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LXXV. Text of the Provisions of the Paris
Convention (1967) Incorporated by Article 2.1 of the TRIPS Agreement
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Article 1:
[Establishment of the Union; Scope of Industrial Property](1)
(footnote original)
1 Articles have been given
titles to facilitate their identification. There are no titles in the
signed (French) text.
(1) The countries to which this Convention
applies constitute a Union for the protection of industrial property.
(2) The protection of industrial property has as
its object patents, utility models, industrial designs, trademarks,
service marks, trade names, indications of source or appellations of
origin, and the repression of unfair competition.
(3) Industrial property shall be understood in
the broadest sense and shall apply not only to industry and commerce
proper, but likewise to agricultural and extractive industries and to
all manufactured or natural products, for example, wines, grain, tobacco
leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.
(4) Patents shall include the various kinds of
industrial patents recognized by the laws of the countries of the Union,
such as patents of importation, patents of improvement, patents and
certificates of addition, etc.
Article 2: [National Treatment for
Nationals of Countries of the Union]
(1) Nationals of any country of the Union shall,
as regards the protection of industrial property, enjoy in all the other
countries of the Union the advantages that their respective laws now
grant, or may hereafter grant, to nationals; all without prejudice to
the rights specially provided for by this Convention. Consequently, they
shall have the same protection as the latter, and the same legal remedy
against any infringement of their rights, provided that the conditions
and formalities imposed upon nationals are complied with.
(2) However, no requirement as to domicile or
establishment in the country where protection is claimed may be imposed
upon nationals of countries of the Union for the enjoyment of any
industrial property rights.
(3) The provisions of the laws of each of the
countries of the Union relating to judicial and administrative procedure
and to jurisdiction, and to the designation of an address for service or
the appointment of an agent, which may be required by the laws on
industrial property are expressly reserved.
Article 3: [Same Treatment for Certain
Categories of Persons as for Nationals of Countries of the Union]
Nationals of countries outside the Union who are domiciled or who have
real and effective industrial or commercial establishments in the
territory of one of the countries of the Union shall be treated in the
same manner as nationals of the countries of the Union.
Article 4: [A to I. Patents, Utility
Models, Industrial Designs, Marks, Inventors’ Certificates: Right of
Priority. — G. Patents: Division of the Application]
A.—
(1) Any person who has
duly filed an application for a patent, or for the registration of a
utility model, or of an industrial design, or of a trademark, in one of
the countries of the Union, or his successor in title, shall enjoy, for
the purpose of filing in the other countries, a right of priority during
the periods hereinafter fixed.
(2) Any filing that is
equivalent to a regular national filing under the domestic legislation
of any country of the Union or under bilateral or multilateral treaties
concluded between countries of the Union shall be recognized as giving
rise to the right of priority.
(3) By a regular national
filing is meant any filing that is adequate to establish the date on
which the application was filed in the country concerned, whatever may
be the subsequent fate of the application.
B.—
Consequently, any subsequent filing in any of the other countries of the
Union before the expiration of the periods referred to above shall not
be invalidated by reason of any acts accomplished in the interval, in
particular, another filing, the publication or exploitation of the
invention, the putting on sale of copies of the design, or the use of
the mark, and such acts cannot give rise to any third-party right or any
right of personal possession. Rights acquired by third parties before
the date of the first application that serves as the basis for the right
of priority are reserved in accordance with the domestic legislation of
each country of the Union
C.—
(1) The periods of
priority referred to above shall be twelve months for patents and
utility models, and six months for industrial designs and trademarks.
(2) These periods shall
start from the date of filing of the first application; the day of
filing shall not be included in the period.
(3) If the last day of the
period is an official holiday, or a day when the Office is not open for
the filing of applications in the country where protection is claimed,
the period shall be extended until the first following working day.
(4) A subsequent
application concerning the same subject as a previous first application
within the meaning of paragraph (2), above, filed in the same country of
the Union shall be considered as the first application, of which the
filing date shall be the starting point of the period of priority, if,
at the time of filing the subsequent application, the said previous
application has been withdrawn, abandoned, or refused, without having
been laid open to public inspection and without leaving any rights
outstanding, and if it has not yet served as a basis for claiming a
right of priority. The previous application may not thereafter serve as
a basis for claiming a right of priority.
D.—
(1) Any person desiring to
take advantage of the priority of a previous filing shall be required to
make a declaration indicating the date of such filing and the country in
which it was made. Each country shall determine the latest date on which
such declaration must be made.
(2) These particulars
shall be mentioned in the publications issued by the competent
authority, and in particular in the patents and the specifications
relating thereto.
(3) The countries of the
Union may require any person making a declaration of priority to produce
a copy of the application (description, drawings, etc.) previously
filed. The copy, certified as correct by the authority which received
such application, shall not require any authentication, and may in any
case be filed, without fee, at any time within three months of the
filing of the subsequent application. They may require it to be
accompanied by a certificate from the same authority showing the date of
filing, and by a translation.
(4) No other formalities
may be required for the declaration of priority at the time of filing
the application. Each country of the Union shall determine the
consequences of failure to comply with the formalities prescribed by
this Article, but such consequences shall in no case go beyond the loss
of the right of priority.
(5) Subsequently, further
proof may be required.
Any person who avails himself of the priority of a
previous application shall be required to specify the number of that
application; this number shall be published as provided for by paragraph
(2), above.
E.—
(1) Where an industrial
design is filed in a country by virtue of a right of priority based on
the filing of a utility model, the period of priority shall be the same
as that fixed for industrial designs
(2) Furthermore, it is
permissible to file a utility model in a country by virtue of a right of
priority based on the filing of a patent application, and vice versa.
F.—
No country of the Union may refuse a priority or a patent application on
the ground that the applicant claims multiple priorities, even if they
originate in different countries, or on the ground that an application
claiming one or more priorities contains one or more elements that were
not included in the application or applications whose priority is
claimed, provided that, in both cases, there is unity of invention
within the meaning of the law of the country.
With respect to the elements not included in the application or
applications whose priority is claimed, the filing of the subsequent
application shall give rise to a right of priority under ordinary
conditions.
G.—
(1) If the examination
reveals that an application for a patent contains more than one
invention, the applicant may divide the application into a certain
number of divisional applications and preserve as the date of each the
date of the initial application and the benefit of the right of
priority, if any.
(2) The applicant may
also, on his own initiative, divide a patent application and preserve as
the date of each divisional application the date of the initial
application and the benefit of the right of priority, if any. Each
country of the Union shall have the right to determine the conditions
under which such division shall be authorized.
H.—
Priority may not be refused on the ground that
certain elements of the invention for which priority is claimed do not
appear among the claims formulated in the application in the country of
origin, provided that the application documents as a whole specifically
disclose such elements.
I.—
(1) Applications for inventors’ certificates
filed in a country in which applicants have the right to apply at their
own option either for a patent or for an inventor’s certificate shall
give rise to the right of priority provided for by this Article, under
the same conditions and with the same effects as applications for
patents.
(2) In a country in which applicants have the
right to apply at their own option either for a patent or for an
inventor’s certificate, an applicant for an inventor’s certificate
shall, in accordance with the provisions of this Article relating to
patent applications, enjoy a right of priority based on an application
for a patent, a utility model, or an inventor’s certificate.
Article 4bis: [Patents: Independence of Patents Obtained for
the Same Invention in Different Countries]
(1) Patents applied for in the various
countries of the Union by nationals of countries of the Union shall be
independent of patents obtained for the same invention in other
countries, whether members of the Union or not.
(2) The foregoing provision is to be
understood in an unrestricted sense, in particular, in the sense that
patents applied for during the period of priority are independent, both
as regards the grounds for nullity and forfeiture, and as regards their
normal duration.
(3) The provision shall apply to all patents
existing at the time when it comes into effect.
(4) Similarly, it shall apply, in the case of
the accession of new countries, to patents in existence on either side
at the time of accession.
(5) Patents obtained with the benefit of
priority shall, in the various countries of the Union, have a duration
equal to that which they would have, had they been applied for or
granted without the benefit of priority.
Article 4ter: [Patents: Mention of the Inventor in the
Patent]
The inventor shall have the right to be
mentioned as such in the patent.
Article 4quater: [Patents: Patentability in Case of
Restrictions of Sale by Law]
The grant of a patent shall not be refused and
a patent shall not be invalidated on the ground that the sale of the
patented product or of a product obtained by means of a patented process
is subject to restrictions or limitations resulting from the domestic
law.
Article 5: [A. Patents: Importation of Articles; Failure
to Work or Insufficient Working; Compulsory Licences. — B. Industrial
Designs: Failure to Work; Importation of Articles. — C. Marks: Failure
to Use; Different Forms; Use by Co-proprietors. — D. Patents, Utility
Models, Marks, Industrial Designs: Marking]
A.—
(1) Importation by the patentee into the
country where the patent has been granted of articles manufactured in
any of the countries of the Union shall not entail forfeiture of the
patent.
(2) Each country of the Union shall have the
right to take legislative measures providing for the grant of compulsory
licenses to prevent the abuses which might result from the exercise of
the exclusive rights conferred by the patent, for example, failure to
work.
(3) Forfeiture of the patent shall not be
provided for except in cases where the grant of compulsory licenses
would not have been sufficient to prevent the said abuses. No
proceedings for the forfeiture or revocation of a patent may be
instituted before the expiration of two years from the grant of the
first compulsory license.
(4) A compulsory license may not be applied
for on the ground of failure to work or insufficient working before the
expiration of a period of four years from the date of filing of the
patent application or three years from the date of the grant of the
patent, whichever period expires last; it shall be refused if the
patentee justifies his inaction by legitimate reasons. Such a compulsory
license shall be non-exclusive and shall not be transferable, even in
the form of the grant of a sub-license, except with that part of the
enterprise or good/will which exploits such license.
(5) The foregoing provisions shall be
applicable, mutatis mutandis, to utility models.
