Under Guatemala's intellectual property laws, anyone bringing or intending to bring an action in connection with recognized rights, whether the action is civil or criminal, may apply to the competent judicial authority for any measure that he regards as appropriate in order to: (a) Protect his rights; (b) prevent an infringement from being committed; (c) avoid the consequences of an infringement; or (d) obtain or preserve evidence relating to the infringement. Under Article 187 of the Industrial Property Law, the provisional measures that may be ordered to safeguard an industrial property right are the following: (a) Immediate cessation of the use, application and marketing of the infringing products and the unfair acts; (b) seizure and confiscation of the infringing products, including containers, packets, packaging, labelling, printed or advertising material, and the machinery and other materials used for the infringement; (c) prohibition of the importation of the infringing products or the machinery and materials to be used for the purposes of the infringement; (d) the necessary measures to prevent the continuation or repetition of the infringement or the acts of unfair competition; (e) preventive notation in the register of a complaint in cases requesting nullity of a patent or registration; and (f) suspension of sanitary or other registrations or licences necessary for the customs release, distribution, sale or marketing of infringing products. The provisional measures that may be ordered to safeguard copyright or a related right include those under Article 128bis of the Law on Copyright and Related Rights and in addition to the above measures: (a) Cessation of the unlawful acts or unlawful trading in the protected work; (b) a search of public or private buildings; (c) attachment of movables, including bank accounts, in the name of the persons said to be guilty of the unlawful act; and attachment of the infringer's net proceeds; (d) immediate seizure and forfeiture of copies of specimens of unlawfully produced works and phonograms and of the instruments used to produce them, transport them, keep them, distribute them, offer them for sale, rent them or communicate them in any form; (e) suspension of customs release of copies or specimens of unlawfully reproduced works and phonograms; (f) order for a review of the accounts of the persons said to be responsible for the unlawful act; (g) seizure of the accounting records of the person said to be guilty of the unlawful act or of the accounting equipment containing the registers; (h) temporary closure of the premises or business containing the copies or specimens of unlawful works and phonograms; and (i) any other suitable measure to provisionally ensure cessation of the unlawful act, protection of the rights conferred by law or preservation of the evidence relating to the breach. Articles 186 and 187 of the Industrial Property Law; 128, 128bis and 133bis of the Law on Copyright and Related Rights; and 530 of the Code of Civil and Commercial Procedure. Provisional measures must be requested in writing and the competent judicial authority shall order them inaudita altera parte within the next two days, except where a guarantee or assurance is required, in which case the period shall start from the posting of the guarantee.

Under Guatemalan law, provisional measures are ordered without notification or intervention of the defendant, and they must be notified at the time of execution or immediately thereafter (Articles 186 of the Industrial Property Law, 133 ter of the Law on Copyright and Related Rights and 534 of the Code of Civil and Commercial Procedure).

Both the Industrial Property Law and the Law on Copyright and Related Rights allow the possibility for holders of a registered trademark or a protected work or phonogram, or their licensees, to request suspension of customs release and entry of goods into the channels of commerce or the process of exporting them. Only in the case of pirated goods may suspension of customs release be requested directly to the customs authorities (Articles 190 and 191 of the Industrial Property Law and 129 of the Law on Copyright and Related Rights). In both cases, the application must be made in writing, specifying in detail the unlawful goods which it is alleged are to be imported or exported, furnishing evidence pointing to the existence of reasonable indications of the alleged infringement. The decision ordering suspension of the decision must be notified to the importer, consignee or exporter of the detained products until the measure has been executed.

Border measures can be applied only to suspend the importation or exportation of goods which infringe rights to a registered trademark or a protected work or phonogram (Articles 490 of the Industrial Property Law and 129 of the Law on Copyright and Related Rights).

Both the Industrial Property Law and the Law on Copyright and Related Rights establish that anyone requesting the application of border measures shall furnish sufficient evidence providing reasonable indications of the alleged infringement and a detailed description of the unlawful goods. The applicant for border measures shall be liable to the payment of damages to the importer or exporter in the following cases: (a) Where an action on the grounds of the alleged infringement is not brought within ten days following notification of the suspension of the importation or exportation; (b) when the detention is groundless, in other words, the measure is revoked or the complaint is declared inadmissible. The suspension of the importation or exportation shall be valid for ten days from the date of notification of the corresponding decision. An extension will be allowed for a similar period only in the case of counterfeit goods prejudicial to a trademark right. However, in the case of the importation of counterfeit or pirated goods, the measure may be confirmed as a precautionary measure (Articles 193 of the Industrial Property Law and 130 of the Law on Copyright and Related Rights). Once the measure has been ordered, the applicant shall be allowed to inspect the detained goods in order to obtain further evidence in support of his claim (Articles 131 of the Law on Copyright and Related Rights and 194 of the Industrial Property Law).

