Article 79, paragraph 3 of the Law of 30 June 1994 on Copyright and Neighbouring rights establishes that if it is found that Belgian authors and Belgian holders of neighbouring rights enjoy less extensive protection in another country, nationals of that country may benefit from the provisions of the Law only to the same extent. However, the reciprocity principle is without prejudice to the provisions of international conventions (Article 79, paragraph 1 of the Belgian Law). Consequently, the national treatment rule and exceptions to that rule in regard to copyright and neighbouring rights under the TRIPS Agreement apply in Belgium. As far as private copy remuneration rights are concerned, Articles 55 to 58 of the Belgian Law entered into force on 1 August 1995. This means that, first, levies on equipment and media have been made only since that date, and, second, no distribution has been made up to now. For these reasons, it is premature to indicate the conditions under which private copy remuneration rights will be distributed.

The Federal Law on Copyright and Neighbouring Rights (hereinafter referred to as the "Federal Copyright Law" or, whenever appropriate, "FCL") protects authors of literary and artistic works, performers, producers of phonograms and videograms and broadcasting organizations, independently of their nationality. National treatment is accorded in conformity with international conventions, including the Berne Convention and the TRIPS Agreement (see in particular Article 1.2 FCL, which says that "International treaties shall remain reserved."). Under Article 20.4 of the Federal Copyright Law, claims for remuneration for the private reproduction of works may only be asserted by the approved collecting societies. Authorization is granted for literary works to PRO LITTERIS, for musical works to SUISA, for audiovisual works to SUISSIMAGE and for dramatical works to SSA (Société Suisse des Auteurs). Remuneration of foreign rightholders may be summarized as follows: in general, they receive remuneration through their own national collecting societies that have concluded mutual agreements with Swiss collecting societies. If there is no such agreement (or if there is no collecting society), individual foreign rightholders can conclude a contract with the competent Swiss collecting society and ask to be remunerated directly.

No.

In conformity with Article 10 of the Rome Convention, the exclusive right provided by Article 36 of the Federal Copyright Law covers both direct and indirect reproductions of phonograms as well as of videograms. The temporary fixation in connection with a digital transmission may be considered as a reproduction.

In accordance with Article 18 of the Berne Convention and Article 70.2 of the TRIPS Agreement, the Federal Copyright Law provides for retroactive protection. Its Article 80.1 stipulates that the law applies "also to works, performances, phonograms and videograms and also to broadcasts prior to its entry into force". The protection afforded by the Federal Copyright Law extends to all works which have not fallen in the public domain before the date of its entry into force, i.e. 1 July 1993. The term of protection of all those works may therefore be extended from 50 to 70 years post mortem auctoris. The protection of the Federal Copyright Law applies to all performances, phonograms, videograms and broadcasts for which the term of 50 years has not yet elapsed. It is to be noted that Switzerland has been granting national treatment to all countries as from 1 July 1993, whether they are members of the Berne Union or not. In accordance with the Berne Convention and the TRIPS Agreement, no formality is required for such retroactive protection.

Under the Federal Copyright Law, "works" are defined as being "literary and artistic creations of the mind, irrespective of their value or purpose, that possess an individual nature" (Article 2.1 FCL). Computer programs are "deemed works" (Article 2.3 FCL). The Federal Copyright Law provides for computer programs protection which is higher than that required by the Berne Convention for literary works. For example, limitations to exclusive rights such as private use of literary works covered by Article 9(2) of the Berne Convention do not apply to computer programs (see Article 19.4 FCL and reply to question 8 below). The author of a computer program has, in addition to the right to decide whether, when and how his work is to be used, an exclusive rental right (Article 10.3 FCL).

The Swiss Federal Copyright Law protects collections of data or other materials if thy are creations of an individual nature with regard to the selection or arrangement of data which they contain (Article 4.1 FCL).

Under the Swiss legislation, the integrity of an existing work is not affected if that work is used for the creation of parodies or other comparable variations on the works. As a very common form of criticism made for humoristic purposes, the parody of a work is not subject to the authorization of the rightholder, Should there be any confusion as to the purposes (e.g., intention to harm the author of the original work), the parody would not be deemed lawful. "Parodies and comparable variations" should not be confused with adaptations or plagiaries of the work which may change its original nature. These forms of use are not covered by the law.

