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.

Cette page vous permet d'effectuer une recherche dans les questions et réponses des Membres au sujet des lois et réglementations notifiées. Vous pouvez consulter les résultats de la recherche à l'écran ou les télécharger afin de les imprimer au format Excel. Vous pouvez également télécharger des documents spécifiques.

* Vous n'êtes PAS obligé(e) de sélectionner tous les champs de recherche ci-dessous (uniquement les champs qui sont pertinents pour votre recherche).
* Veuillez noter que les critères de recherche sélectionnés sont cumulatifs et figureront tous dans les résultats de votre recherche.


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Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/BEL/1 Belgique États-Unis d'Amérique 6. Article 1 of Belgium's Copyright Law enumerates the exclusive rights that vest in literary and artistic works. However, because the Copyright Law fails explicitly to state whether audiovisual works are considered to be "artistic works", it is not clear what exclusive rights are granted to copyright owners of audiovisual works under Belgium's Copyright Law. Can you please clarify what rights are granted to copyright owners of audiovisual works under the Belgium Copyright Law?
Authors of audiovisual works enjoy the pecuniary and non-pecuniary rights referred to in Article 1 of the Law.
31/10/1996
IP/Q/BEL/1 Belgique États-Unis d'Amérique 7. Article 1 of Belgium's Copyright Law provides authors with a right of public communication. It is not clear from the Law whether this right includes the rights of public performance, broadcast, transmission, rebroadcast and retransmission. Please explain whether and how the public communication right includes these rights, which are required by Article 9.1 of TRIPS (incorporating by reference Berne Article 11bis) and Article 14 of TRIPS, or whether and how they are provided for elsewhere in the Law?
It is apparent from the preparatory work for the Law that public communication means any act intended to offer the public a work or a performance in an intangible form, more particularly by performance or display or by broadcasting, cable transmission etc. (Law on Copyright and Neighbouring Rights, Doc. Par., Rapport, 473/33 page 64).
31/10/1996
IP/Q/BEL/1 Belgique États-Unis d'Amérique 8. Please explain how computer programs and databases are protected under Belgian law. In particular, please specify whether computer programs are protected "as literary works" as required by Article 10 of TRIPS.
(a) Protection of computer programs. Computer programs are protected by the Law of 30 June 1994 incorporating in Belgian law the European Directive of 14 May 1991 on the legal protection of computer programs (Moniteur Belge, 27 July 1994). Article 1 of the Law establishes that, pursuant to Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, computer programs will be protected by copyright and assimilated to literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. (b) Protection of compilations of data and other material. Case law admits copyright protection of compilations of data marked by the personality of the author as a result of the intellectual, research and analytical effort and the arrangement of the data (Cass., 2 March 1993, Larcier Cassation, 1993, page 52; Cass., 27.04.1989, Pas., 1989, 1, page 908; Cass., 25 October 1989, Pas., 1990, I, page 238). In this way, the protectable nature of the work has been recognized in the case of an administrative schedule, notarial fees, a compilation containing financial data, a church and prayer book, a compilation of legislation and jurisprudence and a brochure containing insurance rates. However, copyright protection for a compilation of data, a directory in the case in point, was not admitted on the grounds that the classification of the data was routine and had been in use for a long time (J.P. Bruxelles, 28 June 1917, Pas., III, 1917, page 277). The same court also held that the only new arrangement in the directory was classification of the subscribers by order of their telephone numbers, that such an arrangement could not be protected for the reason that it was not sufficiently novel, and furthermore, the requisite element was that the new combination should be the outcome of intellectual work, even if such work consisted only of coordination, provided intelligence had played a preponderant part and the work was not simply material work of compilation.
31/10/1996
IP/Q/BEL/1 Belgique Pologne 1. Please indicate whether domestic law on protection of works, phonograms and performances as well as on broadcast organizations is in full conformity with the provisions of Article 14 of the TRIPS Agreement.
The Belgian Law of 30 June 1994 on Copyright and Neighbouring Rights provides for protection of performers, producers of phonograms and broadcasting organizations that it is in conformity with Article 14 of the TRIPS Agreement. The relevant provisions are set out in Articles 33 to 47 of the Law.
31/10/1996
IP/Q/BEL/1 Belgique Pologne 2. Does Belgium intend to accede to the Rome Convention?
Belgium intends to approve the Rome Convention very shortly.
