Categories: Legislation on computer programs

WIPO Copyright Treaty

Notice: Kyrgyz Republic ratified to WIPO Copyright Treaty of July 24, 1998

(adopted in Geneva on December 20, 1996)

 

 

 

 

WIPO

 

WIPO Copyright Treaty


 

Preamble

The Contracting Parties,

Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,

Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,

Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,

Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation,

Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention,

Have agreed as follows:

 

Article 1. Relation to the Berne Convention

(1) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention. This Treaty shall not have any connection with treaties other than the Berne Convention, nor shall it prejudice any rights and obligations under any other treaties.

 

(2) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.

 

(3) Hereinafter, “Berne Convention” shall refer to the Paris Act of July 24, 1971 of the Berne Convention for the Protection of Literary and Artistic Works.

 

(4) Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.2

 

Article 2. Scope of Copyright Protection

Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

 

 

Article 3. Application of Articles 2 to 6 of the Berne Convention

Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.3

 

Article 4. Computer Programs

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.4

 

Article 5. Compilations of Data (Databases)

Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.5

 

Article 6. Right of Distribution

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.6

 

Article 7. Right of Rental

(1) Authors of

(i) computer programs;

(ii) cinematographic works; and

(iii) works embodied in phonograms, as determined in the national law of Contracting Parties, shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works.

(2)Paragraph (1) shall not apply

(i) in the case of computer programs, where the program itself is not the essential object of the rental; and

(ii) in the case of cinematographic works, unless such commercial rental has led to widespread copying of such works materially impairing the exclusive right of reproduction.

(3) Notwithstanding the provisions of paragraph (1), a Contracting Party that, on April 15, 1994, had and continues to have in force a system of equitable remuneration of authors for the rental of copies of their works embodied in phonograms may maintain that system provided that the commercial rental of works embodied in phonograms is not giving rise to the material impairment of the exclusive right of reproduction of authors.78

 

Article 8. Right of Communication to the Public

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.9

 

Article 9. Duration of the Protection of Photographic Works

In respect of photographic works, the Contracting Parties shall not apply the provisions of Article 7(4) of the Berne Convention.

 

Article 10. Limitations and Exceptions

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.10

 

Article 11. Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

 

Article 12. Obligations concerning Rights Management Information

(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.11

 

Article 13. Application in Time

Contracting Parties shall apply the provisions of Article 18 of the Berne Convention to all protection provided for in this Treaty.

 

Article 14. Provisions on Enforcement of Rights

(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

 

Article 15. Assembly

(1)

(a) The Contracting Parties shall have an Assembly.

(b) Each Contracting Party shall be represented by one delegate who may be assisted by alternate delegates, advisors and experts.

(c) The expenses of each delegation shall be borne by the Contracting Party that has appointed the delegation. The Assembly may ask the World Intellectual Property Organization (hereinafter referred to as “WIPO”) to grant financial assistance to facilitate the participation of delegations of Contracting Parties that are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations or that are countries in transition to a market economy.

(2)

(a) The Assembly shall deal with matters concerning the maintenance and development of this Treaty and the application and operation of this Treaty.

(b) The Assembly shall perform the function allocated to it under Article 17(2) in respect of the admission of certain intergovernmental organizations to become party to this Treaty.

(c) The Assembly shall decide the convocation of any diplomatic conference for the revision of this Treaty and give the necessary instructions to the Director General of WIPO for the preparation of such diplomatic conference.

(3)

(a) Each Contracting Party that is a State shall have one vote and shall vote only in its own name.

(b) Any Contracting Party that is an intergovernmental organization may participate in the vote, in place of its Member States, with a number of votes equal to the number of its Member States which are party to this Treaty. No such intergovernmental organization shall participate in the vote if any one of its Member States exercises its right to vote and vice versa.

(4) The Assembly shall meet in ordinary session once every two years upon convocation by the Director General of WIPO.

(5) The Assembly shall establish its own rules of procedure, including the convocation of extraordinary sessions, the requirements of a quorum and, subject to the provisions of this Treaty, the required majority for various kinds of decisions.

