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/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 47. Please explain whether or not your legislation provides for a mechanism to appeal to judicial bodies of final administrative decisions.
The TM Act prescribes under section 11 that in the case of refusal or conditional acceptance by the Solicitor-General to register a trade-mark, shall be subject to appeal to the high court. Further, the Act provides under section 13(5) that the decision of the Solicitor-General after hearing parties on opposition to registration, shall be subject to appeal to the high court. Also, section 32 provides that where a person is entitled by assignment, transmission or other operation of law to a registered trade-mark, he or she shall make an application to the Solicitor-General to register his or her title. Any decision of the Solicitor-General under this section is also subject to appeal to the court. Under the Patents Act, section 13 provides that the Attorney-General's decision in refusing a provisional certificate can be appealed to the court. Further, under section 15, if a person opposes an application for a letters patent, if the decision of the Attorney-General is adverse to the party holding the provisional certificate, that person may appeal such decision to the court.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 48. Please describe how your legislation authorizes judges to order production of evidence by the opposing party. Please give precise information on what measures are taken to ensure the protection of confidential information.
Section 213 of the Copyright Act allows the Tribunal to issue a witness summons to a person requiring the person to appear before the Tribunal to give evidence. Failure to attend incurs a penalty of $2000.00. At present, neither the Patent Act nor Trade-mark Act contain provisions which authorize judges to order production of evidence. The Patents Act at present has no provision on the protection of confidential information.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 49. Please quote provisions of your legislation that authorize judges to order a defendant to desist from an infringement.
Under the Copyright Act, the court can order injunctions pursuant to sections 109(2), 110(3), 115(3) and 191(a).
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 50. Please quote what provisions of your legislation authorize judges to order the payment to the right holder of adequate damages to compensate the injury he suffered.
Under the Copyright Act, damages can be awarded pursuant to sections 80(2)(c), 101(2), 109(2), 110(2), 114(4)(a), 115(2), 169(2), and 191(3)(b) and 191(4).
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 51. Please quote what provisions of your legislation authorize judges to order the payment of the right holder's expenses by the infringer.
At present, there are no specific provisions for the court to order payment of the right holder's expenses by the infringer. However, as alluded in #50 above, under the Copyright Act, damages are a remedy for infringement and will cover losses suffered by the right holder.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 52. Please explain if and how judges have the authority to order that infringing goods are placed outside channels of commerce or destroyed.
Division 6 of the Copyright Act prescribes the procedures relating to disposal of infringing copy or other objects. Pursuant to Division 6, Section 125 (a) and (b) of the Copyright Act allow the court to make orders for forfeiture to the copyright owner or for the infringing items to be destroyed or otherwise dealt with as the court thinks fit.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in the event of abuse by the plaintiff.
At present, the legislation has no provisions allowing judges to indemnify a defendant in the event of abuse by a Plaintiff.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
At present, there are no provisions implementing Article 50 of the TRIPS Agreement.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 55. Please identify the competent authorities in your jurisdiction who receive requests from right holders for an application to suspend the release of counterfeit goods by the customs authorities.
Section 35 of the Copyright Act prevents the importation of infringing copies. However, at present, there is not competent authority with the power to suspend the release of counterfeit goods.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 56. Please indicate whether or not procedures are available to suspend the exporting of counterfeit goods.
At present, there are no legal provisions to suspend the export of counterfeit goods.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 57. Please quote what provisions of your legislation authorize the competent authorities to order the destruction or disposal of infringing goods.
