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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Signatura del documento Miembro que presenta la notificación Miembro que plantea la pregunta Pregunta Respuesta Fecha de distribución del documento  
IP/Q/BHR/1, IP/Q2/BHR/1, IP/Q3/BHR/1, IP/Q4/BHR/1 Bahrein, Reino de Unión Europea 54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
Please refer to Bahrain's responses to questions 10 to 12 of the Checklist of Issues on Enforcement (document IP/N/6/BHR/1).
24/10/1996
IP/Q/BHR/1, IP/Q2/BHR/1, IP/Q3/BHR/1, IP/Q4/BHR/1 Bahrein, Reino de 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.
The General Directorate of Customs or alternatively the court.
24/10/1996
IP/Q/BHR/1, IP/Q2/BHR/1, IP/Q3/BHR/1, IP/Q4/BHR/1 Bahrein, Reino de Unión Europea 56. Please indicate whether or not procedures are available to suspend the exporting of counterfeit goods.
It is possible to apply for a suspension by the customs authority for the release into free circulation of goods, which constitute infringements to the IPRs defined in the Copyright and Neighbouring Rights and Trademarks draft Laws. This is possible pursuant to Article 47 of the draft Copyright and Neighbouring Rights Law and Article 35 of the draft Trademarks Law respectively. The relevant Articles provide that the General Directorate of Customs (the customs authority) has authority both on its own initiative and upon application by the right holder or the public prosecutor to suspend clearance and release into free circulation of goods if convinced on the basis of prima facie evidence that such goods constitute an infringement of any of the IPRs of the right holder. The authority of the customs authority applies to both imports and exports. The administrative procedure referred to above does not preclude the right to resort to the court in the first place. The authority of the customs authority to suspend the release into free circulation of goods, which constitute infringements of IPRs, does not apply to goods in transit or to de minimis imports or goods put on the market in another country by or with the consent of the right holder.
24/10/1996
IP/Q/BHR/1, IP/Q2/BHR/1, IP/Q3/BHR/1, IP/Q4/BHR/1 Bahrein, Reino de Unión Europea 57. Please quote what provisions of your legislation authorize the competent authorities to order the destruction or disposal of infringing goods.
The relevant provisions are the following Articles in the respective IPR draft Law: a) Patents and Utility Models: Article 41 b) Geographical Indications: Article 12 c) Protection of Trade Secrets: Article 7 d) Industrial Designs: Article 19 e) Layout-Designs of Integrated Circuits: Article 18 f) Protection of Breeders of New Varieties of Plants: Article 25 g) Trademarks: Article 38 h) Copyright and Neighbouring Rights: Article 52
24/10/1996
IP/Q/BHR/1, IP/Q2/BHR/1, IP/Q3/BHR/1, IP/Q4/BHR/1 Bahrein, Reino de Unión Europea 58. Please indicate whether or not your legislation provides for a de minimis imports exception.
Both Article 47 of the draft Law on Copyright and Neighbouring Rights and Article 35 of the draft Law on Trademarks exclude de minimis imports.
24/10/1996
IP/Q/BHR/1, IP/Q2/BHR/1, IP/Q3/BHR/1, IP/Q4/BHR/1 Bahrein, Reino de Unión Europea 59. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Draft Laws for all forms of intellectual property provide for criminal sanctions for infringement of IPRs. The penalty is imprisonment for a term not less than 3 months and not more than one year or a fine of not less than BD 500 and not more than BD 2000 or to both fine and imprisonment. If the offender repeats an offence, the upper limit of both the fine and imprisonment are doubled and in addition the court has the authority to order the closure of the premises, at which the offence was facilitated, for a period between 15 days to six months and to order the verdict to be published in at least one daily newspaper at the expense of the offender. The relevant legal provisions within the draft Laws are: a) Patents and Utility Models: Article 41 b) Geographical indications: Articles 2 and 12 c) Protection of Trade Secrets: Article 7 d) Industrial designs: Article 19 e) Layout-Designs of Integrated Circuits: Article 18 f) Protection of Breeders of New Varieties of Plants: Article 25 g) Trademarks: Article 28 h) Copyright and Neighbouring Rights: Articles 49 to 52 All the above provisions also provide that the court has authority to order the seizure, forfeiture and destruction of infringing goods and any materials and implements, which have been used for the commission of the offence.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 1. Article 9(1) of the TRIPS Agreement in conjunction with Article 11(1)(ii) of the Berne Convention (1971) requires that authors enjoy the exclusive right of authorizing "any communication to the public of the performance of their works". Section 3(1)(f) of the Copyright Act grants to authors the sole right "in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication". The term "telecommunication" in the Copyright Act is limited to transmissions "by wire, radio, visual, optical or other electromagnetic system". Why does the Copyright Act limit communications to those "by telecommunication"?
