Examen de la législation d'application de l'Accord sur les ADPIC ‒ Recherche

Réinitialiser
 
 

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 9 de 687   |   Nombre de documents : 13728

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/ITA/1 Italie États-Unis d'Amérique 1. Please explain whether and how Italian 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 6.1). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under the relevant provision of the italian copyright law.
Articles 185 189 of Law No. 633/1941 provide the principles regulating the protection of foreign authors, on the basis of the same treatment for the national authors. It should be considered that the ratification of an international agreement or convention implies automatically the inclusion of all the rules of the agreement or convention in the national legislation, without any further requirements. So, the provisions of Article 5.1 of the Berne Convention and Article 3.1 of the TRIPS Agreement are part of the Italian legislation. The same principle applies to the rights of the artists, etc. The right for the remuneration for private copying in favour of the authors and the producers of audiovisual works and of videograms is regulated by Article 3, Law No. 93 of 5 February 1992. The remuneration is fixed on the basis of a percentage of the wholesale price to dealers of blank audio and videotapes or other audio and video carriers (audio cassettes, video cassettes and other carriers) and of audio recording equipments; the remuneration is due by whoever manufactures or imports in the territory of the State, for commercial purposes, blank tapes or other blank audio or video carriers, or audio recording equipments. The remuneration is paid to Società Italiana degli Autori de Editori (SIAE) that will distribute it, net of cost, to the authors and to phonographic producers.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique [Follow-up question] The answer did not make clear whether national treatment is provided with respect to the private copying levies established by Italian law. Please confirm that all revenues generated from these levies in Italy are distributed on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder.
The private copying levies are paid to the SIAE, which distributes them among authors' and producers' associations; the producers' associations share out 50 per cent of the proceeds they have collected to artists' and performers' associations. There is no discrimination between Italian and foreign rightholders.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique 2. Does Italy apply the "rule of the shorter term" to phonograms and performances from other WTO Members, and if so please explain how this is consistent with the obligations set forth in TRIPS Article 4.
The term of protection of the rights of performers, producers of phonograms, etc. has been extended to 50 years by Law No. 52 of February 1996, Article 17 (amended by Article 9 of D.L. No. 331 of 22 June 1996 which is being converted into law); Law No. 52 has enforced the EEC Directive No. 93/98 (Articles 3, 1 and 2).
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique [Follow-up question] Please confirm that Italy does not apply the rule of the shorter term to phonograms and performances.
The 50 years term applies to all WTO Members in respect of producers of phonograms as well as artists and performers, as provided in Article 14 of the TRIPS Agreement.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique 3. Please explain whether and how Italy protects against the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context with respect to each category of subject matters.
Article 72 of the Law No. 633/1941 provides (according to the EEC Directive No. 92/100) that "the producer of a phonographic record or of any other similar contrivance for reproducing sounds or voices shall have the exclusive right, for the period and under the conditions laid down in the following articles, to reproduce, by whatever duplication process, and distribute the said record or contrivance of his production". Moreover, according to the same article, (paragraph 2) "The producer of a phonogram has also the exclusive right to lease and loans, as well as the right to authorize the lease and loan of the phonograms of his production. This right is not exhausted with the sale or distribution, in whatever form, of the phonograms". According to Article 73 of the same law, "The producer of the phonographic record or of any similar contrivance for reproducing sounds or voices, as well as the artists who interpreted or performed the interpretation or the performance recorded or reproduced on the said contrivances, shall be entitled, independently of the rights of distribution, lease and loan pertaining to them, to remuneration in exchange for the utilization, for purposes of gain, of the record or of the similar contrivance through broadcasting, cinematography, television, in public dancing parties, in public premises and on the occasion of any further public utilization of the said contrivances. The producer shall be entitled to exercise the aforesaid right, and shall share out the remuneration among the artists who acted, interpreted or performed the work". The artists who interpret or perform and the producer of the phonogram which was utilized shall be entitled according to Article 73bis to fair remuneration also when the utilization as per Article 73 was not effected for purposes of gain. According to Article 80 of the Law No. 633/1941 (as modified by Article 13 of the Dlgs No. 685/1994) artists who interpret or perform shall have the exclusive power, regardless of any remuneration to which they may be entitled for their live artistic performances: (a)to authorize recording of their artistic performances; (b)to authorize reproduction, whether direct or indirect, of the recordings of their artistic performances; (c)to authorize broadcasting by air and communication to