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

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

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IP/Q/JPN/1 Japón Estados Unidos de América 1. Please explain whether and how Japanese law provides protection for works, phonograms and performances from other WTO Members, and whether and how it does so on the basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under Article 30(2) and 104bis et seq., of the Copyright Law.
The Japanese Copyright Law provides protection for works, phonograms, performances and broadcasting from other WTO Members. In concrete terms, Articles 6, 7, 8 and 9 respectively provides protection for the works, performances, phonograms and broadcasting which are granted protection under the Japanese Copyright Law. All these provisions cover the works, phonograms, performances and broadcasting from other WTO Members. This protection is provided on the basis of the principle of national treatment required by Articles 3 and 9.1 (incorporating Berne Article 5(1)) of the TRIPS Agreement. Namely, as to works, the Japanese Copyright Law grants to works from other WTO Members all the rights stipulated in the Japanese Copyright Law for Japanese works. As to performers, producers of phonograms and broadcasting organizations, the Japanese Copyright Law grants to performers, producers of phonograms and broadcasting organizations of other WTO Members all the rights stipulated in the TRIPS Agreement in accordance with its Article 3, which provides that "this obligation (national treatment) only applies in respect of the rights provided under this Agreement". The "right to compensation for private recording" stipulated in Articles 30(2) and 104bis of the Japanese Copyright Law is granted to all right owners protected under the Japanese Copyright Law including those in other WTO Members. This legislation does not discriminate between Japanese and foreign right owners, and therefore it does not pose any problem in the light of the principle of national treatment.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América [Follow-up question] How are the levies for private copying under Articles 30 and 104bis of the Japanese copyright law distributed so as to give the appropriate share to rightholders from other WTO Member countries?
The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and started in 1993 (so far only for "sound recording", excluding "visual recording"). The compensation is collected by a collective society called SARAH (Society for the Administration of Remuneration for Audio Home Recording), which began the distribution of compensation money in 1994. The compensation is distributed to three collective societies in Japan, namely those of (1) music copyright owners, (2) performers and (3) producers of phonograms. These Japanese collective societies then distribute a part of the compensation to their overseas counterparts through negotiations and contracts based on the statistical outcomes and data of sampling surveys. We have been informed that the three collective societies have already reached contracts with their overseas counterparts, except for one. Negotiation between the Japanese performers' organization and its counterpart in the United States is still in process.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 2. It appears that Article 95.3 of the Copyright Law applies the “rule of the shorter term” to phonograms and performances from other WTO Members. Is this true? If so, please explain how this is consistent with the obligations set forth in TRIPS Article 4.
Article 4 of the TRIPS Agreement provides for the most-favoured-nation treatment with regard to the protection of intellectual property. However, Article 4(b) stipulates that "(any advantage, favour, privilege or immunity) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country" are exempted from this obligation. On the other hand, Article 95(3) of the Japanese Copyright Law stipulates the application of reciprocity with respect to the term of the protection for the right to secondary use fees of commercial phonograms of performers. This provision is based on the declaration of reservation which Japan made in accordance with Article 16.1(a)(iv) of the Rome Convention, and therefore, is consistent with Article 4(b) of the TRIPS Agreement. This means that the provision of Article 95(3) is consistent with the TRIPS Agreement.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 3. Please explain whether and how Japan protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.
Article 96 of the Japanese Copyright Law provides for the right of reproduction of producers of phonograms i.e. the right to authorize or prohibit the direct or indirect reproduction of their phonograms required by Article 14.2 of the TRIPS Agreement. This right applies also to the act of reproduction through digital transmission in the context of subscription or interactive services.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 4. Please explain whether and how Japan provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter.
The Government of Japan considers it desirable to provide a high level of protection for intellectual property rights and believes 50 year retroactive protection of the rights of performers and producers of phonograms (sound recordings) is appropriate. Therefore, a draft amendment to the Copyright Law is under preparation for submission to the Diet with a view to extending the period of retroactive protection for such rights to 50 years. As to the works originating in WTO Member countries, Japanese Copyright Law protects copyright in the work from its creation to the end of a 50-year period following the author's death. This protection covers, as of 1996, all works the author of which died in and after 1946.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 5. Please explain whether the performer's right under Article 91 of the Copyright Law includes the right to prevent the reproduction of unauthorized fixations of performances, as required by TRIPS Article 14.1.