Berne "communication" rolls together the aspect of telecommunication, e.g., broadcasting, with the aspect of performance in public. In the Canadian Copyright Act "telecommunication" is used etymologically in the sense of a communication from afar as opposed to a performance in front of the public, i.e. a live audience. The definition of "telecommunication" in Section 2 is so broad as to be technologically neutral. This feature ensures that the Copyright Act's communication right is already well adapted to the exigencies of the digital environment.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 2. Article 9(1) of the TRIPS Agreement in conjunction with Article 11(1)(ii) of the Berne Convention (1971) requires that authors enjoy the exclusive right of authorizing communications to the public of the performances of their works. The Copyright Act grants to authors the exclusive right to communicate the work to the public. Is there any distinction to be made between the right to communicate the work to the public and the right to communicate to the public performances of works?
The Copyright Act gives authors the exclusive right to perform the work in public and the exclusive right to communicate the work to the public by telecommunication. These two aspects fully satisfy Berne requirements with respect to providing the author with the exclusive right to communicate his work to the public.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea [Follow-up question] Does the exclusive right to communicate the work to the public include the exclusive right to communicate the performance of the work to the public as required by Article 11(1)(ii) of the Berne Convention?
Berne Convention, Article 11(1)(i), requires authors of dramatic, dramatico-musical and musical works to enjoy the exclusive right of authorizing the public performance of their works, including such public performance by any means or process. Section 3(1) of the Copyright Act gives the copyright owner the sole right to perform the work, or any substantial part thereof in public. This is the basis of the right of public performance under the Canadian Copyright Act. The right to communicate the work to the public by telecommunication is provided in Section (3)(1)(f). The act of communicating a work to the public by telecommunication does not constitute the act of performing the work in public, nor does it constitute an authorization to do the act of performing the work in public.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 3. Do broadcasting organizations have the right in Canada to prohibit the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same (Article 14(3) of the TRIPS Agreement)?
No. Canada complies with TRIPS, Article 14(3), via copyright not broadcasters' rights. The Copyright Act does not give broadcasters a right in their broadcasting signals. However, as a copyright owner, the broadcaster may own the copyright in his "broadcast day" as an original compilation of the works making up all or part of the broadcast programming.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 4. Do copyright owners in the subject matter of broadcasts have the exclusive right to rebroadcast by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same? In particular, do copyright owners have the exclusive right to communicate to the public by telecommunication any literary, dramatic, musical or artistic work if the communication is a retransmission of a local signal, the retransmission is lawful under the Broadcasting Act, and the signal is retransmitted simultaneously and in its entirety? If not, is any remuneration required to be paid to the owners of the copyrights of the local signals that are retransmitted (Article 9(1) of the TRIPS Agreement in conjunction with Article 11bis(1)(ii) of the Berne Convention)?