Article 19 of the Federal Copyright Law provides for a limitation of the exclusive right of the author, namely private use. In accordance with Article 9(2) of the Berne Convention and Article 19 of the TRIPS Agreement, the Federal Copyright Law has made such use dependent on a number of requirements: (a)Private use is restricted to an exhaustive list of cases: use in private sphere or circle, use for teaching in a class, reproduction of copies of works in enterprises or entities (see Article 19.1, litt. a to c, FCL); (b)Private use outside the private circle defined in Article 19.1.a is subject to additional limitations (see Article 19.3 FCL); (c)Reproduction of works in any manner for private use other than in private sphere or circle is, to a very large extent, subject to a right of remuneration (Article 20). The provisions on private use do not apply to computer programs (Article 19.4 FCL). Furthermore, attention is drawn to an important feature of the Swiss law: any person who imports or manufactures blank cassettes or other phonograms and videograms suitable for the recording of works is required to pay a remuneration to the author for private uses under Article 19 (Article 20 FCL).

While Article 19 concerning the exception for private use is drafted in a rather complicated fashion, as far as we are aware it has not caused problems of application. In any event, there have not yet been disputes in this regard that have had to be settled by the courts. We think that the question raised by the United States does not arise in practice because a large number of the uses permitted in the private-use context are covered by a right of remuneration.

Article 11bis of the Berne Convention provides for authors of literary and artistic works the exclusive right to authorize any communication to the public by wire or by rebroadcasting of the broadcast of the work. The provision of Article 22.2 of the Federal Copyright Law concerns exclusively technical installations that are intended to serve a small number of receivers, such as installations in houses with more than one occupier or in a private building. This form of retransmission is not considered as a "communication to the public" as defined by the Berne Convention, because there is no new organization between the original broadcasting organization and the receivers.

The granting of compulsory licenses for the manufacturing of phonograms against remuneration is a limitation of the exclusive rights permitted by the Berne Convention. Article 13(1) of the Berne Convention allows each country of the Union to impose for itself reservations and conditions on the author's exclusive right of recording of musical works and any words pertaining thereto, under the condition that they are not, in any circumstances, prejudicial to the rights of these authors to obtain equitable remuneration. As a matter of fact, exclusive rights for the performance and broadcasting of non-theatrical works of music and the production of phonograms and videograms of such works are administered by collecting societies (Article 40.1.a FCL). In accordance with the requirement of equal treatment, the Swiss collecting society competent for musical works, SUISA, has to give a license to a manufacturer of phonograms, if so requested (Article 45.2 FCL). Any manufacturer who wants to reproduce a protected musical work would not have to claim for a compulsory license as provided by Article 23 of the Federal Copyright Law. Consequently, the requirement of national treatment for foreign manufacturers of phonograms could not be hampered by the provisions of Article 23 of the Federal Copyright Law. Attention is drawn to the fact that the system of compulsory licenses as contained in that Article and which has existed for more than 70 years has never been applied. It would probably be abrogated if the Federal Copyright Law were to be revised in the future.

According to Article 14.4 of the TRIPS Agreement, if on 15 April 1994 a WTO Member has in force a system of equitable remuneration of rightholders in respect of the rental of phonograms, it may maintain such system if the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of rightholders. The provision of Article 13.1 of the Federal Copyright Law is consistent with the TRIPS provisions. There was - and is - no need for setting up rules to avoid resulting in the material impairment of the exclusive rights of reproduction of rightholders. In Switzerland, consumers seem to prefer buying phonograms to renting them.