31/10/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 1. Please explain whether and how Australian law provides protection for works, phonograms and performances from other WTO Members and whether and how it does so on the basis of national treatment as required by TRIPS Article 3 (generally with respect to all copyright and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)).
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".
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique [Follow-up question] The answer states that there are some limitations on national treatment under Australian law, and describes two such limitations. Does Australian law contain any limitations on national treatment for any of the rights required to be granted by the TRIPS Agreement other than these two?
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.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 2. Does Australia apply the rule of the shorter term to phonograms and performances from other WTO Members? If so, please explain how you justify such action under TRIPS Article 4.
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.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 3. Please explain whether and how Australia protects against direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.
The Act expressly makes direct or indirect reproduction of phonograms an infringement of copyright in the sound recording. Indirect reproduction extends to copies made from a free-to-air broadcast and made from a pay cable TV program or a computer bulletin board or by accessing subscription or interactive services. The person responsible for the unauthorized reproduction is liable for infringement. The right to make a copy of a sound recording is included as one of the exclusive rights of owners of copyright in sound recordings under Section 85 of the Australian Act. Section 10(3)(c) of the Act (the main definitions and interpretation provision in the Act) provides that "a reference to a copy of a sound recording shall be read as a reference to a record embodying a sound recording or a substantial part of a sound recording being a record derived directly or indirectly from a record produced upon the making of a sound recording" (emphasis added). "[R]ecord" is defined in Section 10(1) to mean a "disc, tape, paper or other device in which sounds are embodies". "[S]ound recording" is defined in Section 10(1) to mean "the aggregate of sounds embodied in a record". Section 13(2) provides, inter alia, that the exclusive right granted under the Act is to be read as including a right to authorise a person to do whatever is included within the right. A person who makes an unauthorized copy is liable for infringement (Section 101). Additionally, any person or body that sanctions, approves or countenances an infringing act in Australia will also be liable as having authorized the infringement (also Section 101). This may include the giving of permission or the extending of an invitation to do the act in question. Such permission or invitation may be express or implied from the circumstances (University of NSW v Moorehouse (1975) 133 CLR 1 per Justice Jacobs at p.20). The question of authorization depends in each instance on a careful examination of the facts. Thus it is not possible to say in general that a person responsible for making sound recordings available for downloading or transmission will be liable for authorizing infringement by reproduction.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 4. Please explain whether and how Australia provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends in respect to each category of subject matter.
Subject to non-revival of expired copyright (Section 210) and other transitional aspects, Section 207 of the Act provides that the Act applies in relation to things in existence before the commencement of the Act (on 1 May 1969) in like manner as it applies to things coming into existence after the commencement of the Act. The duration of term of the various protected subject matter is set out in the following table. [Part of the Response is in Table format] As regards extension to WTO Members - see answer to Question 1. In respect of performers, retroactive protection against making and commercially dealing with unauthorized sound recordings is dealt with in Section 248QA. In Section 248QA(1) the section is expressed to apply to an act done in Australia on or after the commencement of Part 4 of the Copyright (Copyright (WTOA) Act) in relation to a performance given at any time before that date. Part 4 of the Copyright (WTOA) Act commenced on 1 July 1995. Various prohibitions are listed in Section 248QA. These are: -to have during the protection period possession of a plate or recording equipment that a person "knows or ought reasonable to know is to be used for making a copy of an unauthorized sound recording of the performance" (i.e., a bootleg recording); -during the protection period to knowingly make a copy of the unauthorized recording; and -during the protection period, in summary, to commercially deal with an unauthorized recording (including importation for a commercial purpose). The protection period is defined, pursuant to Article 14(5) of TRIPS, in Section 248CA(2) as 50 years from the calendar year in which the performance was given. Penalties for breach of Section 248QA are set out in Sections 248R(3A) and (3B). Prospective protection is granted in the Act (Section 248F) for performances given after the commencement of Part XIA of the Act. Protection is extended to WTO nationals and to performances in WTO countries via the mechanism described in answer to Question 1. Protection applies against acts constituting unauthorized uses of performances undertaken on or after 1 July 1995 and earlier in some cases.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique [Follow-up question] The answer states that the Australian Copyright Act applies in relation to things in existence before the commencement of the Act in like manner as it applies to things coming into existence after the commencement of the Act, but qualifies this statement as being "subject to non-revival of expired copyright and other transitional aspects". Please explain the meaning of these qualifications. In particular, what pre-existing works are not protected, and what is the content of the transitional rules referred to?
