|
LXXV. Text of the Provisions of the Paris Convention
(1967) Incorporated by Article 2.1 of the TRIPS
Agreement
back to top
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 Licenses. — 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) 1 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 licenses; 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; of
(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
licenses; 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 licenses]
(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. Licenses grantable by competent authority; 2. to 4. Conditions
allowing the grant of such licenses; 5. Purposes for which licenses may
be granted; 6. Termination of licenses; 7. Works composed mainly of
illustrations; 8. Works withdrawn from circulation; 9. Licenses 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
audiovisual 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. Licenses grantable by competent authority; 2. to 5. Conditions
allowing the grant of such licenses; 6. Termination of licenses; 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 Licenses 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 favour 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
back to top
…
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(333)
back to top
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:
333. Adopted by the Fourth Session of the
WTO Ministerial Conference at Doha on 14 November 2001. back to text
|
