Examen de la législation d'application de l'Accord sur les ADPIC ‒ Recherche

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Aux termes de l'article 63:2 de l'Accord sur les ADPIC, les Membres doivent notifier les lois et réglementations qu'ils auront rendues exécutoires, et qui visent les questions faisant l'objet de l'Accord, au Conseil des ADPIC pour l'aider dans son examen du fonctionnement de l'Accord.

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Page 15 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 10. Article 1274(3) (IP/N/1/RUS/O/2 at 380): This exception appears to be overly board. Please explain how the exception limits taking only the portion of the work necessary for the purposes of the parody.
The possibility of creation of works in the genre of a literary, musical, or other parody, or in the genre of caricature on the basis of work lawfully made public without the consent of the rightholder and without the payment of compensation and subsequent use of caricature or parody without the payment of compensation to author of original work are established in paragraph 3 of Article 1274 of the Civil CodeCivil Code of the Russian Federation. Provisions of paragraph 3 of Article 1274 of the Civil CodeCivil Code of the Russian Federation on free creation and use in the genre of a literary, musical, or other parody, or in the genre of caricature on the basis of another (original) work lawfully made public without the consent of the author of such original work appeared in Russian legislation as a result of borrowed approach of Directive 2001/29/EC of the European Parliament and of the Council of 22/05/2001 "On the harmonization of certain aspects of copyright and related rights in the information society" according to sub point (k) of point 3 of Article 5 of the Directive what admit may provide for exceptions or limitations in case of use for the purpose of caricature, parody or pastiche. Article 1274 of the Civil CodeCivil Code of the Russian Federation provides that parodies and caricatures shall be used in for Informational, Scholarly, Instructional, or Cultural Purposes, how it show name of Article. In this way author of original work have not right to prohibit to use his work in indicated method on the basic of provisions of Part 4 of the Civil CodeCivil Code of the Russian Federation, but in case if parody or caricature denigrate honor, dignity or reputation of author of original work, he have right to protect it in order are established in Article 125 of the Civil CodeCivil Code of the Russian Federation. Should take in attention that creation of parody or caricature is not a recast of primary (original) work; it is creation of new, independent work. Parodies and caricatures are recognizable that is associated with primary (original) works because of likeness of maintenance (what is not copyrighted), but not because of likeness wit form (what is copyrighted).
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 11. Article 1280(4) (IP/N/1/RUS/O/2 at 382): This language appears to be overly broad. Please explain how this article addresses the requirements of the 3-step test under TRIPS Article 13.
The provisions of the Article 1280 explains in detail rights of the owner of a copy a computer program or a database. These rights are limited to some cases. The main condition of the article is that the person has the obligation to own the copy lawfully. Paragraph 4 of the article 4 implements the provision of Article 13 of the TRIPS Agreement, making an explanation that the application of the provisions provided by the Article must not cause unjustified harm to the normal use of a computer program or database and must not impair in an unjustified manner the lawful interests of the author or rightholder.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 12. Articles 1285 and 1307 (IP/N/1/RUS/O/2 at 383 and 391): We are concerned that Articles 1285 and 1307 appear to limit a rightsholders ability to enter into exclusive licenses for a specific right and to require the rightsholders to transfer the "work in full." Can a rightsowner transfer one exclusive right, for example, e.g., the right to perform a work, and still maintain ownership of the other exclusive rights, e.g., reproduction, synchronization?
Author or subject of related right have right to conclude with other person contract of alienation (transmission) of the exclusive right to the concrete result of intellectual activity that is mean transmission of the exclusive right in full without author's possibility to keep right to use such result in accordance with Articles 1285 and 1307 of the Civil CodeCivil Code of the Russian Federation. In this way in case if rightholder transferred the exclusive right to use result of intellectual activity to other person, he does not keep right to use such result. Herewith the Civil CodeCivil Code of the Russian Federation provides also another model of disposal of the exclusive right when rightholder have right to grant for other persons right to use result of intellectual activity by means of conclusion License Contract are provided in Articles 1286 and 1308 of the Civil Code of the Russian Federation. Under the conditions of License Contract rightholder stay as holder of the exclusive right and the licensee acquires right to use object on the conditions established by a contract only (e.g. the reproduction only or the public performance only) on the definite territory in definite terms.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 13. Article 1334(2) (IP/N/1/RUS/O/2 at 399): Any copyrighted work or object of related rights incorporated into a database must be subject to the rightholders' exclusive rights. Please explain how Article 1334(2) accounts for the rights of authors of works included in a database.
