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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Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 1. Please describe if your legislation includes measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS Agreement. If yes, please explain how such measures are consistent with the provisions of the TRIPS Agreement.
Section 34(1) of the Patents Act allows the Minister responsible for intellectual property matters to decide, even without the authorization of the patent owner, that a Government agency or designated third party may exploit a patented invention where such exploitation is necessary "in the public interest, in particular national security, nutrition, health or the development of other vital sectors of the national economy". Such compulsory licenses may also be granted where the Minister has determined that the patent owner's or licensee's manner of exploitation is anti-competitive and to issue such a license would remedy that practice
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 2. Please state how your legislation provides for the protection of the exclusive rights of authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS Agreement which requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the Berne Convention (1971).
In accordance with Art. 2(1) of the Berne Convention, section 6 of the Copyright Act grants protection to eligible literary and artistic works, inter alia. Literary works are defined as works, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes a written table or compilation or a computer programme. Artistic work refers to (a) a graphic work, photograph, sculpture or collage, whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship to which neither paragraph (a) nor paragraph (b) applies. Section 9 gives authors the exclusive right to copy the work, to issue copies of the work to the public, to perform the work in public or, in the case of a sound recording, film, broadcast or cable programme, to play or show the work in public; to broadcast the work or include it in a cable programme service and to make an adaptation of the work and, in relation to such adaptation, to do any or all of the foregoing acts. The right to translate literary and artistic works in Art. 8 is expressly included in the definition of adaption under the Act. Protection lasts for 50 years after the life of the author (s. 10) which is the minimum standard set by Art. 7 (this includes anonymous and pseudonymous works). A work of joint authorship qualifies for copyright protection if any of the authors satisfies the eligibility requirements. [Art. 7bis/s. 7(2)]. The principle of automatic protection in Art 5 of the Berne is reflected as the Act contains no formal requirements for protection. The Act contains a number of exceptions permitted under Berne including artistic and literary works used in administrative and judicial proceedings, the course of education, research and private study, criticism or review, reporting of current events, incidental inclusion and use for charitable purposes. Use in such circumstances is subject to fair dealing principles (s. 54). In accordance with Art. 16, a copyright holder whose rights have been infringed or suspects that their rights have been or will be infringed: 1) has legal recourse to bring an action against the infringer (s.32). 2) can notify the Comptroller of Customs in writing requesting the Comptroller to treat infringing printed copies as prohibited goods under the Customs (Control and Management) Act, Cap. 20.04 during a period specified in the notice Section 141 also provides that where a member of the Police Force of or above the rank of Inspector is satisfied that there is reasonable cause to believe that an offence against this Act is being committed, he or she may give directions to any constable authorising him or her to (a) enter and search any premises or place; (b) stop, board and search any vessel, other than a ship of war, or any aircraft, other than a military aircraft; or (c) stop and search any vehicle, in which the constable reasonably suspects there is an infringing copy of a work or an illicit recording or any article used or intended to be used for making infringing copies or illicit recordings; and (d) seize, remove or detain (i) any article which appears to the constable to be an infringing copy or an illicit recording or any other article which appears to him or her to be intended for use for making such copies or recordings; and (ii) anything which appears to him or her to be or to contain, or to be likely to be or to contain, evidence of an offence under this Act.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 3. Please describe the protection accorded to authors of computer programs, databases or compilations of data.
Computer programs, databases and compilations of data are eligible for protection as literary works and the attendant economic rights apply. Section 6(2) provides that a compilation of data or other material, whether in a machine-readable or other form, is eligible for protection as a literary work, except that (a) the compilation shall only be regarded as original if, by reason of the selection or arrangement of its contents, the compilation constitutes the author's own intellectual creation; and (b) the protection does not extend to any data or other material forming part of the compilation and is without prejudice to any copyright subsisting in any such data or other material. The moral right to be identified as the author of a computer programme does not apply unless expressly provided for in contract [s. 14(9)]. The moral right to object to derogatory treatment also does not apply to computer programmes. Section 45(4) provides that where an action is brought for infringement with respect to a computer programme, and copies of the programme are issued to the public in an electronic form bearing a statement (a) that a named person was the owner of copyright in the programme at the date of issue of the copies; or (b) that the programme was first published in a named country or that copies of it were first issued to the public in electronic form in a specified year; the statement shall be admissible as evidence of the facts stated and presumed to be correct until the contrary is proved. Copyright in a computer programme shall not be infringed by the rental of copies to the public after the end of the period of fifty years from the end of the calendar year in which copies of it were first issued to the public in electronic form [s.78(4)].
