According to the interpretation section of the Copyright Bill, section 2, the term "literary works" is defined as follows: 'literary work means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes: (a) a written table or compilation; (b) a computer program;' Computer programs, compilations and other forms of data accordingly receive similar protection to that of other literary works. Section 6 of the Bill goes further which states: "(1) Copyright is a property right which, subject to the provisions of this section, may subsist in the following categories of work: (a) original literary, dramatic, musical or artistic works." Computer programs through their status as literary works do receive protection. Subsection 2 goes on to state that compilations of data are also protected stating: "(2) A compilation of data or other material (database), whether in machine-readable or other form, is eligible for protection as a literary work, but such compilation shall be regarded as original only if, by reason of the selection or arrangement of its contents, the compilation constitutes the author's own intellectual creation; but such 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." As a result both computer programs and compilations of data are protected works. However, while according to section 10 the duration of protection for literary works is fifty years from the end of the calendar year of the author's death, the term for that of computer programs is fifty years from the end of the calendar year that the work is done. Subsection 4 states: "(2) Subsections (1) and (2) do not apply to computer generated work, the copyright in which expires at the end of the period of the fifty years from the end of the calendar year in which the work was made." Since this provision refers to "computer generated work" it is submitted that compilations of data, if computer generated, will accordingly be afforded the latter duration of protection.

Rental rights for computer programs and cinematographic works are governed by section 78 of the Copyright Bill. Subsection (1) states: "The Minister may by order, subject to affirmative resolution, provide that in such cases as may be specified in the order, the rental to the public of copies of sound recordings, films or computer programs shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal." Section 9 further states: "(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a work shall have the exclusive right to do or to authorize other persons to do any of the following act in Antigua and Barbuda (a) to copy the work; (b) to issue copies of the work to the public by sale, rental, public lending or otherwise of the original or copy of the work that has not already been subject to a distribution authorized by the owner of the copyright; (c) to rent or lend to the public the original or a copy of an audio visual work;" This section therefore gives the owner of the copyright some rental rights outside of those which may be granted by the Minister to authorize others to issue protected material for rent to the public. The term work in section 9(1)(b) is defined in section 2: "'work' means: (a) a literary, dramatic, musical or artistic work; (b) a sound recording, film, broadcast or cable programme; (c) the typographical arrangement of a published edition; and accordingly 'protected work' means a work of any of such categories in which copyright subsists by virtue of this Act;"