Section 125 of the Copyright Act allows the court to make orders for the disposal of infringing goods. Section 125 stipulates that: "125.-(1) An application may be made to the court for an order that an infringing copy or other object delivered up pursuant to an order under section 111 or 123 or seized pursuant to section 112 or 122 be- (a) forfeited to the copyright owner; or (b) destroyed or otherwise dealt with as the court thinks fit. (2) In considering what order (if any) should be made under subsection (1), the court must have regard to- (a)whether other remedies available in proceedings for infringement of copyright would be adequate to compensate the copyright owner and to protect the interests of the copyright owner; and (b) the need to ensure that no infringing copy is disposed of in a manner that would adversely affect the copyright owner. (3) Before making an order under subsection (1), a court must issue directions as to the service of notice on persons who have an interest in the copy or other object. (4) A person who has an interest in a copy or other object which is the subject of an application under subsection (1) is entitled- (a) to appear in proceedings for an order under this section, whether or not the person is served with notice; and (b) to appeal against any order made, whether or not the person appears in the proceedings. (5) An order made under subsection (1) does not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal. (6) If there is more than one person interested in a copy or other object, a court may direct that the object be sold, or otherwise dealt with, and the proceeds divided, and make any other order it thinks just. (7) If a court decides that no order should be made under this section, the person in whose possession, custody, or control the copy or other object was before being delivered up is entitled to its return."
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 58. Please indicate whether or not your legislation provides for a de minimis imports exception.
At present, the legislation does not provide for a de minimis imports exception.
20/05/2016
IP/Q3/FJI/1, IP/Q/FJI/1, IP/Q2/FJI/1, IP/Q4/FJI/1 Fiji Unión Europea 59. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Division 5 of the Copyright Act which governs Offences addresses criminal liability for making or dealing with infringing objects. Sections 121 (1) – (3) set out the criminal acts and states: 121.-(1) A person who, other than pursuant to a copyright licence- (a) makes for sale or hire; (b) imports into the Fiji Islands otherwise than for that person's private and domestic use; (c) possesses in the course of a business with a view to committing any act infringing the copyright; (d) in the course of a business- (i) offers or exposes for sale or hire; (ii) exhibits in public; or (iii) distributes; (e) in the course of a business or otherwise, sells or lets for hire; or (f) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner, an object that is, and that the person knows or our ought reasonably to know is, an infringing copy of a copyright work, commits an offence. (2) A person who- (a) makes an object specifically designed or adapted for making copies of a particular copyright work; or (b) has such an object in the person's possession, when the person knows or ought reasonably to know that the object is to be used to make infringing copies for sale or hire or for use in the course of a business, commits an offence. (3) Subject to subsection (4), a person who- (a) causes a literary, dramatic, or musical work to be performed, if the performance infringes copyright in the work; or (b) causes a sound recording or film to be played in public or shown in public, if the playing or showing infringes copyright in the sound recording or film, and who knows or ought reasonably to know that copyright in the work or in the sound recording or visual image, as the case may be, would be infringed by the performance, playing or showing respectively, commits an offence. (4) Nothing in subsection (3) applies in respect of infringement of copyright by the reception of a broadcast or cable programme. Penalties for the above offences are prescribed under section 121(5) as follows: (5) A person who commits an offence under this section is liable on conviction- (a) in the case of an offence against subsection (1), to a fine of $5,000 for every infringing copy to which the offence relates, but not exceeding $50,000 in respect of the same transaction, and to imprisonment for 12 months; (b) in the case of an offence against subsection (2) or (3) to a fine of $50,000 and to imprisonment for 12 months, (c) in the case of a second or subsequent offence against subsection (2) or (3), to a fine of $100,000 and to imprisonment for 2 years.
20/05/2016
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Estados Unidos de América 1. In Article 2(39) of the Copyright Law, "work(s) of amateur and folk arts" are defined as "a work including peculiar elements of traditional art heritage (folk fairy tales, folk poetry, folk songs, instrumental folk music, folk dances and plays, artistic forms of folk traditions, etc.)." Are these works protected works under Article 6 ("Copyrighted Items & General Provisions") or are they intended to be works that are excluded under Article 8(3) as "works of folklore"? If the latter, then are works of amateur and folk arts protected under other laws and, if so, how are they protected?
