Under UK law, copyright in a sound recording gives the owner of copyright the exclusive right to copy the work (see Section 16(1)(a) of the 1988 Act) and action is possible for copyright infringement where unauthorised copying of the sound recording occurs. Moreover, Section 16(3)(b) specifically states that this restricted Act applies whether done directly or indirectly and regardless of whether any intervening Acts infringe copyright. This will cover copying of a sound recording from a digital transmission.

The UK has already said in its original answer that the reproduction right for an owner of copyright in a sound recording will cover copying of a sound recording from a digital transmission. Copying of a sound recording from a broadcast, whether digital or otherwise, will also be covered by the reproduction right for the same reasons as set out in the original answer.

Copyright works, including phonograms (which are treated as such - see answer to question 1), and performers from other countries are protected as explained in answer to Question 1. There is no single date to which the protection extends back since protection is always future protection but is given in respect of an existing copyright work or recording of a particular performance after it has qualified for protection in respect of any period which continues to subsist calculated from the date prior to qualification on which the work or recording of that performance was made, as required by TRIPS. Whether protection exists therefore depends upon whether the term, which would have applied to a particular work or recording of a performance had it always been protected, has expired. Existing sound recordings made from at least as long ago as 1946 may be protected in the UK. The Copyright, Designs and Patents Act 1988 (which has been amended by the Duration of Copyright and Rights in Performances Regulations 1995) in paragraph 12 of Schedule 1 confirms the term of protection in the Copyright Act 1956 for sound recordings made before 1 June 1957 (i.e. the date of commencement of the 1956 Act). The 1956 Act in paragraph 11 of Schedule 7 gives a term of 50 years from making for sound recordings made before commencement of the Act. The 1995 Regulations may result in sound recordings made before 1946 being protected. For literary, dramatic, musical and artistic works, under the 1995 Regulations mentioned above, protection may apply to existing works where the author died 70 years ago, i.e. in 1926. The 1988 Act, which the 1995 Regulations amend, confirmed the protection for works made before commencement of that Act in paragraph 12 of Schedule 1 by reference to Sections 2 and 3 of the 1956 Act, which should be read in the light of the transitional provisions in Schedule 7 of the 1956 Act with regard to works existing before commencement of the 1956 Act. The Copyright (Application to Other Countries) Order 1993 as amended by the 1995 Order mentioned above gives effect to retroactive protection, subject, of course, to the term of protection having not already ceased, for all copyright works from all WTO countries. The 1995 Order does not restore any copyright because Article 18 of Berne does not require works that have already fallen into the public domain through expiry of copyright protection to be protected. Article 7 of the 1993 Order (amended by the 1995 Order) gives some protection to those who have or may be about to use a work newly protected by copyright. Article 7 allows the continued doing of certain acts unless the copyright owner pays compensation as settled by arbitration in the absence of agreement. How long the Act can be continued would depend on whether the Act fell within the scope of the Article. It would ultimately be for the courts to decide whether this is the case in any particular circumstances. As far as performers rights are concerned, the 1995 Order mentioned above in reply to Question 1 grants reciprocal protection, i.e. the same as that applying under Part II of the Copyright, Designs and Patents Act 1988 to UK performers (except where there are limitations on this reciprocity as is indicated in the relevant Order). TRIPS Article 14.6 requires Article 18 of Berne to extend only to those rights of performers in sound recordings granted by TRIPS. By definition, the only right relevant here is the right to authorise the reproduction of a fixation of a performance. Section 180(3) in Part II of the 1988 Act ensures that insofar as rights in recordings are concerned, those rights apply after qualification to recordings of performances made prior to qualification except that no act carried out in relation to such a recording either prior to qualification, or after qualification but in pursuance of arrangements made before qualification, can be an infringement of rights arising after qualification. As with copyright, the extent to which existing performances are protected depends on whether the term of protection, had the performance always been protected, has already expired.