Paragraph 2 of Article 1334 stipulates that exclusive rights of the preparer of a database are recognized and are effective regardless of the rights of authors of works included in a database.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 14. We have numerous questions to help us understand Section 6 of Chapter 71 and how the rights of a publisher of a scientific, literary or artistic work differ from the rights of the authors and the authors' assignees/transferees of those works, as set forth in Chapter 70: (a) Please explain the relationship between the publisher protected here and the author/assignees protected in chapter 70. Specifically, how does this section relate to chapter 70, which gives these rights to the author and her assignees? Who has the rights to the work, the author/assignees under chapter 70, or the publisher under Chapter 71? (b) Article 1337(1) (IP/N/1/RUS/O/2 at 400) appears to take works out of the public domain and give the publisher exclusive rights to that work. What works can be removed from the public domain? (c) Article 1340 (IP/N/1/RUS/O/2 at 401) appears to override the copyright term provided Article 1281 and override any contract or agreement that an author may have entered with a publisher. Please explain.
Intellectual Rights to works of scholarship, literature, or art first made public after their passage into the public domain are rights neighboring on copyright (neighboring rights) according to Article 1303 of the Civil Code of the Russian Federation. Section 6 of Chapter 71 of the Civil Code of the Russian Federation dedicated to publisher's right to works of Scholarship, Literature and Art. According to Article 1337 CC RF publisher is the citizen who lawfully made public or organized the making public of a work of scholarship, literature, or art previously not made public and that has gone into the public domain (Article 1282 CC RF) or that is in the public domain by virtue of the fact that it is not protected by copyright. Author or other person with author's consent have the right to make the work public according to Article 1268 of the Civil Code of the Russian Federation. In this case if author during the life did not made public his work himself or not gave consent to do such actions to other person (also in case if author did not lived any prohibition during his life) than such work may be made public by author's successor during the period of validity of exclusive right to work. Upon the expiration of the time period of effectiveness of the exclusive right, a work including previously unpublished, shall enter the public domain and may be used freely by any person without any consent or permission and without payment of author's compensation in accordance with Article 1282 of the Civil Code of the Russian Federation. For purpose of making public of previously unpublished works Division 6 of Chapter 71 of the Civil Code of the Russian Federation provides other persons possibility to make public of work after termination of guarding of exclusive rights in case of absence author's written prohibition such work. In this way publisher is not author of work or successor, he is person who made public work previously unpublished and is entered the public domain. Publisher has publisher's exclusive right to work made public by him and right to indicate his name on exemplar of work made public and in other cases of use (including translation or other recast of work). Publisher's exclusive right to work coincides with habitual copyright to use work in content, only with taking of right to translate, recast and realize an architectural, designer, town-planning landscape project. In this way publisher of work may not control of use of work in translated or reprocessed form. Outside publisher's sphere of control is spreading of original or exemplars of work are imposed in civil use (principle of depletion of rights) lawfully. Publisher's right in the Civil Code of the Russian Federation is right that not make damage to author's interests and to his successor. Publisher's right is made to protect the interests of investigator, allow to reward them for long or perennial search and further to open new creative results. Need to mark that protection of right of persons who make public previously unpublished works and are entered the public domain are provided in provisions of Article 4 of Directive of European Union 93/98/EEC of 29/10/1993 harmonizing the term of protection of copyright and certain related rights, in accordance with it any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The Civil Code of the Russian Federation establishes several important requirements about object of publisher's right:  It shall be work of scholarship, literature or art;  This work shall be recognized as object of copyright in accordance with acting Russian legislation;  It shall not be made public previously;  The work shall not be in state and municipal archives;  The work shall be made public firstly on the territory of the Russian Federation or beyond the boundaries but by citizen of the Russian Federation. Replacement of terms in comparison with Article 1281 of the Civil Code of the Russian Federation in Article 1240 indicated do not happen. Introduction in Russian legislation of publisher's rights are stipulate for necessity of cultural development of society in relations with promulgation of work of Scholarship, Literature and art previously unpublished that is mean unknown till this event and for encouragement of persons who made these work are known for society (made them promulgation – public). The work which have expired term of exclusive right enters to the public domain that is mean it may be used freely by any person without any consent or permission and without payment of author's compensation. But there is question about possibility to use unknown work is entered to the public domain. In case of made public work is entered to the public domain on the condition that such publishing do not contradict the author's will, publisher have right to use such work (the publisher's exclusive right) effective for 25 years counting from January 1 of the year following the year of publishing, namely to use the work with methods are provided in subpoints 1-8 and 11 of point 2 of Article 1270 of the Civil Code of the Russian Federation.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 15. We remain concerned that Russian law might not adequately protect foreign works and related rights, including pre-existing works and related rights. We have noted that there are numerous provisions dealing with this issue (Articles 1231, 1256, 1304, 1318, 1321, 1324, 1328 and 1341), but were unable to confirm the required coverage. Some of our concern may relate to translations issues or to the accuracy of IP/N/RUS/0/2.
