Section 8(5) of the Unfair Competition Bill states the previous section precludes anyone other than the person who submitted the undisclosed information from relying on such information in support of an application for product approval for a reasonable period of time after the submission of the undisclosed information and the period of time shall be determined by the Court, taking account of the nature of the information and the person's efforts and expenditure in producing them, and shall normally not be less than five years.

According to section 8(3) of the Bill: "For the purposes of this section, information shall be considered secret information if: (a) it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) it has commercial value because it is secret; and (c) it has been subject to reasonable steps under the circumstances by the rightful holder to keep it secret."

There is no special treatment of the term "data" in the Bill as it pertains to governments or government agencies. However, data given to such agencies may fall within the scope of section 8(4)(b) where it states that disclosure of such data necessary for the protection of the public and where steps are taken to ensure that the data are protected against unfair commercial use shall not be considered an act of unfair competition.

Each Bill has provisions that deal with the various remedies available to the right holder when his/her rights are violated or infringed. The remedies available in civil include injunctions as an interim measure necessary to prevent the infringement from taking place, payment of royalties and/or damages to the right holder, and the confiscation of the illicit goods and the mechanism used to create the infringed goods. In terms of an action in criminal, the infringer will be made to either pay a fine and/or serve a prison term. The Court has the jurisdiction to grant any remedy it deems appropriate to ensure that the injured party is properly compensated and that the offender is deterred from committing such acts.

Any interested party has the right to appeal any decisions made by the Registrar in the exercise of his/her duties. Section 22 of the Trademarks Bill points out that appeals are to be made to the High Court where the Registrar and the affected party will be given a chance to be heard. The appeal must be made within two months of the date of the decision. This provision is repeated in section 33 of the Patent Bill, section 20 of the Industrial Designs Bill, and section 16 of the Geographical Indications Bill. Decisions from this Court may also be appealed in the Court of Appeal, and then the Privy Council, the final Court of Justice for Antigua and Barbuda.

The Court usually assumes that the applicant for relief is the true right holder in the absence of any challenge thereto, or denial by a respondent. According to the Rules of Court, the onus is placed on the respondent to produce the evidence in this case to disprove the applicant's case. For instance, Section 34(4) of the Patent Bill gives the Court the right to the order the production of evidence by the opposing party; "… the burden of establishing that an identical product was not made by the process shall be on the alleged infringer if: (a) the product was new; or (b) a substantial likelihood exists that the product was made by the process and the owner of the patent has been unable through the reasonable efforts to determine the process actually used." This is no specific statutory provision giving the Court directives regarding confidential information except as provided for in section 34(5) of the Patent Act where the Court has to take into account the legitimate interests of the alleged infringer in not disclosing his manufacturing and business secrets when the information is used as evidence. It is entirely within the Court's discretion to determine how best to protect confidential information brought forward as evidence. Generally, the onus lies on the person claiming confidentiality of the information to apply to the Court for directions as to confidentiality. The High Court of Antigua and Barbuda usually holds the substantive trial of litigation in open court. However, some of the preliminary proceedings may be held "in Chambers" or closed court. The Court may also sit in camera where it is satisfied that it is necessary to do so to protect legitimate confidential information.

Under section 23(2), the Court has the right upon the application of the right holder to: "grant an injunction to prevent infringement, an imminent infringement, or an unlawful act referred to in section 6(2)," This provision is repeated in the other pieces of legislation governing intellectual property. This power is within the general powers of the Court to order any respondent, upon application by the applicant, to desist from an infringement.

Under its general jurisdiction and under the provisions of the various intellectual property Bills, the Court has wide powers to order the payment to the right holder of adequate damages to compensate the loss suffered. Section 9 of the Integrated Circuit Topography Bill states: "In an action for infringement of the exclusive right in a registered topography, a court of competent jurisdiction may make such orders as the circumstances require, including orders providing for relief by way of injunction, the payment of royalties and the recovery of damages or profits, for punitive damages…." Under the Copyright Bill, section 32, the Court may grant to the injured party such relief by way of damages. Section 32(2) states: "Where in an action under this section an infringement of copyright is proved or admitted the court, having regard the to the benefit accruing to the defendant by reason of the infringement, to the flagrancy of the infringement and to all other material considerations, shall have the power to award such additional damages as the court may consider appropriate in the circumstances."

Damages usually include the recovery of commercial losses associated with the infringement and an award in damages would normally be accompanied by an order for payment of legal costs incurred by the successful party in the case. As seen in the provisions quote above, once the Court is satisfied that the right holder has suffered loss, the Court has the power to order damages accordingly. The Civil Procedure Rules of the Supreme Court of the Eastern Caribbean govern all civil action within the High Court.