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 4. Please state whether your legislation provides for a rental right and, if so, the works to which it applies.
Section 3(2) of the Act provides that references to the issue of copies of a work in relation to sound recordings, films and computer programs, includes the act of issuing copies to the public by rental. The exclusive right to issue copies of work to the public is provided for in s. 9(1)(b).
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 5. Please describe the rights granted to performers, producers of phonograms (sound recordings) and broadcasting organisations under your legislation.
Section 108 gives performers the exclusive right to prevent any person, without the consent of the performer, from exploiting his or her performance; and a person who has recording rights in relation to a performance, shall have the exclusive right to prevent any person, without his or her consent from making a recording of that performance. These rights operate independently of any other copyright or moral right in relation to any work used or performed in the performance. A performer's rights are infringed by a person who, without his or her consent, (a) makes, otherwise than for his or her private and domestic use, a record of the whole or any substantial part of a qualifying performance; or (b) broadcasts live, or includes in a cable programme service, the whole or any substantial part of a qualifying performance. In an action for infringement of a performer's rights brought by virtue of this section, damages shall not be awarded against a defendant who shows that at the time of the infringement he or she believed, on reasonable grounds, that consent had been given (s. 109) Section 113 provides that the original phonogram producer and any performer are due remuneration where an eligible original phonogram is made available to the public for commercial purposes. Performers' rights are also infringed where copies of illicit recordings are imported into Saint Kitts and Nevis Producers of phonograms and broadcast organisations have the right to play or show the work in public. They also have the right to copy and issue copies to the public (which includes the right of rental). Broadcast organisations have the right to broadcast the work or to include it in a cable programme service. Moral rights are also conferred on these three classes of authors/owners.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 6. Please state whether your legislation provides for any limitation or exception in relation to each of the rights described above in accordance with the relevant provisions of the Berne and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
The rights of performers, phonogram producers and broadcast organisations are subject to certain limitations. These are: • Reception and re-transmission of broadcast in cable programme service (s. 83) • Incidental inclusion (s. 119, s.126) • Acts done for the purpose of instruction (s. 120) • Recording of broadcasts or cable programmes by educational establishment (s. 121) • Acts done to performance or recording for parliamentary proceedings (s. 122) • Reporting current events (s. 124) • Playing sound recording for charitable purposes (s. 125) • Making or use by a prescribed broadcasting organisation for the purpose of maintaining supervision and control over programmes broadcast by that organisation of recordings of those programmes. (s.127) • Recording broadcast for archival purpose (s. 128) Section 118 provides that the exceptions and limitations are subject to the fair dealing principles. Section 86 also provides that the Minister may order further exceptions and those specified exceptions must be: (a) are necessary in the public interest in connection with an event of national importance; (b) would not conflict with the normal exploitation of the work; and (c) would not unreasonably prejudice the legitimate interest of the owner of the copyright in the work. The Order shall also make provision for the payment of equitable remuneration to the copyright owner to be determined. The three-step test in Art. 13 of TRIPS is therefore reflected in the Act and the requirements of Art. 14(6) TRIPS are satisfied.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 7. Please state the terms of protection of each right described above and the work or subject matter to which it applies.
Section 12(1) provides that copyright in a broadcast or cable programme shall expire at the end of a period of fifty years from the end of the calendar year in which the broadcast was made or the programme was included in a cable programme service. Copyright in a repeat broadcast or a repeat cable programme shall expire at the same time as copyright in the original broadcast or cable programme, and accordingly, no copyright shall arise in respect of a repeat broadcast or a repeat cable programme which is broadcast or, as the case may be, included in a cable programme service after the expiry of the copyright in the original broadcast or cable programme. A repeat broadcast or a repeat programme means one which is a repeat of a broadcast previously made, or as the case may be, of a cable programme previously included in a cable programme service. Section 11(1) provides that copyright in a sound recording or film expires at the end of a period of fifty years from the end of the calendar year in which it was made, or where it is made available to the public before the end of that period, fifty years from the end of the calendar year in which it is so made available. (2) For the purposes of subsection (1) of this section, a sound recording or film is made available to the public when (a) it is first published, broadcast or included in a cable programme service; (b) in the case of a film or film soundtrack, the film is first shown in public. (3) In determining whether a sound recording or film has been made available to the public, for the purposes of subsection (2) of this section, any unauthorised act shall be disregarded. Moral rights are also conferred on performers, producers of phonograms and broadcast organisations and these subsist so long as copyright exists.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 8. Please state how your legislation grants the retroactive protection provided pursuant to Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS Agreement) and Article 14.6 of the TRIPS Agreement.
