case, and, if no additional decisions are necessary, fixes a date for the hearing (Article 167(1) of the Code of Criminal Procedure). Time-limits in civil procedures: - The usual time-limit established by the judge for the parties to carry out certain actions in a lawsuit is fifteen days. There are a number of provisions in the enforcement system in Hungary that ensure expeditious remedies. Criminal procedures and customs administration procedures, by their very nature, have the purpose of taking effective action against any act of infringement of intellectual property rights. However, it is mainly in respect of remedies available in civil procedures where Hungarian legislation has quite recently made significant progress. In particular, the special provisions on provisional measures and the preliminary production and preservation of evidence are worth mentioning. These provisions, which were introduced this year, by the new Trademark Act (Act No. XI of 1997 on the Protection of Trademarks and Geographical Indications), are of an interpretative nature in relation to the Code of Civil Procedure. They have introduced a statutory presumption in favour of intellectual property rights holders that there is a need to protect a right "deserving special appreciation" (as is required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work, invention, trademark or other subject matter is legally protected, and that he is entitled to that protection, i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question. Furthermore, courts have been put under the obligation to decide on requests for provisional measures within fifteen days, at the latest, counted from the day of submission of such a request. For further details of expeditious remedies available under Hungarian law, see our replies to the questions related to specific procedures and remedies. As to deliberate delays, the short time-limits established by the Border Measures Decree have the effect that parties are forced to avoid delays. In addition, under Article 5(1) of the Code of Civil Procedure the court has to prevent all actions which are aimed at, or may lead to, the unjustified prolongation of a lawsuit. Articles 5(2) and 5(4) provide that the court should impose a fine on a party or a representative who, by making false allegations or a declaration or unduly delaying in making statements, hinders the conclusion of the lawsuit. According to Article 120, the fine may amount to Ft 50 000. In addition, several other provisions in the Code of Civil Procedure (e.g. Article 105(1) providing that parties are generally not allowed to validly perform an act once omitted, or Article 107 establishing a time-limit of fifteen days following the deadline omitted for justifying an omission etc.) also raise obstacles to deliberate delays.

Under Article 75 of the Code of Civil Procedure, the costs of proceedings are all costs incurred either in or out of court in relation to the practical and bona fide conducting of a suit by the parties (costs of preliminary inquiries and correspondence, official fees of proceedings, authorization, etc., fees of witnesses and experts, remuneration of interpreters, costs of on the spot trial and inspection, etc.). Disbursements and remuneration of the counsel of a party must also be added to the costs of proceedings. Under Articles 78 and 79 of the Code of Civil Procedure, the defeated party must refund the costs of litigation of the prevailing party. The court determines the amount of costs of litigation taking into consideration the data provided and duly certified by a party. Such costs, in accordance with Article 45.2 of the TRIPS Agreement, include appropriate attorney's fees. An additional provision can be found in Article 95(3) of the Patent Act which provides that the expenses and fees of the patent attorney representing a party are to be added to the costs of the proceeding. However, it belongs to the discretionary power of the court, whether the total amount of the invoice of the counsel of the right holder (the total retainer fee stipulated by the right holder and his counsel) will be regarded as a justified expense. Normally, a maximum of 5% of the total amount disputed or in extremely complicated cases 5% + 50% thereof, i.e. 7.5% is awarded as a justified counsel's fee. This calculation is based upon the mandatory rule (Article 1) of the Decree of the Minister of Justice No. 12/1991 (IX. 29.) IM on the legal counsels' expenses. It is to be noted that the actual costs (telecommunication, photocopying, travel, accommodation, typing and similar miscellaneous costs) paid in connection with the legal counsel's activity are to be reimbursed on top of the fee on the basis of a detailed account of the said costs to be filed by the legal counsel (Article 2). In practice, Hungarian counsels frequently neglect this obligation, they file no account of costs, i.e. they do not use the possibility to have the actual costs reimbursed on top of their fee.