The right to prevent "the reproduction of unauthorized fixations of performances" stipulated in Article 14.1 of the TRIPS Agreement is included in the right provided for in Article 91 of the Japanese Copyright Law. This right in the Japanese Copyright Law is an exclusive right in terms of sound or visual recordings of their performances, and this Article fulfils the obligation under the TRIPS Agreement.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 6. Please explain how the compulsory licenses for reproduction, translation and adaptation of works in school textbooks and educational broadcasting provided for through Articles 33 and 34 of the Copyright Law are consistent with the permissible scope of exceptions to protection set out in Berne Articles 9(2) and 10(2), as incorporated by TRIPS Article 9.1, and in TRIPS Article 13.
Articles 33 and 34 of the Japanese Copyright Law are not provisions of compulsory licenses but of limitations on copyright entailing the obligation of compensation. Article 33 allows reproduction of works in school textbooks; Article 34 allows broadcasting or wire diffusion of works for school education and reproduction of works in textbooks for such programmes. These acts can be done under the strict condition: "only to the extent deemed necessary for the purpose of school education". Also, in order to provide the authors with chances to exercise their moral rights the user shall announce the use to the author. In addition, the user shall pay compensation to the copyright owner. These provisions have been carefully established and applied under strict interpretation in conformity with Articles 9(2) and 10(2) of the Berne Convention and Article 13 of the TRIPS Agreement.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América [Follow-up question] Please describe how Articles 33 and 34 of the Japanese copyright law have been strictly interpreted so as to bring them within the permissible limitations on rights set forth in Berne Articles 9 and 10 and TRIPS Article 13. In particular, has the text of these Articles of Japanese law been limited in operation or application in any way, such as by considering the amount that can be copied, the availability of a license from the rightholder, the intended purpose of the work, or the specific nature of the use?
Both Articles 33 and 34 stipulate the limitation on the permissible use to be "to the extent deemed necessary for the purpose of school education". For example, reproducing or broadcasting a large number of works of the same author or reproducing or broadcasting the whole range of a work (for example, a whole novel) is not deemed necessary. Attention should be drawn to the fact that the permissible reproduction under Article 33 can be done only for school textbooks authorized by the Ministry of Education. In the Japanese school education system, it is required that all textbooks be checked and authorized by the Ministry of Education, and therefore, the "school textbook" in this Article does not mean all books used at school. This means that there is a qualitative limitation in such cases. Also, all textbooks are purchased and given to all elementary and lower secondary school students by the Ministry of Education, which means that there is a quantitative limitation. As to the broadcasting programmes or wire diffusion programmes for school education stipulated in Article 34, attention should be paid to the fact that the permissible broadcastings under Article 34 are those which conform to the national curriculum standard established in detail by the Ministry of Education. Therefore, this Article does not allow all broadcasting for school education so the range of the application of this Article is very limited.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 7. Please explain how the exceptions provided through Articles 30(1), 38, and 102 comply with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder, including the limitations for phonograms in 14.6.
Article 30(1) is the provision which allows a user to reproduce a work by himself for the purpose of his personal use and family use. Article 38 is the provision which permits a user to use a work for non profit purposes under strict conditions in such intangible forms as public performance, recitation, lending and wire diffusion. Article 102 is a similar provision on limitation of neighbouring rights. The Japanese Copyright Law has some provisions of limitations and copyright and neighbouring rights, but all of them include strict and detailed conditions. Therefore, these provisions have been carefully stipulated and strictly interpreted in conformity with the provisions in international treaties such as Article 9(2) of the Berne Convention which allows limitation on reproduction of works "provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author" and Article 13 of the TRIPS Agreement which allows limitations and exceptions.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América [Follow-up question] Please describe how the exceptions in Articles 30(1), 38 and 102 of the Japanese copyright law have been strictly interpreted so as to bring them within the permissible limitations on rights set forth in Berne and TRIPS. In particular, has the text of these Articles of Japanese law been limited in operation or application in any way, such as by considering the effect on the market for the work, the nature of the work, or the specific nature of the use?