B.—
The protection of industrial designs shall
not, under any circumstance, be subject to any forfeiture, either by
reason of failure to work or by reason of the importation of articles
corresponding to those which are protected.
C.—
(1) If, in any country, use of the registered
mark is compulsory, the registration may be cancelled only after a
reasonable period, and then only if the person concerned does not
justify his inaction.
(2) Use of a trademark by the proprietor in a
form differing in elements which do not alter the distinctive character
of the mark in the form in which it was registered in one of the
countries of the Union shall not entail invalidation of the registration
and shall not diminish the protection granted to the mark.
(3) Concurrent use of the same mark on
identical or similar goods by industrial or commercial establishments
considered as co-proprietors of the mark according to the provisions of
the domestic law of the country where protection is claimed shall not
prevent registration or diminish in any way the protection granted to
the said mark in any country of the Union, provided that such use does
not result in misleading the public and is not contrary to the public
interest.
D.—
No indication or mention of the patent, of the
utility model, of the registration of the trademark, or of the deposit
of the industrial design, shall be required upon the goods as a
condition of recognition of the right to protection.
Article 5bis: [All Industrial Property Rights: Period of
Grace for the Payment of Fees for the Maintenance of Rights; Patents:
Restoration]
(1) A period of grace of not less than six
months shall be allowed for the payment of the fees prescribed for the
maintenance of industrial property rights, subject, if the domestic
legislation so provides, to the payment of a surcharge.
(2) The countries of the Union shall have the
right to provide for the restoration of patents which have lapsed by
reason of non-payment of fees.
Article 5ter: [Patents: Patented Devices Forming Part of
Vessels, Aircraft, or Land Vehicles]
In any country of the Union the following
shall not be considered as infringements of the rights of a patentee:
1. the use on board vessels of other countries
of the Union of devices forming the subject of his patent in the body of
the vessel, in the machinery, tackle, gear and other accessories, when
such vessels temporarily or accidentally enter the waters of the said
country, provided that such devices are used there exclusively for the
needs of the vessel;
2. the use of devices forming the subject of
the patent in the construction or operation of aircraft or land vehicles
of other countries of the Union, or of accessories of such aircraft or
land vehicles, when those aircraft or land vehicles temporarily or
accidentally enter the said country.
Article 5quater: [Patents: Importation of Products Manufactured
by a Process Patented in the Importing Country]
When a product is imported into a country of
the Union where there exists a patent protecting a process of
manufacture of the said product, the patentee shall have all the rights,
with regard to the imported product, that are accorded to him by the
legislation of the country of importation, on the basis of the process
patent, with respect to products manufactured in that country.
Article 5quinquies: [Industrial
Designs]
Industrial designs shall be protected in all
the countries of the Union.
Article 6: [Marks: Conditions of Registration;
Independence of Protection of Same Mark in Different Countries]
(1) The conditions for the filing and
registration of trademarks shall be determined in each country of the
Union by its domestic legislation.
(2) However, an application for the
registration of a mark filed by a national of a country of the Union in
any country of the Union may not be refused, nor may a registration be
invalidated, on the ground that filing, registration, or renewal, has
not been effected in the country of origin.
(3) A mark duly registered in a country of the
Union shall be regarded as independent of marks registered in the other
countries of the Union, including the country of origin.
Article 6bis: [Marks: Well-Known Marks]
(1) The countries of the Union undertake, ex
officio if their legislation so permits, or at the request of an
interested party, to refuse or to cancel the registration, and to
prohibit the use, of a trademark which constitutes a reproduction, an
imitation, or a translation, liable to create confusion, of a mark
considered by the competent authority of the country of registration or
use to be well known in that country as being already the mark of a
person entitled to the benefits of this Convention and used for
identical or similar goods. These provisions shall also apply when the
essential part of the mark constitutes a reproduction of any such
well-known mark or an imitation liable to create confusion therewith.
(2) A period of at least five years from the
date of registration shall be allowed for requesting the cancellation of
such a mark. The countries of the Union may provide for a period within
which the prohibition of use must be requested.
(3) No time limit shall be fixed for
requesting the cancellation or the prohibition of the use of marks
registered or used in bad faith.
Article 6ter: [Marks: Prohibitions concerning State Emblems,
Official Hallmarks, and Emblems of Intergovernmental Organizations]
(1)
(a) The countries of the Union agree to refuse
or to invalidate the registration, and to prohibit by appropriate
measures the use, without authorization by the competent authorities,
either as trademarks or as elements of trademarks, of armorial bearings,
flags, and other State emblems, of the countries of the Union, official
signs and hallmarks indicating control and warranty adopted by them, and
any imitation from a heraldic point of view.
(b) The provisions of
subparagraph
(a), above,
shall apply equally to armorial bearings, flags, other emblems,
abbreviations, and names, of international intergovernmental
organizations of which one or more countries of the Union are members,
with the exception of armorial bearings, flags, other emblems,
abbreviations, and names, that are already the subject of international
agreements in force, intended to ensure their protection.
(c) No country of the Union shall be required
to apply the provisions of subparagraph (b),
above, to the prejudice of
the owners of rights acquired in good faith before the entry into force,
in that country, of this Convention. The countries of the Union shall
not be required to apply the said provisions when the use or
registration referred to in subparagraph (a),
above, is not of such a
nature as to suggest to the public that a connection exists between the
organization concerned and the armorial bearings, flags, emblems,
abbreviations, and names, or if such use or registration is probably not
of such a nature as to mislead the public as to the existence of a
connection between the user and the organization.
(2) Prohibition of the use of official signs
and hallmarks indicating control and warranty shall apply solely in
cases where the marks in which they are incorporated are intended to be
used on goods of the same or a similar kind.
(3)
(a) For the application of these provisions,
the countries of the Union agree to communicate reciprocally, through
the intermediary of the International Bureau, the list of State emblems,
and official signs and hallmarks indicating control and warranty, which
they desire, or may hereafter desire, to place wholly or within certain
limits under the protection of this Article, and all subsequent
modifications of such list. Each country of the Union shall in due
course make available to the public the lists so communicated.
Nevertheless such communication is not obligatory in respect of flags of
States.
(b) The provisions of
subparagraph
(b) of
paragraph (1) of this Article shall apply only to such armorial
bearings, flags, other emblems, abbreviations, and names, of
international intergovernmental organizations as the latter have
communicated to the countries of the Union through the intermediary of
the International Bureau.
(4) Any country of the Union may, within a
period of twelve months from the receipt of the notification, transmit
its objections, if any, through the intermediary of the International
Bureau, to the country or international intergovernmental organization
concerned.
(5) In the case of State flags, the measures
prescribed by paragraph (1), above, shall apply solely to marks
registered after November 6, 1925.
(6) In the case of State emblems other than
flags, and of official signs and hallmarks of the countries of the
Union, and in the case of armorial bearings, flags, other emblems.
abbreviations, and names, of international intergovernmental
organizations, these provisions shall apply only to marks registered
more than two months after receipt of the communication provided for in
paragraph (3), above.
(7) In cases of bad faith, the countries shall
have the right to cancel even those marks incorporating State emblems,
signs, and hallmarks, which were registered before November 6, 1925.
(8) Nationals of any country who are
authorized to make use of the State emblems, signs, and hallmarks, of
their country may use them even if they are similar to those of another
country.
(9) The countries of the Union undertake to
prohibit the unauthorized use in trade of the State armorial bearings of
the other countries of the Union, when the use is of such a nature as to
be misleading as to the origin of the goods.
(10) The above provisions shall not prevent
the countries from exercising the right given in paragraph (3) of
Article 6quinquies, Section B, to refuse or to invalidate the
registration of marks incorporating, without authorization, armorial
bearings, flags, other State emblems, or official signs and hallmarks
adopted by a country of the Union, as well as the distinctive signs of
international intergovernmental organizations referred to in paragraph
(1), above.
Article 6quater: [Marks: Assignment of Marks]
(1) When, in accordance with the law of a
country of the Union, the assignment of a mark is valid only if it takes
place at the same time as the transfer of the business or goodwill to
which the mark belongs, it shall suffice for the recognition of such
validity that the portion of the business or goodwill located in that
country be transferred to the assignee, together with the exclusive
right to manufacture in the said country, or to sell therein, the goods
bearing the mark assigned.
(2) The foregoing provision does not impose
upon the countries of the Union any obligation to regard as valid the
assignment of any mark the use of which by the assignee would, in fact,
be of such a nature as to mislead the public, particularly as regards
the origin, nature, or essential qualities, of the goods to which the
mark is applied.
Article 6quinquies: [Marks: Protection of Marks Registered in One
Country of the Union in the Other Countries of the Union]
A.—
(1) Every trademark duly registered in the
country of origin shall be accepted for filing and protected as is in
the other countries of the Union, subject to the reservations indicated
in this Article. Such countries may, before proceeding to final
registration, require the production of a certificate of registration in
the country of origin, issued by the competent authority. No
authentication shall be required for this certificate.
(2) Shall be considered the country of origin
the country of the Union where the applicant has a real and effective
industrial or commercial establishment, or, if he has no such
establishment within the Union, the country of the Union where he has
his domicile, or, if he has no domicile within the Union but is a
national of a country of the Union, the country of which he is a
national.
B.—
Trademarks covered by this Article may be
neither denied registration nor invalidated except in the following
cases:
1. when they are of such a nature as to
infringe rights acquired by third parties in the country where
protection is claimed;
2. when they are devoid of any distinctive
character, or consist exclusively of signs or indications which may
serve, in trade, to designate the kind, quality, quantity, intended
purpose, value, place of origin, of the goods, or the time of
production, or have become customary in the current language or in the
bona fide and established practices of the trade of the country where
protection is claimed;
3. when they are contrary to morality or
public order and, in particular, of such a nature as to deceive the
public. It is understood that a mark may not be considered contrary to
public order for the sole reason that it does not conform to a provision
of the legislation on marks, except if such provision itself relates to
public order.
This provision is subject, however, to the
application of Article 10bis.