Sections 208-242 of the Copyright Act make particular provision regarding the application of the Act to works and other subject matter predating the commencement of the Act, and Sections 243 248 make particular provision regarding works made before 1 July 1912. These particular provisions deal with such matters as the nationality of the author, duration of some works, initial ownership of copyright and variation of the terms of exceptions to exclusive rights in Parts III and IV of the Act and the remedies for infringement provided for in the Act. Section 210 provides that, notwithstanding anything in Part III, copyright does not subsist by virtue of Part III in a work first published before the commencement of the Act unless it subsisted under the 1911 Act immediately before that commencement. Special provision is made for pre-1911 works.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 5. Please explain whether and how Australian law protects compilations of data or other materials including compilations of sounds, images and audio-visual works that comprise "multimedia works" as required by TRIPS - Article 10.2.
Article 10(2) of TRIPS reads: "Compilations of data or other material whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself." So far as compilations are concerned, the Act provides, in Section 10, that literary work includes: (a)a table or compilation expressed in words, figures or symbols (whether or not in a visible form); and (b)a computer program or compilation of computer programs. This is supported by extensive case law even prior to the insertion of the relevant definition involving, for example, births and deaths columns in newspapers and a list of figures used in a "bingo" newspaper game. A contemporaneous example is offered by a recent newspaper report. On 24 June 1996, it was reported that industry analyst Gartner Group Pacific paid $30,000 plus legal costs to another company in compensation for the unauthorized use by Gartner of the other firm's database obtained by Gartner from a customer of the other firm. The Act currently extends protection to all forms of original works stored in computer memory. (See Section 22 and definition of "material form" in Section 10(1).) In so far as a multimedia production consists of moving pictures and accompanying recorded sounds, it seems to come within the definition of a cinematographic film where it is defined as: "... the aggregate of the visual images embodied in an article or thing so as to be capable by the use of the article or thing: (a)of being shown as a moving picture; or (b)of being embodied in another article or thing by the use of which it can be shown; and includes the aggregate of sounds embodied in a sound tract associated with such visual images." In its 1995 Report on Computer Software Protection, the Copyright Law Review Committee (CLRC) commented (at paragraph 14.84): "It does not seem to the Committee that the inclusion of text and still images in a multimedia production serves to deprive it of protection, as a cinematographic film, any more than does the inclusion of credits or other narrative, text or still images sometimes seen in movies."
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 6. Please indicate whether the definition of "Adaptation" in Section 10 of the Australian Copyright statute covers all types of adaptation, as required by Berne Article 12, or just those that are specifically listed.
The definition of adaptation Section 10(1) of the Act, which is exhaustive, does not purport to cover all possible adaptations to which Article 12 of the Berne Convention may apply. However, the scope of what constitutes "reproduction" and "copy" under the Act, coupled with Section 14(2), which provides in part that "reproduction ... or copy of a work shall be read as including a reference to a reproduction ... or copy of a substantial part of the work", is considered capable of covering adaptations contemplated by Article 12 that are outside the definition of "adaptation" in Section 10(1). In relation to cinematographic films, Section 14(1) provides in part that "the reference to the doing of an act in relation to ... other subject-matter shall be read as including the doing of that act in relation to a substantial part of the ... other subject-matter". In relation to artistic works, reference is made to Section 21(3) which deems reproduction to include three-dimensional versions of two-dimensional works and vice versa.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 7. Please explain how the scope of protection granted to cinematographic works under Section 86 of the Australian Copyright Statute is consistent with Berne Article 2(1) and 14bis, as incorporated through TRIPS Article 9.1, given that the scope of rights such works enjoy does not appear to be coextensive with the rights in literary and artistic works generally. For example, there does not appear to be an adaptation right provided.