(a) Civil law: Whoever suffers or is likely to suffer a violation of his copyright or neighbouring right may request the civil courts to prohibit an imminent prejudice, to remove an existing prejudice and to require the defendant to state the origin of the unlawfully manufactured or marketed articles in his possession (Article 62.1 FCL). Proceedings for damages and redress or for surrender of profits may further be instituted (Article 62.2 FCL and relevant provisions of "Code des obligations"). The court may order that the unlawfully manufactured or utilized articles in the possession of the defendant be confiscated, destroyed or rendered unusable (Article 63.1 FCL). Any person who proves a legal interest therein may apply to the court for a declaratory judgement on whether or not a right or a legal relationship subsists under the Copyright Law (Article 61 FCL). Provisional measures may be ordered on request of any person who provides reasonable evidence that his copyright or neighbouring right is infringed or is likely to be infringed and that the infringement is likely to result in a prejudice for him that may not be readily made good. He may request, in particular, that the court order measures to secure evidence, to determine the origin of unlawfully manufactured or marketed articles or to maintain the existing situation or measures for the provisional execution of preventive and restraining injunctions. If the ordered provisional measures could cause damage to the defendant, the court may ask the applicant to provide a sufficient security. Where provisional measures have been adopted inaudita altera parte, the defendant must be heard without delay after the execution of the measures. Provisional measures cease to have effect if the proceedings leading to a decision on the merits of the case are not initiated within the time limit fixed by the court, at the latest within 30 days (Article 65 FCL and Article 28c to 28f of the Civil Code). The court may order, at the request of the successful party, that the judgement be published at the cost of the other party (Article 66 FCL). Each Swiss canton designates one single court that has jurisdiction for the whole of its territory for civil proceedings. Decisions of the cantonal court may be reviewed by the Swiss supreme court, the Federal Court ("Tribunal fédéral"). In addition to the federal rules, the cantons have their own procedural rules, which must be in conformity with the federal law as well as the international law. (b) Criminal law: At the request of the rightholder, any person who infringes his exclusive rights is liable to imprisonment for a term not exceeding one year or to a fine (Article 67.1 FCL). Infringement by way of trade are prosecuted ex officio. In that case the penalty will be imprisonment and a fine of up to 100,000 Swiss francs (Article 67.2 FCL). Any person who intentionally omits to state the source where required by statute (i.e., for quotations or for reporting on current events) and, where he is named therein, to give the name of the author, is punishable by a fine at the request of the person whose rights have been infringed (Article 68 FCL). Unauthorized assertion of rights is liable to imprisonment or a fine (Article 70 FCL). In criminal proceedings confiscation may be ordered according to the provisions of the Swiss Criminal Code; it may concern not only unlawful copies of works, phonograms and videograms but also instruments or devices used for reproduction. Destruction of the confiscated goods may be ordered (Article 72 FCL and Article 58 of the Criminal Code). Criminal proceedings fall within the competence of the cantons. Final decisions of the highest cantonal court may be reviewed by the Swiss supreme court, the Federal Court ("Tribunal fédéral"). In addition to the federal rules, the cantons have their own procedural rules, which must be in conformity with the federal law as well as the international law.

As stated above in our written reply to question 12, the objects or instruments used to make pirate copies may also be confiscated, destroyed and put out of action (see Article 63).

The question seems to refer to the term of protection granted to performers and producers of phonograms. In conformity with TRIPS Article 14.5, it must be 50 years from the end of the calender year in which the fixation was made or the performance took place.

Question No. 2 seems to relate to the term of protection granted to performers and producers of phonograms. In conformity with TRIPS Article 14.5, the Belgian Law grants protection to performers and producers of phonograms who are nationals of other WTO Member countries for 50 years from the end of the calendar year in which the fixation was made or the performance took place.

Article 39, paragraph 1 of the Belgian Law provides that (...) the producer of phonograms (...) is alone entitled to reproduce or authorize reproduction in any way and in any form. It is apparent from the preparatory work for the Belgian Law that the concept of the reproduction right is broad enough to cover indirect reproduction of a phonogram, including reproduction by a radio broadcast of a phonogram (Law on Copyright and Neighbouring Rights, Doc. Parl., Rapport, 473/33, page 221). Although the rights established by the Belgian Law are technologically neutral, the courts do not seem to have ruled as yet on the exact scope of the right of reproduction in the context of multichannel or interactive services.

Article 88, paragraph 1 of the Law establishes that the Law shall apply to works and performances dating from before its entry into force and not falling within the public domain at that time. The expression "not falling within the public domain" is taken to refer to performances for which the term of protection has not expired at the time of entry into force of the Law (Law on Copyright and Neighbouring Rights, Doc. Parl., Rapport, 473/33, page 327; Trib. civ. Réf., Bruxelles, 5 April 1995, Auteurs et média, Feb. 1996, Larcier, pages 57 et seq.; Com. Bruxelles, 4 Sept. 1995, Auteurs et média, June 1996, Larcier pages 153 et seq.). Without prejudice to Article 79 of the Law, the following works and performances benefited on 1 January 1996, the date of entry into force of the TRIPS Agreement, from: (1)Copyright protection: works whose author or last surviving co-author died after 31 December 1925; (2) neighbouring rights protection: -performances by performers after 31 December 1945 and performances which have been the subject of lawful publication or communication to the public after 31 December 1945, provided this has not been done after a term of 50 years from the date of the performance; -phonograms when the fixation is after 31 December 1945 and phonograms which have been the subject of lawful publication or communication to the public after 31 December 1945, provided this has not been done after a term of 50 years from the date of the fixation of the phonogram.

It has been agreed that national implementing legislation on intellectual property rights will be considered at a later meeting of the Council for TRIPS, after consideration of national legislation on the various intellectual property rights (copyright and neighbouring rights, marks, patents, and so on) (see more particularly document IP/C/W/7/Rev.1). For consistency in considering national provisions on intellectual property rights, questions relating to such provisions should be kept aside and answered at the Council for TRIPS meeting to be held on this subject.