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 3 de 496   |   Nombre de documents : 9912

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/ZAF/1 Afrique du Sud Suisse 1. Article 28 deals with the restriction of importation of copies. Article 55 of the TRIPS Agreement provides for precise time limits for suspension (10 working days renewable for another 10 working days but no more). The period of restriction of importation in Article 28 of the Copyright Act is to be specified in the notice to the Commissioner for Customs and Excise. No figure is given. Can one construe that the time limits as required by TRIPS Article 55 will apply even though the Copyright Act does not expressly mention them?
The whole question of Section 4 of the TRIPS Agreement is dealt with in the Counterfeit Goods Bill which is pending before the legislature and which is expected to pass into law before the end of this year. The time periods required by Article 55 TRIPS are prescribed in the Counterfeit Goods Bill and Section 28 of the Copyright Act must in future be read together with the relevant provisions of the Counterfeit Goods Act, once it has become law. The Counterfeit Goods Bill deals inter alia with the restriction of the importation of articles which infringe copyright or registered trademarks. Accordingly, the period specified in the notice to the Commissioner for Customs and Excise would be that of the TRIPS Agreement.
04/10/1996
IP/Q/CZE/1 République tchèque Suisse 1. Please indicate whether there are any border measures, criminal remedies and provisional measures in the Czech legislation.
In the Czech Republic the amendment of the Copyright Act has been in force since 22 April 1996. As the Czech representative said at the beginning of this review, the notification will be made as soon as an official translation of this Act is finished. The new Article 53a is as follows: (1) Authors, performing artists and phonogram producers, or persons authorized to exercise their rights pursuant to this Act, may require from customs authorities information about the contents and volume of import of goods, which are of the nature of reproductions of works or their sound, visual or audiovisual recordings, or goods, which is to serve for production of such recordings as their carrier (blank carriers), and to examine customs documents for the purpose of establishment, if import of such goods for dissemination in the market is in compliance with this Act. (2) The customs authority shall at a written request of persons authorized pursuant to paragraph 1 suspend the procedure of release of goods for free circulation for ten working days, if there is a justified suspicion that with import of such goods the rights pursuant to this Act would be violated. In justified cases the period of suspension of the procedure may be extended by further ten working days. (3) Should the importer of goods mentioned under paragraph 1 not prove within the term pursuant to paragraph 2 that his import is in compliance with provisions of this Act, the customs authority shall not release the goods in free circulation. (4) Provisions of paragraph 1 through 3 shall apply analogously also for export of goods mentioned in paragraph 1. The Czech legislation contains also civil and criminal remedies. According to the special protection of copyrights and rights of performing artists, as stipulated in the Copyright Act No. 35/1965 in conjunction with Section 39, paragraph 1 of this Act, the author whose right was infringed may demand, on the basis of Civil Law, that the infringement of his/her right is prohibited, the consequences of such infringement or abuse are removed (corrected) and the author receives the appropriate compensation. If, as a result of such an infringement, a substantial injury in kind has been caused, the author shall be entitled to receive a monetary compensation provided another form of compensation has turned out to be inadequate. The amount of such monetary compensation shall be determined by the court. As for civil and judicial procedures, the court may ban the distribution of tangible publications which were wrongfully used and order the illegal user to destroy the respective publications at his/her expense. Criminal procedure enables in the case of infringements of copyright to involve imprisonment up to two years, monetary fine, or seizure of the thing. If the culprit has, through the infringement, received a substantial benefit or the scope of his/her act is substantial, the punishment is from 6 months to 5 years imprisonment, monetary fine or forfeiture of the thing.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 1. Are all signatory countries’ works afforded protection on a national treatment basis (Article 3 of the TRIPS Agreement)? More particularly: 1.1 Have all signatory countries been listed in Schedule 1 to General Notice No. 126/1999? 1.2 Is national treatment afforded to all Members in respect of sound recordings?
