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/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 2. Does the legislation of Seychelles grant patent protection for inventions relating to products and processes in all fields of technology? Are there any exceptions? If yes, please indicate these exceptions and explain how they comply with Article 27 of the TRIPS Agreement.
The Industrial Property Act 2014 grants patent protection for inventions relating to products and processes in all fields of technology. Please see sections 5(1), 18(1), 18(2)(a), 18(2)(b), 18(3) of Industrial Property Act 2014. Matters excluded from patent protection are mentioned in section 6(1) of the Industrial Property Act, 2014. Section 6(1) is in compliance with the TRIPS Agreement. Section 19 of the Industrial Property Act 2014 has provisions of exception to patent protection which are in compliance with the TRIPS Agreement.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 3. Does the legislation of Seychelles, in accordance with Article 27.1 in combination with Article 31 of the TRIPS Agreement, consider importation as "working" a patent and therefore preclude compulsory licensing, if a product is being imported?
Seychelles considers importation as "working a patent" and precludes compulsory licensing if a product is being imported.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 4. Does the legislation of Seychelles make the granting of a compulsory license subject to all the conditions enumerated in Article 31 TRIPS of the TRIPS Agreement? Please cite the relevant provisions of the legislation.
Sections 23, 24, 25, 26, and 27 of the Industrial Property Act 2014 meet all the conditions enumerated in Article 31 of the TRIPS Agreement.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 5. Does the legislation of Seychelles provide for the principle of the reversal of burden of proof in patent litigation? Please cite the relevant provisions of the legislation.
Section 109 of the Industrial Property Act 2014 provides the principle of the reversal of burden of proof in patent litigation in Seychelles.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 6. Please explain in detail if the legislation of Seychelles ensures that undisclosed test or other data submitted by an applicant to the responsible State agency in the procedure for market authorisation of a pharmaceutical or of an agricultural chemical product is protected against disclosure and against unfair commercial use by a competitor, for example by prohibiting a second applicant from relying on, or from referring to the original data of the first applicant, when applying subsequently for market authorisation for their own product.
Section 106 of the Industrial Property Act 2014 ensures that undisclosed test or other data submitted by an applicant to the responsible agency in the procedure for market authorization of a pharmaceutical, agricultural or chemical product is protected against discloser and against unfair commercial use by a competitor.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 7. Does your legislation provide for exceptions to this protection of undisclosed information? If so, please explain under what conditions would such exceptions apply?
Yes. The exception to undisclosed information operates in circumstances, where it is necessary to protect the public or unless measures steps have been taken to ensure that the data are protected against unfair commercial use In addition this provision in the Industrial Property Act 2014 is in line with Article 39.1 of the TRIPS Agreement. The relevant authority in Seychelles is therefore responsible for ensuring that any exceptions being provided against the protection of undisclosed information is necessary to protect the public or whether measures have been taken to protect the data against unfair commercial use.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 8. Does your legislation provide for a specific term of protection for such undisclosed test data?
There is no time limit of protection for such undisclosed test data.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 9. Do the judicial authorities of Seychelles have the authority to adopt, on the request of a right holder, a provisional measure inaudita altera parte before an action leading to a decision on the merits of the case has been lodged? Please cite the relevant provisions of the legislation.
The Court have the authority to adopt provisional measures inaudita altera parte where appropriate. Please see section 111(2) of the Industrial Property Act 2014.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 10. Does the legislation of Seychelles provide for any restrictions for obtaining provisional measures? If so, what are these restrictions? Please cite the relevant provisions of the legislation.
Section 111(3) of the Industrial Property Act 2014. The Court may require the applicant to provide any reasonably available evidence in order to satisfy it with a sufficient degree of certainty that the applicant is the rights holder and that the applicant's right is being infringed or that such infringement is imminent, and the Court may order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 11. Please describe the provisional measures provided for in the legislation of Seychelles, including those for combatting counterfeiting and piracy. Please describe the procedures that must be followed and cite the relevant provisions of legislation.
The provisional measures and relevant procedures are prescribed on sections 108, subsections from (1) to (8) of section 111 of the Industrial Property Act 2014.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 12. Please describe the measures provided by the legislation of Seychelles to combat counterfeiting and piracy at the border. Please explain whether the competent authorities are empowered to act ex officio and, if so, please indicate the enforcement actions that may be taken. Please cite the relevant provisions of the legislation.
Sections 118(1), 118(2), 118(3), 118(4), 119, 120 of the Industrial Property Act 2014 can be used to combat counterfeiting and piracy. In addition, the Customs Management Act 2011 and through the enactment of subsequent Regulations (S.I 42 OF 2014 s.77 - 82) empowers Customs officials to handle goods deemed to be "counterfeit", "pirated", "infringing" etc. at the border. Section 115(3) of the Industrial Property Act 2014 has provision where public authorities or officers shall be exempted from liability where actions were taken or intended in good faith.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 13. Please describe how the legislation of Seychelles meets the requirements of Article 41 TRIPS Agreement. Please cite the relevant provisions.