Under the Copyright Act, the simultaneous retransmission of local signals is not an infringement of copyright in the works carried in the original broadcast. Like many other countries, Canada does not provide copyright protection for the simultaneous retransmission of local signals which, by definition, are already available to the public via the primary transmission. Therefore, under the Canadian Copyright Act, copyright owners do not have any rights arising from the retransmission of local broadcast signals. The simultaneous retransmission of the entirety of local broadcast signals carrying copyright works does not conflict with the author's normal exploitation of his work and does not unreasonably prejudice his legitimate interests. Under the Canadian Copyright Act, the simultaneous retransmission of distant broadcast signals is not an infringement of the copyright in the works carried in the original broadcast if the retransmitter has paid the applicable royalties and complied with any terms and conditions fixed under the authority of the Copyright Act.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 5. Article 9(1) of the TRIPS Agreement in conjunction with Article 12 of the Berne Convention (1971) requires that authors of literary and artistic works enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works. Does the Copyright Act grant to authors of literary and artistic works the exclusive right to authorize the making of all forms of adaptations, arrangements and other alterations of their works? Are there any limitations to these rights?
Although the Canadian Copyright Act lacks a general adaptation right, the statute gives the author the exclusive right to convert a dramatic work into a novel or another non-dramatic work and to adapt a literary, dramatic, musical or artistic work by cinematograph. Canada complies with Article 12 of the Berne Convention via these rights and by the reproduction right which has been given a very extensive scope by Canadian courts. Accordingly, the Canadian legal system handles by way of the reproduction right much of what some other countries handle by way of a general adaptation right. With respect to adaptation, it is also pertinent that the Canadian Copyright Act specifically gives the author moral rights to the integrity of his work.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 6. Article 9(1) of the TRIPS Agreement in conjunction with Article 14 of the Berne Convention (1971) requires that authors of literary or artistic works shall have the exclusive right of authorizing the cinematographic adaptation and reproduction of these works and the distribution of the works so adapted. Section 3(1)(e) of the Copyright Act gives authors the right to "reproduce, adapt and publicly present the work by cinematography". Is the right to "publicly present" in the Copyright Act synonymous with the right to "distribute" in the Convention?
Under Section 3 of the Canadian Copyright Act, the right to publish a work together with the right to publicly present a work by cinematography together fulfil the obligations of TRIPS, Article 9(1), and Berne Convention, Article 14.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea [Follow-up question] Has the author of a work the right to authorize the distribution of the cinematographic adaptation of a work? If yes, how?
In this respect, any relevant right of the author would have been licensed or assigned to the maker of the cinematographic work. Canada does not interpret the Berne Convention in a fashion that requires authors to be given a distribution right on the same footing as, e.g., the rights of public performance and communication to the public. Our reading is that any relevant distribution right is limited to a right of first distribution which implicitly passes to the maker of the cinematographic work by reason of the author's consent to adaptation.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 7. Does the Copyright Act confer ownership of the copyright in a cinematographic work upon all authors who have brought contributions to the making of the work? If so, is there any prohibition in the Copyright Act against authors who have brought contributions to the making of cinematographic works from objecting to the reproduction, distribution, public performance, communication to the public by wire, broadcasting or any other communication to the public, or to the subtitling or dubbing of text, of the work, as required by Article 9(1) of the TRIPS Agreement in conjunction with Article 14bis of the Berne Convention (1971)?
The Canadian Copyright Act does not confer the ownership of copyright on all of the individuals (e.g., screen writers, cinematographers, etc.) who bring contributions to the making of the cinematographic work. With respect to the cinematographic work, moral and economic rights belong to the film's author. With respect to any underlying copyright work included in the cinematographic work, moral and economic rights remain with the author of the underlying work, subject to the normal rules with respect to licensing and assignment. Although the Copyright Act is fully equipped in this regard, it should be recalled that the moral rights in the Berne Convention have not been carried over into TRIPS.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 8. Article 10(2) of the TRIPS Agreement requires that compilations of data or other material be protected. It is further provided that such protection shall not extend to the data or material itself and shall be without prejudice to any copyright subsisting in the data or material itself. Section 2.1(2) of the Copyright Act provides that the fact that a work is included in a compilation does not increase, decrease or otherwise affect the protection conferred by the Act in respect of the copyright in the work or the moral rights in respect of the work. Does the Copyright Act also expressly provide that the protection accorded to compilations of data or other material does not extend to the data or material itself? If not, does the protection accorded to compilations of data or other material extend to the data or material itself?