C.—
(1) In determining whether a mark is eligible
for protection, all the factual circumstances must be taken into
consideration, particularly the length of time the mark has been in use.
(2) No trademark shall be refused in the other
countries of the Union for the sole reason that it differs from the mark
protected in the country of origin only in respect of elements that do
not alter its distinctive character and do not affect its identity in
the form in which it has been registered in the said country of origin.
D.—
No person may benefit from the provisions of
this Article if the mark for which he claims protection is not
registered in the country of origin.
E.—
However, in no case shall the renewal of the
registration of the mark in the country of origin involve an obligation
to renew the registration in the other countries of the Union in which
the mark has been registered.
F.—
The benefit of priority shall remain
unaffected for applications for the registration of marks filed within
the period fixed by Article 4, even if registration in the country of
origin is effected after the expiration of such period.
Article 6sexies: [Marks: Service Marks]
The countries of the Union undertake to
protect service marks. They shall not be required to provide for the
registration of such marks.
Article 6septies: [Marks: Registration in the Name of the Agent
or Representative of the Proprietor Without the Latter’s
Authorization]
(1) If the agent or representative of the
person who is the proprietor of a mark in one of the countries of the
Union applies, without such proprietor’s authorization, for the
registration of the mark in his own name, in one or more countries of
the Union, the proprietor shall be entitled to oppose the registration
applied for or demand its cancellation or, if the law of the country so
allows, the assignment in his favor of the said registration, unless
such agent or representative justifies his action.
(2) The proprietor of the mark shall, subject
to the provisions of paragraph (1), above, be entitled to oppose the use
of his mark by his agent or representative if he has not authorized such
use.
(3) Domestic legislation may provide an
equitable time limit within which the proprietor of a mark must exercise
the rights provided for in this Article.
Article 7: [Marks: Nature of the Goods to which the
Mark is Applied]
The nature of the goods to which a trademark
is to be applied shall in no case form an obstacle to the registration
of the mark.
Article 7bis: [Marks: Collective Marks]
(1) The countries of the Union undertake to
accept for filing and to protect collective marks belonging to
associations the existence of which is not contrary to the law of the
country of origin, even if such associations do not possess an
industrial or commercial establishment.
(2) Each country shall be the judge of the
particular conditions under which a collective mark shall be protected
and may refuse protection if the mark is contrary to the public
interest.
(3) Nevertheless, the protection of these
marks shall not be refused to any association the existence of which is
not contrary to the law of the country of origin, on the ground that
such association is not established in the country where protection is
sought or is not constituted according to the law of the latter country.
Article 8: [Trade Names]
A trade name shall be protected in all the
countries of the Union without the obligation of filing or registration,
whether or not it forms part of a trademark.
Article 9: [Marks, Trade Names: Seizure, on Importation,
etc., of Goods Unlawfully Bearing a Mark or Trade Name]
(1) All goods unlawfully bearing a trademark
or trade name shall be seized on importation into those countries of the
Union where such mark or trade name is entitled to legal protection.
(2) Seizure shall likewise be effected in the
country where the unlawful affixation occurred or in the country into
which the goods were imported.
(3) Seizure shall take place at the request of
the public prosecutor, or any other competent authority, or any
interested party, whether a natural person or a legal entity, in
conformity with the domestic legislation of each country.
(4) The authorities shall not be bound to
effect seizure of goods in transit.
(5) If the legislation of a country does not
permit seizure on importation, seizure shall be replaced by prohibition
of importation or by seizure inside the country.
(6) If the legislation of a country permits
neither seizure on importation nor prohibition of importation nor
seizure inside the country, then, until such time as the legislation is
modified accordingly, these measures shall be replaced by the actions
and remedies available in such cases to nationals under the law of such
country.
Article 10: [False Indications: Seizure, on Importation,
etc., of Goods Bearing False Indications as to their Source or the
Identity of the Producer]
(1) The provisions of the preceding Article
shall apply in cases of direct or indirect use of a false indication of
the source of the good or the identity of the producer, manufacturer, or
merchant.
(2) Any producer, manufacturer, or merchant,
whether a natural person or a legal entity, engaged in the production or
manufacture of or trade in such goods and established either in the
locality falsely indicated as the source, or in the region where such
locality is situated, or in the country falsely indicated, or in the
country where the false indication of source is used, shall in any case
be deemed an interested party.
Article 10bis: [Unfair Competition]
(1) The countries of the Union are bound to
assure to nationals of such countries effective protection against
unfair competition.
(2) Any act of competition contrary to honest
practices in industrial or commercial matters constitutes an act of
unfair competition.
(3) The following in particular shall be
prohibited:
1. all acts of such a nature as to create
confusion by any means whatever with the establishment, the goods, or
the industrial or commercial activities, of a competitor;
2. false allegations in the course of trade of
such a nature as to discredit the establishment, the goods, or the
industrial or commercial activities, of a competitor;
3. indications or allegations the use of which
in the course of trade is liable to mislead the public as to the nature,
the manufacturing process, the characteristics, the suitability for
their purpose, or the quantity, of the goods.
Article 10ter: [Marks, Trade Names, False Indications, Unfair
Competition: Remedies, Right to Sue]
(1) The countries of the Union undertake to
assure to nationals of the other countries of the Union appropriate
legal remedies effectively to repress all the acts referred to in
Articles 9, 10, and 10bis.
(2) They undertake, further, to provide
measures to permit federations and associations representing interested
industrialists, producers, or merchants, provided that the existence of
such federations and associations is not contrary to the laws of their
countries, to take action in the courts or before the administrative
authorities, with a view to the repression of the acts referred to in
Articles 9, 10 and 10bis, in so far as the law of the country in which
protection is claimed allows such action by federations and associations
of that country.
Article 11: [Inventions, Utility Models, Industrial
Designs, Marks: Temporary Protection at Certain International
Exhibitions]
(1) The countries of the Union shall, in
conformity with their domestic legislation, grant temporary protection
to patentable inventions, utility models, industrial designs, and
trademarks, in respect of goods exhibited at official or officially
recognized international exhibitions held in the territory of any of
them.
(2) Such temporary protection shall not extend
the periods provided by Article 4. If, later, the right of priority is
invoked, the authorities of any country may provide that the period
shall start from the date of introduction of the goods into the
exhibition.
(3) Each country may require. as proof of the
identity of the article exhibited and of the date of its introduction,
such documentary evidence as it considers necessary.
Article 12: [Special National Industrial Property
Services]
(1) Each country of the Union undertakes to
establish a special industrial property service and a central office for
the communication to the public of patents, utility models, industrial
designs, and trademarks.
(2) This service shall publish an official
periodical journal. It shall publish regularly:
(a) the names of the proprietors of patents
granted, with a brief designation of the inventions patented;
(b) the reproductions of registered
trademarks.
…
Article 19: [Special Agreements]
It is understood that the countries of the
Union reserve the right to make separately between themselves special
agreements for the protection of industrial property, in so far as these
agreements do not contravene the provisions of this Convention.
…
LXXVI. Text of the Provisions of the Berne Convention
(1971) Incorporated by Article 9.1 of the TRIPS Agreement
back to top
Article 1: [Establishment of a Union](1)
(footnote original) Each Article and the
Appendix have been given titles to facilitate their identification.
There are no titles in the signed (English) text.
The countries to which this Convention applies
constitute a Union for the protection of the rights of authors in their
literary and artistic works.
Article 2: [Protected Works: 1. “Literary and artistic
works”; 2. Possible requirement of fixation; 3. Derivative works; 4.
Official texts; 5. Collections; 6. Obligation to protect; beneficiaries
of protection; 7. Works of applied art and industrial designs; 8. News]
(1) The expression “literary and artistic
works” shall include every production in the literary, scientific and
artistic domain, whatever may be the mode or form of its expression,
such as books, pamphlets and other writings; lectures, addresses,
sermons and other works of the same nature; dramatic or dramatico-musical
works; choreographic works and entertainments in dumb show; musical
compositions with or without words; cinematographic works to which are
assimilated works expressed by a process analogous to cinematography;
works of drawing, painting, architecture, sculpture, engraving and
lithography; photographic works to which are assimilated works expressed
by a process analogous to photography; works of applied art;
illustrations, maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science.
(2) It shall, however, be a matter for
legislation in the countries of the Union to prescribe that works in
general or any specified categories of works shall not be protected
unless they have been fixed in some material form.
(3) Translations, adaptations, arrangements of
music and other alterations of a literary or artistic work shall be
protected as original works without prejudice to the copyright in the
original work.
(4) It shall be a matter for legislation in
the countries of the Union to determine the protection to be granted to
official texts of a legislative, administrative and legal nature, and to
official translations of such texts.
(5) Collections of literary or artistic works
such as encyclopaedias and anthologies which, by reason of the selection
and arrangement of their contents, constitute intellectual creations
shall be protected as such, without prejudice to the copyright in each
of the works forming part of such collections.
(6) The works mentioned in this Article shall
enjoy protection in all countries of the Union. This protection shall
operate for the benefit of the author and his successors in title.
(7) Subject to the provisions of Article 7(4)
of this Convention, it shall be a matter for legislation in the
countries of the Union to determine the extent of the application of
their laws to works of applied art and industrial designs and models, as
well as the conditions under which such works, designs and models shall
be protected. Works protected in the country of origin solely as designs
and models shall be entitled in another country of the Union only to
such special protection as is granted in that country to designs and
models; however, if no such special protection is granted in that
country, such works shall be protected as artistic works.
(8) The protection of this Convention shall
not apply to news of the day or to miscellaneous facts having the
character of mere items of press information.
Article 2bis:
[Possible Limitation of Protection of Certain
Works: 1. Certain speeches; 2. Certain uses of lectures and addresses;
3. Right to make collections of such works]
(1) It shall be a matter for legislation in
the countries of the Union to exclude, wholly or in part, from the
protection provided by the preceding Article political speeches and
speeches delivered in the course of legal proceedings.