In the sphere of civil law, general principles such as the doctrine of acting in good faith and the doctrine prohibiting the abuse of rights can be mentioned as means available to prevent unlawfully initiated procedures. The Civil Code establishes those doctrines in Articles 4 and 5 in the following way: "4(1) In the course of the exercise of civil rights and the performance of obligations, parties shall act in accordance with the requirement of good faith (...). "5(1) The abuse of rights is prohibited by law. "5(2) Exercise of a right shall qualify as abuse of rights if it is directed to an aim irreconcilable with the social purpose of the right, especially if it leads to (...) harassment of persons, injury of their rights or legitimate interests, or the acquisition of unjust advantages." The doctrine of acting in good faith also appears in Article 5(1) of the Code of Civil Procedure and Article 120 provides a possibility for the courts to impose a fine up to Ft 50 000 on a party acting in bad faith. In addition, various other provisions of the Code of Civil Procedure also raise obstacles to unlawful action, e.g. Article 121.1 requiring that the institution of an action should involve the indication of the facts providing grounds for the right to be enforced and also the enclosure of the necessary evidence thereof, especially documents verifying those facts. If a party does not meet those requirements when filing an action, the judge will give the submission back to that party for completion, fixing a short time-limit, the unsuccessful lapse of which will cause the rejection of the petition, i.e. the failure of taking the action (Article 95(1) of the Code of Civil Procedure). Article 95(2) requires the simultaneous payment of fees by parties submitting a petition. As to further financial consequences, under Article 78, the defeated party must refund the costs of the prevailing party and under Article 80(2) a party who is unsuccessful in certain acts or fails to meet a deadline or causes unnecessary costs in any other way cannot, under any circumstances, claim the refunding of its costs originating thereof. In respect of customs administration procedures, Article 3(4) of the Border Measures Decree lists the persons entitled to apply for such measures to the customs authorities, and under Article 4(1) an applicant must verify both the existence of the trademark, geographical indication or copyright protection and its entitlement to file the application. Articles 4(1) and 4(2) contain other specific criteria that must be met by the applicant, and a security must also be deposited at the customs authorities (Article 8(1) of the Border Measures Decree). If those requirements are not met, the application will be rejected and, therefore, no measures will be taken by the customs authorities (Article 5(2) of the Border Measures Decree). In the case of a successful application, the applicant must institute a civil action for infringement and apply to the competent court for a provisional measure and the applicant must also present sufficient evidence to support its claim (Article 5(4) of the Border Measures Decree). In criminal procedures, general principles such as the doctrine of the right of defense and the presumption of innocence (Articles 3 and 6 of the Code of Criminal Procedure) are applicable against abuse which can also be prevented, even before the case enters the court phase, by the inspecting authorities that are entitled to deny or to discontinue the investigation. The prosecutor may also omit to refer the case to the court or, during the court phase the prosecutor may drop the charge (Articles 127(1), 139(1),145(2) and 170(1) of the Code of Criminal Procedure). In addition, false charge is a crime under Articles 233 236 of the Criminal Code (Act No. IV of 1978). As to damages suffered because of an abuse, a general provision (Article 339(1) of the Civil Code) can be applied which provides that any person who unlawfully causes damage is obliged to give the injured party compensation for it.

Under Article 156 of the Code of Civil Procedure, the court may order by a provisional measure, on request, compliance with the action claim (counterclaim) or with any special claim contained in the request for a provisional measure. A provisional measure can be obtained if it is necessary to prevent imminent damage, or to preserve circumstances giving rise to litigation or to protect the petitioner's rights deserving special appreciation. Furthermore, the court should be satisfied that the drawbacks caused by the measure do not outweigh the benefits attainable by it. The court may subject the ordering of a provisional measure to a security to be provided by the applicant. The facts on which the request is based must be made likely. The request for a provisional measure can only be submitted after the statement of claim has been filed. The court, however, may decide on the provisional measure even before the first trial. The court is required to decide on a provisional measure promptly, but prior to that, it has to hear the parties personally or allow them to present their cases in writing. The hearing of the parties may only be omitted if the provisional measure is urgently needed, or if the party concerned does not comply with the time-limit or period fixed for the hearing. Although an appeal may be lodged against the court's decision ordering a provisional measure, it does not necessarily have a suspensive (delaying) effect on the execution of the measure, i.e. it can be executed in advance. These provisions of the Code of Civil Procedure (as amended by Act No. LX of 1995) meet the requirements of Article 50 of the TRIPS Agreement. Special provisions on provisional measures applicable in the case of infringement have been included in Hungarian industrial property and copyright laws by the Trademark Act and are contained in the Trademark Act itself. Those provisions are of an interpretative nature in relation to the Code of Civil Procedure, and are designed to reflect the specialties of intellectual property cases so that they should enhance the efficiency of enforcement. They have introduced a statutory presumption in favour of intellectual property rights holders that there is a need to protect a right "deserving special appreciation" (as is required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work, invention, trademark or other subject matter is legally protected, and that he is entitled to that protection, i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question. However, this presumption does not apply where six months have already elapsed from the beginning of the infringement, or sixty days from the date on which the applicant became aware of the infringement and the identity of the infringer. (Nevertheless, in such a case a provisional measure can still be obtained, but only under the general rules of the Code of Civil Procedure, i.e. without the "help" of the statutory presumption.) Furthermore, courts have been put under the obligation to decide on requests for provisional measures within fifteen days, at the latest, counted from the day of submission of such a request. The relevant provisions are the following: Articles 95 (2) (4) of the Trademark Act, Articles 52 (3) (5) of the Copyright Act (Act No. III of 1969), Articles 20 (3) (5) of the Industrial Design Decree (Law Decree No. 28 of 1978), Articles 104 (3) (5) of the Patent Act. Furthermore, Articles 207 211 of the Code of Civil Procedure provide that, upon request of the party concerned, preliminary production of evidence is admissible either before or during the action, if, among others, it seems likely that evidence could not successfully be taken during the action or in a later stage of the action, or it would entail considerable difficulties. In urgent cases, the court may decide on the preliminary production of evidence even without hearing the adverse party. In cases of infringements of intellectual property rights, courts may subject the ordering of preliminary production of evidence to providing security (Article 95(6) of the Trademark Act, Article 52(7) of the Copyright Act, Article 20(7) of the Industrial Design Decree, Article 104(7) of the Patent Act). See also Hungary's reply to question 10 of the Checklist of Issues on Enforcement.