Section 31 of the Act provides that unless a contrary intention appears copyright in relation to a literary, dramatic or musical work is the right to: -reproduce the work in a material form; -publish the work; -perform the work; -broadcast the work; -cause the work to be transmitted to subscribers to a diffusion service; -make an adaptation of the work; -to reproduce, publish, perform, broadcast or cause an adaptation to be transmitted to subscribers to a diffusion service. Section 86 of the Act lists the rights in cinematographic films. That list of rights in cinematographic films does not expressly include a right to publish a film or a right to make an adaptation of a film. Article 14bis(1) of the Berne Convention states inter alia that the owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work, including the rights referred to in Article 14. Although the words "shall enjoy the same rights as the author of the original work" are stated without qualification, it has been the view in Australia that the rights referred to may only be the rights required by the Convention to be conferred on authors of original works. As the rights so required by the Convention do not include a right of publication, Australia does not regard itself as bound to provide such a right to owners of copyright in cinematographic films. As to a right of adaptation, see also the answer to Question 6. The reproduction right under the Act would enable the maker of a film to take action against the unauthorized production of an edited version of the film or a substantial part of it, whether the editing consisted in omitting some parts, changing the sequence of the pictures, dubbing a new soundtrack or adding subtitles.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 8. Please explain how the exceptions provided in Sections 40(3), 45, 46, 89(3), 106, 110 and 199 of the Australian Copyright statute comply with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonable prejudice the legitimate interests of the rightholder.
Section 40(3) Section 40(3) of the Act provides that the copying of an article in a periodical publication or, in any other case, not more than a reasonable portion, for the purposes of research or study is to be taken to be a fair dealing that does not constitute an infringement of copyright. Subsection 40(4) provides that only if no more than 1 article in the periodical publication is copied can the copying permitted by Section 40(3) be treated as a fair dealing. In Australia, reasonably clear and strict provisions apply in regard to exceptions to exclusive rights. By and large clear guidance is thus provided to the courts as to what will constitute an exception to the exclusive right of reproduction. Subsections 40(3) and 40(4) are the application by the legislature of a view about what complies with permitted exceptions under Berne. It is to be noted that the exception is limited to copying for research or study (a "special case") and not for general amusement or information, is directed to limited copying (only 1 article per periodical or a reasonable portion of other works) and, unlike, for example unremunerated commercial copying of extracts, is limited to individual use. (See De Garis & Ano v Neville Jeffress (1990) AIPC 90-678.) What constitutes a "reasonable proportion" is partly defined in Section 10(2) which provides, inter alia, that it will be a "reasonable proportion to copy no more than 10% of the pages in the edition being copied or no more than 1 chapter of a work divided into chapters". These restrictions ensure that the use comes within the terms of Article 9(2) of the Berne Convention and Article 13 of TRIPS: -the use is a special case; -the use is restricted to limited copying - not the whole work; and -the use does not, therefore, unreasonable interfere with a normal exploitation of the work. Section 45 Section 45 exempts from infringement reading or recitation in public or the inclusion in a broadcast of a reading or recitation of an "extract of reasonable length" of a published literary or dramatic work, "if a sufficient acknowledgement of the work is made". The provision is considered to be permitted by Berne Article 10(1), and that Article 9(2) is not applicable because reproduction is not being dealt with by Section 45. As reading or recitation of an extract of reasonable length would not nowadays be considered to conflict with the normal exploitation of a published literary or dramatic work, the provision is considered to be compatible with TRIPS Article 13. It seems significant that the Australian Government has no recollection of representations from authors or publishers' representative organizations expressing concern at Section 45. This suggests to the Government that Section 45 is little relied on or, if it is relied on, it is not seen by authors or publishers as prejudicial to their interests. Section 46 This provision provides an exception to infringement by performance "in public" of literary dramatic or musical works, or adaptations of them by the use of wireless telegraphy apparatus (i.e., radio or TV broadcasts) or the use of a record at premises where persons reside or sleep. The exception extends to performances where guests of the inmates of these establishments are present. By the terms of Section 27 a public performance extends to any mode of visual or aural presentation including by the operation of a radio or television receiver by which the works are seen or heard. The owner of the premises who has consented to such use is deemed to be the person causing the performance to have been given. Thus, for example, because Section 46 is confined to performances "exclusively for residents or inmates of the premises" and their guests, it is an infringement where works are