The works eligible for protection under the Copyright Act 1978 are literary works, musical works, artistic works, cinematograph films, sound recordings (phonograms), broadcasts, programme-carrying signals, published editions and computer programs. In terms of Sections 3(1) and 4(1) of the Copyright Act, works first published in South Africa or works made available by qualified persons (being persons who are citizens of, or are domiciled or resident in South Africa, in the case of individuals, or bodies corporate organised and existing under the laws of South Africa, in the case of juristic persons) enjoy copyright. In terms of Section 37 of the Act, the relevant Minister has made regulations in terms of which the Act applies also to works originating from scheduled countries (being countries listed in Schedule 1 to the regulations, which are contained in General Notice No. 136 of 1989). More particularly, the Minister has provided the following: -in relation to literary, musical or artistic works, cinematograph films, sound recordings, published editions and computer programs first published in scheduled countries, the act will apply in the same way as it applies to those types of works first published in South Africa; -the Act will apply to persons who are citizens of or are domiciled or resident in a scheduled country in the same way as it applies to persons who are citizens of or domiciled or resident in South Africa; -the Act will apply also to bodies incorporated under the laws of a scheduled country as it applies in relation to bodies incorporated under the laws of South Africa. The list of scheduled countries was last revised in Government Notice 1290 in the Government Gazette 16867 of 15 December 1995. The list is reproduced in the Annex. The list has again recently been revised and is now awaiting publication in the Government Gazette. The list will be revised from time to time to ensure that all new WTO Members who may not be listed are included. Subject to what follows, this effectively means that works emanating from scheduled countries are protected in exactly the same way under the Copyright Act as are works emanating from South Africa. Exceptions apply in the case of broadcasts, sound recordings and published editions. The protection granted in terms of the regulations to foreign sound recordings and published editions is subject to the qualification that works of this nature originating from a foreign country will only enjoy protection in South Africa to the extent that protection in the nature of, or related to, copyright is granted in that country to such works first published in South Africa or made by a South African qualified person, and such works do not enjoy any wider protection in South Africa than is enjoyed by South African works in their country of origin. By consequence the right to enforce a particular restricted act only exists to the extent that the law of the country of origin provides for that restricted act in its own law. In order to qualify for protection under the Performers' Protection Act, a performance must take place, be broadcast live, or be first recorded in South Africa or a country which is a party to the Rome Convention and which grants reciprocal rights to performers in respect of their performances in South Africa (Section 4 of the Act). Steps have been undertaken to extend the scope of Section 4 of the Act to include all WTO Members not parties to the Rome Convention. Regarding the question (by the US) regarding national treatment with respect to the distribution of levies for private copying, the following: Section 12(1) of the Copyright Act read with Sections 15(4), 16, 17, 18, 19A and 19B exempts from infringement any "fair dealing" with a work for purposes of private study, personal private use, criticism or review of a work or reporting current events. This is subject to the proviso that no dealing for purposes of research or private study or use with a cinematograph film, sound recording or computer program is exempted. Further exemptions from infringement in the case of private copying are contained in Chapter 1 of the Copyright Regulations 1978, read together with Section 13 of the Copyright Act. Where private copying does not fall within any of the aforementioned exemptions and is unauthorized, infringement of copyright occurs. A licence is therefore required for private copying in these instances. There is no organized licensing scheme for private copying in place nor are there any collecting agencies operating in this field in South Africa. Accordingly no levies (other than negotiated licence fees) are collected or distributed for private copying in South Africa at the present time. The question of national treatment in respect of such levies does therefore not arise.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 2. Are computer programs protected “as literary works” (Article 10 of the TRIPS Agreement)? If not, how are they protected and is the scope of protection the same?
