Section
1: copyright and related rights back to top
Article
9
Relation to the Berne Convention
1. Members
shall comply with Articles 1 through 21 of the Berne
Convention (1971) and the Appendix thereto. However,
Members shall not have rights or obligations under this
Agreement in respect of the rights conferred under
Article 6bis of that Convention or of the rights
derived therefrom.
2. Copyright
protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts
as such.
Article 10
Computer Programs and Compilations of Data
1. Computer
programs, whether in source or object code, shall be
protected as literary works under the Berne Convention
(1971).
2. Compilations
of data or other material, whether in machine readable or
other form, which by reason of the selection or
arrangement of their contents constitute intellectual
creations shall be protected as such. Such protection,
which shall not extend to the data or material itself,
shall be without prejudice to any copyright subsisting in
the data or material itself.
Article 11
Rental Rights
In
respect of at least computer programs and cinematographic
works, a Member shall provide authors and their
successors in title the right to authorize or to prohibit
the commercial rental to the public of originals or
copies of their copyright works. A Member shall be
excepted from this obligation in respect of
cinematographic works unless such rental has led to
widespread copying of such works which is materially
impairing the exclusive right of reproduction conferred
in that Member on authors and their successors in title.
In respect of computer programs, this obligation does not
apply to rentals where the program itself is not the
essential object of the rental.
Article 12
Term of Protection
Whenever
the term of protection of a work, other than a
photographic work or a work of applied art, is calculated
on a basis other than the life of a natural person, such
term shall be no less than 50 years from the end of
the calendar year of authorized publication, or, failing
such authorized publication within 50 years from the
making of the work, 50 years from the end of the calendar
year of making.
Article 13
Limitations and Exceptions
Members
shall confine limitations or exceptions to exclusive
rights to certain special cases which do not conflict
with a normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the
right holder.
Article 14
Protection of Performers, Producers of Phonograms (Sound
Recordings) and Broadcasting Organizations
1. In
respect of a fixation of their performance on a
phonogram, performers shall have the possibility of
preventing the following acts when undertaken without
their authorization: the fixation of their unfixed
performance and the reproduction of such fixation.
Performers shall also have the possibility of preventing
the following acts when undertaken without their
authorization: the broadcasting by wireless means and the
communication to the public of their live performance.
2. Producers
of phonograms shall enjoy the right to authorize or
prohibit the direct or indirect reproduction of their
phonograms.
3. Broadcasting
organizations shall have the right to prohibit the
following acts when undertaken without their
authorization: the fixation, the reproduction of
fixations, and the rebroadcasting by wireless means of
broadcasts, as well as the communication to the public of
television broadcasts of the same. Where Members do not
grant such rights to broadcasting organizations, they
shall provide owners of copyright in the subject matter
of broadcasts with the possibility of preventing the
above acts, subject to the provisions of the Berne
Convention (1971).
4. The
provisions of Article 11 in respect of computer programs
shall apply mutatis mutandis to producers of
phonograms and any other right holders in phonograms as
determined in a Member’s law. If on 15 April 1994 a
Member has in force a system of equitable remuneration of
right holders in respect of the rental of phonograms, it
may maintain such system provided that the commercial
rental of phonograms is not giving rise to the material
impairment of the exclusive rights of reproduction of
right holders.
5. The
term of the protection available under this Agreement to
performers and producers of phonograms shall last at
least until the end of a period of 50 years computed from
the end of the calendar year in which the fixation was
made or the performance took place. The term of
protection granted pursuant to paragraph 3 shall
last for at least 20 years from the end of the calendar
year in which the broadcast took place.
6. Any
Member may, in relation to the rights conferred under
paragraphs 1, 2 and 3, provide for conditions,
limitations, exceptions and reservations to the extent
permitted by the Rome Convention. However, the provisions
of Article 18 of the Berne Convention (1971) shall also
apply, mutatis mutandis, to the rights of
performers and producers of phonograms in phonograms.