(2) It shall also be a matter for legislation
in the countries of the Union to determine the conditions under which
lectures, addresses and other works of the same nature which are
delivered in public may be reproduced by the press, broadcast,
communicated to the public by wire and made the subject of public
communication as envisaged in Article 11bis(1) of this
Convention, when
such use is justified by the informatory purpose.
(3) Nevertheless, the author shall enjoy the
exclusive right of making a collection of his works mentioned in the
preceding paragraphs.
Article 3: [Criteria of Eligibility for Protection: 1.
Nationality of author; place of publication of work; 2. Residence of
author; 3. “Published” works; 4. “Simultaneously published”
works]
(1) The protection of this Convention shall
apply to:
(a) authors who are nationals of one of the
countries of the Union, for their works, whether published or not;
(b) authors who are not nationals of one of
the countries of the Union, for their works first published in one of
those countries, or simultaneously in a country outside the Union and in
a country of the Union.
(2) Authors who are not nationals of one of
the countries of the Union but who have their habitual residence in one
of them shall, for the purposes of this Convention, be assimilated to
nationals of that country.
(3) The expression “published works” means
works published with the consent of their authors, whatever may be the
means of manufacture of the copies, provided that the availability of
such copies has been such as to satisfy the reasonable requirements of
the public, having regard to the nature of the work. The performance of
a dramatic, dramatico-musical, cinematographic or musical work, the
public recitation of a literary work, the communication by wire or the
broadcasting of literary or artistic works, the exhibition of a work of
art and the construction of a work of architecture shall not constitute
publication.
(4) A work shall be considered as having been
published simultaneously in several countries if it has been published
in two or more countries within thirty days of its first publication.
Article 4: [Criteria of Eligibility for Protection of
Cinematographic Works, Works of Architecture and Certain Artistic Works]
The protection of this Convention shall apply,
even if the conditions of Article 3 are not fulfilled, to:
(a) authors of cinematographic works the maker
of which has his headquarters or habitual residence in one of the
countries of the Union;
(b) authors of works of architecture erected
in a country of the Union or of other artistic works incorporated in a
building or other structure located in a country of the Union.
Article 5: [Rights Guaranteed: 1. and 2. Outside the
country of origin; 3. In the country of origin; 4. “Country of origin”]
(1) Authors shall enjoy, in respect of works
for which they are protected under this Convention, in countries of the
Union other than the country of origin, the rights which their
respective laws do now or may hereafter grant to their nationals, as
well as the rights specially granted by this Convention.
(2) The enjoyment and the exercise of these
rights shall not be subject to any formality; such enjoyment and such
exercise shall be independent of the existence of protection in the
country of origin of the work. Consequently, apart from the provisions
of this Convention, the extent of protection, as well as the means of
redress afforded to the author to protect his rights, shall be governed
exclusively by the laws of the country where protection is claimed.
(3) Protection in the country of origin is
governed by domestic law. However, when the author is not a national of
the country of origin of the work for which he is protected under this
Convention, he shall enjoy in that country the same rights as national
authors.
(4) The country of origin shall be considered
to be:
(a) in the case of works first published in a
country of the Union, that country; in the case of works published
simultaneously in several countries of the Union which grant different
terms of protection, the country whose legislation grants the shortest
term of protection;
(b) in the case of works published
simultaneously in a country outside the Union and in a country of the
Union, the latter country;
(c) in the case of unpublished works or of
works first published in a country outside the Union, without
simultaneous publication in a country of the Union, the country of the
Union of which the author is a national, provided that:
(i) when these are cinematographic works the
maker of which has his headquarters or his habitual residence in a
country of the Union, the country of origin shall be that country, and
(ii) when these are works of architecture
erected in a country of the Union or other artistic works incorporated
in a building or other structure located in a country of the Union, the
country of origin shall be that country.
Article 6: [Possible Restriction of Protection in Respect
of Certain Works of Nationals of Certain Countries Outside the Union: 1.
In the country of the first publication and in other countries; 2. No
retroactivity; 3. Notice]
(1) Where any country outside the Union fails
to protect in an adequate manner the works of authors who are nationals
of one of the countries of the Union, the latter country may restrict
the protection given to the works of authors who are, at the date of the
first publication thereof, nationals of the other country and are not
habitually resident in one of the countries of the Union. If the country
of first publication avails itself of this right, the other countries of
the Union shall not be required to grant to works thus subjected to
special treatment a wider protection than that granted to them in the
country of first publication.
(2) No restrictions introduced by virtue of
the preceding paragraph shall affect the rights which an author may have
acquired in respect of a work published in a country of the Union before
such restrictions were put into force.
(3) The countries of the Union which restrict
the grant of copyright in accordance with this Article shall give notice
thereof to the Director General of the World Intellectual Property
Organization (hereinafter designated as “the Director General”) by a
written declaration specifying the countries in regard to which
protection is restricted, and the restrictions to which rights of
authors who are nationals of those countries are subjected. The Director
General shall immediately communicate this declaration to all the
countries of the Union.
Article 7: [Term of Protection: 1. Generally; 2. For
cinematographic works; 3. For anonymous and pseudonymous works; 4. For
photographic works and works of applied art; 5. Starting date of
computation; 6. Longer terms; 7. Shorter terms; 8. Applicable law; “comparison”
of terms]
(1) The term of protection granted by this
Convention shall be the life of the author and fifty years after his
death.
(2) However, in the case of cinematographic
works, the countries of the Union may provide that the term of
protection shall expire fifty years after the work has been made
available to the public with the consent of the author, or, failing such
an event within fifty years from the making of such a work, fifty years
after the making.
(3) In the case of anonymous or pseudonymous
works, the term of protection granted by this Convention shall expire
fifty years after the work has been lawfully made available to the
public. However, when the pseudonym adopted by the author leaves no
doubt as to his identity, the term of protection shall be that provided
in paragraph (1). If the author of an anonymous or pseudonymous work
discloses his identity during the above-mentioned period, the term of
protection applicable shall be that provided in paragraph
(1). The
countries of the Union shall not be required to protect anonymous or
pseudonymous works in respect of which it is reasonable to presume that
their author has been dead for fifty years.
(4) It shall be a matter for legislation in
the countries of the Union to determine the term of protection of
photographic works and that of works of applied art in so far as they
are protected as artistic works; however, this term shall last at least
until the end of a period of twenty-five years from the making of such
a work.
(5) The term of protection subsequent to the
death of the author and the terms provided by paragraphs
(2), (3) and
(4) shall run from the date of death or of the event referred to in
those paragraphs, but such terms shall always be deemed to begin on the
first of January of the year following the death or such event.
(6) The countries of the Union may grant a
term of protection in excess of those provided by the preceding
paragraphs.
(7) Those countries of the Union bound by the
Rome Act of this Convention which grant, in their national legislation
in force at the time of signature of the present Act, shorter terms of
protection than those provided for in the preceding paragraphs shall
have the right to maintain such terms when ratifying or acceding to the
present Act.
(8) In any case, the term shall be governed by
the legislation of the country where protection is claimed; however,
unless the legislation of that country otherwise provides, the term
shall not exceed the term fixed in the country of origin of the work.
Article 7bis:
[Term of Protection for Works of Joint Authorship]
The provisions of the preceding Article shall
also apply in the case of a work of joint authorship, provided that the
terms measured from the death of the author shall be calculated from the
death of the last surviving author.
Article 8: [Right of
Translation]
Authors of literary and artistic works
protected by this Convention shall enjoy the exclusive right of making
and of authorizing the translation of their works throughout the term of
protection of their rights in the original works.
Article 9: [Right of Reproduction: 1. Generally; 2.
Possible exceptions; 3. Sound and visual recordings]
(1) Authors of literary and artistic works
protected by this Convention shall have the exclusive right of
authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in
the countries of the Union to permit the reproduction of such works in
certain special cases, 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.
(3) Any sound or visual recording shall be
considered as a reproduction for the purposes of this Convention.
Article 10: [Certain Free Uses of Works: 1. Quotations; 2.
Illustrations for teaching; 3. Indication of source and author]
(1) It shall be permissible to make quotations
from a work which has already been lawfully made available to the
public, provided that their making is compatible with fair practice, and
their extent does not exceed that justified by the purpose, including
quotations from newspaper articles and periodicals in the form of press
summaries.
(2) It shall be a matter for legislation in
the countries of the Union, and for special agreements existing or to be
concluded between them, to permit the utilization, to the extent
justified by the purpose, of literary or artistic works by way of
illustration in publications, broadcasts or sound or visual recordings
for teaching, provided such utilization is compatible with fair
practice.
(3) Where use is made of works in accordance
with the preceding paragraphs of this Article, mention shall be made of
the source, and of the name of the author if it appears thereon.
Article 10bis:
[Further Possible Free Uses of Works: 1. Of
certain articles and broadcast works; 2. Of works seen or heard in
connection with current events]
(1) It shall be a matter for legislation in
the countries of the Union to permit the reproduction by the press, the
broadcasting or the communication to the public by wire of articles
published in newspapers or periodicals on current economic, political or
religious topics, and of broadcast works of the same character, in cases
in which the reproduction, broadcasting or such communication thereof is
not expressly reserved. Nevertheless, the source must always be clearly
indicated; the legal consequences of a breach of this obligation shall
be determined by the legislation of the country where protection is
claimed.
(2) It shall also be a matter for legislation
in the countries of the Union to determine the conditions under which,
for the purpose of reporting current events by means of photography,
cinematography, broadcasting or communication to the public by wire,
literary or artistic works seen or heard in the course of the event may,
to the extent justified by the informatory purpose, be reproduced and
made available to the public.
Article 11: [Certain Rights in Dramatic and Musical Works:
1. Right of public performance and of communication to the public of a
performance; 2. In respect of translations]
(1) Authors of dramatic, dramatico-musical and
musical works shall enjoy the exclusive right of authorizing:
(i) the public performance of their works,
including such public performance by any means or process;
(ii) any communication to the public of the
performance of their works.
(2) Authors of dramatic or dramatico-musical
works shall enjoy, during the full term of their rights in the original
works, the same rights with respect to translations thereof.