Article 275 of the Criminal Code establishes in connection with industrial property that the following acts, inter alia, constitute an offence: (a) Introducing into commerce, selling, offering for sale, storing or distributing goods or services covered by a registered distinctive sign or by an imitation or counterfeit of such signs, in connection with goods or services the same as or similar to those protected by the registration; (b) introducing into commerce, selling, offering for sale, storing or distributing goods or services covered by registered distinctive sign after having totally or partly altered, replaced or removed it; (c) the use, offering for sale, storing or distributing of goods or services bearing a registered trademark, confusingly like another registered mark, after an order has been issued to cease using that trademark; (d) the making of labels, containers, packaging or other similar materials reproducing or containing the registered sign or an imitation or counterfeit thereof, as well as the marketing or storing of such materials; and (e) the use in commerce of labels, packets, containers and other packaging of goods or of the identification of a trader's services or copies, imitations or reproductions thereof that may mislead the public as to the origin of the goods or services. The penalty for these offences is one to four years' imprisonment and a fine of 1,000 to 500,000 quetzales, without prejudice to any damages payable. For its part, Article 274 of the Criminal Code establishes in connection with copyright and related rights that the following acts constitute an offence: (a) The false attribution of the status of author and/or copyright holder, performer, phonographic producer or a broadcasting organization; (b) the distortion, mutilation, modification or any action that causes injury to the integrity of the work or to the honour and reputation of the author; (c) the reproduction of any work, performance, phonogram or broadcast, without the authorization of the author or relevant right holder; (d) the adaptation, arrangement or modification of a protected work or part thereof, without the authorization of the author or the right holder; (e) the communication to the public by any means or procedure of a protected work or a phonogram, without the authorization of the relevant right holder; (f) the unauthorized reproduction, total or partial, of a protected work or a phonogram, whether by means of sale, rental, lease, rental with an option to buy, loan, or in any other manner; (g) the fixation, reproduction or communication to the public, by any means or procedure of an artistic performance, without the authorization of the performer or the right holder; (h) the fixation, reproduction or retransmission of a broadcast transmitted by satellite, broadcasting or by wire, cable, fibre optics or any other procedure, without the authorization of the owner; (i) the communication to the public of a broadcast or transmission in a place to which the public can gain access by the payment of an admission fee, or for the purposes of consuming or purchasing goods or services, without the authorization of the relevant right holder; (j) the publication of a protected work with the title changed or removed, with or without being altered; (k) the decodification of programme-carrying signals of any kind transmitted by satellite or any other means of telecommunication, without the authorization of the legitimate distributor; (l) any act that circumvents or attempts to circumvent a technological measure implemented by the author or the holder of a related right, so as to avoid unauthorized use of any kind of protected work, phonogram, artistic performance or broadcast; (m) any act that induces, permits, facilitates or conceals an infringement of any of the exclusive rights pertaining to authors, copyright holders, performers, phonogram producers or broadcasting organizations; (n) the unauthorized removal or alteration of any electronic information concerning the collective management of copyright or related rights; (o) the unauthorized distribution, marketing, promotion, importation, broadcasting or communication to the public of works, artistic performances, phonographic productions or broadcasts, in the knowledge that the electronic information concerning the collective management of any of those rights has been removed or altered without authorization; (p) the transportation, storage or concealment of reproductions or copies, in any physical medium, of protected works, phonograms, artistic performances or broadcasts, made without the consent of the author or relevant title holder; (q) the collection of financial benefits for the use of protected works, performances, phonograms or broadcasts or engaging in any other activities proper to a collective management company, without being authorized to do so; (r) the disclosure of an unpublished work without the consent of the author or the relevant title holder; (s) the full or partial translation of a work without the authorization of the author or the relevant right holder; (t) the unauthorized distribution of original or lawful reproductions of a protected work or a phonogram, whether by means of sale, rental, rental with an option to buy, loan or any other manner; and (u) the importation or exportation of the original or reproductions of any protected work for commercial exploitation, in any type of medium, or in phonograms, without the authorization of the relevant right holder. The penalty for one of these offences is one to four years' imprisonment and a fine of 1,000 to 500,000 quetzales, without prejudice to any damages payable.