Article 1256 of the Civil Code of the Russian Federation defines realization of the exclusive right to Works of Scholarship, Literature, and Art on the territory of the Russian Federation because of publishing on the territory of the Russian Federation or because of principle of author's citizenship of such works (or them successor). Russian legislator proceeds from place of publishing of work (or his existence in objective form in case of absence of publishing) to give the exclusive right to work on the territory of the Russian Federation. In case if work made public on the territory of the Russian Federation than the exclusive right to such work shall be recognized for authors (or their legal successors) regardless of their citizenship. It concerns also cases when work not made public existing in some objective form on the territory of the Russian Federation. A work also shall be considered first made public by publication in the Russian Federation if, in the course of thirty days after the date of first publication, it was published on the territory of the Russian Federation. In case if work made public beyond the boundaries of the territory of the Russian Federation, need to take by attention author's citizenship (or his legal successor). If work made public beyond the boundaries of the territory of the Russian Federation author of work (his legal successor) being citizen of the Russian Federation, Russian legislator keeps the exclusive right to work by such persons. It concerns also cases when work not made public exists in some objective form beyond the boundaries of the territory of the Russian Federation at author or his legal successor who are citizens of the Russian Federation. In other cases the exclusive right to works made public or existing in some objective form beyond the boundaries of the Russian Federation and shall be recognized, in accordance with international treaties of the Russian Federation, for authors (or their legal successors) who are citizens of other states. Herewith the time period of the exclusive right established in the country of origin of the work may not exceeds the time period of the exclusive right to these works in the Russian Federation. In case if the time period of the exclusive right in the country of origin of the work has expired and the exclusive right have entered the public domain than this work enters the public domain in the Russian Federation too. Moreover primary rightholder is determined in accordance with a law of state where was happened a fact which is basis for acquisition of the copyright. According to point 3 of Article 1304 of the Civil Code of the Russian Federation the granting on the territory of the Russian Federation of protection for objects of neighboring rights in accordance with the international treaties of the Russian Federation shall be conducted in case if in the country of origin of the work it have not entered the public domain and have not entered the public domain on the territory of the Russian Federation. In other articles of the Civil Code of the Russian Federation Russian legislator proceeds from principle of the citizenship/place of location or implementation (for the performance are not fixed in phonograms) / promulgation (phonograms) on the territory of the Russian Federation aside from the conditions of the international treaties of the Russian Federation for granting legal protection to some object of neighboring rights.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 16. Please advise which specific Article requires coverage for: (a) Authors who are nationals of a Berne country for published and unpublished works
The rights of the authors, who is a citizen of the Russian Federation – member of Berne Convention, are protected in accordance with subpoint 2 of point 1 of Article 1256 of the Civil Code of the Russian Federation. The rights of the authors who are citizens of other states works of whom made public beyond the boundaries of the territory of the Russian Federation – member of Berne Convention, are protected on the territory of the Russian Federation on basis of subpoint 3 of point 1 of Article 1256 of the Civil Code of the Russian Federation (international-legal criterion) in accordance with provisions of Berne Convention. Need to mark that national regime (are provided in Article 3 of Berne Convention) give the possibility to any citizen's work of any state who is member of Berne Convention to use protection in all countries of Berne Union including the Russian Federation.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 16. Please advise which specific Article requires coverage for: (b) Authors who are not nationals of a Berne country for works first published, or published within 30 days, in a Berne country
The rights of a foreign author who made public his works on the territory of the Russian Federation – member of Berne Convention are protected in accordance with subpoint 1 of point 1 and subpoint 2 of Article 1256 of the Civil Code of the Russian Federation (criterion of the place of promulgation of work). The rights of authors who are citizens of other states who made public works beyond the boundaries of the territory of the Russian Federation but in country – member of Berne Convention, are protected on the territory of the Russian Federation on basis of subpoint 3 of point 1 of Article 1256 of the Civil Code of the Russian Federation (international-legal criterion) in accordance with provisions of Berne Convention.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 16. Please advise which specific Article requires coverage for: (c) Authors who are not nationals of a Berne country but who have their habitual residence in a Berne country