Under the provisions of the Border Measures Decree, in order to prevent the internal entry into free circulation (i.e. the importation), the export or re exporting of the illegal (infringing) goods either a specific or a general application may be submitted to the competent customs authority. The action of the customs authority may be requested regarding specific illegal (infringing) goods or shipments in the case of a specific application, whereas, in the case of a general application, the action may be required in relation to a specified producer or country of origin for a period of up to six months. The specific application must be submitted at the customs office where the import or export of the illegal goods is expected to take place or where the customs clearance of such goods has been initiated. Specific applications where the place of the customs clearance is unknown and general applications must be submitted to the National Headquarters of the Customs and Finance Guard. A written application by the right holder is required which must contain the following: (a) the verification that the protection of the trade mark, or the geographical indication, or of the copyright or neighbouring rights in question exists in relation to the customs goods; (b) a statement that the person is entitled to act against the infringement; (c) that person's request that the customs authority should take the appropriate measures to place the illegal goods under direct customs supervision; (d) the description and relevant characteristics of the customs goods to facilitate identification, and the circumstances, data, documents which suggest that the infringement is probable; (e) the acknowledgement of the obligation to provide the security which is required by Article 8 of the Decree; (f) in the case of a general application, the period for which the observation is required. The right holder must communicate the following to the customs authority, provided he is aware of them: (a) the place where the customs goods can be found or their place of destination; (b) such detailed data that enable the shipment, consignment or the package to be identified (with special regard to the data concerning the packaging and value of the customs goods and the transport vehicle); (c) the denomination of the importer, exporter or the owner of the customs goods; (d) the expected time and place of arrival or departure of the customs goods; (e) all information concerning the customs goods or those involved which may be of assistance to the customs authority. Under Article 5 of the Border Measures Decree, the customs authority has to take a decision on the merits within five working days of the date when the application was lodged. If a specific application has been lodged to request a measure in relation to customs goods which have been submitted for customs clearance, the customs authority has to take its decision within five days, taking into account the needs of the customs clearance proceeding. On the basis of an accepted application, the customs authority places the customs goods under direct customs supervision for ten working days, and the right holder is forthwith notified thereof. This deadline may be prolonged by ten working days in a justified case. Under Article 8 of the Border Measures Decree, the right holder must provide a security for the customs authority in order to cover the costs of warehousing the customs goods which are placed under customs supervision. The security is also required of the applicant for the costs of destroying if the customs goods are to be destroyed, and for the possible damages payable to the person submitting the goods for customs clearance. The amount of the security is 5% of the value of the customs goods if their value can be established. If their value cannot be established, the security is a monthly Ft 60 000 (approximately US$ 300) for each application. If a general application for a border measure cannot indicate the value of the goods, and, at the same time, it is filed for a period of six months, the amount of security is as high as Ft 360 000. If the application specifies more countries of origin, or more than one type of goods, it obviously entails the corresponding multiplication of the amount of Ft 60 000 (which is the basic amount of security). If the amount of the security does not cover the costs mentioned above, the right holder must pay for the difference. The customs authority, taking into account the binding decision of the court on the merits of the case, must account for the amount provided by the applicant as a security in accordance with the rules of Act No. C of 1995 on Customs Law, Customs Proceedings and Customs Administration. The right holder must prove within ten working days of receiving the notification on the suspension of infringing goods that he has taken an action for infringement and has applied for a provisional measure to be ordered by the court. If the right holder makes a statement that he does not wish to exercise his rights, or fails to prove that he has applied for a provisional measure, or if the application for such a measure has been rejected by the court, the customs authority must forthwith notify the person submitting the goods to customs clearance, and, following this, the customs goods must be treated in accordance with the application of this latter person. At the same time, the customs authority notifies the right holder of putting an end to the direct customs supervision. Under Articles 5 and 6 of the Border Measures Decree, the right holder must prove within ten working days of receiving the notification that he has taken an action for infringement and has applied for a provisional measure to be ordered by the court. The court decides, within fifteen working days of receiving the application for an interim measure, at the latest, whether to maintain the suspension as a seizure or release the goods. The importer, consignee or owner might lodge an application for compensation for injury caused by wrongful detention or through the detention pursuant to Article 55 of the TRIPS Agreement to the competent court, in a separate procedure.