Criminal actions for infringements of any intellectual property rights are dealt with by the courts with jurisdiction at the place where the unlawful act is committed. The Department of Public Prosecutions is responsible for bringing criminal actions against persons guilty of infringements of intellectual property rights.

The seizure, forfeiture and destruction of goods that infringe a protected intellectual property right, as well as the forfeiture and destruction of the materials and equipment used in making them, are measures that may be requested provisionally or ordered in a judgement at the close of civil or criminal proceedings relating to infringements of intellectual property rights.

At the present time, the Guatemalan judiciary has no data system to furnish the requisite information and an inquiry would have to be conducted with approximately 400 courts throughout the Republic that are competent to deal with civil and criminal proceedings. It is difficult to do this at the present time.

See the response to the previous question.

At the present time no initiative is planned to change the laws protecting intellectual property rights because the Industrial Property Law and the recent amendments to the Law on Copyright and Related Rights were adopted by the Congress on 31 August 2000, were published in the Official Gazette on 27 September 2000 and entered into force on 1 November 2000.

Article 3 of the TRIPS Agreement allows member countries to apply the exceptions to the principle of national treatment provided for in the Berne Convention and the Rome Convention. According to the Berne Convention, member countries may grant different treatment in the following cases: - With respect to works of applied art protected in the country of origin solely as industrial designs and models, the Convention allows them to be granted only such protection as the legislation provides for industrial designs and models, unless no such special protection is provided in the country in which protection is claimed, in which case the works must be protected as artistic works (Article 2.7 of the Berne Convention). The Guatemalan legislation does not provide for this exception since Article 148 of the Industrial Property Law establishes that the protection conferred on industrial designs does not exclude or affect any protection available under the copyright laws; and Article 15 of the Law on Copyright and Related Rights recognizes works of applied art among the works protected, while Article 3 states that the enjoyment and exercise of copyright is independent of and compatible with industrial property rights. - Where any country outside the Berne Union provides a standard of protection lower than that required by the Convention, the protection given to the works of authors who are, on the date of first publication, nationals of that country and are not habitually resident in one of the countries of the Union, may be restricted to the standard of protection granted by the non-member country (Article 6 of the Berne Convention). The Berne Convention requires this restriction to be notified to the Director General of the World Intellectual Property Organization and Article 3 of the TRIPS Agreement requires that it also be notified to the Council for TRIPS. So far, Guatemala has made no use of this possibility. - Where the term of protection in the country in which it is claimed is greater than provided by the legislation of the country of origin of the work, the Berne Convention provides for the term not to exceed that fixed in the country of origin of the work (Article 7.8 of the Berne Convention). Since the term of protection provided by the Guatemalan legislation is greater than the minimum required in the TRIPS Agreement, the Law on Copyright and Related Rights stipulates, in Article 43, that in the case of works of foreign authors first published outside the territory of the Republic of Guatemala, the term of protection shall not exceed that accorded by the law of the country in which the work was published; however, if that law accords greater protection than the Guatemalan law, the provisions of the latter shall apply. - With respect to the right to an interest in any sale subsequent to the first transfer by the author, in the case of original works of art and original manuscripts of writers and composers (droit de suite), the Berne Convention provides that this right may be claimed only if the author's national legislation so permits (Article 14ter, paragraph 2, of the Berne Convention). The Guatemalan legislation does not provide for this exception. As for the Rome Convention, it allows different treatment to be accorded to foreigners in the following cases: With respect to phonograms: - With respect to secondary uses of phonograms, the Convention allows the right to be granted only to producers of nationals of a Contracting State; - with respect to phonogram producers who are nationals of another Contracting State, the extent and term of the protection may be limited to that granted by the latter state; - with respect to broadcasting organizations, the Convention allows for the right of communication of television broadcasts to the public not to be granted to those Contracting States that have made a declaration to the effect that they will not apply that right. Guatemala does not apply any of the above exceptions.

The Guatemalan legislation does not currently include any intellectual property provisions for promoting or protecting specific sectors. However, under the Industrial Property Law, there is provision for not granting patent protection to inventions whose commercial exploitation is necessary to protect human, animal or plant life or health or the environment (Article 92(c)).