Although the point is clear from case law, the Copyright Act nowhere explicitly provides that the protection accorded to compilations of data or other material does not extend to the data or material itself. With respect to compilations of data or other material, Canada's laws are fully consistent with TRIPS requirements.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 9. Articles 11 and 14(4) of the TRIPS Agreement require that authors have the right to authorize or to prohibit the commercial rental to the public of computer programs and phonograms. Pursuant to the Copyright Act, an arrangement will not constitute a rental of a computer program or phonogram unless "it is entered into with motive of gain in relation to the overall operations of the person who rents out the computer program". Accepting that the term "motive of gain" may not be restricted to circumstances where the motive of gain is the main or the only motive, why are commercial rentals other than those with a motive of gain excluded from the exclusive rental rights granted to authors of computer programs and phonograms?
TRIPS, Article 11, applies to the "commercial rental" of computer programs and TRIPS, Article 14(4) to the "commercial rental" of phonograms. With respect to both computer programs and phonograms, the Canadian Copyright Act provides an exclusive rental right which applies subject to certain criteria implementing the TRIPS reference to the qualification "commercial". This word is in part translated by the Canadian reliance on the yardstick of "motive of gain". In practical terms, it is difficult to conceive of a commercial rental where there is no motive of gain. Accordingly, the Canadian formula meets the requirements of TRIPS, Articles 11 and 14(4).
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea [Follow-up question] As regards the rental of computer programs and phonograms, can Canada give some guidance (based for instance on case law if available) as to how the criteria "motive of gain" is interpreted?
There is yet no case law because the legislation came into force only on 1 January 1994. Practically speaking, the law's effect has been to put an end to the business of renting our sound recordings and software in Canada. As might be expected, libraries continue to make sound recordings available in terms of public lending. "Motive of gain" is possibly more favourable to the rightholder because it is arguably broader than the TRIPS reference to "commercial". For example, "motive of gain" might catch a charity deciding to rent out sound recordings as a fund-raising exercise.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 10. With regard to Canada's compliance with Article 11 of the TRIPS Agreement, please provide evidence of the following: (1) the amount of rental of cinematographic works in Canada; and (2) that the amount of renting of cinematographic works in Canada has not led to such widespread copying of these works that the renting is materially impairing the exclusive right of reproduction conferred upon the authors of these works.
In Canada, the rental of cinematographic works is governed by the business arrangements effected between the owners of copyright in cinematographic works and an extensive system of rental outlets. Whether domestic or foreign, the copyright owners in cinematographic works are largely pleased with the present system and have not, to any significant extent, asked for the introduction of an exclusive rental right with respect to their films. Similarly, the owners of the copyright in cinematographic works have not complained to the Canadian government about widespread copying of their works nor have they alleged that renting is materially impairing their exclusive reproduction right. In this regard, Canada's Copyright Act is fully consistent with the requirements of TRIPS, Article 11: Rental Rights.
24/10/1996
IP/Q/CAN/1 Canadá Unión Europea 11. Article 12 of the TRIPS Agreement requires that wherever the term of protection of a work, other than a phonographic work or a work of applied art, is calculated on the basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making. In the case of anonymous and pseudonymous works which are published between the 26th year and the 50th year after their making, copyright would subsist in those works for the full term required by Article 12 of the TRIPS Agreement, (e.g. between 76 and 100 years from their making) or would the copyright therein expire pursuant to Sections 6.1 or 6.2 of the Copyright Act 75 years following the end of the calendar year of their making?
With respect to the situation described, copyright under the Canadian Copyright Act would expire 75 years after the making of the work.
24/10/1996

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