The rights of authors who are not nationals of a Berne country are protected on the territory of the Russian Federation on basis of subpoint 3 of point 1 of Article 1256 of the Civil Code of the Russian Federation (international-legal criterion) in accordance with international treaties of the Russian Federation. However in indicated cases necessary to pass that in cases if foreign author made public his work on the territory of the Russian Federation (or his not made public on the territory of the Russian Federation work exists in some objective form) he have legal protection in accordance with point 1 of Article 1256 of the Civil Code of the Russian Federation. The Russian Federation participated in following international treaties about copyright: the Universal Copyright Convention on 6th September 1952 (revised in Paris on 24th July 1971), The Agreement about collaboration in sphere of copyright and related right are concluded in Moscow at 24th September 1993, Berne Convention for the Protection of Literary and Artistic Works (in editing Parisian Statement at 24th July 1971) - since 13th March 1995, The World Intellectual Property Organization (WIPO) Copyright Treaty on 20th December 1996 – since 2009. Moreover the Russian Federation as successor of the USSR is connected two-way international treaties about mutual protection of copyrights with some states, e.g. with Sweden (15th April 1986), with Armenia concluded Agreement about mutual protection of copyrights at 25th June 1993.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 16. Please advise which specific Article requires coverage for: (d) Authors of an audiovisual works the maker of which has its headquarters or habitual residence in a Berne country
Answer to two previous questions: The rights the indicated category of authors are provided on the territory of the Russian Federation analogically as for cases are viewed above that is mean on basis of point 1 of Article 1256 of the Civil Code of the Russian Federation. Herewith need to keep in mind that in point 3 of Article 1256 of the Civil Code of the Russian Federation are shown a peculiarities of acting of international-legal criterion on the territory of the Russian Federation. In indicated quota are shown that author of work or another primary rightholder is determined by the law of state on what territory happened fact of acquisition of copyrights at granting the protection to work on the territory of the Russian Federation in accordance with international treaties of the Russian Federation. These quota are provided for legislation about copyright of states where author or primary rightholder is a legal person.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 16. Please advise which specific Article requires coverage for: (e) Authors of works of architecture constructed in a Berne country or artistic work incorporated in a building or structure located in a Berne country
Answer to two previous questions: The rights the indicated category of authors are provided on the territory of the Russian Federation analogically as for cases are viewed above that is mean on basis of point 1 of Article 1256 of the Civil Code of the Russian Federation. Herewith need to keep in mind that in point 3 of Article 1256 of the Civil Code of the Russian Federation are shown a peculiarities of acting of international-legal criterion on the territory of the Russian Federation. In indicated quota are shown that author of work or another primary rightholder is determined by the law of state on what territory happened fact of acquisition of copyrights at granting the protection to work on the territory of the Russian Federation in accordance with international treaties of the Russian Federation. These quota are provided for legislation about copyright of states where author or primary rightholder is a legal person.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 17. Please confirm that Russian Law provides the owners of musical compositions a public performance right when that music is contained in audiovisual works and exhibited in theaters. What provision of the law provides this right?
According to point 5 of Article 1263 of the Civil Code of the Russian Federation the composer of created work keeps the exclusive right to use his work separately from creating film in which composition are concluded his musical work on condition that such author did not enter (on basis of Articles 1234 and 1285 of the Civil Code of the Russian Federation) the exclusive right to musical work full to person who organized the creation of film (the producer – Article 1240 of the Civil Code of the Russian Federation).
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 18. What is the term of protection for audiovisual works? The authors of the audiovisual work are defined in Article 1263. Is the term of protection 70 years from the death of the last surviving author under Article 1281 (1)? If not, what Article governs the term of audiovisual works?
The term of protection for audiovisual work is the term when the audiovisual work has protection in the territory of the Russian Federation. The term of protection for audiovisual work is provided in Article 1281 of the Civil Code of the Russian Federation according to what the exclusive right to work created in coauthorship shall be effective for the whole life of the author outliving the other coauthors plus seventy years, counting from January 1 of the year following the year of his death. Moreover the Civil Code of the Russian Soviet Federative Socialist Republic from 1964 what was acting before Law of the Russian Federation at 9th July 1993 № 5351-I "About copyright and related rights" provided legal person's copyright (herewith according to Article 498 of the Civil Code of the Russian Soviet Federative Socialist Republic from 1964 rights are arisen among legal persons primarily acted in perpetuity; in case of reorganization of such legal person copyright entered by legal successor, and in case of liquidation – by state). The copyright of legal persons what has raised before 3rd August 1993 stops after 70 years since the date of lawfully made public work, if work unpublished than since day of creation of work what provided in Article 6 of the Federal Law of the Russian Federation from 18th December 2006 No. 231-FL "About introduction by acting Fourth Part of the Civil Code of the Russian Federation".
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 19. Article 1252.1.4 (IP/N/1/RUS/O/2 at 370). Please clarify what is meant by "non-bona fide acquirer."