performed by playing a television or radio set in a public bar. It may be doubted that performances for residents or inmates is a performance "in public" in terms of the convention or treaty meaning. Clearly, it is not a performance "in public" for the members of a family and their friends to view a television or listen together, to a radio broadcast. That is, the provisions of Section 46 could be considered to make an offsetting correction to the over-protection that would otherwise result from the deeming provision in Section 27 that would otherwise fix liability for use broadly analogous to an individual or family use merely because that use was in a premises and the receiver used was supplied by or with the consent of the owner. Under the Australian law as it currently stands, the relevant collecting society in Australia, the Australasian Performing Right Association, is able to operate effectively to collect performing right fees from a very wide variety of establishments, including hotels, bars and other places of public access, where public performances occur. The circumstances described in Section 46 are limited to a special category of cases so that, by reason of its narrow compass, the section does not result in conflict with a normal exploitation of the works used and does not unreasonable prejudice the rightholders' interests. Section 89(3) This subsection provides that, in addition to Australian nationality or residence of the maker of a sound recording or Australia being the place of making of a recording, a criterion for extending copyright protection to a sound recording is first publication in Australia. The subsection is thus not an exception to exclusive rights. Section 106 This subsection provides for an exception to the right to cause a sound recording to be heard in public, being one of the rights conferred by the Act on owners of copyright in sound recordings. Sound recordings are not protected by the Berne Convention. The right to cause a sound recording to be heard in public is not one of the exclusive rights required by TRIPS to be conferred on owners of copyright in the recordings, and it is considered that Article 13 would have no application. Section 110 This section makes particular provision relating to old cinematographic films. Subsection 110(1) effectively provides for the expiry of the public exhibition right in a film of items of news at the end of 50 years after the events filmed. This deeming applies only for the purposes of causing the film to be seen or heard, not for reproduction, broadcasting or transmission via a cable diffusion service. To the extend that this can be said to be an exception to rights, it satisfies the criterion of being a special case that does not unreasonably interfere with the legitimate interests of the rightholder because of the very specific limits on the exception. Subsection 110(2) applies a similar exemption to that in Section 110(1) as regards any underlying works in old films in which the copyright has expired. It makes an exception to the performance right in those works in the case of public showing of the films after they have fallen into the public domain. This is clearly a very limited derogation from the total range of possible ways of performing the works concerned, and is considered not to conflict with a normal exploitation of the works or unreasonably interfere with the legitimate interests of the copyright owners. Subsection 110(3) clarifies that the use of a record which embodies the sounds used in a film soundtrack, but is not derived from the soundtrack, does not infringe copyright in the film. This merely clarifies the law and the question of the application of Article 13 of TRIPS does not arise. Section 199 Subsection 199(1) is a counterpart provision to Section 45 regarding broadcasts of readings or recitations of literary works. It provides an exemption from infringement in the case of any public performance resulting from the reception of the broadcast. Because it is limited to circumstances where the inclusion of the reading or recitation is not an infringement, it can be seen as largely coextensive with Section 45 and compatible with Berne and TRIPS for the reasons given in the answer on Section 45. Subsection 199(2) is considered to be not governed by Berne or TRIPS for the reasons given in the answer on Section 106 Subsection 199(3) provides that where a person plays a television set in public, the person is to be treated as if he or she had a licence from the film copyright owner for that public performance of the film. The playing of television sets in public is not considered a substantial exercise of the right to cause films used in TV broadcasts to be seen or heard in public. Subsection 199(4) deals with retransmission by wire of a broadcast. Because prior to 1995 no substantial commercial cable transmission services were in operation, the subsection had no substantial practical application. Following the licensing and commencement of major commercial services, the Government is actively reviewing the appropriateness of Section 199(4). Subsections 199(5) to (7) amplify or qualify the operation of Section 199(1) to (4).
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique [Follow-up questions] Section 40(3): The answer states that the exception to rights provided in Section 40(3) of the Australian Copyright Act, allowing certain copying for purposes of research or study, comes within the terms of permissible limitations on rights under Berne and TRIPS. Please explain whether the exception applies when the research or study is engaged in for commercial purposes or by a commercial entity, or when the copying substitutes for a purchase of the book or a subscription to the journal from which the copying is done.