Section 137 describes the procedure and the circumstances for bringing such infringement issues to the Court under the Copyright Bill: "(1) An application may be made to the High Court for: (a) an order that an infringing copy or article delivered up in pursuance of an order under sections 33 and 48 shall be: (i) forfeited to the copyright owner; or (ii) destroyed or otherwise dealt with as the court may direct; (b) an order that an illicit recording of a performance delivered up in pursuance of an order under section 133 or 135 shall be: (i) forfeited to such person having performer's rights or recording rights in relation to the performance as the court may direct; or (ii) destroyed or otherwise dealt with as the court thinks fit; or (c) a decision that no order under paragraph (a) or (b) should be made."

Within the inherent jurisdiction of the Court, provisions are usually made for the compensation of the respondent in the event he suffers loss during any wrongful action on infringement. For instance, in the case of an interim injunction or any other interim measure imposed by the Court, the applicant is usually required to give an undertaking and also pay into Court a sum of money that would cover any loss suffered by the respondent as a result of the applicant's action that has proven to be unjustified.

Under the draft legislation, the Court has the power to grant injunctions or any other relief it sees fit to order. In the cases of extreme urgency, an application for an interim injunction or any other interim measure may be made in accordance with Rule 17 of the Eastern Supreme Court Civil Procedure Rules, where the application can be made without notice or ex parte. The Court may order an interim remedy on such an application without notice if it appears to the Court that there are good reasons for not giving notice. The application in this instance must state the reasons for not giving notice (R. 17.3(3)). In general, three days notice must be given to the respondent. The Court will hear this matter immediately after the application is filed, and it may grant an interim order on an application made without notice for a period of not more than 28 days (unless any of the rules permits a longer period) if it is satisfied that: "17.4(4) (a) in a case of urgency no notice is possible; or (b) that to give notice would defeat the purpose of the application." On granting an order under paragraph (4) the Court must fix a date for further consideration of the application form, and fix a date on which the injunction, for instance, will terminate unless a further order is made on the further consideration of the application (5). Paragraph (6) of this rule gives a time period of 7 days within which the applicant must serve the respondent before the date fixed for further consideration of the application.

The Copyright Bill makes provision for an application to be made by the right holder to the Comptroller of Customs in section 50 to suspend the release of counterfeit goods. It states that an application must be made to the Comptroller of Customs for him to treat the goods as prohibited goods under the Customs Control and Management Act, No. 7 of 1993, which are defined in section 2 as: "goods of a class or description of which the importation, exportation or carriage coastwise is for the time being prohibited or restricted under or by virtue of any enactment;" According to section 84 of the said Act, no goods as prescribed in Part 1 of the Third Schedule may be imported into Antigua. These goods include goods, the importation of which is prohibited by law. All illicit or infringed goods may be brought within the scope of this provision.

As pointed out previously, the relief available to the right holder includes the granting of injunctions whether interim or long term, either to prevent the infringement from taking place or to stop it from continuing. Such a remedy can stop the exportation of goods.

Under the Copyright Bill, the Court can order the destruction or disposal of infringing goods upon an application made by a right holder under section 137 of the Bill. Section 137(1) states that: "An application may be made to the High Court for: (a) an order that an infringing copy or article delivered pursuance of an order under sections 33 and 48 shall be: (i) forfeited to the copyright owner; or (ii) destroyed or otherwise dealt with as the court may direct;" Under the Integrated Circuit Topography Bill, section 9 points out that the Court may make an order for the disposal of any infringing integrated circuit product or any article of which an infringing integrated circuit product forms a part.

As specified in the answer given to question 15 of the Checklist of Issues on Enforcement, the Copyright Bill does provide for the de minimis import exception in section 50(4) where it states that a person will not be liable for any penalty under the Act other than forfeiture of goods if he imports small quantities of the good for his private and domestic use. This is not specified in any of the other Bills.

Section 23 of the Trademarks Bill states that: "(4) Any person who knowingly performs an act which constitutes an infringement as defined in subsection (1) or an unlawful act as defined in section 6(2) is guilty of an offence and is liable on summary conviction to a fine of EC$100,000 and to imprisonment for a term of five years. The following is a list of criminal penalties and procedure as set out in the Copyright Bill in section 46: (4) Any person who is guilty of an offence under subsection (1) is liable: (a) on summary conviction to a fine not exceeding EC$5,000 or to imprisonment for a term not exceeding two years or to both such fine and imprisonment; (b) on conviction on indictment to a fine not exceeding EC$5,000 or to imprisonment for a term not exceeding three years or to both such fine and imprisonment. (5) Any person who is guilty of an offence under subsection (2) or (3) is liable: (a) on summary conviction to a fine not exceeding EC$2,000 or to imprisonment for a term not exceeding two years or to both such fine and imprisonment; (b) on conviction on indictment to a fine not exceeding EC$5,000 or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. (6) Any person who manufactures or imports into Antigua and Barbuda for sale or rental: (a) any device or means specifically designed or adopted to circumvent any device or means intended to prevent or restrict reproduction of a work, a phonogram or a broadcast or to impair the quality of copies made; (b) any device or means that is susceptible to enable or assist the reception of an encrypted program, which is broadcast or otherwise communicated to the public including by satellite, by those who are not entitled to receive the programme; commits an offence and is liable on conviction to a fine not exceeding EC$10,000 or to a term of imprisonment not exceeding two years. (7) Any person who: (a) removes or alters any electronic rights management information without authority; or (b) distributes or imports for distribution, broadcasting, communication to the public or making available to the public, without authority, of works performances, phonograms or broadcasts, knowing or having reason to know that electronic rights management information has been removed or altered without authority commits an offence and is liable on conviction to a fine not exceeding EC$10,000 or to a term of imprisonment not exceeding two years." These are enforced in accordance with the Criminal Procedure Act (Cap. 117) of Antigua and Barbuda.