the public, in whatever form and manner, of their live artistic performances, unless the latter were intended for broadcasting by radio or television or are already the subject or a recording for broadcasting purposes; (d)to authorize distribution of the recordings of their artistic performances; (e)to authorize lease or loan of the recordings of their artistic performances and of the reproduction thereof: The Rome Convention has been ratified by Italy; on June 1995, Italy confirmed some of the reservations already notified, as foreseen by the Convention; among these, the reservation relating to Article 5.3 of the Berne Convention. Consequently, Italy is protecting phonograms on the basis of the criterion of "fixation", this criterion being considered more clear and rigorous compared to the other two criterions of nationality and publication. It should also be remembered that, with Law No. 406 of 5 May 1975, Italy ratified the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique [Follow-up question] Does the reproduction right for phonograms under Italian law include reproductions made from broadcasts, as well as the digital transmission of both temporary and permanent reproductions?
Under Article 13 of the Italian Copyright Law No. 633/1941, the authors' right of reproduction "has for its object the multiplication of copies of the work by any means". The wording therefore applies to all kinds of reproduction, including those made from broadcasting or by digital means. Article 72 of the law specifically provides the same rule for the reproduction of phonograms. The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at national and international level.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique 4. Please explain whether and how Italy 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 matters.
Article 18 of the Berne Convention reserves the protection to works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. Paragraph 2 of the same article excludes that a work that has fallen into the public domain in the country where the protection is claimed, could be protected anew on the basis of the new terms of the minimal duration of the protection provided for by the Berne Convention. Article 70 of the TRIPS Agreement recalls Article 18 of the Berne Convention so far as the works, phonograms and performances in conformity with the established criteria are concerned, thus implying that the protection must be given to all works which are not fallen into the public domain, as to the neighbouring rights. Article 10.2 of EEC Directive No. 93/98 establishes however that the new long duration of the protection there provided for in favour of copyright and neighbouring rights "applies to any work and subject matter which is protected in at least one of the Member States at the date of 1 July 1995". Article 17 of the Law of 26 February 1996, No. 52 (integrated by Article 9 of the D.L. of 22 June 1996, now being converted into law), actuating such a directive, after having increased the terms of duration of the protection of copyright and neighbouring rights, in conformity with the EEC Directive, has extended the new terms previously into force (Article 17.2), provided always that in application of such terms the aforesaid works and right fall into protection at the date of 29 June 1995 (Article 9.2 of the D.L. No. 331/1996): this means that the protection for neighbouring rights goes back to 30 June 1945 and to 30 June 1926 for copyright.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique 5. Please explain the criminal and civil remedies available for copyright infringements and the extent to which they fully implement the obligations in TRIPS Articles 41, 46, 50 and 61. In response, please specify, inter alia, whether and how these remedies may include the seizure, forfeiture, and destruction of infringing articles and equipment used to make infringing articles and equipment used to make the infringing articles, as required by TRIPS Articles 46 and 61, and the manner in which the grant of civil provisional relief is provided in accordance with TRIPS Article 50. Additionally, please explain whether and how the system for measuring civil damages complies with TRIPS Articles 41.1 and 46.1, and how remedies and penalties awarded in italian civil and criminal cases provide the deterrent effect required by TRIPS Articles 41 and 61.
These aspects will be examined in the second half of 1997.
24/10/1996
IP/Q/ITA/1 Italie États-Unis d'Amérique 6. Please explain how the Italian copyright law provides protection for compilations or collections of unprotected materials, as required by TRIPS Article 10.
The compilations of data or other materials that, due to their selection or disposition of their contents constitute intellectual creations, find protection, in terms of "copyright" under the EEC Directive on the legal protection of databases, approved in March 1996. Italian law, at the moment, is protecting the collection, or anthologies of various works already "per se" protected (Articles 3 and 38, and subsequent of the Law No. 633/1941) in conformity with what is provided for by Article 2.5 of the Berne Convention. Italy, however, is obliged to implement the EEC Directive within the terms therein indicated (December 1997) and thus implementation of Article 10 of the TRIPS Agreement shall, of course, be in conformity with what is provided for in the aforesaid EEC Directive.
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
IP/Q/JPN/1 Japon États-Unis d'Amérique [Follow-up question] Please describe how the exceptions in Articles 30(1), 38 and 102 of the Japanese copyright law have been strictly interpreted so as to bring them within the permissible limitations on rights set forth in Berne and TRIPS. 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 effect on the market for the work, the nature 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

Page 9 de 687   |   Nombre de documents : 13728

 
Réinitialiser