Computer programs, which prior to the amendment of the Copyright Act in 1992 were a species of literary work, currently enjoy protection under the Copyright Act 1978, in the same way as literary works but constitute a separate category of works. In terms of Section 43(a)(ii) of the Copyright Act, this principle does not apply however to any computer programs made prior to September 1965. The term "computer program" is defined to mean: "a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, direct its operation to bring about a result". A "computer program" is by definition excluded from being a "literary work". This means that once a work falls within the definition of "computer program" it ceases to be (insofar as it may have been) a literary work. At present the following acts are comprised in the copyright in a computer program: (a)reproducing the computer program in any manner or form; (b)publishing the computer program if it was hitherto unpublished; (c)making an adaptation of the computer program; (d)reproducing or publishing an adaptation of the program; (e)letting or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program. A Bill to amend the Copyright Act presently pending before the legislature will add the following restricted acts to the above mentioned list: (a)broadcasting the computer program; (b)causing the computer program to be transmitted in a diffusion service, unless such service transmits a lawful broadcast including the computer program, and is operated by the original broadcaster; (c)doing, in relation to an adaptation of a computer program, any of the other restricted acts. Once the aforegoing amendment is made to the Copyright Act, the protection enjoyed by computer programs will be broader than that enjoyed by a literary work and will incorporate all the restricted acts applicable to a literary work.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 3. To what extent are computer data bases protected as compilations (Article 10 of the TRIPS Agreement)?
Literary works are capable of protection under the Copyright Act. The definition of a "literary work" includes "tables and compilations". Provided they meet all the requirements for the subsistence of copyright, databases are capable of protection as literary works by virtue of their being compilations. One of the requirements for the subsistence of copyright in a literary work is that the work is written down, recorded or otherwise reduced to material form (Section 2(2) of the Copyright Act). A database stored in a computer would satisfy this requirement and is therefore protected.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 4. Do all works for which the terms are not calculated with reference to the life of a natural person enjoy protection for the term required by Article 12 of the TRIPS Agreement?
Yes. Sections 3(2)(b) - (f) of the Copyright Act provide for 50 years of protection from the end of the year in which: -cinematograph films, photographs and computer programs are made available to the public with the consent of the owner of the copyright or, failing such an event within 50 years from the making of the work, 50 years from the end of the year in which the works are made; -sound recordings are first published; -broadcasts first take place; -programme-carrying signals are first emitted to a satellite; -published editions are first published
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 5. Does reproducing a broadcast as contemplated in Section 10(a) of the Copyright Act, 1978, cover all forms of making fixations of a broadcast (Article 14(3) of the TRIPS Agreement)?
Yes. Section 10(a) of the Copyright Act grants to the owner of the copyright in a broadcast the exclusive right to reproduce, directly or indirectly, the broadcast in any manner or form, including, in the case of a television broadcast, making a still photograph from the broadcast. This includes the making of a cinematograph film, a sound recording or other material fixation of a broadcast.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 6. Is a television broadcast protected against the communication to the public of a fixation thereof (Article 14(3) of the TRIPS Agreement)?
The Copyright Act does not provide for a right of "communication to the public" in respect of the fixations of television broadcasts. The Act grants the right of reproduction as referred to above, rebroadcasting and transmission in a diffusion service in respect of broadcasts.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 7. Are performances of performers protected for the term required in Article 14(5) of the TRIPS Agreement?
The 20 year term of protection provided for in Section 7 of the Performers' Protection Act does not comply with TRIPS Article 14.5. However a Bill amending the Act in this respect is currently pending before the legislature. The amended Section 7 will read as follows: "The prohibition against the use of a performance as provided for in Section 5 shall commence upon the day when the performance first took place or, if incorporated in a phonogram, when it was first fixed on such phonogram, and shall continue for a period of 50 years calculated from the end of the calendar year in which the performance took place or was incorporated in the phonogram, as the case may be."
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 8. Are performances made in all WTO Members or by performers who are nationals of all WTO Members protected (Article 3 of the TRIPS Agreement)?
See reply to question 1.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 9. Does the Copyright Act, 1978, comply with Articles 1 to 21 of the Paris text of the Berne Convention as required by Article 9(1) of the TRIPS Agreement? More particularly: 9.1 Does Section 12(7) read together with Section 18 comply with the provisions of Article 10bis(1) Berne Convention?
Yes, save for the reference in Article 10bis(1) Berne to "the communication to the public by wire". Section 12(7) allows for the reproduction in the press and the broadcasting of the works referred to.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 9.2Has any provision been made for the application of Article 10bis(2) Berne Convention?