The Industrial Property Act 2014 and the Copyrights Act 2014 meet the requirements of Article 41 of the TRIPS Agreement. Please see part VIII – Enforcement of Industrial Property Rights (sections 107 – 120 and section 124) of the Industrial Property Act 2014 and Part V of the Copyrights Act 2014 (sections 29- 34).
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 14. Please indicate the authorities responsible for the application of the measures provided by the legislation of Seychelles to combat counterfeiting and piracy. Please explain whether the competent authorities are empowered to act ex officio and, if so, please indicate the enforcement actions that may be taken. Please cite the relevant provisions of the legislation.
The Court has all powers including seizure, destroy infringing goods, or be deposited of outside the channels of commerce. Police officers and any authorised officers have the power to 'enter, search and seize'. Please see sections 111, 112, 113, 118, 119, 120 of the Industrial Property Act 2014. Section 115(3) of the Industrial Property Act 2014 has provision where public authorities or officers shall be exempted from liability where actions were taken or intended in good faith. The Copyright Act 2014 makes provision for infringing goods to be seized and destroyed by police officers (section 29) In addition, the Customs Management Act 2011 and through the enactment of subsequent Regulations (S.I 42 OF 2014 s.77 - 82) empowers Customs officials to handle goods deemed to be "counterfeit", "pirated", "infringing" etc.
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IP/Q/SYC/1, IP/Q2/SYC/1, IP/Q3/SYC/1, IP/Q4/SYC/1 Seychelles Suiza 15. Please describe any new initiatives that are planned to improve the enforcement of intellectual property rights in your country. Is there a particular action plan in place?
The Government had requested technical assistance from the Commonwealth in the form of a long term consultant to provide on the job training to the staff of the Registrar division. He took office in early 2016 and since then, has provided training to the staff in order to be able to better implement the Industrial Property Act 2014. The Government is currently planning on continuing its initiative from last year of organising workshops for relevant institutions in order to increase their understanding of the TRIPS Agreement and IP in general. Workshops for the private sector will also be organised to ensure that they are aware of their rights and obligations. The Government is also in the process of reviewing the Copyright Act 2014 and the Industrial Property Act 2014 and their respective legislations with the aim of identifying any implementation issues.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 1. Please describe if your legislation includes measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS Agreement. If yes, please explain how such measures are consistent with the provisions of the TRIPS Agreement.
Section 34(1) of the Patents Act allows the Minister responsible for intellectual property matters to decide, even without the authorization of the patent owner, that a Government agency or designated third party may exploit a patented invention where such exploitation is necessary "in the public interest, in particular national security, nutrition, health or the development of other vital sectors of the national economy". Such compulsory licenses may also be granted where the Minister has determined that the patent owner's or licensee's manner of exploitation is anti-competitive and to issue such a license would remedy that practice
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 2. Please state how your legislation provides for the protection of the exclusive rights of authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS Agreement which requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the Berne Convention (1971).
In accordance with Art. 2(1) of the Berne Convention, section 6 of the Copyright Act grants protection to eligible literary and artistic works, inter alia. Literary works are defined as works, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes a written table or compilation or a computer programme. Artistic work refers to (a) a graphic work, photograph, sculpture or collage, whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship to which neither paragraph (a) nor paragraph (b) applies. Section 9 gives authors the exclusive right to copy the work, to issue copies of the work to the public, to perform the work in public or, in the case of a sound recording, film, broadcast or cable programme, to play or show the work in public; to broadcast the work or include it in a cable programme service and to make an adaptation of the work and, in relation to such adaptation, to do any or all of the foregoing acts. The right to translate literary and artistic works in Art. 8 is expressly included in the definition of adaption under the Act. Protection lasts for 50 years after the life of the author (s. 10) which is the minimum standard set by Art. 7 (this includes anonymous and pseudonymous works). A work of joint authorship qualifies for copyright protection if any of the authors satisfies the eligibility requirements. [Art. 7bis/s. 7(2)]. The principle of automatic protection in Art 5 of the Berne is reflected as the Act contains no formal requirements for protection. The Act contains a number of exceptions permitted under Berne including artistic and literary works used in administrative and judicial proceedings, the course of education, research and private study, criticism or review, reporting of current events, incidental inclusion and use for charitable purposes. Use in such circumstances is subject to fair dealing principles (s. 54). In accordance with Art. 16, a copyright holder whose rights have been infringed or suspects that their rights have been or will be infringed: 1) has legal recourse to bring an action against the infringer (s.32). 2) can notify the Comptroller of Customs in writing requesting the Comptroller to treat infringing printed copies as prohibited goods under the Customs (Control and Management) Act, Cap. 20.04 during a period specified in the notice Section 141 also provides that where a member of the Police Force of or above the rank of Inspector is satisfied that there is reasonable cause to believe that an offence against this Act is being committed, he or she may give directions to any constable authorising him or her to (a) enter and search any premises or place; (b) stop, board and search any vessel, other than a ship of war, or any aircraft, other than a military aircraft; or (c) stop and search any vehicle, in which the constable reasonably suspects there is an infringing copy of a work or an illicit recording or any article used or intended to be used for making infringing copies or illicit recordings; and (d) seize, remove or detain (i) any article which appears to the constable to be an infringing copy or an illicit recording or any other article which appears to him or her to be intended for use for making such copies or recordings; and (ii) anything which appears to him or her to be or to contain, or to be likely to be or to contain, evidence of an offence under this Act.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 3. Please describe the protection accorded to authors of computer programs, databases or compilations of data.
