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.


Page 6 de 496   |   Nombre de documents : 9912

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 4. Please explain whether and how Luxembourg 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 with respect to each category of subject matter.
The Luxembourg Law applies to all works and services which are not expired (épuisés) at the date of its coming into force, which means three months after the date of publication at the Official Journal Memorial. The expression "expired" (épuisés) concerns all prior works and services, whose period of protection has not come to an end ("non tombés dans le domaine public" according to Article 18 of the Berne Convention). The date back to which full retroactive protection is provided, has to be calculated in respect to the date of entry of the TRIPS Agreement, which was 1 January 1996. Our actual legislation on authors' rights protects works when the death of the author or the last living co author is later than 1 January 1946. The new draft amendment provides an extension until 1 January 1926 for EU Members. A second draft amendment will extend the protection to all WTO Member States. Our actual legislation on neighbouring rights protects works of performers and phonogram producers created or produced after 31 December 1975. The new draft amendment provides an extension until 31 December 1945 for EU Members. A second draft amendment will extend the protection to WTO Member States.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique [Follow-up question] What is the expected timetable for the second draft amendment referred to in paragraphs 5 and 7 of the answer to this question, which would extend a full term of protection to existing works, phonograms and performances from all WTO Members? Will it be simultaneous with the first draft amendment also referred to, which would apply only to EU members? Please provide any information that is available about the contents of this second draft amendment.
All efforts will be made to have a simultaneous timetable for all our amendments. The new laws will come into force three months after the date of publication.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 5. Article 1 of Luxembourg's copyright law lists the works that are protected as literary and artistic works under the law. Computer programs, however, are not included within this list. As Article 10 of TRIPS requires that computer programs should be protected "as literary works", please explain how computer programs are protected under Luxembourg's law.
On 24 April 1996, a new law added the protection of "computer programs" expressly to the list of Article 1.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 6. Article 1 of Luxembourg's copyright law grants protection to certain collections of works. However, because this article does not explicitly refer to databases of factual information (for which there is no underlying work) as protected subject matter, it is clear whether such databases are protected. Article 10 TRIPS requires that databases based on factual information that constitute intellectual creations by reason of the selection or arrangement of their contents be protected. Please explain whether and how these databases of factual information are protected under Luxembourg Law.
Databases which constitute an intellectual creation according to the conditions of paragraph 5, Article 1, are protected as literary works (collections). Indeed the list of Article 1, paragraph 1 is not exhaustive.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique [Follow-up question] Please indicate whether Luxembourg's copyright law has been implemented so as to provide protection for databases, and provide any relevant case law, administrative decisions, or other authority.
There is no case law on this issue.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 7. It does not appear that Luxembourg's copyright or neighbouring rights grant a rental right in these works. In view of this, please explain how Luxembourg complies with TRIPS Articles 11 and 14, which require that the rightholders of computer programs and phonograms be granted the right to control the rental of their work.
The rental right is not expressly excluded by the Luxembourgish law. However, the new draft amendments submitted to Parliament, in accordance with the EEC Directive No. 92/100 from 19 November 1992, provides expressly the rental right for authors and rightholders of neighbouring rights.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique [Follow-up question] Please indicate whether Luxembourg's copyright law has been implemented so as to provide a rental right in computer programs and phonograms, and provide any relevant case law, administrative decisions, or other authority.
It is considered that on the basis of Luxembourg copyright law a rental right is granted as regards computer programs and phonograms. There is no case law on this issue yet. This issue will be clarified in the draft amendment concerning rental rights.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 8. Please explain what criminal and civil remedies for copyright infringement are available and why they are sufficient under TRIPS Articles 41, 45 and 61. In the response, please address, inter alia, whether infringers may be liable for attorney's fees and court costs; whether Article 29 of the Luxembourg copyright law and Article 15 of Luxembourg neighbouring right law require that an infringer have knowledge and intent in order to be liable for infringement, thereby precluding an innocent infringer from being liable under the copyright law; and whether Article 34 of the Luxembourg copyright law and Article 16 of the Luxembourg's neighbouring rights law prevent the Luxembourg government from initiating criminal proceedings against suspected pirates.
Luxembourg reserves its answer until the second semester 1997, because of the scheduled enforcement review in the WTO Council.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 9. Article 12 of the Luxembourg neighbouring rights law grants a term of protection to phonogram producers and performers equal to twenty years from fixation of the phonogram or twenty years from when the performance took place. Article 14 of TRIPS requires that the term of protection be fifty years from the fixation of the phonogram and fifty years from when the performance took place. Please explain how Article 12 complies with the requirements of TRIPS Article 14.