Yes. Sections 12(1) and 15(4) of the Copyright Act provide that copyright in literary and artistic works shall not be infringed by any fair dealing with such works for the purposes of reporting current events in a newspaper, magazine or similar periodical, or by means of broadcasting or in cinematograph film. In the case of reporting current events in a newspaper, magazine or similar periodical, the Act provides that the source shall be mentioned, as well as the name of the author if it appears on the work concerned.
04/10/1996
IP/Q/ZAF/1 Afrique du Sud Union européenne 9.3Is provision made for the “droit de suite” referred to in Article 14ter Berne Convention?
The Copyright Act makes no provision for the "droit de suite" referred to in Article 14ter of the Berne Convention.
04/10/1996
IP/Q/CZE/1 République tchèque Union européenne 1. Could the Czech Republic specify in detail the provisions in the Copyright Act which may limit the exclusive rights of the rightholder (Article 13 of the TRIPS Agreement).
The Czech Copyright Act contains several basic principles which should be clarified prior to the answer. According to Article 14, paragraph 1 a work may be used only upon the author's permission, should it not be permitted directly by the law. Paragraph 2 further stipulates that the author's permission following from the law may not be excluded or reduced by agreement between the parties. Paragraph 3 sets up that a work may be used without the author's permission only in cases specified in Article 15. These principles apply partially also to the rights of performers. The Czech Copyright Act has no limitations and no exceptions to the exclusive author's right regarding non-voluntary licences for the sound recording of musical works corresponding to Article 13, paragraph 1 of the Berne Convention and has no non-voluntary licences for primary broadcasting and satellite communication corresponding to Article 11bis, paragraph 2 of the Berne Convention. Exceptions and limitations according to Articles 9(2), 10 and 10bis of the Berne Convention are implemented in Article 15 of the Czech Copyright Act and do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the authors. The permitted use of the work for private copying according to Article 15, paragraph 2a does not apply to computer programs. On the other hand, regarding private copying the equitable remuneration is granted from unrecorded carriers. Exclusive right of performers is limited by cases of free usage of performances and legal licences. The user does not need any approval and is not obliged to pay a fee for using the performance for user's personal need (in such a case the performers are entitled to get remuneration from unrecorded carriers) and for using the performance from a recording or phonograms exclusively for scientific or educational purposes and within the framework of reporting about actual event by photograph, film, radio or television (so-called unpaid reporting licence). The user does not need approval, however, he is obliged to pay a fee in respect of making the recording of performer's performance realized for broadcasting organization provided that the recording is taken by this organization by its own means for its own broadcasting, and further in case of broadcasting the performance by radio or television provided that it is done from recording or phonogram which was made with performer's approval. Sound recording can be used only with approval of a producer who is entitled to get remuneration. Producer's approval is necessary for broadcasting of sound recordings and phonograms by radio or television, for making the reproductions of sound recordings or phonograms for other than own personal need, for public performance of sound recordings or phonograms, for lending and rental of sound recordings or phonograms. Producer of phonograms is entitled to get remuneration also from unrecorded carriers and rental. Radio or TV programme may be rebroadcasted, recorded for other than own personal need, and such recording may be further reproduced or otherwise communicated to the public only with the approval of the organization having realized the programme. Broadcasting organizations have the right for compensation except for that case when they transmit broadcasting of other broadcasting organizations. Unpaid reporting licences and licences for scientific and educational purposes are used both for producers of phonograms and broadcasting organizations.
04/10/1996
IP/Q/CZE/1 République tchèque Union européenne 2. How is the notion "normal exploitation of the work" defined in the Copyright Act or other related laws (Article 13 of the TRIPS Agreement)?