In case of breach of the exclusive right to the results of intellectual activity and to means of individualization rightholder have right in particular by the making of demand about the taking of the physical carrier are used or are destined for fulfillment of breach against the producer, importer, keepers, carrier, seller, other distributor, or bad faith recipient. The bad faith recipient is a person who has acquired (with or without compensation) the physical carrier for fulfillment of breach from person who had not the right to alienate it about what acquirer knew or shall be known. Such definition of the bad faith recipient follows from Article 302 of the Civil Code of the Russian Federation.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 20. Article 1252.5. Provision allows equipment and materials used for infringing to be withdrawn from circulation and destroyed at infringers expense, "except when being subject to be converted into the revenue of the Russian Federation." In light of Article 46 of the TRIPS Agreement, please explain the scope of this exception, and when it applies.
According to Article 46 of the TRIPS Agreement the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. Legislation of the Russian Federation provides quotas govern that counterfeit copies of works and turn materials and implements the predominant use of which has been in the creation of the infringing of the intellectual rights shall be disposed of outside from commerce turn (point 5 of Article 1252 of the Civil Code of the Russian Federation). Indicated actions may be realized by decision of court. Herewith legislation of the Russian Federation may comprise quotas allowing to exact to income of state materials and implements the predominant use of which has been in the creation of the infringing of the intellectual rights. In particular in cases when introduction in commerce turn such goods is necessary for public interests, rightholder shall have the right to demand removal at the expense of the infringer of counterfeit goods, labels, and packaging of the goods on which an unlawfully used trademark or indication similar to it to the point of confusion according to point 2 of Article 1515 of the Civil Code of the Russian Federation. In other words, in cases when goods on which counterfeit trademark are necessary for state in societal interests (e.g. on social need to children's community etc.) than counterfeit trademark are deleted and subject by recovery to income of the Russian Federation.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 21. Article 1302 (and Art. 1312) (IP/N/1/RUS/O/2 at 389) The title of this article "Security for a claim in a copyright violation case," does not seem to match its contents which forbids "using [counterfeit copies of a work] in civil-law transactions." Please clarify, because as written it appears that the scope of the article is much larger than its title.
Article 1302 of the Civil Code of the Russian Federation establishes the right of court to forbid a defendant or other person with respect to whom there are sufficient bases to suppose that he is an infringer of copyright rights to take specific with the purpose of introducing into civil commerce copies of a work with respect to which it is supposed that they are counterfeit. The court also may impose seizure on all copies of a work with respect to which it is suspected that they are counterfeit and also on materials and equipment used or meant for their preparation or reproduction. In other words Article 1302 of the Civil Code of the Russian Federation corresponds to her name (Security for a Claim in Cases on the Infringement of Copyright) and provides the possibility of application of security remedy with respect to controversial copies of works and also corresponding materials and implements.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 22. Paragraph 4 of Article 1349 (IP/N/1/RUS/O/2). The Objects of Patent Rights 4. The following shall not be objects of patent rights: 1) human cloning techniques; 2) the techniques for modifying the genetic integrity of human embryo cells; 3) the uses of human embryos for industrial and commercial purposes; 4) other developments inconsistent with the public interest and humane and moral principles. Does "inconsistent with the public interest and humane and moral principles" in paragraph (4) have the same meaning as "protect[ion of] ordre public or morality" as used in Article 27(2) of the TRIPS Agreement?
Answers for three previous questions. Paragraph 4 of Article 1349 CC RF as a whole establishes exclusions from patent rights of solutions contradicting societal interests and principles of humanity and morality, which are common exclusions from patent rights. Subparagraphs 1-3 of the abovementioned paragraph emphasize solutions recognized as subject to exclusion from patent rights. Similar approach is used on the European Union level: Additional Protocol on the Prohibition of Cloning Human Beings of 1998 to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine of 1997, Directive 98/44/EC. It should be noted that provisions of 4quarter Article of the Paris Convention for the Protection of Industrial Property, according to which "The grant of a patent shall not be refused and a patent shall not be invalidated on the ground that the sale of the patented product or of a product obtained by means of a patented process is subject to restrictions or limitations resulting from the domestic law". Thus limitations or reductions of sales of a product in which the invention as well as utility model or industrial design applied for may be embodied, cannot serve as a basis for the recognition of the object of patent rights applied for as contradicting societal interests, principles of humanity and morality with the exception of the cases of direct prohibition of usage (sales) on the territory of the Russian Federation of such particular product as contradicting societal interests, principles of humanity and morality. The list of objects in Paragraph 4 of Article 1349 CC RF includes solutions commercial usage of which shall be prevented for the sake of public order maintenance and morality protection, including protection of life and health of the population as well as preventing extensive damage to the environment. Seemingly provisions of Paragraph 4 of Article 1349 CC RF imply the same meaning as provisions of TRIPS Article 27(2). Paragraph 6 of Article 1350 CCR F (in the question Article 1349 was named mistakenly): Legal protection as inventions shall not be granted to: varieties of plants, breeds of animals and biological methods of obtaining them, with the exception of microbiological methods and products obtained through the use of such methods; the topology of