Protection under copyright law for performers is found in Part IX of the Bill namely "Rights in Performances". This part gives extensive rights to performers and also provides for limitation of those rights. According to section 107(1) rights in performances are conferred on: "(a) a performer, requiring his consent to the exploitation of his performance; and (b) a person having recording rights in relation to a performance, requiring his consent to the making of a recording of that performance." These rights are so conferred independent of any copyright in, or moral rights relating to, any work used or performed in the performance, according to subsection (2)(a). Part IX subsequently stipulates the rights possessed by performers and the relevant possible infringements. These sections run from 108 through 114. These vest in the performer certain rights and state where and to what extent consent is needed as against infringement through recordings, use of the recordings, broadcasts of the performance, importation of illicit recordings etc. Exceptions to these infringements and the remedies against them are also included in Part IX. The duration of these rights are addressed in section 128, which states the following: "129. The rights conferred by this Part continue to subsist in relation to a performance until the end of the period of fifty years from the end of the calendar year in which the performance takes place." Phonograms or sound recordings as they are referred to in the Copyright Bill are listed under section 6(1)(b) as a category of work which may be protected. Further according to section 2: "'author' in relation to a work, means the natural person who creates it, being in relation to: (e) a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken;" The producer of the sound recording is therefore considered to be the author of the sound recording for the purposes of the legislation. Consequently the producer receives all the protection of an author. According to section 22(1): "the author of a protected work is the original owner of any copyright in that work unless there is an agreement to the contrary." So, barring any contrary arrangement the copyright owner of the sound recording is the producer as such he/she too will receive the benefits under section 9. "(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a work shall have the exclusive right to do or to authorize other persons to do any of the following acts in Antigua and Barbuda: (a) to copy the work; (b) to issue copies of the work to the public sale, rental, public lending or otherwise of the original or copy of the work that has not already been subject to a distribution authorized by the owner of the copyright;" Section 31 further provides that the copyright in a work is infringed by any person who, without the licence of the copyright owner, does, in relation to that work, any of the acts which the copyright owner has the exclusive right to do pursuant to section 9. This infringement includes those who have what they know or believe to be infringing copies or an article for making the same, according to section 31(3) and (4). "(3) Copyright in a work is infringed by a person who, without the license of the copyright owner: (a) possesses in the course of a business; (b) sells or lets for hire or offers or exposes for sale or hire; (c) exhibits in public or distributes in the course of a business; or (d) distributes otherwise than in the course of a business, to such an extent as to affect prejudicially the copyright owner, an article which is, and which he knows or has reason to believe is an infringing copy of the work. (4) Copyright in a work is infringed by a person who, without the license of the copyright owner: (a) makes; (b) imports into Antigua and Barbuda; (c) possesses in the course of a business; or (d) sells or lets for hire or offers for sale or hire; an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies." These provisions therefore protect against unauthorized reproduction across the board. It is observed that section 9(1)(b) above also gives rental rights to the producer. These rights are further protected in section 78(1): "The Minister may by order, subject to affirmative resolution, provide that in such cases as may be specified in the order, the rental to the public of copies of sound recordings, films or computer programs shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal." According to section 4(2): "References in this Act to the person making a broadcast, broadcasting a work or including a work in a broadcast are references: (a) to the person transmitting the programme to the extent that he has responsibility for its contents; and (b) to any person providing the programme who makes with the person transmitting it, the arrangements necessary for its transmission, and references in this Act to a programme, in the context of broadcasting, are to any item included in a broadcast." The term "person" here refers to individuals, legal persons and organizations once they are lawfully broadcasting. Section 6 provides for a broadcast as protected works. This being the case it falls within the rights given under section 9(2) that states: "A broadcast qualifies for copyright protection if it is made from a place in Antigua and Barbuda or a specified country by a broadcasting organization in possession of a valid licence granted to it under any law in Antigua and Barbuda or a specified country regulating broadcasting." The protection that is afforded to all copyright owners under Section 22(1) which states that the author of a protected work is the original owner of any copyright in that work unless there is an agreement to the contrary, is extended to such organization by Section 22(5) which provides that the natural person or legal entity at whose initiative and direction of whom or which the work has been created is the original owner of the copyright.