The notion "normal exploitation of the work" is not directly defined in the Copyright Act. The reason is that the exceptions and limitations, which are always considered as an interference with the exclusive right of authors, are confined to certain special cases indicated in Article 15. The exceptions and limitations cannot be interpreted to a larger extent. The Copyright Act contains provisions regarding the exercise of author's right, for which publishers of a collection of the works, cartographic works and periodicals as well as producers of a film or a work expressed in similar manner are authorized. According to Article 17, also the employer has the right to exercise the author's rights regarding the work created by the employee for fulfilment of his duties resulting from his employment. By this means, the Copyright Act grants the justified interests of rightholders and users. In connection with the contracts on dissemination of work we use normal exploitation of the work as regards the form, purpose and extent of dissemination of a work. Especially author's permission to use the work in a manner which is agreed in a contract, may not be extended to the use of work which parties to the contract could not have in mind or to that one which was unknown at the time of conclusion of a such contract.
04/10/1996
IP/Q/CZE/1 République tchèque Union européenne 3. Did the Czech Republic apply, as of 15 April 1994, a system of equitable remuneration of rightholders in respect of the rental of phonograms, and if so, is it the intention of the Czech Government to continue this practise (Article 14/4 of the TRIPS Agreement)?
Yes. The Decree of the Ministry of Culture No. 115/1991 Coll. contains the provisions regarding right of authors, performers and producers of phonograms on equitable remuneration in respect of the rental of phonograms. This Decree grants one common remuneration of 10% of the price of rental of phonograms to authors, performers and producers of phonograms. This remuneration is managed by the Collecting Societies. The position of the producers of phonograms was further strengthened by the last amendment of the Copyright Act in 1996. According to Article 45, the permission of the phonogram producer is required for lending and rental of phonograms. Producers of phonograms at this time prefer sale of phonograms to rental. Since 1 January 1996, the new Act No. 237/1995 Coll. on Collective Administration of author's rights is in force. The intention of the Czech Government is, therefore, to continue in this practise.
04/10/1996
IP/Q/FRA/1 France États-Unis d'Amérique 1. Please explain whether and how French 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 copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under the relevant provisions of your law.
In accordance with Article 55 of the Constitution, international agreements are directly incorporated into the internal legal system. France has been a party to the Berne Convention since 5 December 1887. The two fundamental rules laid down by the Berne Convention in favour of authors, national treatment and moral rights, are therefore granted to foreign authors. Levies for private copying for American authors of musical and audiovisual works are paid through collective management companies responsible under the law for collecting and distributing the levies.
22/10/1996
IP/Q/FRA/1 France États-Unis d'Amérique 2. Does France 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.
The Law of 3 July 1985 (Article L-211.4, Intellectual Property Code) fixes the duration of protection for neighbouring rights of performers and producers of phonograms at 50 years. France complies with the provisions of European Directive No. 93/98 of 29 October 1993, which provides for the same duration (Articles 3.1 and 2).
22/10/1996
IP/Q/FRA/1 France États-Unis d'Amérique 3. Please explain whether and how France protects against both the 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.
Article L-213.1 of the Intellectual Property Code protects producers of phonograms by granting them the right to authorize reproduction of fixations and thus complies with the provisions of the Rome Convention (Article 7), ratified on 3 July 1987, Directive No. 92-100 of 1 November 1992 (Article 7) and Article 14.2 of the TRIPS Agreement. Reproduction covers any physical fixation and direct or indirect reproduction. All phonograms whose protection has not expired are protected with respect to reproduction carried out subsequently to the entry into force of the Law of 3 July 1985 (1 January 1986). In 1996, any phonogram published after or in the course of the month of January 1946 is protected.
22/10/1996
IP/Q/FRA/1 France États-Unis d'Amérique 4. Please explain whether and how France provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by Berne Article 18, as incorporated through Article 9.1 of TRIPS, and TRIPS Article 14.6, and give the date back to which protection extends as to each of these categories of subject matter.
Article 18 of the Berne Convention is incorporated into French law as a result of the ratification of the Convention and of the Universal Convention of 1952. Consequently, a work protected by copyright in its country of origin may claim protection. Hence, only works that have fallen into the public domain are not protected. All phonograms whose protection has not expired in the country of origin are protected with respect to uses made subsequently to the entry into force of the French Law of 3 July 1985 (1 January 1986).
22/10/1996

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