integrated circuits. Such objects are recognized as independent result of intellectual activity (Paragraph 1 of Article 1225 CC RF) and are provided by CCRF with a separate ("special"») legal protection. Legal protection of varieties of plants and breeds of animals is granted by Chapter 73 CC RF as to achievements of breeding. Legal protection of integrated circuit layouts is explained in Chapter 74 CC RF. CC RF retains the principles of protection and use of integrated circuit layouts established in Law of Russian Federation № 3526-I d.d. 23.09.1992 "On legal protection of topology of integrated circuits" in force prior to Part 4 CC RF. The legal protection granted by the present Code shall extend only to an original integrated circuit layout created as the result of the creative activity of an author and/or specialists unknown to the author in the area of integrated circuit layout development on the date of its creation (Paragraph 2 of Article 1448 CC RF). According to Article 1452 CC RF the rightholder, during the time period of effectiveness of the exclusive right to the layout may at his option register the layout with the Federal agency of executive authority for intellectual property. The rules of such optional state registration of topology of integrated circuits are determined by the Administrative Rules of Procedure of execution by the Federal agency of executive authority for intellectual property, patents and trademarks functions of receiving applications for state registration of topology of integrated circuits and of their consideration and issuance in accordance with the established procedure of a certificate on state registration of an integrated circuit layout, approved by Order № 323 d.d. 29.10.2008 of the Ministry of Education and Science of the Russian Federation.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 23. Paragraph 6 of Article 1349, provides: 6. No legal protection shall be provided to the following as inventions: 1) varieties of plants, breeds of animals and the biological methods for producing them, except for microbiological methods and products produced by such methods; 2) integrated circuit layout-designs. (a) Article 27(3)(b) of the TRIPS Agreement requires Members to provide for sui generis protection for plants, if patents cannot be granted for varieties of plants. How does the Russian Federation provide protection for plants? Decree No. 735 of 14/09/2009, the Russian Federation Government Approving the Regulation on Patent Fees and Other Types of Fees Related to Plant Variety Patents and State Registration of Agreements Assigning Exclusive Rights on Plant Variety, is noted, but has this decree been notified to the WTO?
Answers for three previous questions. Paragraph 4 of Article 1349 CC RF as a whole establishes exclusions from patent rights of solutions contradicting societal interests and principles of humanity and morality, which are common exclusions from patent rights. Subparagraphs 1-3 of the abovementioned paragraph emphasize solutions recognized as subject to exclusion from patent rights. Similar approach is used on the European Union level: Additional Protocol on the Prohibition of Cloning Human Beings of 1998 to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine of 1997, Directive 98/44/EC. It should be noted that provisions of 4quarter Article of the Paris Convention for the Protection of Industrial Property, according to which "The grant of a patent shall not be refused and a patent shall not be invalidated on the ground that the sale of the patented product or of a product obtained by means of a patented process is subject to restrictions or limitations resulting from the domestic law". Thus limitations or reductions of sales of a product in which the invention as well as utility model or industrial design applied for may be embodied, cannot serve as a basis for the recognition of the object of patent rights applied for as contradicting societal interests, principles of humanity and morality with the exception of the cases of direct prohibition of usage (sales) on the territory of the Russian Federation of such particular product as contradicting societal interests, principles of humanity and morality. The list of objects in Paragraph 4 of Article 1349 CC RF includes solutions commercial usage of which shall be prevented for the sake of public order maintenance and morality protection, including protection of life and health of the population as well as preventing extensive damage to the environment. Seemingly provisions of Paragraph 4 of Article 1349 CC RF imply the same meaning as provisions of TRIPS Article 27(2). Paragraph 6 of Article 1350 CCR F (in the question Article 1349 was named mistakenly): Legal protection as inventions shall not be granted to: varieties of plants, breeds of animals and biological methods of obtaining them, with the exception of microbiological methods and products obtained through the use of such methods; the topology of integrated circuits. Such objects are recognized as independent result of intellectual activity (Paragraph 1 of Article 1225 CC RF) and are provided by CCRF with a separate ("special"») legal protection. Legal protection of varieties of plants and breeds of animals is granted by Chapter 73 CC RF as to achievements of breeding. Legal protection of integrated circuit layouts is explained in Chapter 74 CC RF. CC RF retains the principles of protection and use of integrated circuit layouts established in Law of Russian Federation № 3526-I d.d. 23.09.1992 "On legal protection of topology of integrated circuits" in force prior to Part 4 CC RF. The legal protection granted by the present Code shall extend only to an original integrated circuit layout created as the result of the creative activity of an author and/or specialists unknown to the author in the area of integrated circuit layout development on the date of its creation (Paragraph 2 of Article 1448 CC RF). According to Article 1452 CC RF the rightholder, during the time period of effectiveness of the exclusive right to the layout may at his option register the layout with the Federal agency of executive authority for intellectual property. The rules of such optional state registration of topology of integrated circuits are determined by the Administrative Rules of Procedure of execution by the Federal agency of executive authority for intellectual property, patents and trademarks functions of receiving applications for state registration of topology of integrated circuits and of their consideration and issuance in accordance with the established procedure of a certificate on state registration of an integrated circuit layout, approved by Order № 323 d.d. 29.10.2008 of the Ministry of Education and Science of the Russian Federation.