The new draft amendment provides actually a protection of fifty years, according to the EC Directive 93/98/EEC of 29 October 1993.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique 10. Article 7 of Luxembourg neighbouring right law grants protection only to Luxembourg nationals and to those works originally fixed in Luxembourg. Please explain how this protection complies with the national treatment requirement in Article 3 of TRIPS, which requires that the phonograms of nationals of Member States be treated no less favourably than the phonograms of Luxembourg nationals.
According to the EC Directive 93/98 EEC and the new draft amendment, the duration of the protection is granted to works created in the European Union. The new draft of an amendment will extend the grant to works created in a WTO Member State. Article 17 of the neighbouring rights law provides however clearly that the effects of international conventions, such as the TRIPS Agreement, are prevailing.
24/10/1996
IP/Q/LUX/1 Luxembourg États-Unis d'Amérique [General follow-up question] Luxembourg has stated that three draft amendments have been submitted to its Parliament, dealing with the transposition into national law of three European directives and the implementation of TRIPS obligations. Please confirm that action is expected in Parliament on these amendments this Autumn.
Yes.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 1. Please explain whether and how Japanese 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 Article 30(2) and 104bis et seq., of the Copyright Law.
The Japanese Copyright Law provides protection for works, phonograms, performances and broadcasting from other WTO Members. In concrete terms, Articles 6, 7, 8 and 9 respectively provides protection for the works, performances, phonograms and broadcasting which are granted protection under the Japanese Copyright Law. All these provisions cover the works, phonograms, performances and broadcasting from other WTO Members. This protection is provided on the basis of the principle of national treatment required by Articles 3 and 9.1 (incorporating Berne Article 5(1)) of the TRIPS Agreement. Namely, as to works, the Japanese Copyright Law grants to works from other WTO Members all the rights stipulated in the Japanese Copyright Law for Japanese works. As to performers, producers of phonograms and broadcasting organizations, the Japanese Copyright Law grants to performers, producers of phonograms and broadcasting organizations of other WTO Members all the rights stipulated in the TRIPS Agreement in accordance with its Article 3, which provides that "this obligation (national treatment) only applies in respect of the rights provided under this Agreement". The "right to compensation for private recording" stipulated in Articles 30(2) and 104bis of the Japanese Copyright Law is granted to all right owners protected under the Japanese Copyright Law including those in other WTO Members. This legislation does not discriminate between Japanese and foreign right owners, and therefore it does not pose any problem in the light of the principle of national treatment.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique [Follow-up question] How are the levies for private copying under Articles 30 and 104bis of the Japanese copyright law distributed so as to give the appropriate share to rightholders from other WTO Member countries?
The system of Private Recording Compensation was introduced by the amendment to the Japanese Copyright Law in 1992, and started in 1993 (so far only for "sound recording", excluding "visual recording"). The compensation is collected by a collective society called SARAH (Society for the Administration of Remuneration for Audio Home Recording), which began the distribution of compensation money in 1994. The compensation is distributed to three collective societies in Japan, namely those of (1) music copyright owners, (2) performers and (3) producers of phonograms. These Japanese collective societies then distribute a part of the compensation to their overseas counterparts through negotiations and contracts based on the statistical outcomes and data of sampling surveys. We have been informed that the three collective societies have already reached contracts with their overseas counterparts, except for one. Negotiation between the Japanese performers' organization and its counterpart in the United States is still in process.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 2. It appears that Article 95.3 of the Copyright Law applies the “rule of the shorter term” to phonograms and performances from other WTO Members. Is this true? If so, please explain how this is consistent with the obligations set forth in TRIPS Article 4.
Article 4 of the TRIPS Agreement provides for the most-favoured-nation treatment with regard to the protection of intellectual property. However, Article 4(b) stipulates that "(any advantage, favour, privilege or immunity) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country" are exempted from this obligation. On the other hand, Article 95(3) of the Japanese Copyright Law stipulates the application of reciprocity with respect to the term of the protection for the right to secondary use fees of commercial phonograms of performers. This provision is based on the declaration of reservation which Japan made in accordance with Article 16.1(a)(iv) of the Rome Convention, and therefore, is consistent with Article 4(b) of the TRIPS Agreement. This means that the provision of Article 95(3) is consistent with the TRIPS Agreement.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 3. Please explain whether and how Japan 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 96 of the Japanese Copyright Law provides for the right of reproduction of producers of phonograms i.e. the right to authorize or prohibit the direct or indirect reproduction of their phonograms required by Article 14.2 of the TRIPS Agreement. This right applies also to the act of reproduction through digital transmission in the context of subscription or interactive services.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 4. Please explain whether and how Japan 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 with respect to each category of subject matter.