The Government of Hungary would like to confirm its previous position relating to the submission of statistical data. Articles 63.1, 63.2 and 63.3 of the Agreement required Members to publish, or make publicly available, laws and regulations and final decisions and administrative rulings of general application and also laid down notification requirements with regard to these. However, neither these provisions, nor any other provision of the Agreement created any obligation to collect, publish and notify statistical data on infringement cases and on enforcement measures. Hungarian authorities could only provide such specific data if they developed a separate system for collecting intellectual property rights-related data. This would require the establishment of an information system within the judiciary distinct from that for the enforcement of laws in general, which would not be in harmony with Article 41.5 of the Agreement. To the last four points of the question, see the replies to question numbers 1 and 3 from the EC.

The proposed Copyright and Related Rights Bill, which is at a very advanced stage of preparation with a view to early publication, will effect a comprehensive reform of Ireland's current legislation on copyright and related rights and will address specifically the legislative changes necessary in order to implement Ireland's remaining TRIPS Agreement requirements in this area. Rental rights for computer programs are already protected in Ireland under the terms of Statutory Instrument No. 26 of 1993.

The civil judicial enforcement of intellectual property rights takes place, for the most part, at the Federal Court, or the superior courts of the provinces (which have concurrent jurisdiction). Where low monetary damages are sought, actions may also be initiated in the provincial (i.e., small claims) courts of the provinces. Differences in interpretation would be resolved by the application of the principle of stare decisis, with the ultimate authority being the Supreme Court of Canada. (Since intellectual property rights are private rights of action, they are not enforced by administrative tribunals).

There are no requirements that a foreign party must meet beyond those required of a national or resident of Canada, when initiating proceedings.

Under the Federal Court Rules (and comparable rules in the courts of the provinces), there are three common means whereby abuse of the judicial process by a plaintiff would be deterred: (a) terminating the availability of the court process; (b) security by way of an undertaking in damages; and (c) costs. (a) Rule 419 provides for the striking of pleadings, which has the effect of terminating the availability of the judicial process for the enforcement action. It provides as follows: "(1) The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is immaterial or redundant; (c) it is scandalous, frivolous or vexatious; (d) it may prejudice, embarrass or delay the fair trial of the action; (e) it constitutes a departure from a previous pleading, or (f) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgement to be entered accordingly." It should be noted that the court will only strike pleadings in plain and obvious cases, e.g., where they disclose no reasonable cause of action. (Operation Dismantle Inc. v. The Queen, [1985] 1.S.C.R. 411). An action is considered to be vexatious where the claim does not sufficiently reveal the facts upon which the action is based, such that it is not possible for the defendant to answer or the court to regulate the action. An example of abuse of process is an action where arose out of the same facts as an action instituted four years earlier and which would involve repetition of a substantial amount of evidence and argument from that earlier case. (b) Rule 469 allows for interim and interlocutory injunctions, including Anton Piller orders. These injunctions are normally granted only where the plaintiff provides an undertaking in damages to the defendant, and where the plaintiff is not in a financial position to make good the undertaking as to damages, the court will refuse the injunction. Moreover, the court has authority to order interest on damages sustained as a result of an interlocutory injunction. (Algonquin Mercantile Corp. v. Dart Industries Can. Ltd., [1988] 2 F.C. 305 (Fed. C.A.)). (c) Canadian courts award costs as an indemnification of the expenses of litigation, i.e., fees plus disbursements. Hence, the winning party may be entitled to be compensated for the expense of bringing or defending the action. Such awards, however, are in the discretion of the court and are never automatic. The rules of court indicate which factors may be considered in awarding costs, e.g., the court may impose costs against one invoking the aid of its process where a proceeding was unnecessary or vexatious. Attorney's fees, when ordered, are restricted to the schedule of costs contained in the rules of court, which is ordinarily based on days in court only. (See also the answer to question 13).