These exceptions and limitations are provided for in the Copyright Bill. The exceptions for Copyrights, under the Berne Convention and Article 13 of the TRIPS Agreement are provided for in Part VI of the Bill entitled "Exceptions to the Infringement of Copyright". Sound recordings' exceptions are also covered by this Part. This Part runs from sections 51 through 86. The part is then separated into categories, which are set out in groupings of sections. The first of these groupings deals with the general exceptions, which are sections 52-55. They cover exceptions made for research and private study, criticism, review and reporting, determining fair dealing and incidental inclusion of a protected work. The next are those that are exceptions where there is a use of protected works for educational purposes. These are sections 56-60 and they respectively cover acts done for purposes of instruction or examination, anthologies for educational use, recording of broadcast, etc. by educational establishments, restriction on reprographic copying by educational establishments, subsequent dealings with authorized copies. The next category is the exceptions affecting libraries and archives. Section 61 is the interpretation section. The other sections include section 62, "Supply by librarian of copies of published work", section 63, "Supply of copies to other libraries", section 64 "Replacing copies of works", and section 65, "Copying of unpublished work". The next category, exceptions relating to public administration, is embodied in sections 66 and 67 makes exceptions where there are Parliamentary, judicial proceedings, public inquiry, or works held in Public Records as defined by the Registrations and Records Act. Designs are the next area where exceptions are made. These exceptions are separated into section 68, which allows for the making or copying of an article from design documents and models and section 69, which allows for exceptions, where designs derived from artistic works are exploited. Exceptions relating to works in electronic form as a category is covered by section 70. This affords exceptions to the users where there is transfer of works in electronic form in the absence of any express terms to the contrary made by the owner of the right or the licensee. The next category of exceptions is titled "Miscellaneous exceptions relating to literary dramatic, musical and artistic works". These are encompassed in sections 71 through 76 and include anonymous and pseudonymous literary, dramatic, musical or artistic work, use of notes of recordings of spoken word, reading or recitation in public, certain representations of artistic works on public display, reconstruction of buildings, and subsequent work by the same artist. Miscellaneous exceptions relating to sound recordings, films and computer programs as well form sections 77-79. These include making or copying of recordings of musical work previously made or imported, the rental of sound recordings, films and computer programs, as allowed by order of the Minister responsible, and playing of sound recording for purposes of charitable organizations. Further there are miscellaneous exceptions respecting broadcasts and cable programmes, sections 80-84. This includes the incidental recording for purposes of broadcast or cable programme, recordings of broadcasts for programme control, recording for archival purposes, reception and retransmission of broadcast in cable programme service, recording for purpose of time shifting. Section 85 covers "Adaptations" and provides that certain acts not covered as infringements by Part VI will not be considered an infringement. Section 86 covers "Prescribed Exceptions" which basically hold that the Minister responsible may by order, subject to a negative resolution by the House of Representatives and to certain criteria found in subsection 2 to prescribe exceptions to infringements. Similar exceptions can be found with regard to Performances, as is required by the Rome Convention these are covered in Part IX in a group of section categorized as "Exceptions to infringement" and which runs from sections 115-128. Section 115 provides that acts therein shall not be considered infringements of copyrights. Section 116 provides for fair dealing for criticism, review or reporting current events. Section 117 allows incidental inclusion in a sound recording, film, broadcast or cable programme, of a performance or recording. Section 118 provides for acts done to a recording or performance for purposes of instruction. Section 119 allows the recording of broadcast or cable programme by educational establishments. Section 120 includes acts done to performance or recording for Parliamentary proceedings, judicial proceedings, statutory inquiries or other public proceedings. Section 121 allows for the transfer of recordings of performances in electronic form. Sections 122 and 123 provide for the use of recordings of spoken words and the playing of sound recordings for charitable purposes respectively. Section 124 covers incidental recording for purposes of broadcast or cable programme. Sections 125 and 126 provide for the Recording for the purpose of supervision and control of programmes and the recording of broadcasts etc. for archival purposes respectively. Section 127 gives the responsible Minister similar powers as is given in section 86 and may make an order excepting acts from infringing rights under this Article. Finally, section 128 gives the Copyright Tribunal the power, on the application of a user, to consent on behalf of performers behalf to allow a recording of a performance to be used subject to the criteria outlined in the section.