 

Article 16. International Bureau

The International Bureau of WIPO shall perform the administrative tasks concerning the Treaty.

 

Article 17. Eligibility for Becoming Party to the Treaty

(1) Any Member State of WIPO may become party to this Treaty.

(2) The Assembly may decide to admit any intergovernmental organization to become party to this Treaty which declares that it is competent in respect of, and has its own legislation binding on all its Member States on, matters covered by this Treaty and that it has been duly authorized, in accordance with its internal procedures, to become party to this Treaty.

(3) The European Community, having made the declaration referred to in the preceding paragraph in the Diplomatic Conference that has adopted this Treaty, may become party to this Treaty.

 

Article 18. Rights and Obligations under the Treaty

Subject to any specific provisions to the contrary in this Treaty, each Contracting Party shall enjoy all of the rights and assume all of the obligations under this Treaty.

 

Article 19. Signature of the Treaty

This Treaty shall be open for signature until December 31, 1997, by any Member State of WIPO and by the European Community.

 

Article 20. Entry into Force of the Treaty

This Treaty shall enter into force three months after 30 instruments of ratification or accession by States have been deposited with the Director General of WIPO.

 

Article 21. Effective Date of Becoming Party to the Treaty

This Treaty shall bind:

(i) the 30 States referred to in Article 20, from the date on which this Treaty has entered into force;

(ii) each other State from the expiration of three months from the date on which the State has deposited its instrument with the Director General of WIPO;

(iii) the European Community, from the expiration of three months after the deposit of its instrument of ratification or accession if such instrument has been deposited after the entry into force of this Treaty according to Article 20, or, three months after the entry into force of this Treaty if such instrument has been deposited before the entry into force of this Treaty;

(iv) any other intergovernmental organization that is admitted to become party to this Treaty, from the expiration of three months after the deposit of its instrument of accession.

 

Article 22. No Reservations to the Treaty

No reservation to this Treaty shall be admitted.

 

Article 23. Denunciation of the Treaty

This Treaty may be denounced by any Contracting Party by notification addressed to the Director General of WIPO. Any denunciation shall take effect one year from the date on which the Director General of WIPO received the notification.

 

Article 24. Languages of the Treaty

(1) This Treaty is signed in a single original in English, Arabic, Chinese, French, Russian and Spanish languages, the versions in all these languages being equally authentic.

(2) An official text in any language other than those referred to in paragraph (1) shall be established by the Director General of WIPO on the request of an interested party, after consultation with all the interested parties. For the purposes of this paragraph, “interested party” means any Member State of WIPO whose official language, or one of whose official languages, is involved and the European Community, and any other intergovernmental organization that may become party to this Treaty, if one of its official languages is involved.

 

Article 25. Depositary

The Director General of WIPO is the depositary of this Treaty.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

(TRIPS Agreement)

WORLD TRADE ORGANIZATION (WTO)

Agreement on Trade-Related Aspects of Intellectual Property Rights

 

Members,

Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

Recognizing, to this end, the need for new rules and disciplines concerning:

(a) the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;

(b) the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights;

(c) the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;

(d) the provision of effective and expeditious procedures for the multilateral prevention and settlement of disputes between governments; and

(e) transitional arrangements aiming at the fullest participation in the results of the negotiations;

Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;

Recognizing that intellectual property rights are private rights;

Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;

Recognizing also the special needs of the least-developed country
Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;

Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures;

Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as “WIPO”) as well as other relevant international organizations;

Hereby agree as follows:

 

PART I. GENERAL PROVISIONS AND BASIC PRINCIPLES

Article 1. Nature and Scope of Obligations

1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

2. For the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through
of Part II.

3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members.
In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those Conventions.
Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the “Council for TRIPS”).

 

Article 2. Intellectual Property Conventions

1. In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).

2. Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.

 

Article 3. National Treatment

1. Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.

2. Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.

 

Article 4. Most-Favoured-Nation Treatment

With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:

(a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;

(b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country;

(c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;

(d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.