It is the UK's understanding that questions relating to the enforcement of intellectual property rights are to be considered later in the scrutiny process. Nevertheless, we would refer you to the UK's response to the checklist on enforcement which will be circulated shortly for details on the enforcement of intellectual property rights in the UK. Should you require any further clarification or if you have any follow-up questions then we would be pleased to discuss them on a bilateral basis or later in the scrutiny process when issues relating to enforcement are addressed.

The draft Law on Copyright and Neighbouring Rights does not provide for any of the exceptions permitted under Article 3 or any of the exemptions permitted under Article 4 of the TRIPS Agreement.

Article 3(f) of the draft law on Trademarks prohibits the registration of a trademark where its use is likely to create confusion with respect to the origin or source of the goods or services. The draft Law on the Protection of Geographical Indications implements Article 22 to 24 of the TRIPS Agreement. Also Article 2 of the draft Law on Geographical Indications defines a Geographical Indication and prohibits its unlawful use and provides that such use amounts to unfair competition. The use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good, is prohibited. Although the draft Law on Geographical Indication provides for registration, it does not require registration for protection except that provisional measures and criminal sanctions are only available to registered Geographical Indications. Article 5 of the draft Law on Geographical Indications provides that any party who has an interest may lodge an application for registration. The provisional measures that may be ordered based on Article 11 of the draft Law include: a) Prevention of an alleged imminent infringement from occurring. b) Injunction to cease an alleged infringement. c) Recording or preserving relevant evidence. Article (12) of the draft Law on Geographical Indications provides for criminal sanctions in the case of unlawful use of a geographical indication. As allowed under Article 24.9 of the TRIPS Agreement, Article 9(c) excludes protection to geographical indications, which are not, or have ceased to be protected in their country of origin, or which have fallen into disuse in that country. Although, the draft Law on Geographical Indications does not explicitly implement the provisions of Article 23 of the TRIPS Agreement on Additional Protection for Geographical Indications for Wines and Spirits, such additional protection may be sought based on Article 13 of the draft Law which provides that any person may claim a more favourable protection to a geographical indication if it is provided for by virtue of any agreement, convention or treaty to which Bahrain is party. A claim for an unlawful use of a geographical indication, even if not registered, may also be founded on unfair competition based on the provisions of Article 61 of the Law of Commerce of 1987.

The draft Law on Patents and Utility Models contains exceptions which do not go beyond those allowed under Article 27 of the TRIPS Agreement. The exceptions provided by virtue of Article 1 and 3 of the draft Law are: a) Inventions, the prevention of the commercial exploitation of which is necessary to protect public order or morality or to avoid serious damage to the environment. b) Plants and animals, other than micro organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. c) Diagnostic, therapeutic and surgical methods for the treatment of humans or animals, excluding products used for such methods. d) Scientific discoveries, theories and mathematical methods. Article 1 of the draft Law provides that patents are available for any inventions, whether products or processes, provided they are new, involve an inventive step and are capable of industrial application. Article 1 further provides that an invention is capable of industrial application if it can be applied or exploited in any field of technology.

The draft Law on Patents and Utility Models does not explicitly state whether or not "importation satisfies the working" requirement but may be interpreted to be so. However, it is worth pointing out that Articles 27.1, 27.3 and 31 of the TRIPS Agreement are reflected in the draft Law.