Article 11bis:
[Broadcasting and Related Rights: 1.
Broadcasting and other wireless communications, public communication of
broadcast by wire or rebroadcast, public communication of broadcast by
loudspeaker or analogous instruments; 2. Compulsory licences; 3.
Recording; ephemeral recordings]
(1) Authors of literary and artistic works
shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the
communication thereof to the public by any other means of wireless
diffusion of signs, sounds or images;
(ii) any communication to the public by wire
or by rebroadcasting of the broadcast of the work, when this
communication is made by an organization other than the original one;
(iii) the public communication by loudspeaker
or any other analogous instrument transmitting, by signs, sounds or
images, the broadcast of the work.
(2) It shall be a matter for legislation in
the countries of the Union to determine the conditions under which the
rights mentioned in the preceding paragraph may be exercised, but these
conditions shall apply only in the countries where they have been
prescribed. They shall not in any circumstances be prejudicial to the
moral rights of the author, nor to his right to obtain equitable
remuneration which, in the absence of agreement, shall be fixed by
competent authority.
(3) In the absence of any contrary
stipulation, permission granted in accordance with paragraph (1) of this
Article shall not imply permission to record, by means of instruments
recording sounds or images, the work broadcast. It shall, however, be a
matter for legislation in the countries of the Union to determine the
regulations for ephemeral recordings made by a broadcasting organization
by means of its own facilities and used for its own broadcasts. The
preservation of these recordings in official archives may, on the ground
of their exceptional documentary character, be authorized by such
legislation.
Article 11ter:
[Certain Rights in Literary Works: 1. Right of
public recitation and of communication to the public of a recitation; 2.
In respect of translations]
(1) Authors of literary works shall enjoy the
exclusive right of authorizing:
(i) the public recitation of their works,
including such public recitation by any means or process;
(ii) any communication to the public of the
recitation of their works.
(2) Authors of literary works shall enjoy,
during the full term of their rights in the original works, the same
rights with respect to translations thereof.
Article 12: [Right of Adaptation, Arrangement and Other
Alteration]
Authors of literary or artistic works shall
enjoy the exclusive right of authorizing adaptations, arrangements and
other alterations of their works.
Article 13: [Possible Limitation of the Right of Recording
of Musical Works and Any Words Pertaining Thereto: 1. Compulsory
licences; 2. Transitory measures; 3. Seizure on importation of copies
made without the author’s permission]
(1) Each country of the Union may impose for
itself reservations and conditions on the exclusive right granted to the
author of a musical work and to the author of any words, the recording
of which together with the musical work has already been authorized by
the latter, to authorize the sound recording of that musical work,
together with such words, if any; but all such reservations and
conditions shall apply only in the countries which have imposed them and
shall not, in any circumstances, be prejudicial to the rights of these
authors to obtain equitable remuneration which, in the absence of
agreement, shall be fixed by competent authority.
(2) Recordings of musical works made in a
country of the Union in accordance with Article 13(3) of the Conventions
signed at Rome on June 2, 1928, and at Brussels on June 26, 1948, may be
reproduced in that country without the permission of the author of the
musical work until a date two years after that country becomes bound by
this Act.
(3) Recordings made in accordance with
paragraphs (1) and (2) of this Article and imported without permission
from the parties concerned into a country where they are treated as
infringing recordings shall be liable to seizure.
Article 14: [Cinematographic and Related Rights: 1.
Cinematographic adaptation and reproduction; distribution; public
performance and public communication by wire of works thus adapted or
reproduced; 2. Adaptation of cinematographic productions; 3. No
compulsory licences]
(1) Authors of literary or artistic works
shall have the exclusive right of authorizing:
(i) the cinematographic adaptation and
reproduction of these works, and the distribution of the works thus
adapted or reproduced;
(ii) the public performance and communication
to the public by wire of the works thus adapted or reproduced.
(2) The adaptation into any other artistic
form of a cinematographic production derived from literary or artistic
works shall, without prejudice to the authorization of the author of the
cinematographic production, remain subject to the authorization of the
authors of the original works.
(3) The provisions of Article 13(1) shall not
apply.
Article 14bis:
[Special Provisions Concerning Cinematographic
Works: 1. Assimilation to “original” works; 2. Ownership; limitation
of certain rights of certain contributors; 3. Certain other
contributors]
(1) Without prejudice to the copyright in any
work which may have been adapted or reproduced, a cinematographic work
shall be protected as an original work. The owner of copyright in a
cinematographic work shall enjoy the same rights as the author of an
original work, including the rights referred to in the preceding
Article.
(2)
(a) Ownership of copyright in a
cinematographic work shall be a matter for legislation in the country
where protection is claimed.
(b) However, in the countries of the Union
which, by legislation, include among the owners of copyright in a
cinematographic work authors who have brought contributions to the
making of the work, such authors, if they have undertaken to bring such
contributions, may not, in the absence of any contrary or special
stipulation, object to the reproduction, distribution, public
performance, communication to the public by wire, broadcasting or any
other communication to the public, or to the subtitling or dubbing of
texts, of the work.
(c) The question whether or not the form of
the undertaking referred to above should, for the application of the
preceding subparagraph (b), be in a written agreement or a written act
of the same effect shall be a matter for the legislation of the country
where the maker of the cinematographic work has his headquarters or
habitual residence. However, it shall be a matter for the legislation of
the country of the Union where protection is claimed to provide that the
said undertaking shall be in a written agreement or a written act of the
same effect. The countries whose legislation so provides shall notify
the Director General by means of a written declaration, which will be
immediately communicated by him to all the other countries of the Union.
(d) By “contrary or special stipulation”
is meant any restrictive condition which is relevant to the aforesaid
undertaking.
(3) Unless the national legislation provides
to the contrary, the provisions of paragraph (2)(b) above shall not be
applicable to authors of scenarios, dialogues and musical works created
for the making of the cinematographic work, or to the principal director
thereof. However, those countries of the Union whose legislation does
not contain rules providing for the application of the said paragraph
(2)(b) to such director shall notify the Director General by means of a
written declaration, which will be immediately communicated by him to
all the other countries of the Union.
Article 14ter: [“Droit de suite” in Works of Art and
Manuscripts: 1. Right to an interest in resales; 2. Applicable law; 3.
Procedure]
(1) The author, or after his death the persons
or institutions authorized by national legislation, shall, with respect
to original works of art and original manuscripts of writers and
composers, enjoy the inalienable right to an interest in any sale of the
work subsequent to the first transfer by the author of the work.
(2) The protection provided by the preceding
paragraph may be claimed in a country of the Union only if legislation
in the country to which the author belongs so permits, and to the extent
permitted by the country where this protection is claimed.
(3) The procedure for collection and the
amounts shall be matters for determination by national legislation.
Article 15: [Right to Enforce Protected Rights: 1. Where
author’s name is indicated or where pseudonym leaves no doubt as to
author’s identity; 2. In the case of cinematographic works; 3. In the
case of anonymous and pseudonymous works; 4. In the case of certain
unpublished works of unknown authorship]
(1) In order that the author of a literary or
artistic work protected by this Convention shall, in the absence of
proof to the contrary, be regarded as such, and consequently be entitled
to institute infringement proceedings in the countries of the Union, it
shall be sufficient for his name to appear on the work in the usual
manner. This paragraph shall be applicable even if this name is a
pseudonym, where the pseudonym adopted by the author leaves no doubt as
to his identity.
(2) The person or body corporate whose name
appears on a cinematographic work in the usual manner shall, in the
absence of proof to the contrary, be presumed to be the maker of the
said work.
(3) In the case of anonymous and pseudonymous
works, other than those referred to in paragraph (1)
above, the
publisher whose name appears on the work shall, in the absence of proof
to the contrary, be deemed to represent the author, and in this capacity
he shall be entitled to protect and enforce the author’s rights. The
provisions of this paragraph shall cease to apply when the author
reveals his identity and establishes his claim to authorship of the
work.
(4)
(a) In the case of unpublished works where the
identity of the author is unknown, but where there is every ground to
presume that he is a national of a country of the Union, it shall be a
matter for legislation in that country to designate the competent
authority which shall represent the author and shall be entitled to
protect and enforce his rights in the countries of the Union.
(b) Countries of the Union which make such
designation under the terms of this provision shall notify the Director
General by means of a written declaration giving full information
concerning the authority thus designated. The Director General shall at
once communicate this declaration to all other countries of the Union.
Article 16: [Infringing Copies: 1. Seizure; 2. Seizure on
importation; 3. Applicable law]
(1) Infringing copies of a work shall be
liable to seizure in any country of the Union where the work enjoys
legal protection.
(2) The provisions of the preceding paragraph
shall also apply to reproductions coming from a country where the work
is not protected, or has ceased to be protected.
(3) The seizure shall take place in accordance
with the legislation of each country.
Article 17: [Possibility of Control of Circulation,
Presentation and Exhibition of Works]
The provisions of this Convention cannot in
any way affect the right of the Government of each country of the Union
to permit, to control, or to prohibit, by legislation or regulation, the
circulation, presentation, or exhibition of any work or production in
regard to which the competent authority may find it necessary to
exercise that right.
Article 18: [Works Existing on Convention’s Entry Into
Force: 1. Protectable where protection not yet expired in country of
origin; 2. Non-protectable where protection already expired in country
where it is claimed; 3. Application of these principles; 4. Special
cases]
(1) This Convention shall apply to all 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.
(2) If, however, through the expiry of the
term of protection which was previously granted, a work has fallen into
the public domain of the country where protection is claimed, that work
shall not be protected anew.
(3) The application of this principle shall be
subject to any provisions contained in special conventions to that
effect existing or to be concluded between countries of the Union. In
the absence of such provisions, the respective countries shall
determine, each in so far as it is concerned, the conditions of
application of this principle.
(4) The preceding provisions shall also apply
in the case of new accessions to the Union and to cases in which
protection is extended by the application of Article 7 or by the
abandonment of reservations.