Rights are granted to nationals of WTO countries under the Australian copyright legislation to the extent of the obligations in Articles 3 and 9 of the TRIPS Agreement. The Copyright Act 1968 (the Act) operates to grant rights directly where there is a connection with Australia (through nationality, residence, publication or place of performance or broadcast - see Sections 32, 89, 90, 91 and 92). Part VIII of the Act provides for the application of the Act to foreign nationals and residents and in relation to publication, performance or broadcasts made in foreign countries. It does this by providing (in Sections 184 and 185) (except in relation to performers, provision for which is in Part XIA) for regulations to be made applying the Act, in full or in part, to foreign nationals, etc. where the countries concerned are members of a treaty to which Australia is also a member or where there is, or expected shortly to be, broadly reciprocal protection of Australian protected works, etc. Regulations made pursuant to that power, the Copyright (International Protection) Regulations (the CIP Regulations), were amended twice in 1995 to extend protection in relation to WTO Member countries. The basic regulation for works, sound recordings and cinematographic films (this includes videos) is Regulation 4. It extends protection under the Act to works, sound recordings and films of residents, nationals and corporations of countries named in the relevant Parts of Schedule 1 and, as relevant, to publication in any of those countries. Following amendments to the CIP Regulations in April 1995 (Statutory Rule No. 67 of 1995) Regulation 4 now refers to countries listed in Parts I, II, III, IV and V of Schedule 1. Countries listed in Part I of Schedule 1 are Member countries of the Berne Convention. Countries in Part II are countries that are Members of the Universal Copyright Convention but not the Berne Convention. Countries in Part III are countries that have concluded a bilateral copyright agreement with Australia. Countries in Part IV are Members of the Rome Convention. Countries in Part V are Members of the World Trade Organization. The CIP Regulations were amended in December 1995 to update the lists in the various Parts of Schedule 1. This updating is carried out periodically. Regulation 4 provides no limitation on national treatment but there are some limits in other regulations (as to which see below). Similar provisions to those in Sections 184 and 185 of the Act in relation to works, films and sound recordings are found in Section 248U and Section 248V of the Act in relation to performances. By Regulation 4A of the CIP Regulations, all of the rights granted by the Act to performers are extended to foreign performers having a relevant connection with a country that is a member of the Rome Convention. By Regulation 4B, foreign performers having a relevant connection with a WTO Member country are granted the rights provided in the Act in relation to: (a)sound recordings; (b)sound broadcasts of live performances; and (c)sound transmissions of live performances to subscribers to diffusion services. Limitations on national treatment Rule of the Shorter Term Pursuant to Article 7(8) of the Berne Convention, Regulation 5 of the CIP Regulations provides that the term of protection applicable to works and films does not exceed the term applied in the country of origin. Limitation on rights of sound recordings owners in relation to the public performance and broadcast of sound recordings Australia has entered a reservation in respect of Article 12 of the Rome Convention. Regulations 6 and 7 of the CIP Regulations limit the public performance and broadcast right in sound recordings to recordings with a relevant connection with countries listed in Schedule 3. Countries in this Schedule include all Rome Convention countries that have not made a reservation in respect of Article 12 of the Convention and other countries considered to grant adequate rights over broadcasting and public performance of sound recordings. The TRIPS Agreement does not require the grant of such rights and Article 3 provides inter alia that "In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights under this Agreement".

The information contained in the original answer is supplemented by reference to regulation 10 which limits the range of works and other subject matter originating in countries that are members of the Universal Copyright Convention (UCC) but not the Berne Convention to those materials first published after they joined the UCC.

Australia does not apply a rule of the shorter term in respect of phonograms or performances. Australia reserves its position on whether it may do so in the future. TRIPS Article 4 provides inter alia that: "Exempted form this obligation are any advantage, favour, privilege or immunity accorded by a Member: (a)...; (b)granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authority that the treatment accorded be a function not of national treatment but of treatment accorded in another country; (c)in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement." Australia is of the view that these provisions in Article 4 are directed towards these provisions in pre-existing conventions permitting a departure from national treatment.