The draft Law on Patents and Utility Models provides for a system of granting compulsory licences subject to certain conditions which are in line with those enumerated under Article 31 of the TRIPS Agreement. The relevant provisions of the draft Law are Articles 24, 25, 26, 27 and 36. These are as follows: Article 24 The Minister of Commerce and Industry may issue a non-exclusive compulsory licence for the exploitation of a patent in the following cases: a) National emergency or circumstances of extreme urgency or for public non-commercial use provided that the owner of the patent is notified as soon as possible after the licence is granted. b) Where the owner of the patent has not made sufficient use of the patent to the extent that he has failed to satisfy the needs of the domestic market, at reasonable prices taking into account those prevailing internationally, for 3 years from the date of the grant of the patent or 4 years from the date of the filing of the patent application, whichever is longer. In such a situation, the Minister shall have the right to issue a compulsory licence to any person to whom the patent owner has refused to grant a licence or to whom the owner has imposed unfair commercial terms in order to grant him such a licence. c) Where a patented invention (first patent) involves an important technical advance of considerable economic significance in relation to another patented invention (second patent), and where the first patent can not be exploited without exploiting the second patent, the owner of the first patent may be granted a compulsory licence to exploit the second patent. This is provided that the owner of the second patent has refused to allow such exploitation on reasonable terms. The exploitation of the second patent authorized in this case may not be assigned without the assignment of the first patent. The owner of the second patent may also be granted a compulsory licence to exploit, at reasonable terms, the first patent in respect to which the other compulsory licence was granted. d) Where the owner of the patent exercises his rights for anti-competitive ends. Article 25 The following provisions shall apply to compulsory licences: a) Applications for compulsory licences shall-upon the payment of the prescribed fee-be considered each upon its own merits. The applicant shall pay the prescribed fee in respect of the application b) The licence shall be exploited predominantly for the supply of the domestic market. c) The applicant must be capable of effectively exploiting the invention through an enterprise existing in the State of Bahrain. d) The licence shall only be granted if the applicant has made reasonable efforts to obtain a licence from the patent owner on reasonable commercial terms and conditions, and that such efforts have not been successful within a reasonable period of time. e) The applicant shall agree to limit the exploitation of the invention to the purpose, scope, conditions and period for which the licence is to be granted. f) Where the proposed exploitation relates to semi-conductor technology, authorisation shall only be granted for public non-commercial use or to remedy practices determined to be anti-competitive. g) The proposed user shall not assign the licence except with the enterprise or the part thereof relating to the exploitation of the invention and after the approval of the Minister of Commerce and Industry. h) The patent owner shall be entitled to adequate remuneration taking into account the monetary value of the licence. The need to remedy anti-competitive practices, if applicable, may be taken into account in determining the remuneration. i) The conditions provided for in items (b) and (d) of this Article shall not apply to situations where a licence is granted to remedy anti-competitive practices. j) The Minister of Commerce and Industry shall ex officio or at the request of any interested party have the authority to amend the conditions of a compulsory licence in case of change in circumstances. Article 26 Except in cases of national emergency and other circumstances of extreme urgency as referred to under Article 24(a), the competent Directorate at the Ministry of Commerce and Industry shall provide the patent owner with a copy of the licence application. The patent owner shall be provided a reasonable opportunity to respond in writing to the application. The processing of the application shall be in accordance with the procedure specified in the Implementing Regulation. The Minister of Commerce and Industry shall issue a decision accepting or rejecting the application and may grant an acceptance subject to any conditions he deems appropriate. In all cases, the Minister shall notify the owner of the patent and the applicant of his decision within 30 days of the issuance of such a decision and the competent Directorate shall enter the decision in the register of patents. The decision shall also be published in the manner specified in the Implementing Regulation. Article 27 The Minister of Commerce and Industry shall ex officio or at the request of the patent owner have the authority to terminate the licence before the end of its term in the following cases: a) The circumstances, which led to the granting of the licence, have ceased to exist and are unlikely to recur. In such case, the legitimate interests of the licensee shall be adequately protected in accordance with the terms and procedures specified in the Implementing Regulation. b) The licensee has not exploited the licence for two years from the date of its issuance. c) The licensee has not complied with any of the conditions of the licence or has failed to fulfil his obligations under this Law and the related Implementing Regulation. The decision of the Minister of Commerce and Industry in respect of the application for a compulsory licence may be challenged based on Article (36) of the draft Law which provides: "Subject to the provisions for challenges provided for under Articles (18) and (19) and without prejudice to the provisions of Article (15) of this Law, any interested party may submit a petition to the Minister of Commerce and Industry in respect of any final decision issued in accordance with this Law within 30 days of its notification to that person. A decision in respect of the petition shall be issued within 30 days of its submission and the interested party shall be notified of the decision in writing within 30 days of its date of issuance. If the interested party is not notified of a decision within 60 days of the date of submission of his petition, such petition shall be deemed rejected. Where a petition has been rejected or deemed rejected, the interested party may appeal such rejection before the High Civil Court within 60 days of its notification or lapse of the period beyond which the petition is deemed rejected as the case may be. An appeal may not be brought before the court until a petition has been filed and a decision has been issued or the period for a decision has lapsed."