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IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 23. Paragraph 6 of Article 1349, provides: 6. No legal protection shall be provided to the following as inventions: 1) varieties of plants, breeds of animals and the biological methods for producing them, except for microbiological methods and products produced by such methods; 2) integrated circuit layout-designs. (b) How does the Russian Federation provide protection for integrated circuit designs? Order No. 323 of October 29, 2008 of the Ministry of Education and Science of Russia (Approving the Administrative Regulations to Govern the Performance by the Federal Service for Intellectual Property, Patents and Trademarks of its Functions to Process and Examine Applications for the Registration of Topographies of Integrated Circuits as well as to Grant of Certificates of State Registration of Topographies of Integrated Circuits in accordance with Established Procedure) is noted, has this order been notified to the WTO?
Answers for three previous questions. Paragraph 4 of Article 1349 CC RF as a whole establishes exclusions from patent rights of solutions contradicting societal interests and principles of humanity and morality, which are common exclusions from patent rights. Subparagraphs 1-3 of the abovementioned paragraph emphasize solutions recognized as subject to exclusion from patent rights. Similar approach is used on the European Union level: Additional Protocol on the Prohibition of Cloning Human Beings of 1998 to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine of 1997, Directive 98/44/EC. It should be noted that provisions of 4quarter Article of the Paris Convention for the Protection of Industrial Property, according to which "The grant of a patent shall not be refused and a patent shall not be invalidated on the ground that the sale of the patented product or of a product obtained by means of a patented process is subject to restrictions or limitations resulting from the domestic law". Thus limitations or reductions of sales of a product in which the invention as well as utility model or industrial design applied for may be embodied, cannot serve as a basis for the recognition of the object of patent rights applied for as contradicting societal interests, principles of humanity and morality with the exception of the cases of direct prohibition of usage (sales) on the territory of the Russian Federation of such particular product as contradicting societal interests, principles of humanity and morality. The list of objects in Paragraph 4 of Article 1349 CC RF includes solutions commercial usage of which shall be prevented for the sake of public order maintenance and morality protection, including protection of life and health of the population as well as preventing extensive damage to the environment. Seemingly provisions of Paragraph 4 of Article 1349 CC RF imply the same meaning as provisions of TRIPS Article 27(2). Paragraph 6 of Article 1350 CCR F (in the question Article 1349 was named mistakenly): Legal protection as inventions shall not be granted to: varieties of plants, breeds of animals and biological methods of obtaining them, with the exception of microbiological methods and products obtained through the use of such methods; the topology of integrated circuits. Such objects are recognized as independent result of intellectual activity (Paragraph 1 of Article 1225 CC RF) and are provided by CCRF with a separate ("special"») legal protection. Legal protection of varieties of plants and breeds of animals is granted by Chapter 73 CC RF as to achievements of breeding. Legal protection of integrated circuit layouts is explained in Chapter 74 CC RF. CC RF retains the principles of protection and use of integrated circuit layouts established in Law of Russian Federation № 3526-I d.d. 23.09.1992 "On legal protection of topology of integrated circuits" in force prior to Part 4 CC RF. The legal protection granted by the present Code shall extend only to an original integrated circuit layout created as the result of the creative activity of an author and/or specialists unknown to the author in the area of integrated circuit layout development on the date of its creation (Paragraph 2 of Article 1448 CC RF). According to Article 1452 CC RF the rightholder, during the time period of effectiveness of the exclusive right to the layout may at his option register the layout with the Federal agency of executive authority for intellectual property. The rules of such optional state registration of topology of integrated circuits are determined by the Administrative Rules of Procedure of execution by the Federal agency of executive authority for intellectual property, patents and trademarks functions of receiving applications for state registration of topology of integrated circuits and of their consideration and issuance in accordance with the established procedure of a certificate on state registration of an integrated circuit layout, approved by Order № 323 d.d. 29.10.2008 of the Ministry of Education and Science of the Russian Federation.