According to paragraph 1022 of the Report of the Working Party on the Accession of Kazakhstan (WPR) "works of amateur and folk arts", as defined by sub-paragraph 39 of Article 2 of the Copyright Law, are not protected by copyright or other laws of Kazakhstan. To be a "work of amateur and folk art" excluded from copyright protection under paragraph 3 of Article 8 of the Copyright Law, this work does not have to have an author(s), but instead has to be created by a community. Anonymous works and works created under a pseudonym have an author; only works created by a community are not protected under sub-paragraph 39 of Article 2 and paragraph 3 of Article 8 of the Copyright Law. Derivative works using an underlying work of amateur or folk arts, like derivative works using other public domain works are protected as independent works under paragraph 3 of Article 7 of the Copyright Law. For example, a musical composer who created an arrangement of a work of amateur and folk art will have that arrangement protected by paragraphs 1(5) of and 3(1) of Article 7 under the Copyright Law. Likewise, sound recordings, audio-visual works and other fixations of works covered by sub paragraph 39 of Article 2 will be protected under the Copyright Law. Performers/producers/broadcasting organizations have the rights enumerated in Chapter III "Related Rights" of the Copyright Law to fixations of works of amateur and folk arts. Works that can arguably fall under the folklore definition of sub-paragraph 39 of Article 2 of the Copyright Law, but which are protected as copyrighted works in the country of origin, will be protected as copyrighted works in Kazakhstan.
09/08/2017
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Estados Unidos de América 2. Regarding Article 19 of the Copyright Law in relation to definitions of certain words and Article 19's relationship with the three-step test articulated in the Berne Convention and other treaties (e.g., Article 13 of TRIPS provides: "Members shall confine limitations and exceptions to exclusive rights 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 rights holder.") a. What is the meaning of "cite" and "citation" in Article 19(1)? Do you intend "cite" and "citation" to mean "quote" and "quotation"? If so, why don't you use "quote" and "quotation"? If not, then what is the difference between "cite" and "quote" and "citation" and "quotation"? Finally, how does this language comply with the three-step test in the Berne Convention?
In paragraph 1024 of the WPR Kazakhstan stated that the terms "cite" and "citation" in paragraph 1(1) of Article 19 of the Copyright Law means "quote" and "quotation" as used in Article 10(1) of the Berne Convention. Indeed, "cite" and "citation" was used to mean "quote" and "quotation". This is only the issue of translation since there is no difference between "cite" and "quote" and "citation" and "quotation" in Russian language.
09/08/2017
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Estados Unidos de América 2. Regarding Article 19 of the Copyright Law in relation to definitions of certain words and Article 19's relationship with the three-step test articulated in the Berne Convention and other treaties (e.g., Article 13 of TRIPS provides: "Members shall confine limitations and exceptions to exclusive rights 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 rights holder.") b. Additionally, Article 19(1)(1) refers to use of the work for "information purposes," which could be interpreted as providing for potentially unlimited use of a work without authorization. What is meant by use for "information purposes"? What is meant by "in the size that is justified for the citation purposes"?
In paragraph 1024 of the WPR Kazakhstan stated that the term "information purposes" in paragraph 1(3) of Article 41 of the Copyright Law means "to report events that are expected to occur in the near future" and "to report recent historical events". "Size justified for the citation purposes" is limited to the minimum size necessary for quotation for information purposes. Necessary condition for quotation is compliance with author’s non-proprietary rights.
09/08/2017
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Estados Unidos de América 2. Regarding Article 19 of the Copyright Law in relation to definitions of certain words and Article 19's relationship with the three-step test articulated in the Berne Convention and other treaties (e.g., Article 13 of TRIPS provides: "Members shall confine limitations and exceptions to exclusive rights 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 rights holder.") c. Article 19(1)(2) refers to the use of works "for the purpose of illustration in periodicals, in radio- and TV programs, in audio- and video-recordings of training nature." What is meant by "training nature"? Is it the same as "teaching," and if not, what are the differences between the two? What is meant by "in the volume justified for this purpose?" Would this provision apply to training programs created or offered by for-profit or commercial entities? The language used would seem to indicate as such.
In paragraph 1024 of the WPR Kazakhstan stated that the term "training nature" in paragraph 1(2) of Article 19 of the Copyright Law meant "teaching" as used in Article 10(2) of the Berne Convention. Example of illustration of "training nature" can be a quotation in a schoolbook with the purpose to explain certain rule. "In the volume justified for this purpose" in this case will be the volume necessary to understand and learn the rule. Use of this exclusion is allowed as long as it is compatible with the fair practice in the meaning of Article 10 of the Bern convention. Necessary condition for quotation is compliance with author’s non-proprietary rights.