Article 19: [Protection Greater than Resulting from
Convention]
The provisions of this Convention shall not
preclude the making of a claim to the benefit of any greater protection
which may be granted by legislation in a country of the Union.
Article 20: [Special Agreements Among Countries of the
Union]
The Governments of the countries of the Union
reserve the right to enter into special agreements among themselves, in
so far as such agreements grant to authors more extensive rights than
those granted by the Convention, or contain other provisions not
contrary to this Convention. The provisions of existing agreements which
satisfy these conditions shall remain applicable.
Article 21: [Special Provisions Regarding Developing
Countries: 1. Reference to Appendix; 2. Appendix part of Act]
(1) Special provisions regarding developing
countries are included in the Appendix.
(2) Subject to the provisions of Article 28(1)(b), the Appendix forms an integral part of this Act.
…
Appendix: [Special Provisions Regarding
Developing Countries]
Article I: [Faculties Open to Developing Countries: 1.
Availability of certain faculties; declaration; 2. Duration of effect of
declaration; 3. Cessation of developing country status; 4. Existing
stocks of copies; 5. Declarations concerning certain territories; 6.
Limits of reciprocity]
(1) Any country regarded as a developing
country in conformity with the established practice of the General
Assembly of the United Nations which ratifies or accedes to this Act, of
which this Appendix forms an integral part, and which, having regard to
its economic situation and its social or cultural needs, does not
consider itself immediately in a position to make provision for the
protection of all the rights as provided for in this Act, may, by a
notification deposited with the Director General at the time of
depositing its instrument of ratification or accession or, subject to
Article V(1)(c), at any time thereafter, declare that it will avail
itself of the faculty provided for in Article
II, or of the faculty
provided for in Article III, or of both of those faculties. It may,
instead of availing itself of the faculty provided for in Article
II,
make a declaration according to Article V(1)(a).
(2)
(a) Any declaration under
paragraph (1)
notified before the expiration of the period of ten years from the entry
into force of Articles 1 to 21 and this Appendix according to
Article
28(2) shall be effective until the expiration of the said period. Any
such declaration may be renewed in whole or in part for periods of ten
years each by a notification deposited with the Director General not
more than fifteen months and not less than three months before the
expiration of the ten-year period then running.
(b) Any declaration under
paragraph (1)
notified after the expiration of the period of ten years from the entry
into force of Articles 1 to 21 and this Appendix according to
Article
28(2) shall be effective until the expiration of the ten-year period
then running. Any such declaration may be renewed as provided for in the
second sentence of subparagraph (a).
(3) Any country of the Union which has ceased
to be regarded as a developing country as referred to in paragraph (1)
shall no longer be entitled to renew its declaration as provided in
paragraph (2), and, whether or not it formally withdraws its
declaration, such country shall be precluded from availing itself of the
faculties referred to in paragraph (1) from the expiration of the
ten-year period then running or from the expiration of a period of three
years after it has ceased to be regarded as a developing country,
whichever period expires later.
(4) Where, at the time when the declaration
made under paragraph (1) or (2) ceases to be effective, there are copies
in stock which were made under a license granted by virtue of this
Appendix, such copies may continue to be distributed until their stock
is exhausted.
(5) Any country which is bound by the
provisions of this Act and which has deposited a declaration or a
notification in accordance with Article 31(1) with respect to the
application of this Act to a particular territory, the situation of
which can be regarded as analogous to that of the countries referred to
in paragraph (1), may, in respect of such territory, make the
declaration referred to in paragraph (1) and the notification of renewal
referred to in paragraph (2). As long as such declaration or
notification remains in effect, the provisions of this Appendix shall be
applicable to the territory in respect of which it was made.
(6)
(a) The fact that a country avails itself of
any of the faculties referred to in paragraph (1) does not permit
another country to give less protection to works of which the country of
origin is the former country than it is obliged to grant under Articles
1 to 20.
(b) The right to apply reciprocal treatment
provided for in Article 30(2)(b), second sentence, shall not, until the
date on which the period applicable under Article I(3) expires, be
exercised in respect of works the country of origin of which is a
country which has made a declaration according to Article V(1)(a).
Article II: [Limitations on the Right of Translation: 1.
Licences grantable by competent authority; 2. to 4. Conditions allowing
the grant of such licences; 5. Purposes for which licences may be
granted; 6. Termination of licences; 7. Works composed mainly of
illustrations; 8. Works withdrawn from circulation; 9. Licences for
broadcasting organizations]
(1) Any country which has declared that it
will avail itself of the faculty provided for in this Article shall be
entitled, so far as works published in printed or analogous forms of
reproduction are concerned, to substitute for the exclusive right of
translation provided for in Article 8 a system of non-exclusive and
non-transferable licenses, granted by the competent authority under the
following conditions and subject to Article
IV.
(2)
(a) Subject to
paragraph (3), if, after the
expiration of a period of three years, or of any longer period
determined by the national legislation of the said country, commencing
on the date of the first publication of the work, a translation of such
work has not been published in a language in general use in that country
by the owner of the right of translation, or with his authorization, any
national of such country may obtain a license to make a translation of
the work in the said language and publish the translation in printed or
analogous forms of reproduction.
(b) A license under the conditions provided
for in this Article may also be granted if all the editions of the
translation published in the language concerned are out of print.
(3)
(a) In the case of translations into a
language which is not in general use in one or more developed countries
which are members of the Union, a period of one year shall be
substituted for the period of three years referred to in paragraph (2)(a).
(b) Any country referred to in
paragraph (1)
may, with the unanimous agreement of the developed countries which are
members of the Union and in which the same language is in general use,
substitute, in the case of translations into that language, for the
period of three years referred to in paragraph (2)(a) a shorter period
as determined by such agreement but not less than one year. However, the
provisions of the foregoing sentence shall not apply where the language
in question is English, French or Spanish. The Director General shall be
notified of any such agreement by the Governments which have concluded
it.
(4)
(a) No license obtainable after three years
shall be granted under this Article until a further period of six months
has elapsed, and no license obtainable after one year shall be granted
under this Article until a further period of nine months has elapsed
(i) from the date on which the applicant
complies with the requirements mentioned in Article
IV(1), or
(ii) where the identity or the address of the
owner of the right of translation is unknown, from the date on which the
applicant sends, as provided for in Article
IV(2), copies of his
application submitted to the authority competent to grant the license.
(b) If, during the said period of six or nine
months, a translation in the language in respect of which the
application was made is published by the owner of the right of
translation or with his authorization, no license under this Article
shall be granted.
(5) Any license under this Article shall be
granted only for the purpose of teaching, scholarship or research.
(6) If a translation of a work is published by
the owner of the right of translation or with his authorization at a
price reasonably related to that normally charged in the country for
comparable works, any license granted under this Article shall terminate
if such translation is in the same language and with substantially the
same content as the translation published under the license. Any copies
already made before the license terminates may continue to be
distributed until their stock is exhausted.
(7) For works which are composed mainly of
illustrations, a license to make and publish a translation of the text
and to reproduce and publish the illustrations may be granted only if
the conditions of Article III are also fulfilled.
(8) No license shall be granted under this
Article when the author has withdrawn from circulation all copies of his
work.
(9)
(a) A license to make a translation of a work
which has been published in printed or analogous forms of reproduction
may also be granted to any broadcasting organization having its
headquarters in a country referred to in paragraph
(1), upon an
application made to the competent authority of that country by the said
organization, provided that all of the following conditions are met:
(i) the translation is made from a copy made
and acquired in accordance with the laws of the said country;
(ii) the translation is only for use in
broadcasts intended exclusively for teaching or for the dissemination of
the results of specialized technical or scientific research to experts
in a particular profession;
(iii) the translation is used exclusively for
the purposes referred to in condition (ii) through broadcasts made
lawfully and intended for recipients on the territory of the said
country, including broadcasts made through the medium of sound or visual
recordings lawfully and exclusively made for the purpose of such
broadcasts;
(iv) all uses made of the translation are
without any commercial purpose.
(b) Sound or visual recordings of a
translation which was made by a broadcasting organization under a
license granted by virtue of this paragraph may, for the purposes and
subject to the conditions referred to in subparagraph (a) and with the
agreement of that organization, also be used by any other broadcasting
organization having its headquarters in the country whose competent
authority granted the license in question.
(c) Provided that all of the criteria and
conditions set out in subparagraph (a) are met, a license may also be
granted to a broadcasting organization to translate any text
incorporated in an audio-visual fixation where such fixation was itself
prepared and published for the sole purpose of being used in connection
with systematic instructional activities.
(d) Subject to subparagraphs
(a) to (c), the
provisions of the preceding paragraphs shall apply to the grant and
exercise of any license granted under this paragraph.
Article III:
[Limitation on the Right of Reproduction: 1.
Licences grantable by competent authority; 2. to 5. Conditions allowing
the grant of such licences; 6. Termination of licences; 7. Works to
which this Article applies]
(1) Any country which has declared that it
will avail itself of the faculty provided for in this Article shall be
entitled to substitute for the exclusive right of reproduction provided
for in Article 9 a system of non-exclusive and non-transferable
licenses, granted by the competent authority under the following
conditions and subject to Article IV.
(2)
(a) If, in relation to a work to which this
Article applies by virtue of paragraph (7), after the expiration of
(i) the relevant period specified in
paragraph (3), commencing on the date of first publication of a particular edition
of the work, or
(ii) any longer period determined by national
legislation of the country referred to in paragraph
(1), commencing on
the same date,
copies of such edition have not been
distributed in that country to the general public or in connection with
systematic instructional activities, by the owner of the right of
reproduction or with his authorization, at a price reasonably related to
that normally charged in the country for comparable works, any national
of such country may obtain a license to reproduce and publish such
edition at that or a lower price for use in connection with systematic
instructional activities.
(b) A license to reproduce and publish an
edition which has been distributed as described in subparagraph (a) may
also be granted under the conditions provided for in this Article if,
after the expiration of the applicable period, no authorized copies of
that edition have been on sale for a period of six months in the country
concerned to the general public or in connection with systematic
instructional activities at a price reasonably related to that normally
charged in the country for comparable works.