Section 40 of the Act provides: 40(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or study does not constitute an infringement of the copyright in the work. 40(1A) A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution. 40(1B) In subsection (1A) the expression "lecture notes" means any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research. 40(2) For the purposes of this Act, the matters to which regard shall be had, in determining whether a dealing with a literary, dramatic, musical or artistic work or with an adaptation of a literary, dramatic or musical work, being a dealing by way of copying the whole or a part of the work or adaptation, constitutes a fair dealing with the work or adaptation for the purpose of research or study include: (a) the purpose and character of the dealing; (b) the nature of the work or adaptation; (c)the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price; (d)the effect of the dealing upon the potential market for, or value of, the work or adaptation; and (e)in a case where part only of the work or adaptation is copied - the amount and substantiality of the part copied taken in relation to the whole work or adaptation. 40(3) Notwithstanding subsection (2), a dealing with a literary, dramatic or musical work, or with an adaptation of such a work, being a dealing by way of the copying, for purposes of research or study: (a)if the work or adaptation comprises an article in a periodical publication - of the whole or a part of that work or adaptation; or (b)in any other case - of not more than a reasonable portion of the work or adaptation; shall be taken to be a fair dealing with that work or adaptation for the purpose of research or study. 40(4) Subsection (3) does not apply to a dealing by way of the copying of the whole or a part of an article in a periodical publication if another article in that publication, being an article dealing with a different subject matter, is also copied. The interpretation of the provision was considered by Mr. Denis Rose QC, then Chief General Counsel of the Attorney-General's Department in an opinion provided to the Copyright Law Review Committee in the context of its report on computer software. Mr. Rose concluded that it was: "likely that the courts would hold that 'study' is confined to study by individuals for their own purposes, whether in private, or in some institutional course or otherwise. Moreover, the courts could confine 'research' to research activities such as those in universities and the CSIRO, for the purpose of increasing knowledge in the community as a whole - by contrast for instance, with research in a Government Department for the purpose of advising Ministers on proposed legislation, or research by a manufacturing company for the purpose of improving its products." Such a view would be consistent with other aspects of the legislation which require, for example, educational institutions to pay for the reproduction of works for use by students for their studies.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique Section 46: The answer states that the exception to rights provided in Section 46 of the Australian Copyright Act, allowing certain public performances at premises where persons reside or sleep, "does not result in conflict with a normal exploitation of the works used and does not unreasonably prejudice the rightholders' interests" (as required by TRIPS Article 13). Please explain whether this Section allows performances at commercial establishments, including hotels and other lodging places, and apartment buildings.
It has not been possible to identify any judicial decisions interpreting the expression "premises where persons reside or sleep", as used in Section 46 which, it is emphasized, limits the exception to public performance on such premised to the operation of a radio or TV receiver or record player "as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests".
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique 9. Please explain the criminal and civil remedies available for copyright infringement and the extent to which they fully implement the obligations in TRIPS Articles 41, 45, 50 and 61. In the response please specify, inter alia whether these remedies may include seizure, forfeiture and destruction of infringing articles and equipment used to make the infringing articles, as required by Articles 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50.
Criminal and civil remedies are available under Sections 115, 116, 133, 133A, 248J, 248Q, 248QA, 248R and 248T. These provisions permit actions for damages, injunctions, account of profits and conversion or detention of infringing copies. Under the provisions for non-criminal enforcement, delivery up of the infringing items may be ordered. Under the criminal provisions delivery up and destruction may be ordered. Interim relief including interim injunctions are available according to well-established court and common law rules. Additionally, the Australian courts have recognized the right of plaintiffs to Anton Piller Orders and to Mareva Injunctions in appropriate cases.
01/11/1996
IP/Q/AUS/1 Australie États-Unis d'Amérique [Follow-up question] Do the remedies provided by Australian copyright law include the forfeiture and destruction of equipment used to make infringing copies, in both the civil and criminal contexts?
Yes. In the case of civil infringement proceedings, Section 116(1) provides: "Subject to this Act, the owner of the copyright in a work or other subject matter is entitled in respect of any infringing copy, or of any plate used or intended to be used for making infringing copies, to the rights and remedies, by way of an action for conversion or detention, to which he or she would be entitled if he or she were the owner of the copy or plate and had been the owner of the copy or plate since the time when it was made." In the case of proceedings for criminal infringement, Section 133(4) provides: "The court before which a person is charged by reason of a contravention of Section 132 may, whether the person is convicted of the offence or not, order that any article in the possession of the person that appears to the court to be an infringing copy, or to be a plate or recording equipment used or intended to be used for making infringing copies, be destroyed or delivered up to the owner of the copyright concerned or otherwise be dealt with in such manner as the court sees fit."
01/11/1996
IP/Q/AUS/1 Australie Suisse 1. Please explain how collecting societies have organized the distribution of royalties to foreign authors.
For comprehensive information on collecting societies in Australia the Swiss Federation is referred to the whole text of "The Simpson Report"; a report to the Australian Government on Copyright Collecting Societies delivered in September 1994. The report is available at: http://www.dca.gov.au/simpson1.htm on the World Wide Web. The accompanying extract from the report responds to the question as well as providing some additional background material on Australian Collecting Societies.
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