09/08/2017
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Estados Unidos de América 3. In relation to Article 41 of the Copyright Law we have questions of a similar nature as the questions posed regarding Article 19 above. a. Article 41 states that performances, staging, and transmissions of on-air or cable broadcasting organizations and their recordings, including to reproduce phonograms is allowed for a series of purposes, such as "exclusively for training and scientific research purposes." What is the definition of "exclusively" in this context? As requested above, is "training" the same as "teaching"? If not, what are the differences between the two and does training also encompass commercial activities? What is meant by "scientific research purposes"?
In paragraph 1026 of the WPR the representative of Kazakhstan confirmed that the term "exclusively" in paragraph 1(2) of Article 41 of the Copyright Law meant "solely" as used in Article 15(1)(d) of the Rome Convention. The term "training" has the same as "teaching" and does not encompass commercial activities. "Scientific research purposes" means purposes of scientific analysis.
09/08/2017
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Estados Unidos de América 3. In relation to Article 41 of the Copyright Law we have questions of a similar nature as the questions posed regarding Article 19 above. b. Article 41 also states that performances, staging, and transmissions of on-air or cable broadcasting organizations and their recordings, including to reproduce phonograms shall be allowed "for citation small extracts from a performance staging, phonogram, transmissions of on-air or cable broadcasting organization provided, that such citation is made for information purposes." What is meant by "for information purposes," which appears quite broad?
As it was mentioned above in paragraph 1024 of the WPR Kazakhstan stated that the term "information purposes" in paragraph 1(3) of Article 41 of the Copyright Law means "to report events that are expected to occur in the near future" and "to report recent historical events".
09/08/2017
IP/Q/KAZ/1, IP/Q2/KAZ/1, IP/Q3/KAZ/1, IP/Q4/KAZ/1 Kazajstán Suiza 1. Are the provisions of the TRIPS Agreement, as far as not implemented in national law, directly applicable in the legal system of Kazakhstan?
Paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan stipulates that international agreements ratified by Kazakhstan have priority over national legislation and this provision also applies to the TRIPS Agreement and the terms of the Protocol of Accession of the Republic of Kazakhstan to the WTO. Ratified international agreements are applied directly, except in cases when a law has to be adopted before an international agreement became applicable. A law has to be adopted in cases, where (i) the current legislation does not comply with the WTO Agreement and has to be amended to comply with the WTO Agreement; or, (ii) issues contained in the WTO Agreement are not addressed in existing legislation. However, it must be mentioned that in the process of its accession to the WTO Kazakhstan ensured full compliance of its legislation with commitments undertaken in accordance with the TRIPS Agreement and the Protocol of Accession of the Republic of Kazakhstan to the WTO. Specifically, the Law of the Republic of Kazakhstan No. 365-V "On Amendments and Addenda to Certain Legislative Acts of the Republic of Kazakhstan in Connection with Accession to the World Trade Organization" was adopted on 27 October 2015. With the purpose of implementation of intellectual property obligations, the following amendments were made into national legislation of the Republic of Kazakhstan: • In order to bring national legislation in compliance with Article 46 of the TRIPS Agreement amendments were made to the Civil Code, Code on Administrative Violations and Trademarks Law. These amendments provide that simple removal of unlawful trademark is not sufficient and guarantee that counterfeit goods will be destroyed. • In order to bring national legislation in compliance with Article 39.2 of the TRIPS Agreement and ensure 6 years of data exclusivity to producers of original pharmaceutical products, amendments were made to the Health Code of the Republic of Kazakhstan. • In order to bring national legislation in compliance with Article 31 of the TRIPS Agreement amendments were made to the Patent Law, providing that: - compulsory license for semi-conductor technology shall only be granted for public non-commercial use; and - any compulsory license shall be issued in the first instance for providing for demands of the domestic market of the Republic of Kazakhstan, except when the purpose of the license is to export the patented product to a territory with no or insufficient manufacturing capacity, in accordance with international agreements, ratified by the Republic of Kazakhstan.
09/08/2017

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