Rule 469 of the Federal Court Rules reads as follows: "(1) An application for an interlocutory injunction may be made by any party, before or after the commencement of the trial of the action whether or not a claim for an injunction was included in that party's statement of claim or declaration, counterclaim or cross-demand, or third party notice, as the case may be; and any such application shall be supported by an affidavit establishing the facts that render the injunction necessary and shall be made by motion upon notice to all other parties. (2) Notwithstanding paragraph (1), in case of urgency, an application under that paragraph may be made without notice and that Court may, on any such application, grant an interim injunction for a period not exceeding ten days. (3) The plaintiff may not make an application under this rule before commencement of the action except in the case of urgency, and in that case the injunction may be granted on terms providing for the commencement of the action and such other terms, if any, as seem just. (4) An application for an interlocutory or interim injunction may, in the court's discretion, be refused on terms. (5) Every interlocutory or interim injunction is, whether or not it contains such an express term, subject to recession, suspension or amendment by order of the Court (which may, in case of urgency, be made ex parte at any time after the order granting the injunction was made)." Similar rules in the superior courts of the provinces also allow for interim and interlocutory injunctions, including Anton Piller orders and Mareva injunctions. Where delays are encountered, the courts may order sanctions against the dilatory party.

The fees for filing legal actions involving intellectual property are contained in the tariff of fees of the Federal Court Rules (and the tariffs of the rules of court in the provinces). The rules of court are subordinate legislation and, accordingly, have the force of law in Canada (or, in the case of provincial rules of court, in the province). In the Federal Court, the fees are indicated in Tariff A, which provides as follows: "2(1) The following fees shall be paid to the Registry by the party indicated at the time indicated: (a) by the party who commences a proceeding in the Trial Division, at the time of commencement: … $150 …; (b) by the party who takes steps to have a proceeding (other than an interlocutory application) heard by the Trial Division, at the time of setting the matter down for hearing at a general sitting or of filing the application for an order fixing a date and place for hearing: . . . $300 and, where any such hearing lasts more than 3 days, by each of the parties taking part in the hearing, forthwith after the end of the hearing, an amount equal to one-half of the aforesaid amount for each additional day…; (…) "(3) A party shall pay the fees indicated upon filing the following documents: (a) a notice of appeal from a final or interlocutory judgement of the Trial Division … $50 … (c) a notice of an application for leave to appeal or leave to commence an application for judicial review … $50 … "3(1) A witness, other than a witness who appears to give evidence as an expert, is entitled to be paid by the party who arranged for his attendance $20 per day, plus reasonable and proper transportation and living expenses, or, if it is larger, the fee or allowance in similar circumstances in a superior court of the province where the witness appears."

All judgements and orders of the Federal Court, with the exception of interlocutory ones, must be in the form of a separate document signed by the presiding judge (Rule 337(2)). Interlocutory judicial and orders may be endorsed on the notice of motion or other document on the court file (Rule 337(7)). Similar rules exist for the superior courts of the provinces. Since intellectual property rights are private rights of action, they are not enforceable by administrative agencies. (It is noted that the stipulation in Article 41.3 of the TRIPS Agreement, that reasons for judgement be in writing, is directory, not mandatory).

It is a fundamental principle of justice that judges render their decisions on the basis of the law and the facts, as contained in the evidence before them. Also, the principles of justice require that a person whose rights are affected by a decision of the court must have the right to be heard. To do otherwise would be a reviewable error.

It is also a fundamental principle of justice that decisions of the courts are reviewable, on appeal, for errors of law or jurisdiction.

For most intellectual property rights, the Federal Court has a concurrent jurisdiction with the superior courts of other provinces for infringement cases (Federal Court Act, Subsection 20(2); Patent Act, Subsection 54(1); Industrial Design Act, Section 15.2; Trade-marks Act, Section 55; Plant Breeders Rights Act, Subsection 42(1), 43(1). Trade secrets, on the other hand, are protected through the application of the law of contract and tort and the principles of equity, or in Quebec Articles 1472, 1612 and 2088 of the Civil Code of Quebec, and are thus enforceable only in the superior courts of the provinces. Under Rule 400 of the Federal Court Rules, actions in the Federal Court are commenced by statement of claim, the purpose of which is to give the defendant notice of the legal and factual basis upon which the plaintiff brings its case. Under Rule 304, the statement of claim must be served personally upon the defendant. Under Rule 469 an application may be made for an interlocutory injunction, or for the interim reservation of property, etc.