Computer programs, databases and compilations of data are eligible for protection as literary works and the attendant economic rights apply. Section 6(2) provides that a compilation of data or other material, whether in a machine-readable or other form, is eligible for protection as a literary work, except that (a) the compilation shall only be regarded as original if, by reason of the selection or arrangement of its contents, the compilation constitutes the author's own intellectual creation; and (b) the protection does not extend to any data or other material forming part of the compilation and is without prejudice to any copyright subsisting in any such data or other material. The moral right to be identified as the author of a computer programme does not apply unless expressly provided for in contract [s. 14(9)]. The moral right to object to derogatory treatment also does not apply to computer programmes. Section 45(4) provides that where an action is brought for infringement with respect to a computer programme, and copies of the programme are issued to the public in an electronic form bearing a statement (a) that a named person was the owner of copyright in the programme at the date of issue of the copies; or (b) that the programme was first published in a named country or that copies of it were first issued to the public in electronic form in a specified year; the statement shall be admissible as evidence of the facts stated and presumed to be correct until the contrary is proved. Copyright in a computer programme shall not be infringed by the rental of copies to the public after the end of the period of fifty years from the end of the calendar year in which copies of it were first issued to the public in electronic form [s.78(4)].
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 4. Please state whether your legislation provides for a rental right and, if so, the works to which it applies.
Section 3(2) of the Act provides that references to the issue of copies of a work in relation to sound recordings, films and computer programs, includes the act of issuing copies to the public by rental. The exclusive right to issue copies of work to the public is provided for in s. 9(1)(b).
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 5. Please describe the rights granted to performers, producers of phonograms (sound recordings) and broadcasting organisations under your legislation.
Section 108 gives performers the exclusive right to prevent any person, without the consent of the performer, from exploiting his or her performance; and a person who has recording rights in relation to a performance, shall have the exclusive right to prevent any person, without his or her consent from making a recording of that performance. These rights operate independently of any other copyright or moral right in relation to any work used or performed in the performance. A performer's rights are infringed by a person who, without his or her consent, (a) makes, otherwise than for his or her private and domestic use, a record of the whole or any substantial part of a qualifying performance; or (b) broadcasts live, or includes in a cable programme service, the whole or any substantial part of a qualifying performance. In an action for infringement of a performer's rights brought by virtue of this section, damages shall not be awarded against a defendant who shows that at the time of the infringement he or she believed, on reasonable grounds, that consent had been given (s. 109) Section 113 provides that the original phonogram producer and any performer are due remuneration where an eligible original phonogram is made available to the public for commercial purposes. Performers' rights are also infringed where copies of illicit recordings are imported into Saint Kitts and Nevis Producers of phonograms and broadcast organisations have the right to play or show the work in public. They also have the right to copy and issue copies to the public (which includes the right of rental). Broadcast organisations have the right to broadcast the work or to include it in a cable programme service. Moral rights are also conferred on these three classes of authors/owners.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint Kitts y Nevis Unión Europea 6. Please state whether your legislation provides for any limitation or exception in relation to each of the rights described above in accordance with the relevant provisions of the Berne and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
The rights of performers, phonogram producers and broadcast organisations are subject to certain limitations. These are: • Reception and re-transmission of broadcast in cable programme service (s. 83) • Incidental inclusion (s. 119, s.126) • Acts done for the purpose of instruction (s. 120) • Recording of broadcasts or cable programmes by educational establishment (s. 121) • Acts done to performance or recording for parliamentary proceedings (s. 122) • Reporting current events (s. 124) • Playing sound recording for charitable purposes (s. 125) • Making or use by a prescribed broadcasting organisation for the purpose of maintaining supervision and control over programmes broadcast by that organisation of recordings of those programmes. (s.127) • Recording broadcast for archival purpose (s. 128) Section 118 provides that the exceptions and limitations are subject to the fair dealing principles. Section 86 also provides that the Minister may order further exceptions and those specified exceptions must be: (a) are necessary in the public interest in connection with an event of national importance; (b) would not conflict with the normal exploitation of the work; and (c) would not unreasonably prejudice the legitimate interest of the owner of the copyright in the work. The Order shall also make provision for the payment of equitable remuneration to the copyright owner to be determined. The three-step test in Art. 13 of TRIPS is therefore reflected in the Act and the requirements of Art. 14(6) TRIPS are satisfied.
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