Article 12 of the draft Law on Patents and Utility Models provides for the reversal of the burden of proof. Article 12 provides: "With due regards to the defendant's right to protect his industrial and commercial secrets, the civil court may, in a claim relating to the exploitation of a patented industrial process used without the consent of its owner, order the defendant to prove that the process used to obtain an identical product is different from the patented process. This is provided that the plaintiff has been unable to identify the process actually used despite reasonable efforts; and provided the court believes it is likely that the identical product was made using the protected process."

Article 2 of the draft Law on the Protection of Trade Secrets protects undisclosed tests or other data submitted by an applicant to the responsible State agency for market authorisation of a pharmaceutical or of an agricultural chemical product which utilises new chemical entities. The relevant provisions and limitations are contained in Article 2 which states: "The prohibition on disclosure of trade secrets referred to in the preceding Article shall extend to undisclosed tests or data the origination of which involves a considerable effort, and which have been submitted to the competent authorities for the purpose of obtaining approval for marketing of pharmaceutical or agricultural chemical products which utilise new chemicals entities. The competent authorities which receive such tests or data shall protect them against disclosure as from the date they are received until they are no longer secret, and shall prohibit their unfair commercial use by preventing any third party not having the consent of the person who submitted them from relying on such data or tests in the marketing of similar drugs or products for 5 years following the date of marketing approval of the drugs or products in Bahrain. Disclosure of the tests or data by the competent authorities shall only be made where necessary to protect the public or unless the necessary steps are taken to ensure that the data are protected against unfair commercial us."

Criminal Sanctions: All draft Laws of IPRs provide for criminal sanctions against infringement of all categories of IPRs. The penalty for all infringements of the various IPRs is the same. It is a fine between BD 500 to BD 2,000 or a prison term between three months and one year or both fine and imprisonment. If the offender repeats the offence, the upper limits of both the fine and imprisonment are doubled and in addition the court may order the business premises, at which the offence was facilitated, to be closed for a period between 15 days to 6 months and to order the verdict to be published in at least one local daily newspaper at the expense of the convicted offender. In all cases the court has the authority to order the goods that have been found to be infringing to be forfeited and destroyed. This also applies to materials and implements used for the infringement.

The draft Laws, upon enactment, will make infringement of all forms of IPR a criminal offence. Arrangements are being made to increase and train government inspectors to detect and apprehend infringements. Arrangements are also being made to conduct specialized courses to customs officials, public prosecutors, and judges to acquire the necessary relevant skills each according to his profession. WIPO has been approached to assist with conducting a Postgraduate Diploma in IPR and their response is awaited. Contacts have been developed with the concerned sector in the industry and other professional associations to conduct a public awareness campaign and to assist with the implementation of the relevant legislation.