Sections 10 through 13 govern the terms of protection of protected works under copyright law in Antigua and Barbuda. The duration of copyright protection for literary works etc. is governed by section 10 of the Bill, which states: "(1) Subject to this section, copyright in any literary, dramatic, musical or artistic work expires at the end of the period of fifty years from the end of the calendar year in which the author dies. (2) Where the authorship of a work referred to in subsection (1) is unknown, copyright in that work expires at the end of the period of fifty years from the end of the calendar year in which the work was either made, was first made available to the public or first published whatever date is the latest, but subsection (1) does not apply if the identity of the author becomes known after the end of that period." It must be mentioned, however, that although in section 2 of the Bill computer programs are considered to be within the meaning of literary works, they are not afforded the same length and terms of protection as they are governed by subsection (4), which is concerned with computer generated works. It goes as follows: "(4) Subsections (1) and (2) do not apply to computer generated work, the copyright in which expires at the end of the period of the fifty years from the end of the calendar year in which the work was made." Where a copyright is held by joint owners, according to subsection (5)(a), the reference in subsection (1) to the date of death of the author refers, where all the authors' identities are known, to the date at which the last of the authors died. Where one or more of the authors' identities are unknown this date is that of the last of the known authors to die. Further subsection (5)(b) states that the reference in subsection (2) of the Act to the identity of the author becoming known shall here be construed as a reference to the identity of any of the authors becoming known. The terms and length of protection for sound recordings and film are governed by section 11, which states: "(1) Copyright in a sound recording or film expires at the end of the period of fifty years from the end of the calendar year in which it was made or, where it is made available to the public before the end of the period, fifty years from the end of the calendar year in which it is so made available. (2) For the purposes of subsection (1) a sound recording or film is made available to the public when: (a) It is first published, broadcast or included in a cable programme service; (b) In the case of a film or film sound-track, the film is first shown in public, but determining whether a sound recording or film has been made available to the public, any unauthorized act shall be disregarded." The duration of copyright protection in broadcasts and cable programmes is covered by section 12. It goes as follows: "(1) Copyright is a broadcast or cable programme expires at the end of the period of fifty years from the end of the calendar year in which the broadcast was made or the programme included in a cable programme service. (2) Copyright in a repeat broadcast or a repeat cable programme expires at the same time as copyright in the original broadcast or cable programme; and accordingly, no copyright arises in respect of a repeat broadcast or a repeat cable programme service after the expiry of the copyright in the original broadcast or cable programme. (3) Reference in subsection (2) to a repeat broadcast or a repeat programme means one which is a repeat of a broadcast previously made or as the case may be, of a cable programme previously included in a cable programme service." The final category dealt with in the Bill is that of typographical arrangements. According to section 13 this copyright expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published. The duration of performers rights are addressed in section 129, which states the following: "129. The rights conferred by this Part continue to subsist in relation to a performance until the end of the period of fifty years from the end of the calendar year in which the performance takes place."

Provision has been made in the Antigua and Barbuda legislation for the retroactivity referred to in the articles. These provisions can be found in section 153, which is referred to as the Transitional Provision. They are as follows: "(1) Where immediately prior to the appointed day copyright subsists in Antigua and Barbuda in any literary, dramatic, musical or artistic work by virtue of the Copyright Act, 1911 of the United Kingdom, such copyright shall subsist, and the person entitled thereto by virtue of that Act shall be the owner thereof, under and subject to this Act, and in particular: (a) the duration of such copyright; (b) the acts comprised within the exclusive rights attaching to such copyright; and (c) the effect upon the ownership of such copyright of any event or transaction occurring or of any contract or agreement made on or after the appointed day, shall be governed by this Act. (2) Where, on the appointed day copyright subsists in Antigua and Barbuda by virtue of section 19 (1) of the Copyright Act, 1911 of the United Kingdom, in any record, perforated roll or other contrivance by virtue of which sounds may be mechanically produced, by virtue of section 12(1) of the Copyright Act, 1956 of the United Kingdom in any sound recording, such copyright shall continue: (a) to subsist for the remainder of the period for which it would have subsisted if this Act had not been passed; and (b) in relation to any such record, perforated roll or contrivance, sound recording, to have the meaning and effect it would have had if this Act had not been passed. (3) No act done before the appointed day is actionable by virtue of the conferment of the rights specified in Part III. (4) The right conferred by section 14 to be identified as the author or, as the case may be, director of a work, and the right conferred by section 15 to object to derogatory treatment of such work, shall not apply: (a) in relation to a literary, dramatic, musical or artistic work of which the author died before the appointed day; or (b) in relation to a film made before the appointed day. (5) The rights in relation to a literary, dramatic, musical or artistic work existing before the appointed day do not apply: (a) where copyright first vested in the author, to anything which, by virtue of an assignment of copyright made or licence granted before the appointed day, may be done without infringing copyright; (b) where copyright first vested in a person other than the author, to anything done by or with the license of the copyright owner. (5) The right to privacy conferred by section 17 in respect of photographs and films does not apply to photographs taken or films made, before the appointed day. (6) Where before the appointed day any person has incurred any expenditure or liability in connection with or in contemplation of, the doing of an act in relation to a protected work or a performance in respect of which rights are conferred by this Act, being an act which prior to that date would have been lawful, nothing in this Act shall diminish or prejudice any rights or interests which, in relation to that work or performance, are subsisting and valuable on the appointed day, unless the person who, by virtue of this Act, is the owner of the copyright or the person having rights in the performance agrees to pay such compensation as, in default of agreement, may be determined by the Copyright Tribunal. (7) Where an act done before the appointed day was then an infringement of copyright but is not an infringement of copyright under this Act, then, proceedings in respect of that Act may be taken as if this Act had not been passed. (8) An act done before the appointed day shall not be an infringement of copyright or rights in performances conferred by this Act if that Act would not, but for the passing of this Act, have constituted an infringement. (10) Proceedings for infringement of copyright instituted but not disposed of before the appointed day shall be disposed of as if this Act had not been passed. (11) Proceedings under this Act for infringement may be taken notwithstanding that the alleged infringement occurred before the appointed day. (12) In this section 'appointed day' means the day appointed pursuant to section 1."