Both Articles 33 and 34 stipulate the limitation on the permissible use to be "to the extent deemed necessary for the purpose of school education". For example, reproducing or broadcasting a large number of works of the same author or reproducing or broadcasting the whole range of a work (for example, a whole novel) is not deemed necessary. Attention should be drawn to the fact that the permissible reproduction under Article 33 can be done only for school textbooks authorized by the Ministry of Education. In the Japanese school education system, it is required that all textbooks be checked and authorized by the Ministry of Education, and therefore, the "school textbook" in this Article does not mean all books used at school. This means that there is a qualitative limitation in such cases. Also, all textbooks are purchased and given to all elementary and lower secondary school students by the Ministry of Education, which means that there is a quantitative limitation. As to the broadcasting programmes or wire diffusion programmes for school education stipulated in Article 34, attention should be paid to the fact that the permissible broadcastings under Article 34 are those which conform to the national curriculum standard established in detail by the Ministry of Education. Therefore, this Article does not allow all broadcasting for school education so the range of the application of this Article is very limited.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 7. Please explain how the exceptions provided through Articles 30(1), 38, and 102 comply with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder, including the limitations for phonograms in 14.6.
Article 30(1) is the provision which allows a user to reproduce a work by himself for the purpose of his personal use and family use. Article 38 is the provision which permits a user to use a work for non profit purposes under strict conditions in such intangible forms as public performance, recitation, lending and wire diffusion. Article 102 is a similar provision on limitation of neighbouring rights. The Japanese Copyright Law has some provisions of limitations and copyright and neighbouring rights, but all of them include strict and detailed conditions. Therefore, these provisions have been carefully stipulated and strictly interpreted in conformity with the provisions in international treaties such as Article 9(2) of the Berne Convention which allows limitation on reproduction of works "provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author" and Article 13 of the TRIPS Agreement which allows limitations and exceptions.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América [Follow-up question] Please describe how the exceptions in Articles 30(1), 38 and 102 of the Japanese copyright law have been strictly interpreted so as to bring them within the permissible limitations on rights set forth in Berne and TRIPS. In particular, has the text of these Articles of Japanese law been limited in operation or application in any way, such as by considering the effect on the market for the work, the nature of the work, or the specific nature of the use?
(i) Article 30(1) -the reproduction has be done by the user himself; -"other similar uses within a limited circle" is strictly applied not to include "friends"; -the number of copies should be limited; -reproduction for profit making purpose is not permissible; -reproduction for the user's business is not permissible even if that business is non profitable. (ii)Article 38(1) Article 38(1) permits public performance of works under some conditions: Firstly, it should be done for non profit making purpose. "Non profit making purpose" does not merely mean "no admission charge", and indirect contribution to profit making is not permissible. For example, free public performance for advertisement, background music in a factory, music played in a hotel lobby are all considered as for "profit making purposes". Secondly, no fee should be charged. "Fee" includes any type of payment including, for example, monthly payment for the membership of a group. Thirdly, the performers should not receive any payment. "Payment" includes all types of money that the performers receive regardless of the denomination. (iii)Article 38(2) Article 38(2) allows wire diffusion of a work already broadcast under some conditions. These conditions are similar to those in Article 38(1), but there is an additional condition i.e. "already broadcast". Because of this condition this paragraph virtually applies only to simultaneous wire diffusion for areas with difficulty in receiving the original broadcasting. (iv)Article 38(3) Article 38(3) allows communication to the public of works already broadcast or wire diffused by a receiving apparatus under certain conditions. Most of the conditions overlap with those in Article 38(1). (v)Article 38(4) Article 38(4) allows lending of works under certain conditions. They are also included in Article 38(1). As a result of such conditions, the lending right of the Japanese Copyright Law virtually becomes the right of commercial rental except for cinematographic works. (vi)Article 38(5) Article 38(5) allows lending of cinematographic works under certain conditions. Some of the conditions overlap with those in Article 38(1). However, this paragraph provides for two additional conditions; firstly the lending has to be done by audiovisual education facilities designated by the Government and secondly, such facilities shall pay compensation.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 8. Please explain how Articles 67 and 68 of the Copyright Law, which permit compulsory licensing in situations where the owner of a copyright is unknown and with regard to the broadcasting of works, respectively, comply with TRIPS Article 13 which requires that limitations and exceptions to exclusive rights be confined to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder.