(3) The period referred to in paragraph (2)(a)(i)
shall be five years, except that
(i) for works of the natural and physical
sciences, including mathematics, and of technology, the period shall be
three years;
(ii) for works of fiction, poetry, drama and
music, and for art books, the period shall be seven years.
(4)
(a) No license obtainable after three years
shall be granted under this Article until a period of six months has
elapsed
(i) from the date on which the applicant
complies with the requirements mentioned in Article
IV(1), or
(ii) where the identity or the address of the
owner of the right of reproduction is unknown, from the date on which
the applicant sends, as provided for in Article
IV(2), copies of his
application submitted to the authority competent to grant the license.
(b) Where licenses are obtainable after other
periods and Article IV(2) is applicable, no license shall be granted
until a period of three months has elapsed from the date of the dispatch
of the copies of the application.
(c) If, during the period of six or three
months referred to in subparagraphs (a) and (b), a distribution as
described in paragraph (2)(a) has taken place, no license shall be
granted under this Article.
(d) No license shall be granted if the author
has withdrawn from circulation all copies of the edition for the
reproduction and publication of which the license has been applied for.
(5) A license to reproduce and publish a
translation of a work shall not be granted under this Article in the
following cases:
(i) where the translation was not published by
the owner of the right of translation or with his authorization, or
(ii) where the translation is not in a
language in general use in the country in which the license is applied
for.
(6) If copies of an edition of a work are
distributed in the country referred to in paragraph (1) to the general
public or in connection with systematic instructional activities, by the
owner of the right of reproduction or with his authorization, at a price
reasonably related to that normally charged in the country for
comparable works, any license granted under this Article shall terminate
if such edition is in the same language and with substantially the same
content as the edition which was published under the said license. Any
copies already made before the license terminates may continue to be
distributed until their stock is exhausted.
(7)
(a) Subject to subparagraph
(b), the works to
which this Article applies shall be limited to works published in
printed or analogous forms of reproduction.
(b) This Article shall also apply to the
reproduction in audio-visual form of lawfully made audio-visual
fixations including any protected works incorporated therein and to the
translation of any incorporated text into a language in general use in
the country in which the license is applied for, always provided that
the audio-visual fixations in question were prepared and published for
the sole purpose of being used in connection with systematic
instructional activities.
Article IV: [Provisions Common to Licences Under Articles
II and III: 1 and 2. Procedure; 3. Indication of author and title of
work; 4. Exportation of copies; 5. Notice; 6. Compensation]
(1) A license under
Article II or Article III
may be granted only if the applicant, in accordance with the procedure
of the country concerned, establishes either that he has requested, and
has been denied, authorization by the owner of the right to make and
publish the translation or to reproduce and publish the edition, as the
case may be, or that, after due diligence on his part, he was unable to
find the owner of the right. At the same time as making the request, the
applicant shall inform any national or international information center
referred to in paragraph (2).
(2) If the owner of the right cannot be found,
the applicant for a license shall send, by registered airmail, copies of
his application, submitted to the authority competent to grant the
license, to the publisher whose name appears on the work and to any
national or international information center which may have been
designated, in a notification to that effect deposited with the Director
General, by the Government of the country in which the publisher is
believed to have his principal place of business.
(3) The name of the author shall be indicated
on all copies of the translation or reproduction published under a
license granted under Article II or Article
III. The title of the work
shall appear on all such copies. In the case of a translation, the
original title of the work shall appear in any case on all the said
copies.
(4)
(a) No license granted under
Article II or
Article III shall extend to the export of copies, and any such license
shall be valid only for publication of the translation or of the
reproduction, as the case may be, in the territory of the country in
which it has been applied for.
(b) For the purposes of
subparagraph
(a), the
notion of export shall include the sending of copies from any territory
to the country which, in respect of that territory, has made a
declaration under Article I(5).
(c) Where a governmental or other public
entity of a country which has granted a license to make a translation
under Article II into a language other than English, French or Spanish
sends copies of a translation published under such license to another
country, such sending of copies shall not, for the purposes of
subparagraph (a), be considered to constitute export if all of the
following conditions are met:
(i) the recipients are individuals who are
nationals of the country whose competent authority has granted the
license, or organizations grouping such individuals;
(ii) the copies are to be used only for the
purpose of teaching, scholarship or research;
(iii) the sending of the copies and their
subsequent distribution to recipients is without any commercial purpose;
and
(iv) the country to which the copies have been
sent has agreed with the country whose competent authority has granted
the license to allow the receipt, or distribution, or both, and the
Director General has been notified of the agreement by the Government of
the country in which the license has been granted.
(5) All copies published under a license
granted by virtue of Article II or Article III shall bear a notice in
the appropriate language stating that the copies are available for
distribution only in the country or territory to which the said license
applies.
(6)
(a) Due provision shall be made at the
national level to ensure
(i) that the license provides, in favor of the
owner of the right of translation or of reproduction, as the case may
be, for just compensation that is consistent with standards of royalties
normally operating on licenses freely negotiated between persons in the
two countries concerned, and
(ii) payment and transmittal of the
compensation: should national currency regulations intervene, the
competent authority shall make all efforts, by the use of international
machinery, to ensure transmittal in internationally convertible currency
or its equivalent.
(b) Due provision shall be made by national
legislation to ensure a correct translation of the work, or an accurate
reproduction of the particular edition, as the case may be.
Article V: [Alternative Possibility for Limitation of the
Right of Translation: 1. Regime provided for under the 1886 and 1896
Acts; 2. No possibility of change to regime under Article II; 3. Time
limit for choosing the alternative possibility]
(1)
(a) Any country entitled to make a declaration
that it will avail itself of the faculty provided for in Article II may,
instead, at the time of ratifying or acceding to this Act:
(i) if it is a country to which Article
30(2)(a) applies, make a declaration under that provision as far as the
right of translation is concerned;
(ii) if it is a country to which Article
30(2)(a) does not apply, and even if it is not a country outside the
Union, make a declaration as provided for in Article 30(2)(b), first
sentence.
(b) In the case of a country which ceases to
be regarded as a developing country as referred to in Article
I(1), a
declaration made according to this paragraph shall be effective until
the date on which the period applicable under Article I(3) expires.
(c) Any country which has made a declaration
according to this paragraph may not subsequently avail itself of the
faculty provided for in Article II even if it withdraws the said
declaration.
(2) Subject to paragraph
(3), any country
which has availed itself of the faculty provided for in Article II may
not subsequently make a declaration according to paragraph
(1).
(3) Any country which has ceased to be
regarded as a developing country as referred to in Article I(1) may, not
later than two years prior to the expiration of the period applicable
under Article I(3), make a declaration to the effect provided for in
Article 30(2)(b), first sentence, notwithstanding the fact that it is
not a country outside the Union. Such declaration shall take effect at
the date on which the period applicable under Article I(3) expires.
Article VI: [Possibilities of applying, or admitting the
application of, certain provisions of the Appendix before becoming bound
by it: 1. Declaration; 2. Depository and effective date of declaration]
(1) Any country of the Union may declare, as
from the date of this Act, and at any time before becoming bound by
Articles 1 to 21 and this Appendix:
(i) if it is a country which, were it bound by
Articles 1 to 21 and this Appendix, would be entitled to avail itself of
the faculties referred to in Article I(1), that it will apply the
provisions of Article II or of Article III or of both to works whose
country of origin is a country which, pursuant to (ii) below, admits the
application of those Articles to such works, or which is bound by
Articles 1 to 21 and this Appendix; such declaration may, instead of
referring to Article II, refer to Article
V;
(ii) that it admits the application of this
Appendix to works of which it is the country of origin by countries
which have made a declaration under (i) above or a notification under
Article I.
(2) Any declaration made under paragraph (1)
shall be in writing and shall be deposited with the Director General.
The declaration shall become effective from the date of its deposit.
LXXVII. Text of the Provisions of the IPIC Treaty
Incorporated by Article 35 of the TRIPS Agreement
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…
Article 2: Definitions
For the purposes of this Treaty:
(i) “integrated circuit” means a product,
in its final form or an intermediate form, in which the elements, at
least one of which is an active element, and some or all of the
interconnections are integrally formed in and/or on a piece of material
and which is intended to perform an electronic function,
(ii) “layout-design (topography)” means
the three-dimensional disposition, however expressed, of the elements,
at least one of which is an active element, and of some or all of the
interconnections of an integrated circuit, or such a three-dimensional
disposition prepared for an integrated circuit intended for manufacture,
(iii) “holder of the right” means the
natural person who, or the legal entity which, according to the
applicable law, is to be regarded as the beneficiary of the protection
referred to in Article 6,
(iv) “protected layout-design (topography)”
means a layout-design (topography) in respect of which the conditions of
protection referred to in this Treaty are fulfilled,
(v) “Contracting Party” means a State, or
an Intergovernmental Organization meeting the requirements of item (x),
party to this Treaty,
(vi) “territory of a Contracting Party”
means, where the Contracting Party is a State, the territory of that
State and, where the Contracting Party is an Intergovernmental
Organization, the territory in which the constituting treaty of that
Intergovernmental Organization applies,
(vii) “Union” means the Union referred to
in Article 1,
(viii) “Assembly” means the Assembly
referred to in Article 9,
(ix) “Director General” means the Director
General of the World Intellectual Property Organization,
(x) “Intergovernmental Organization” means
an organization constituted by, and composed of, States of any region of
the world, which has competence in respect of matters governed by this
Treaty, has its own legislation providing for intellectual property
protection in respect of layout-designs (topographies) and binding on
all its member States, and has been duly authorized, in accordance with
its internal procedures, to sign, ratify, accept, approve or accede to
this Treaty.