There is no definition for a sign in the Trademarks Bill 2001. However, according to section 2 of the Trademarks Bill: "'mark' means any visible sign capable of distinguishing the goods ('trademark') or services ('service mark') of an enterprise;" In reference to the conditions necessary for a trademark to be protected under the Bill, according to section 3(2): "(a) A mark cannot be validly registered: (i) if it is incapable of distinguishing the goods or services of one enterprise from those of other enterprises; (ii) if it is contrary to public order or morality; (iii) if it is likely to mislead the public or trade circles, in particular as regards the geographical origin of the goods or services concerned or their nature or characteristics; (iv) if it is identical with, or is an imitation of or contains as an element, an armorial bearing, flag and other emblem, a name or abbreviation or initials of the name of, or official sign or hallmark adopted by, any State, intergovernmental organization or organization created by an international convention, unless authorized by the competent authority of that State or organization; (v) if it is identical with, or confusingly similar to, or constitutes a translation of, a mark or trade name which is well known in Antigua and Barbuda for identical or similar goods or services of another enterprise, or if it is well-known and registered in Antigua and Barbuda for goods or services which are not identical or similar to those in respect of which registration is applied for, provided, in the latter case, that use of the mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the well-known mark and that the interests of the owner of the well-known mark are likely to be damaged by such use; (vi) if it is identical with a mark belonging to a different proprietor and already on the Register, or with an earlier filing or priority date, in respect of the same goods or services or closely related goods or services, or if it so nearly resembles such a mark as to be likely to deceive or cause confusion."

Services are protected at the same level as goods as seen by the definition of a mark in section 2 of the Bill. Trade names are also protected under this Bill. Section 10(2) of the Bill states that trade names are protected even prior and without registration, notwithstanding any laws or provisions, from any unlawful act committed by third parties. The Bill, however, only provides for visible signs.

Use is not a requirement for the registration of a trademark. According to section 5 of the Bill, the Registrar shall examine the trademark and determine whether it is registrable under section 3. However, according to section 7(4): "Any interested person may request the Registrar to remove a mark from the Register, in respect of any of the goods or services in respect of which it is registered, on the ground that up to one month prior to filing the request the mark had, after its registration, not been used by the registered owner or a licensee during a continuous period of three years or longer; but that a mark shall not be removed if it is shown that special circumstances prevented the use of the mark and that there was no intention not to use or to abandon the same in respect of those goods or services."

The Act permits that the registration of trademarks be indefinitely renewable. This is provided for in section 6(6) where it is stated that a trademark is renewable every ten years.