Article 67 of the Japanese Copyright Law stipulates that the person who wishes to exploit a work which has already been made public but the copyright owner of which cannot be found may lawfully exploit the works under the authorization by a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon depositing compensation, the amount of which is fixed by the Commissioner. Article 67 also stipulates that the copies reproduced in such a way must bear an indication to the effect that the reproduction of these copies has been licensed by the Commissioner. Article 68 stipulates that a broadcasting organization may broadcast a work already made public under the authorization by a compulsory license issued by the Commissioner of the Agency for Cultural Affairs and upon paying compensation to the copyright owner, the amount of which is fixed by the Commissioner, provided that the organization cannot reach an agreement in respect of authorization to broadcast the work with the copyright owner through the negotiation. As to Article 67, the condition set out in the Article, which reads "provided that, after due diligence, the copyright owner cannot be found for the reason that he is unknown or for other reasons" is interpreted strictly; for example, when applying for an exploitation based on Article 67, the applicant should submit a document to clarify that he or she could not contact the copyright owner although he or she has made every possible effort. Through the past ten years, only two cases have been accepted based on this provision. As to Article 68, this system has never been used so far.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 9. Please explain the circumstances in which copyright is owned by the National Treasury, and the content of the provisions of the Civil Code (Law. No. 89, of 1896), as referred to in Article 62 of the Copyright Law.
According to the Japanese Civil Code, an inheritance with no heirs and the like belongs to the National Treasury. However, Article 62 of the Japanese Copyright Law stipulates that copyright with no heirs shall not belong to the National Treasury but expire. This Article has been established because it was considered more desirable to put such works in public domain for free exploitation in order to contribute to cultural development.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 10. Please explain whether civil penalties under Japanese law serve to deter infringement and to adequately compensate copyright holders, given the concerns raised by software companies with regard to the high costs of bringing civil actions, the difficult evidentiary burdens facing copyright owners and the low level of damages and cost reimbursement awards.
The concept of civil penalties does not exist in Japanese legislations. The Civil Code stipulates that, in principle, a sufferer (copyright owner) has the burden of proof with regard to the amount of damage when claiming compensation. However, as it is not easy to prove the amount of damage caused by infringement of copyright, the Japanese Copyright Law has an exceptional provision that turns such burden of proof to the infringer to protect copyright owners. Article 114 of the Copyright Law stipulates as follows: (i)In the case where an owner of copyright, right of publication or neighbouring rights claims compensation for damages from a person who has infringed intentionally or negligently any of these rights, the profits, if any, obtained by the infringer from that infringement shall be presumed to be the amount of damages suffered by such an owner. (ii)The owners of copyright and neighbouring rights may claim compensation for damages from a person who has infringed intentionally or negligently their copyright or neighbouring rights, the amount of damages suffered being that corresponding to the ordinary amount of money which would be received by them through the exercise of these rights. (iii)The provision of the preceding paragraph shall not prejudice any claim to compensation for damages in excess of the amount mentioned therein. In such case, the court may take into consideration the absence of any bad faith or gross negligence on the part of the infringer in fixing the amount of damages.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América 11. Please explain the criminal and civil remedies available for copyright infringement and the extent to which they fully implement the obligations in TRIPS Articles 41, 45, 50 and 61. In the response, please specify, inter alia, whether these remedies may include the seizure, forfeiture and destruction of infringing articles and equipment used to make the infringing articles, as required by Article 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50.