The Government of Japan considers it desirable to provide a high level of protection for intellectual property rights and believes 50 year retroactive protection of the rights of performers and producers of phonograms (sound recordings) is appropriate. Therefore, a draft amendment to the Copyright Law is under preparation for submission to the Diet with a view to extending the period of retroactive protection for such rights to 50 years. As to the works originating in WTO Member countries, Japanese Copyright Law protects copyright in the work from its creation to the end of a 50-year period following the author's death. This protection covers, as of 1996, all works the author of which died in and after 1946.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 5. Please explain whether the performer's right under Article 91 of the Copyright Law includes the right to prevent the reproduction of unauthorized fixations of performances, as required by TRIPS Article 14.1.
The right to prevent "the reproduction of unauthorized fixations of performances" stipulated in Article 14.1 of the TRIPS Agreement is included in the right provided for in Article 91 of the Japanese Copyright Law. This right in the Japanese Copyright Law is an exclusive right in terms of sound or visual recordings of their performances, and this Article fulfils the obligation under the TRIPS Agreement.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 6. Please explain how the compulsory licenses for reproduction, translation and adaptation of works in school textbooks and educational broadcasting provided for through Articles 33 and 34 of the Copyright Law are consistent with the permissible scope of exceptions to protection set out in Berne Articles 9(2) and 10(2), as incorporated by TRIPS Article 9.1, and in TRIPS Article 13.
Articles 33 and 34 of the Japanese Copyright Law are not provisions of compulsory licenses but of limitations on copyright entailing the obligation of compensation. Article 33 allows reproduction of works in school textbooks; Article 34 allows broadcasting or wire diffusion of works for school education and reproduction of works in textbooks for such programmes. These acts can be done under the strict condition: "only to the extent deemed necessary for the purpose of school education". Also, in order to provide the authors with chances to exercise their moral rights the user shall announce the use to the author. In addition, the user shall pay compensation to the copyright owner. These provisions have been carefully established and applied under strict interpretation in conformity with Articles 9(2) and 10(2) of the Berne Convention and Article 13 of the TRIPS Agreement.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique [Follow-up question] Please describe how Articles 33 and 34 of the Japanese copyright law have been strictly interpreted so as to bring them within the permissible limitations on rights set forth in Berne Articles 9 and 10 and TRIPS Article 13. In particular, has the text of these Articles of Japanese law been limited in operation or application in any way, such as by considering the amount that can be copied, the availability of a license from the rightholder, the intended purpose of the work, or the specific nature of the use?
Both Articles 33 and 34 stipulate the limitation on the permissible use to be "to the extent deemed necessary for the purpose of school education". For example, reproducing or broadcasting a large number of works of the same author or reproducing or broadcasting the whole range of a work (for example, a whole novel) is not deemed necessary. Attention should be drawn to the fact that the permissible reproduction under Article 33 can be done only for school textbooks authorized by the Ministry of Education. In the Japanese school education system, it is required that all textbooks be checked and authorized by the Ministry of Education, and therefore, the "school textbook" in this Article does not mean all books used at school. This means that there is a qualitative limitation in such cases. Also, all textbooks are purchased and given to all elementary and lower secondary school students by the Ministry of Education, which means that there is a quantitative limitation. As to the broadcasting programmes or wire diffusion programmes for school education stipulated in Article 34, attention should be paid to the fact that the permissible broadcastings under Article 34 are those which conform to the national curriculum standard established in detail by the Ministry of Education. Therefore, this Article does not allow all broadcasting for school education so the range of the application of this Article is very limited.
24/10/1996
IP/Q/JPN/1 Japon États-Unis d'Amérique 7. Please explain how the exceptions provided through Articles 30(1), 38, and 102 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 unreasonably prejudice the legitimate interests of the rightholder, including the limitations for phonograms in 14.6.
Article 30(1) is the provision which allows a user to reproduce a work by himself for the purpose of his personal use and family use. Article 38 is the provision which permits a user to use a work for non profit purposes under strict conditions in such intangible forms as public performance, recitation, lending and wire diffusion. Article 102 is a similar provision on limitation of neighbouring rights. The Japanese Copyright Law has some provisions of limitations and copyright and neighbouring rights, but all of them include strict and detailed conditions. Therefore, these provisions have been carefully stipulated and strictly interpreted in conformity with the provisions in international treaties such as Article 9(2) of the Berne Convention which allows limitation on reproduction of works "provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author" and Article 13 of the TRIPS Agreement which allows limitations and exceptions.
24/10/1996

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