However, in section 7(4), it gives any person the option to make a request for the removal of the trademark from the register: "on the ground that up to one month prior to filing the request the mark had, after its registration, not been used by the registered owner or a licensee during a continuous period of three years or longer; but that a mark shall not be removed if it is shown that special circumstances prevented the use of the mark and that there was no intention not to use or to abandon the same in respect of those goods or services."

The Registrar has the power to refuse or invalidate a trademark registration under section 17 of the Geographical Indications Bill if the trademark contains or consists of a geographical indication with respect to goods not originating from in the territory indicated. The reason for this is that the use of such indication in the trademark for such goods in Antigua and Barbuda could mislead the public as to their true place of origin. Section 18 applies this principle specifically trademarks for wines or spirits, which contains or consists of a geographical indication identifying such wines or spirits not having the particular place of origin. Section 19 highlights the exceptions to this rule: "(1) Nothing in this Act shall prevent continued and similar use in Antigua and Barbuda of a particular geographical indication of another country identifying wines or spirits in connection with goods or services by any national or domiciliary of Antigua and Barbuda who has used that geographical indication in a continuous manner with regard to the same or related goods or services in Antigua and Barbuda either: (a) for at least ten years preceding April 15, 1994; or (b) in good faith preceding that date. (2) Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either: (a) before the date of entry into force of this Act; or (b) before the geographical indication is protected in its country of origin; this Act shall not prejudice the registrability of or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication. (3) Nothing in this Act shall apply in respect of: (a) a geographical indication of any country with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in Antigua and Barbuda; or (b) a geographical indication of any other country with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in Antigua and Barbuda as of January 1, 1995."

A geographical indication is defined in the Bill under section 2 as: "… an indication which identifies a good as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;" "'good' means any natural or agricultural product or any product of handicraft or industry."

Under section 9 of the Bill, the Registrar in examining the application in accordance with the conditions spelt out in sections 6 and 8 must ensure that the application specifies, among other things: "(a) the geographical areas to which the geographical indication applies; (b) the goods for which the geographical indication applies; (c) the quality, reputation or other characteristic of the goods for which the geographical indication is used."

Geographical indications identifying wines and spirits are given additional protection under the Bill in accordance with Article 23 of the TRIPS Agreement. This is seen in section 12(1)(c) where civil proceedings may be instituted to prevent the use of a geographical indication which can mislead the public as to its place of origin. Section 13, however, gives this protection to geographical indications as defined in section 2 whether they are registered or not.

There has been no application and no litigation under this Bill. There is no list of names considered as generic in our jurisdiction.

According to the Industrial Designs Bill 2001 section 3(2), the legislation does not extend protection to those types of designs: "(2) The protection under this Act does not extend to anything in an industrial design which serves solely to obtain a technical result and to the extent that it leaves no freedom as regards arbitrary features of appearance." Under the Bill, protection is provided for textile designs that fall within the definition of an industrial design as given in section 3(1). The procedure for obtaining such protection is outlined in section 6, which deals with the necessary documents that must be filed with application. "(1) Where the Registrar finds that the conditions referred to in sections 3 and 4(4) are fulfilled, he shall register the industrial design, publish a reference to the registration and issue to the applicant a certificate of registration of the industrial design; otherwise, he shall refuse the application." Section 4(4) deems a design registrable once it is not contrary to public order and morality.

Under section 9 of the Bill, the rights conferred on the owner of the registered design include the protection from exploitation as defined in the Act under subsection (2): "For the purposes of this Act, 'exploitation' of a registered industrial design means the making, selling or importation of articles incorporating the industrial design." Unless consent has been given by the right holder for the goods to be imported into Antigua and Barbuda and be placed on the market, the right holder has remedies available to him in accordance with subsection (4).

The Act does not speak to the right to issue compulsory licences. A person has the right to issue a licence as long as it is registered in accordance with section 14 of the Bill in order to make it effective.

The term of protection for a registered industrial design is for a period of five years and it can only be renewed for two consecutive periods of five years. This is spelt out in section 10(1) and (2).