Article
15
Protectable Subject Matter
1. Any
sign, or any combination of signs, capable of
distinguishing the goods or services of one undertaking
from those of other undertakings, shall be capable of
constituting a trademark. Such signs, in particular words
including personal names, letters, numerals, figurative
elements and combinations of colours as well as any
combination of such signs, shall be eligible for
registration as trademarks. Where signs are not
inherently capable of distinguishing the relevant goods
or services, Members may make registrability depend on
distinctiveness acquired through use. Members may
require, as a condition of registration, that signs be
visually perceptible.
2. Paragraph
1 shall not be understood to prevent a Member from
denying registration of a trademark on other grounds,
provided that they do not derogate from the provisions of
the Paris Convention (1967).
3. Members
may make registrability depend on use. However, actual
use of a trademark shall not be a condition for filing an
application for registration. An application shall not be
refused solely on the ground that intended use has not
taken place before the expiry of a period of three years
from the date of application.
4. The
nature of the goods or services to which a trademark is
to be applied shall in no case form an obstacle to
registration of the trademark.
5. Members
shall publish each trademark either before it is
registered or promptly after it is registered and shall
afford a reasonable opportunity for petitions to cancel
the registration. In addition, Members may afford an
opportunity for the registration of a trademark to be
opposed.
Article 16
Rights Conferred
1. The
owner of a registered trademark shall have the exclusive
right to prevent all third parties not having the owner’s
consent from using in the course of trade identical or
similar signs for goods or services which are identical
or similar to those in respect of which the trademark is
registered where such use would result in a likelihood of
confusion. In case of the use of an identical sign for
identical goods or services, a likelihood of confusion
shall be presumed. The rights described above shall not
prejudice any existing prior rights, nor shall they
affect the possibility of Members making rights available
on the basis of use.
2. Article
6bis of the Paris Convention (1967) shall apply, mutatis
mutandis, to services. In determining whether a
trademark is well-known, Members shall take account of
the knowledge of the trademark in the relevant sector of
the public, including knowledge in the Member concerned
which has been obtained as a result of the promotion of
the trademark.
3. Article
6bis of the Paris Convention (1967) shall apply, mutatis
mutandis, to goods or services which are not similar
to those in respect of which a trademark is registered,
provided that use of that trademark in relation to those
goods or services would indicate a connection between
those goods or services and the owner of the registered
trademark and provided that the interests of the owner of
the registered trademark are likely to be damaged by such
use.
Article 17
Exceptions
Members
may provide limited exceptions to the rights conferred by
a trademark, such as fair use of descriptive terms,
provided that such exceptions take account of the
legitimate interests of the owner of the trademark and of
third parties.
Article 18
Term of Protection
Initial
registration, and each renewal of registration, of a
trademark shall be for a term of no less than seven
years. The registration of a trademark shall be renewable
indefinitely.
Article 19
Requirement of Use
1. If
use is required to maintain a registration, the
registration may be cancelled only after an uninterrupted
period of at least three years of non-use, unless valid
reasons based on the existence of obstacles to such use
are shown by the trademark owner. Circumstances arising
independently of the will of the owner of the trademark
which constitute an obstacle to the use of the trademark,
such as import restrictions on or other government
requirements for goods or services protected by the
trademark, shall be recognized as valid reasons for
non-use.
2. When
subject to the control of its owner, use of a trademark
by another person shall be recognized as use of the
trademark for the purpose of maintaining the
registration.
Article 20
Other Requirements
The
use of a trademark in the course of trade shall not be
unjustifiably encumbered by special requirements, such as
use with another trademark, use in a special form or use
in a manner detrimental to its capability to distinguish
the goods or services of one undertaking from those of
other undertakings. This will not preclude a requirement
prescribing the use of the trademark identifying the
undertaking producing the goods or services along with,
but without linking it to, the trademark distinguishing
the specific goods or services in question of that
undertaking.
Article 21
Licensing and Assignment
Members
may determine conditions on the licensing and assignment
of trademarks, it being understood that the compulsory
licensing of trademarks shall not be permitted and that
the owner of a registered trademark shall have the right
to assign the trademark with or without the transfer of
the business to which the trademark belongs.
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