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IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Fédération de Russie États-Unis d'Amérique 24. Article 1359 (IP/N/1/RUS/O/2). Actions Not Deemed an Infringement of the Exclusive Right to an Invention, Utility Model or Industrial Design The following are not deemed an infringement of the exclusive right to an invention, utility model or industrial design: 2) the carrying out of scientific research of a product or method in which the invention or utility model is used or of scientific research of an article in which the industrial design is used or the carrying out of an experiment in respect of such product, method or article; Would experiments using protected inventions or designs to experiment on other things infringe a protected invention or design? For example, if a medical instrument is patented or protected as an industrial design, would use of a copy of that instrument in medical testing infringe the patent or industrial design right?
Answers for three previous questions. Paragraph 2 of Article 1359 CC RF: the conduct of scientific study of a product or method in which the invention or utility model is utilized, or scientific study of a manufacture in which an industrial design is utilized or the conduct of an experiment on such a product, method, or manufacture; thus third parties without infringing the exclusive right can only study a patented object, but cannot utilize it as a mean o conducting a research. Not considered as infringing the exclusive right: the conduct of scientific study of a product or method in which the invention or utility model is utilized, or scientific study of a manufacture in which an industrial design is utilized or the conduct of an experiment on such a product, method, or manufacture. This rule allows any person to make sure of the actual properties and characteristics declared in the description to the patent or in the rightholder's advertisement prior to contacting the rightholder and only after doing so to make a decision on reasonability of entering negotiations with the rightholder on purchasing the right of use of the invention. This only refers to experiment or scientific research conducted on the patented product, method or manufacture themselves but not to experiment or scientific research conducted with their help. Thus the abovementioned rule does not imply commercialization of a patent-protected invention during the conduction of scientific experiment on an object containing the invention by third parties. Paragraph 3 of Article 1359 CC RF: Not considered as infringing the exclusive right: the utilization of an invention, utility model, or industrial design in extraordinary circumstances (natural disasters, catastrophes, accidents) with notification of this use to the patent holder as soon as possible and with subsequent payment to him of proportionate compensation. The legislator does not limit scope of persons authorized to utilize patented objects without rightholder's pemit should the abovementioned circumstances arise, however such persons shall notify the rightholder about the utilization as soon as possible with subsequent payment to him of proportionate compensation. This exclusion from the exclusive rights of a patent holder is attributed to the importance of an urgent use of an invention in public interest in case of extraordinary circumstances which should the necessity of preventing or recovering the consequences of natural disasters, catastrophes and other accidents. Also this exclusion from the exclusive rights concerns only extraordinary circumstances and does not extend to other accidents and disasters. Extraordinary circumstances are declared by public authorities of a particular country or by international organizations providing aid in such circumstances. However the patent holder shall be notified of such use as soon as possible with subsequent payment of proportionate compensation to him. That regulation corresponds with Article 31 of the TRIPS Agreement. Russian jurisdiction lacks precedents on that matter at present. Also the legislator does not determine notification procedure of the patent holder of such use of an invention, utility model, or industrial design and does not declare neither the way of paying the compensation nor its time limitations. Paragraph 4 of Article 1359 CC RF: Not considered as infringing the exclusive right: the utilization of an invention, utility model, or industrial design for the satisfaction of personal, family, home, or other needs not connected with entrepreneurial activity if the purpose of such utilization is not the receipt of profit or income. As defined in Paragraph 1 of Article 2 CC RF business activity shall be an independent activity, performed at one's own risk, aimed at systematically deriving a profit from the use of the property, the sale of commodities, the performance of work or the rendering of services by the persons, registered in this capacity in conformity with the law-established procedure. Also a citizen, engaged in business activities without forming a legal entity with the violation of the requirements of Item 1 of the present Article, shall have no right to refer, with respect to the deals he has thus effected, to the fact that he is not a businessman. That means that the primary criteria of an activity not recognized as infringing exclusive rights is it being non profit-seeking. Thus the legislator protects the interests of those members of society who use the patented object without gains. For example, a person can legally assemble and use a fishing tent the patent on which is held by another person, moreover the person's family and friends can also use the tent. However, selling such tent, even secondhand, with profit shall be recognized as infringement of the exclusive right of the patent holder. When applying Article 1359 CC RF one should bear in mind that according to Paragraph 5 of Article 1229 CC RF the limitations on exclusive rights to results of intellectual activity are established on the condition that they do not cause unjustified harm to the ordinary use of the results of intellectual activity or means of individualization and do not impair in an unjustified manner the lawful interests of the rightholders.
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