There is nothing in the Canadian Copyright Act that imposes business practice on "les sociétés de gestion canadiennes" with respect to how they organize the distribution of monies owed to foreign authors. Some of the Canadian societies do, however, indicate the process in general terms. Generally, they make payments to foreign collectives which then distribute the revenues to the authors in that country. For example, SOCAN, the Society of Composers, Authors and Music Publishers of Canada, indicates that "under the terms of the [Canadian] Copyright Act, [it] collects tariff fees from the users on behalf of its members and foreign copyright owners it represents in Canada. These fees are then systematically distributed as performance royalties to creators and publishers whose works have been performed and which SOCAN has identified and credited through its own procedures. When [the Canadian creator's] work is performed and identified overseas, SOCAN forwards the monies received from foreign societies directly to ... the [Canadian] copyright owner. And when a foreign work is performed here, SOCAN sends royalties to the copyright owner's own domestic society". CANCOPY acts on behalf of artists, writers and publishers with respect to the reproduction right. A licensing fee or royalty is collected and given back to the artist, writer or publisher. CANCOPY represents published works from around the world through agreements with international reproduction rights organizations. (As recently as July 1996, CANCOPY signed a reciprocal agreement with a collective in another European country in which the two organizations agreed to represent each other in their own country as well as collect and exchange royalties). Generally, royalties collected in Canada are distributed directly to Canadian affiliates regardless of the country of publication. Royalties collected abroad are distributed to Canadian rightholders through CANCOPY. For further information, SOCAN material can be accessed at its WEB page: httb://www.socan.ca/ and CANCOPY at http://cancopy.com/.

The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and was started in 1993 (so far only for "sound recording", excluding "visual recording"). The compensation is collected by a collective society called the 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 part of the compensation to their overseas counterparts in accordance with the negotiated 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.

The legal basis of "boarder measures" can be found in the Japanese Copyright Law and the Customs Tariff Law. Article 113 of the Japanese Copyright Law, stipulates that it is deemed an infringement on a copyright to import into Japan, for distribution, objects made by an act which would constitute an infringement on copyright at the time of such importation if they were made in Japan. The importation of objects made by copyright infringement is prohibited by Article 21 of the Japanese Customs Tariff Law and shall be punished by Article 109 of the Japanese Customs Law. As for the due procedures, special requirements related to border measures are provided by Articles 21bis and 21ter of the Customs Tariff Law. Provisions on "provisional measures" can be found in the Code of Civil Preservative Procedure which is one of general laws related to civil remedies. The Code is included in WTO document IP/N/1/JPN/1 titled "Notification of Laws and Regulations under Article 63.2 of the Agreement", which was issued on 1 March 1996.

As permitted under Article 27.2 of the TRIPS Agreement, Article 3(a) of the draft law on Patents and Utility Models excludes from Patentability inventions the prevention of the commercial exploitation, within the State of Bahrain, which is necessary to protect public order or morality or to avoid serious damage to the environment. Article 20 of the draft law on Patents and Utility Models provides that inventions with extreme importance to public defence and security may be objected to by the security authorities against the purchase of the invention for a fair and equitable price and also qualify for the grant of a compulsory licence for the exploitation of the invention in accordance with the provisions of the law. Also by virtue of Article 24 of the draft Law on Patents and Utility Models, a non-exclusive compulsory licence for the exploitation of a Patent may be awarded in cases of national emergency or other circumstance of extreme urgency or for public non-commercial use.

The draft Law on Copyright and Neighbouring Rights will supersede the Copyright Law which was enacted in 1993. The draft Law implements Articles 9 to14 of the TRIPS Agreement. Although not required under the TRIPS Agreement, the draft Law implements Article 6bis of the Berne Convention as Bahrain is party to the said convention. The draft Law also implements many of the provisions of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

Paragraph 2 of Article 2 of the draft Law on Copyright and Neighbouring Rights provides that computer programmes whether in source or object code are protectable. Similarly, Paragraph 3 of Article 2 provides that databases whether or not computer readable are protectable. Moreover, Paragraph 13 of Article 2 provides that derivative works are protectable. Article 1 defines derivative works as: "Works derived from other existing works, such as translations, musical arrangements, compilation of works, including databases, whether or not computer readable, and collections of expressions of folklore, which, by reason of the arrangement and selection of their contents, are considered creative."

Article 5(d) of the draft Law on Copyright and Neighbouring Rights provides that the author and his successor in title has exclusive right to authorise or prohibit the use of one or more copies of his work by others for rental or lending to the public. Article 7 provides that such right with respect to computer programs does not apply where the program itself is not the essential object of the rental or lending. Article 7 further provides that the right does not apply with respect to cinematographic works unless such rental or lending has led to widespread copying of such work which is materially impairing the exclusive right of reproduction.