(1) Article 114 of the Copyright Law stipulates the presumption of the amount of damages caused by infringements and corresponds adequately to Article 45 of the TRIPS Agreement which stipulates "damages". Article 112 of the Copyright Law provides for the right of demanding cessation against infringements and corresponds adequately to Article 46 of the TRIPS Agreement which stipulates "other remedies". Furthermore, Article 119 of the Copyright Law provides for penal punishments against infringements and corresponds adequately to Article 61 of the TRIPS Agreement. Article 112(2) of the Copyright Law provides for the seizure and the destruction of infringing articles and equipment used to make the infringing articles and Article 19 of the Penal Code provides for forfeiture. (2) A copyright owner may claim civil remedies, such as compensation by filing a civil case to the court against a person who infringed his/her copyright. The outline of the procedure in regard to the provisional measures is as follows: The procedure for the provisional measures is initiated by the request of a party concerned. Following the hearings from the party (or both parties), the court determines whether the legal requirements for adopting the provisional measure are met. If the court determines to adopt the measure, the order of preservative measure is served on the defendant. The defendant may request the court the annulment of the order by raising of an objection. In addition, based on the request from the defendant, the court which issued the order shall fix a certain reasonable period and require the applicant: (i)to file the case on the merits and to provide written evidence of filing the case on the merits within such period. (ii)to provide written evidence of pendency of case within such period, if the case is already filed. In case the applicant fails to provide such evidence within the required period, the defendant may request the court the annulment of the order of preservative measure.
24/10/1996
IP/Q/JPN/1 Japón Estados Unidos de América [Follow-up question] Please describe the extent to which ex parte injunctive relief is available in Japan. For example, under what circumstances is a rightholder in a computer program that suspects a company is using copies of that program without its authorization able to request an ex parte search and seizure order from the court, and to have that order executed? If this procedure is available, how often is it invoked and how long does it take? Our companies have indicated that it can, on occasion, take months or even years; is this accurate?
(i) As for ex parte injunctive relief, the Code of Civil Preservative Procedures provides for "provisional orders regarding objects concerned" and "provisional orders deciding a provisional status" as provisional measures which courts may order. (ii) The provisional order regarding objects concerned may be issued where a court concludes there is a possibility that the applicant would not be able to exercise, or would come to face extreme difficulties in exercising, its right because of a change in the situation of such objects (Article 23.1 of the Japanese Code of Civil Preservative Procedures). It is not always necessary for the court to give an opportunity to the adverse party to present its opinion prior to the issuance of provisional order. (On the other hand, a court shall hold a hearing which both parties concerned may attend before the court renders decision of injunction as the final measure.) (iii) The provisional order deciding a provisional status may be issued where a court concludes that such an order is necessary for avoiding extreme damage or imminent danger which the applicant would suffer regarding the legal relations at issue (Article 23.2 of the Japanese Code of Civil Preservative Procedures). In principle, the court shall hold a hearing or interrogation which the adverse party may attend prior to the issuance of the order. However, where the court considers it would be impossible to accomplish the purpose of the request for the provisional order if it held such a hearing or interrogation, the court may issue the provisional measure without holding the hearing or interrogation (Article 23.4 of the Japanese Code of Civil Preservative Procedures). (iv) As for the number of cases in which injunctive relief is requested based on copyright, and the length of time necessary to complete the procedures, statistics are not available, and we do not have specific figures. However, it is our recognition that this system is functioning well.
24/10/1996
IP/Q/LUX/1 Luxemburgo Estados Unidos de América 1. Please explain whether and how Luxembourg's law provides protection for works, phonograms and performances from other WTO Members, and whether and how it does so on basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5 (1)). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under the relevant provisions of the Luxembourg's copyright law.
The dispositions of the Berne Convention, the Rome Convention and the TRIPS Agreement are of direct applicability in Luxembourg law. Luxembourg has no provisions on levies for private copying.
24/10/1996
IP/Q/LUX/1 Luxemburgo Estados Unidos de América [Follow-up question] Has the TRIPS Agreement been self-executing in Luxembourg since 1 January 1996? In particular, can a rightholder from any other WTO Member country sue to enforce rights that are required to be granted by the TRIPS Agreement?
Yes, TRIPS is self-executing in Luxembourg. Yes, it is possible to sue on the basis of the TRIPS Agreement but there is no case law yet.
24/10/1996
IP/Q/LUX/1 Luxemburgo Estados Unidos de América 2. Does Luxembourg apply the "rule of the shorter term" to phonograms and performances from other WTO Members? If so, explain how you justify such action under TRIPS Article 4.
Luxembourg does not apply the "rule of the shorter term" to phonograms and performances.
24/10/1996

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