Prior to its independence from the United Kingdom in 1983, copyright in Saint Kitts and Nevis was governed by the 1956 UK Copyright Act and the 1919 Copyright Act, Cap 336 which remained in effect until the present Copyright Act came into force in 2002. Section 154 of the present Act ceased operation of the UK Act and repealed Cap. 336. Subsection 2 provides that: Where, immediately prior to the appointed day, copyright subsists in Saint Christopher and Nevis in any literacy, dramatic, musical or artistic work by virtue of the Copyright Act, Cap. 336 referred to in subsection (1) of this section, that copyright shall continue to subsist, and the person entitled to the copyright by virtue of that Act shall be the owner of the copyright, under and subject to this Act, and, in particular. (a) the duration of the copyright; (b) the acts comprised within the exclusive rights attaching to the copyright; and (c) the effect upon the ownership of the copyright of any event or transaction occurring or of any contract or agreement made on or after the appointed day; shall be governed by this Act.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 9. Please give the definition of a sign under your national legislation and explain under what conditions it is protectable.
A "sign" is not specifically defined in the Marks, Collective Marks and Trade Names Act but s. 2 defines a "mark" as "any visible sign capable of distinguishing the goods ("trademark") or services ("service mark") of an enterprise" and a collective mark as a visible sign designated as such in the application for registration and capable of distinguishing the origin or other common characteristic, such as the quality, of goods or services of different enterprises which use the sign under the control of the registered owner of that sign. By law, a mark must satisfy the following characteristics: (a) be capable of distinguishing the goods or services of one enterprise from those of other enterprises; (b) not be contrary to public order or morality; (c) not be likely to mislead the public or trade circles, in particular, as regards the geographical origin of goods or services concerned or their nature or characteristics; (d) not be identical to, or an imitation of, or contain as an element, an armorial bearing, flag or other emblem, a name or abbreviation or initials of the name of or official sign or hallmark adopted by, any State, inter-governmental Organisation or Organisation created by an international convention, unless authorised by the competent authority of that State or Organisation; (e) not be identical to, nor confusingly similar to, nor constitute a translation of, a mark or trade name which is well known in Saint Christopher and Nevis for identical or similar goods or services of another enterprise, or if it is well-known and registered in Saint Christopher for goods or services which are not identical, or similar to those in respect of which registration is applied for, provided, in the latter case, that (i) use of the mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the well-known mark; and (ii) the interests of the owner of the well-known mark are likely to be prejudiced by such use; or (f) not be identical to a mark belonging to a different owner and already on the Register, nor identical to a mark that has been filed earlier or given a priority date, in respect of the same goods or services or closely related goods or services, provided that the mark does not closely resemble such a mark so as to likely deceive or cause confusion.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 10. Please confirm whether or not services are a protectable subject matter in your trademark law. Please confirm if signs, such as trade names, are protectable. Please describe if elements such as sound, perfumes and containers are protectable.
Services are a protectable subject matter in our trademark law. Applications can be made in respect of goods and services only. Sounds, smells and containers are not protectable.
10/08/2017
IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 11. Please explain what the requirements of use are, if any, as a condition for a trademark registration. Please explain the definition of use and the conditions of maintenance of a registration in that respect.
There are no requirements of use as a condition for a trademark to be registered. However, section 12 allows an interested person to apply to the Court to have a trademark removed from the Register if a registered trademark has not been used for three years or more. Moreover, s. 15 states that a collective mark can be invalidated if it can be proven that not only the registered owner uses the mark.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 12. Please confirm whether or not your legislation permits that the registration of trademarks be indefinitely renewable.