Article 3: The Subject Matter of the Treaty
(1) [Obligation to Protect Layout-Designs
(Topographies)]
(a) Each Contracting Party shall have the
obligation to secure, throughout its territory, intellectual property
protection in respect of layout-designs (topographies) in accordance
with this Treaty. It shall, in particular, secure adequate measures to
ensure the prevention of acts considered unlawful under Article 6 and
appropriate legal remedies where such acts have been committed.
(b) The right of the holder of the right in
respect of an integrated circuit applies whether or not the integrated
circuit is incorporated in an article.
(c) Notwithstanding
Article
2(i), any
Contracting Party whose law limits the protection of layout-designs
(topographies) to layout-designs (topographies) of semiconductor
integrated circuits shall be free to apply that limitation as long as
its law contains such limitation.
(2) [Requirement of Originality]
(a) The obligation referred to in
paragraph
(1)(a) shall apply to layout-designs (topographies) that are original in
the sense that they are the result of their creators’ own intellectual
effort and are not commonplace among creators of layout-designs
(topographies) and manufacturers of integrated circuits at the time of
their creation.
(b) A layout-design (topography) that consists
of a combination of elements and interconnections that are commonplace
shall be protected only if the combination, taken as a whole, fulfills
the conditions referred to in subparagraph (a).
Article 4: The Legal Form of the Protection
Each Contracting Party shall be free to
implement its obligations under this Treaty through a special law on
layout-designs (topographies) or its law on copyright, patents, utility
models, industrial designs, unfair competition or any other law or a
combination of any of those laws.
Article 5: National Treatment
(1) [National Treatment]
Subject to compliance with its obligation
referred to in Article 3(1)(a), each Contracting Party shall, in respect
of the intellectual property protection of layout-designs
(topographies), accord, within its territory,
(i) to natural persons who are nationals of,
or are domiciled in the territory of, any of the other Contracting
Parties, and
(ii) to legal entities which or natural
persons who, in the territory of any of the other Contracting Parties,
have a real and effective establishment for the creation of
layout-designs (topographies) or the production of integrated circuits, the same treatment that it accords to its own nationals.
(2) [Agents, Addresses for Service, Court
Proceedings]
Notwithstanding paragraph (1), any Contracting
Party is free not to apply national treatment as far as any obligations
to appoint an agent or to designate an address for service are concerned
or as far as the special rules applicable to foreigners in court
proceedings are concerned.
(3) [Application of Paragraphs (1) and
(2) to
Intergovernmental Organizations]
Where the Contracting Party is an
Intergovernmental Organization, “nationals” in paragraph (1) means
nationals of any of the States members of that Organization.
Article 6: The Scope of the Protection
(1) [Acts Requiring the Authorization of the
Holder of the Right]
(a) Any Contracting Party shall consider
unlawful the following acts if performed without the authorization of
the holder of the right:
(i) the act of reproducing, whether by
incorporation in an integrated circuit or otherwise, a protected
layout-design (topography) in its entirety or any part thereof, except
the act of reproducing any part that does not comply with the
requirement of originality referred to in Article
3(2),
(ii) the act of importing, selling or
otherwise distributing for commercial purposes a protected layout-design
(topography) or an integrated circuit in which a protected layout-design
(topography) is incorporated.
(b) Any Contracting Party shall be free to
consider unlawful also acts other than those specified in subparagraph
(a) if performed without the authorization of the holder of the right.
(2) [Acts Not Requiring the Authorization of
the Holder of the Right]
(a) Notwithstanding
paragraph (1), no
Contracting Party shall consider unlawful the performance, without the
authorization of the holder of the right, of the act of reproduction
referred to in paragraph (1)(a)(i) where that act is performed by a
third party for private purposes or for the sole purpose of evaluation,
analysis, research or teaching.
(b) Where the third party referred to in
subparagraph (a), on the basis of evaluation or analysis of the
protected layout-design (topography) (“the first layout-design
(topography)”), creates a layout-design (topography) complying with
the requirement of originality referred to in Article 3(2) (“the
second layout-design (topography)”), that third party may incorporate
the second layout-design (topography) in an integrated circuit or
perform any of the acts referred to in paragraph (1) in respect of the
second layout-design (topography) without being regarded as infringing
the rights of the holder of the right in the first layout-design
(topography).
(c) The holder of the right may not exercise
his right in respect of an identical original layout-design (topography)
that was independently created by a third party.
…
(4) [Sale and Distribution of Infringing
Integrated Circuits Acquired Innocently]
Notwithstanding paragraph (1)(a)(ii), no
Contracting Party shall be obliged to consider unlawful the performance
of any of the acts referred to in that paragraph in respect of an
integrated circuit incorporating an unlawfully reproduced layout-design
(topography) where the person performing or ordering such acts did not
know and had no reasonable ground to know, when acquiring the said
integrated circuit, that it incorporates an unlawfully reproduced
layout-design (topography).
(5) [Exhaustion of Rights]
Notwithstanding paragraph (1)(a)(ii), any
Contracting Party may consider lawful the performance, without the
authorization of the holder of the right, of any of the acts referred to
in that paragraph where the act is performed in respect of a protected
layout-design (topography), or in respect of an integrated circuit in
which such a layout-design (topography) is incorporated, that has been
put on the market by, or with the consent of, the holder of the right.
Article 7: Exploitation; Registration, Disclosure
(1) [Faculty to Require Exploitation]
Any Contracting Party shall be free not to
protect a layout-design (topography) until it has been ordinarily
commercially exploited, separately or as incorporated in an integrated
circuit, somewhere in the world.
(2) [Faculty to Require Registration;
Disclosure]
(a) Any Contracting Party shall be free not to
protect a layout-design (topography) until the layout-design
(topography) has been the subject of an application for registration,
filed in due form with the competent public authority, or of a
registration with that authority; it may be required that the
application be accompanied by the filing of a copy or drawing of the
layout-design (topography) and, where the integrated circuit has been
commercially exploited, of a sample of that integrated circuit, along
with information defining the electronic function which the integrated
circuit is intended to perform; however, the applicant may exclude such
parts of the copy or drawing that relate to the manner of manufacture of
the integrated circuit, provided that the parts submitted are sufficient
to allow the identification of the layout-design (topography).
(b) Where the filing of an application for
registration according to subparagraph (a) is required, the Contracting
Party may require that such filing be effected within a certain period
of time from the date on which the holder of the right first exploits
ordinarily commercially anywhere in the world the layout-design
(topography) of an integrated circuit; such period shall not be less
than two years counted from the said date.
(c) Registration under
subparagraph
(a) may be
subject to the payment of a fee.
…
Article 12: Safeguard of Paris and Berne Conventions
This Treaty shall not affect the obligations
that any Contracting Party may have under the Paris Convention for the
Protection of Industrial Property or the Berne Convention for the
Protection of Literary and Artistic Works.
…
Article 16: Entry Into Force of the Treaty
…
(3) [Protection of Layout-Designs
(Topographies) Existing at Time of Entry Into Force]
Any Contracting Party shall have the right not
to apply this Treaty to any layout-design (topography) that exists at
the time this Treaty enters into force in respect of that Contracting
Party, provided that this provision does not affect any protection that
such layout-design (topography) may, at that time, enjoy in the
territory of that Contracting Party by virtue of international
obligations other than those resulting from this Treaty or the
legislation of the said Contracting Party.
…
LXXVIII. Text of the Declaration on the TRIPS
Areement and Public Health(149)
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1. We recognize the gravity of the public
health problems afflicting many developing and least-developed
countries, especially those resulting from HIV/AIDS, tuberculosis,
malaria and other epidemics.
2. We stress the need for the WTO Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
to be part of the wider national and international action to address
these problems.
3. We recognize that intellectual property
protection is important for the development of new medicines. We also
recognize the concerns about its effects on prices.
4. We agree that the TRIPS Agreement does not
and should not prevent Members from taking measures to protect public
health. Accordingly, while reiterating our commitment to the TRIPS
Agreement, we affirm that the Agreement can and should be interpreted
and implemented in a manner supportive of WTO Members’ right to
protect public health and, in particular, to promote access to medicines
for all.
In this connection, we reaffirm the right of
WTO Members to use, to the full, the provisions in the TRIPS Agreement,
which provide flexibility for this purpose.
5. Accordingly and in the light of
paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we
recognize that these flexibilities include:
(a) In applying the customary rules of
interpretation of public international law, each provision of the TRIPS
Agreement shall be read in the light of the object and purpose of the
Agreement as expressed, in particular, in its objectives and principles.
(b) Each Member has the right to grant
compulsory licences and the freedom to determine the grounds upon which
such licences are granted.
(c) Each Member has the right to determine
what constitutes a national emergency or other circumstances of extreme
urgency, it being understood that public health crises, including those
relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can
represent a national emergency or other circumstances of extreme
urgency.
(d) The effect of the provisions in the TRIPS
Agreement that are relevant to the exhaustion of intellectual property
rights is to leave each Member free to establish its own regime for such
exhaustion without challenge, subject to the MFN and national treatment
provisions of Articles 3 and 4.
6. We recognize that WTO Members with
insufficient or no manufacturing capacities in the pharmaceutical sector
could face difficulties in making effective use of compulsory licensing
under the TRIPS Agreement. We instruct the Council for TRIPS to find an
expeditious solution to this problem and to report to the General
Council before the end of 2002.
7. We reaffirm the commitment of
developed-country Members to provide incentives to their enterprises and
institutions to promote and encourage technology transfer to
least-developed country Members pursuant to Article
66.2. We also agree
that the least-developed country Members will not be obliged, with
respect to pharmaceutical products, to implement or apply Sections 5 and
7 of Part II of the TRIPS Agreement or to enforce rights provided for
under these Sections until 1 January 2016, without prejudice to the
right of least-developed country Members to seek other extensions of the
transition periods as provided for in Article 66.1 of the TRIPS
Agreement. We instruct the Council for TRIPS to take the necessary
action to give effect to this pursuant to Article 66.1 of the TRIPS
Agreement.
Footnotes:
149. Adopted by the Fourth Session
of the WTO Ministerial Conference at Doha on 14 November 2001. back to text
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