The Law on Copyright and Related Rights is fully adapted to the provisions of the Berne Convention, including those to which Article 9.2 of the TRIPS Agreement expressly refers. The Law contains appropriate provisions concerning works, right holders, moral and economic rights, the exceptions or limitations applicable in certain cases of unauthorized use, terms of protection, special rights such as droit de suite, etc.

Computer programs are protected on the same terms as literary works. The protection extends both to operating programs and to application programs, whether in source code or object code and regardless of the form or mode of expression. Technical documentation and program user manuals benefit from the same protection as is provided for computer programs (Article 30). Compilations or databases, whether in machine-readable or any other form, are considered collections of works for protection purposes. Protection does not extend to the data or material contained in the compilations, nor does it prejudge the copyright in such data or material (Article 35).

Under Article 21 of the Law on Copyright and Related Rights, the owner of the copyright or those who have been expressly authorized by him have the right to use the work, without distinction as to type, by any means or process or in any form. Thus, they may authorize, among other acts, the distribution to the public of the original or copies of the work, whether by sale, rental or loan. These rights are not exhausted by authorized distribution by sale. Likewise, with reference to computer programs, Article 31 of the Law specifies that the right of rental is not applicable to rentals the essential subject-matter of which is not the program in itself. Where related rights are concerned, Article 58 stipulates that the right of distribution includes the right to authorize the distribution of phonograms, whether by sale or rental or any other means. Where distribution takes place by means of sale, the right is exhausted on the first such sale, subject to legal exceptions. Where distribution takes place by means of rental, the placing on the market of the original or authorized copies of the phonogram does not exhaust the right.

The Guatemalan Law recognizes the rights of related right holders, which are established separately for each category as follows: - Performers who, under Article 53 of the Law, have the exclusive right to authorize or prohibit the fixation, reproduction, communication to the public by any means, broadcasting or any other form of use of their performances. Performers in audiovisual works are excluded from this provision. Where a phonogram published for commercial purposes is used in any form of communication to the public, the performers whose performances have been fixed thereon are entitled to remuneration. Article 54 stipulates that, unless otherwise provided, the following shall be understood: (i) Authority to broadcast does not imply authority to allow other broadcasting organizations to transmit the performance; (ii) authority to broadcast does not imply authority to record the performance; (iii) authority to broadcast and fix the performance does not imply authority to reproduce the fixation; (iv) authority to fix the performance and to reproduce the fixation does not imply authority to broadcast the performance using the fixation of reproductions thereof. Likewise, according to Article 57 of the Law, performers have the personal, unrenounceable, inalienable, and perpetual right to associate their name or artistic pseudonym with their performance and to object to any distortion or mutilation thereof. - Phonogram producers who, on the basis of Article 58 of the Law, have the exclusive right to authorize or prohibit the direct or indirect reproduction, the distribution and the communication to the public or any other form or means of use of their phonograms or reproductions thereof, and also the making available to the public of those phonograms by any means that would enable members of the public to have access to them from a place and at a time of their individual choosing. The right of distribution includes the right to authorize the distribution of the phonograms, whether by sale or rental or by any other means. Where distribution takes place by means of sale, the right is exhausted on the first such sale, subject to legal exceptions. Where distribution takes place by means of rental, the placing on the market of the original or authorized copies of the phonogram does not exhaust the right. The right of importation includes the right to authorize or prohibit the importation of copies of legally manufactured phonograms and to prevent the importation of copies manufactured without the authority of the owner of the rights. Article 59 clearly establishes the obligation upon anyone who performs a phonogram published for commercial purposes in public or causes it to be so performed to obtain prior written authority from the producer thereof and to pay him remuneration. - Broadcasting organizations which, in accordance with Article 62 of the Law, enjoy the exclusive right to authorize or prohibit: (i) The fixation of their broadcasts on a physical material or medium, including the fixation of any image or sound or isolated images and sounds in a broadcast; (ii) the reproduction of fixations of their broadcasts by any means that is known or may become known; (iii) the retransmission of their broadcasts by any means or process that is known or may become known; and (iv) the communication of their broadcasts to the public in places to which the public has access on payment of an admission charge or places to which the public has access for the purpose of consuming or purchasing goods or services of any kind. The same Article affords equivalent protection to original organizations or stations which broadcast by cable, fibre optics or a similar process.