Section 10 provides that registration of a mark expires ten years from the initial filing but that on the payment of a renewal fee, it can be renewed for consecutive periods of ten years. This implies that trademarks may be indefinitely renewable.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 13. Please describe the special requirements, if any, prescribed by your legislation concerning the use of a trademark.
Other than the provisions highlighted in question #11 above, there are no further requirements concerning the use of trademarks prescribed in the legislation.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 14. Please explain whether or not your trademark registration authority refuses a trademark application if it contains a geographical indication.
Section 4(c) of the Marks, Collective Marks and Trade Names Act provides that a trademark would not be registrable if it is likely to mislead the public or trade circles, in particular, as regards the geographical origin of goods or services concerned or their nature or characteristics.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 15. Please give the definition of a geographical indication in your legislation.
Section 2 of the Geographical Indications Act provides that "geographical indication" means an indication which identifies any goods as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 16. Please describe and explain the provisions of your legislation establishing a link, if any, between the characteristics of an indication and its geographical origin.
The link between the characteristics of an indication and its geographical origin are established in the definition of a geographical indication in s. 2 of the Act.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 17. Please describe how additional protection is granted by your legislation to wines and spirits. Please mention other types of products, if any, covered by this additional protection.
Section 13 of the Act enables an interested person to institute proceedings in respect of unlawful use of geographical indications. Unlawful use means use of a geographical indication on a good that does not originate in the geographical area indicated therein in a manner which misleads the public as to the true geographical origin of the goods. In addition to that protection, s. 13(1)(c) provides that it would still constitute unlawful use in respect of wines and spirits where the true origin of such goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your jurisdiction. Please provide examples of the use of the exceptions by courts or lists of names considered as generic in your jurisdiction.
The provisions of the Act have never been tested so there are no examples of exceptions by courts and a list of names considered as generic in this jurisdiction has never been attempted. In accordance with TRIPS Art. 24(3), s. 16(1) provides that nothing in the Act shall prevent the continued and similar use, in Saint Christopher and Nevis, of a particular geographical indication of another country identifying wines or spirits in connection with goods or services by any nationals or domiciliaries of Saint Christopher and Nevis who have used that geographical indication continuously with regard to the same or related goods or services in the Federation of Saint Christopher and Nevis (a) for at least ten years preceding the 15th of April, 1994: or (b) in good faith preceding that date. In accordance with TRIPS Art. 24(5), s. 16(2) provides that where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith (a) before the date of entry into force of this Act; or (b) before the geographical indication is protected in its country of origin, this Act shall not prejudice the registrability of, or the validity of, the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical to, or similar to, a geographical indication. In accordance with TRIPS Art. 24(6), s. 16(3) provides that nothing in this Act shall apply in respect of a geographical indication of any country with respect to goods or services for which the relevant indication is identical to the term customary in common language as the common name for such goods or services in Saint Christopher and Nevis, or in respect of a geographical indication of any other country with respect to products of the vine for which the relevant indication is identical to the customary name of a grape variety existing in Saint Christopher and Nevis as of the 1st of January, 1995. In accordance with TRIPS Art. 24(7), s. 16(4) provides that any application for relief made under Part III of this Act in connection with the use or registration of a trademark shall be made (a) within five years after the unlawful use of the protected indication has become generally known in Saint Christopher and Nevis; or (b) after the date of the registration and publication of the trademark in Saint Christopher and Nevis, provided that (i) the date of registration in paragraph (b) is earlier than the date on which the unlawful use became generally known in Saint Christopher and Nevis; and (ii) the geographical indication is not used or registered in bad faith. In accordance with TRIPS Art. 24(8), s. 16(5) provides that the Act shall in no way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 19. Please explain whether or not your legislation extends to the protection of designs dictated essentially by technical or functional considerations. Please explain how textile designs are protected.
There is currently no legislation in SKN for industrial designs. Therefore no further response can be given to questions 19 to 22.
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IP/Q/KNA/1, IP/Q2/KNA/1, IP/Q3/KNA/1, IP/Q4/KNA/1 Saint-Kitts-et-Nevis Union européenne 20. Please explain how your legislation protects right holders of a design against importing of articles bearing embodied or copied design.
There is currently no legislation in SKN for industrial designs. Therefore no further response can be given to questions 19 to 22.
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