The provision in Article 53 of the Law on Copyright and Related Rights, excluding performers in audiovisual works from the rights which the same Article accords to performers in general, should be interpreted in terms of the applicability, in a specific case, of Article 27 of the same Law which establishes special provisions for audiovisual works. According to Article 27, in a contract for the production of an audiovisual work: "… the economic rights therein shall be presumed to have been assigned exclusively and without limitation to the producer. It shall also be presumed that the producer has been authorized to decide whether or not the work should be disclosed, to adapt it in accordance with various formats for its fixation and disclosure, and bring action to protect moral rights in the audiovisual work." The presumption established in this Article allows for an express agreement to the contrary, so that in this case the performers of audiovisual works would have the rights mentioned in Article 53 of the above-mentioned Law, and therefore the exclusion at the end of the first paragraph of Article 53 of the Law would not be applicable. Furthermore, it should be borne in mind that the rights established in Article 14.1 of the TRIPS Agreement are minimum rights that Members must grant performers, so that the exclusion in Article 53 of the Law would apply only to those rights established in the same Article which are additional to the above-mentioned minimum rights recognized by the TRIPS Agreement.

Title IV of the Law on Copyright and Related Rights establishes the cases in which the rights of authors and holders of related rights are limited. The situations covered are special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. The limitations established include the cases of free use mentioned in Articles 10 and 10bis of the Berne Convention, which are regulated in Articles 64(a) and 66(a), (b), (c) and (d), and the reproduction or communication of a work necessary for the purpose of judicial or administrative proceedings (Articles 63(c) and 64(c)). In addition, the following are exceptions to reproduction and communication rights: (a) The individual reproduction of a work by a non-profit-making library or archive where the copy is in its permanent collection, for the purpose of preserving the said copy and replacing it in case of need, or alternatively for the replacement of a similar copy in the permanent collection of another library or archive where that copy has been mislaid, destroyed or rendered unusable, provided that it is not possible to acquire the copy in a reasonable time, or on reasonable terms (Article 64(b)); (b) the reproduction of a work of art on permanent display in a public place, or on the outer wall of building, such reproduction being done in a medium different from that used for the making of the original, provided that the name of the author, if known, the title of the work, if available, and the place in which it is located are specified (Article 64(d)); and (c) communication that occurs in an exclusively domestic environment, provided that no economic interest exists and that the communication is not disseminated (Article 63(a)). As regards related rights, limitations are placed on the rights of phonogram producers and broadcasting organizations only in the following cases: (a) The performance of phonograms and the receiving of radio or television broadcasts shall be lawful where it is done for the purposes of demonstration to customers in business establishments that display and sell receiving, reproduction or other similar apparatus or audio or audiovisual media that embody the works used (Article 70); and (b) ephemeral recordings made by broadcasting organizations, using their own equipment and for use in their own broadcasts, which may be kept for a period of up to six months from their making, except where otherwise agreed (Article 71). The latter is an exception authorized under Article 15 of the Rome Convention.

Under Article 19 of the Law on Copyright and Related Rights, the moral rights of the author are inalienable, imprescriptible and unrenounceable; however, Article 20 of the same Law stipulates that, on the death of the author, there shall be transferred to his heirs, without limitation in time, only the exercise of the moral rights to claim authorship and object to any distortion, mutilation or other modification of the work, including any modification that discredits it or prejudices the honour or reputation of the author. As far as economic rights are concerned Title II, Chapter V, of the Law includes rules on the term of protection which specify that: (a) In general, economic rights are protected throughout the author's life and for 75 years after his death. In the case of works created by two or more authors, the terms starts to be counted on the death of the last co-author (Article 43); (b) in the case of computer programs and collected works, the term of protection shall extend from the first publication of the work, or in the absence thereof, from the making of the work (Article 44); (c) in the case of an anonymous or pseudonymous work (Article 45), the term of protection is reckoned from the first publication of the work or, failing publication, from its making. Where the identity of the author is legally established, the term is reckoned in accordance with subparagraph (a); and (d) in the case of works consisting of two or more volumes, periodical sheets or instalments that have not been published in the same year, the term shall be reckoned, for each volume, sheet or instalment, from the publication thereof. In all cases, the term is reckoned from the first of January of the year following that in which the event giving rise to it occurred (Article 48). In the case of the rights of performers, phonogram producers and broadcasting organizations, Article 51 of the Law stipulates that they are protected for a period of 75 years, subject to the following rules: (a) In the case of phonograms and performances recorded thereon, as from fixation; (b) in the case of performances not recorded on a phonogram, as from the holding of the event; (c) in the case of broadcasts, as from transmission. In all cases, the rights are protected from the outset, but the term is reckoned from the first of January of the year following that in which the event occurred.