 

Article 5. Multilateral Agreements on Acquisition or Maintenance of Protection

The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

 

Article 6. Exhaustion

For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.

 

Article 7. Objectives

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

 

Article 8. Principles

1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

 

PART II. STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS

Section 1: Copyright and Related Rights

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.

 

Section 2: Trademarks

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.

 

Section 3: Geographical Indications

 

Article 22. Protection of Geographical Indications

1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:

(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;

(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

3. A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.

4. The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.

 

Article 23. Additional Protection for Geographical Indications for Wines and Spirits

1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like.

2. The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member’s legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.

3. In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.

4. In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.

 

Article 24. International Negotiations; Exceptions

1. Members agree to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23. The provisions of paragraphs 4 through  8 below shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or multilateral agreements. In the context of such negotiations, Members shall be willing to consider the continued applicability of these provisions to individual geographical indications whose use was the subject of such negotiations.

2. The Council for TRIPS shall keep under review the application of the provisions of this Section; the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compliance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.

3. In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.

4. Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either (a) for at least 10 years preceding 15 April 1994 or (b) in good faith preceding that date.

5. Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:

(a) before the date of application of these provisions in that Member as defined in Part  VI; or

(b) before the geographical indication is protected in its country of origin;

measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication.

6. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.

7. A Member may provide that any request made under this Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Member or after the date of registration of the trademark in that Member provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Member, provided that the geographical indication is not used or registered in bad faith.

8. The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business, except where such name is used in such a manner as to mislead the public.

9. There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.

 

Section 4: Industrial Designs

 

Article 25. Requirements for Protection

1. Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.

 

Article 26. Protection

1. The owner of a protected industrial design shall have the right to prevent third parties not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

2. Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.

3. The duration of protection available shall amount to at least 10 years.

 

Section 5: Patents

 

Article 27. Patentable Subject Matter

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

3. Members may also exclude from patentability:

(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

 

Article 28. Rights Conferred

1. A patent shall confer on its owner the following exclusive rights:

(a) where the subject matter of a patent is a product, to prevent third parties not having the owner’s consent from the acts of: making, using, offering for sale, selling, or importing or these purposes that product;

(b) where the subject matter of a patent is a process, to prevent third parties not having the owner’s consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.

2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.

 

Article 29 Conditions on Patent Applicants

1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.

2. Members may require an applicant for a patent to provide information concerning the applicant’s corresponding foreign applications and grants.

 

Article 30. Exceptions to Rights Conferred

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

 

Article 31. Other Use Without Authorization of the Right Holder

Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:

(a) authorization of such use shall be considered on its individual merits;

(b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;

(c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi-conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive;

(d) such use shall be non-exclusive;

(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;

(f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;

(g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;

(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;

(i) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;

(j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;

(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;

(l) where such use is authorized to permit the exploitation of a patent (“the second patent”) which cannot be exploited without infringing another patent (“the first patent”), the following additional conditions shall apply:

(i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;

(ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and

(iii) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent.

 

Article 32. Revocation/Forfeiture

An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.

 

Article 33. Term of Protection

The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.

 

Article 34. Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.

 

Section 6: Layout-Designs (Topographies) of Integrated Circuits

 

Article 35. Relation to the IPIC Treaty

Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.

 

Article 36. Scope of the Protection

Subject to the provisions of paragraph 1 of Article 37, Members shall consider unlawful the following acts if performed without the authorization of the right holder  importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design.

 

Article 37. Acts Not Requiring the Authorization of the Right Holder

1. Notwithstanding Article 36, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.

2. The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.

 

Article 38. Term of Protection

1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.

2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.

3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design.

 

Section 7: Protection of Undisclosed Information

 

Article 39

1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.

2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.

 

Section 8: Control of Anti-Competitive Practices in Contractual Licences

 

Article 40

1. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.

3. Each Member shall enter, upon request, into consultations with any other Member which has cause to believe that an intellectual property right owner that is a national or domiciliary of the Member to which the request for consultations has been addressed is undertaking practices in violation of the requesting Member’s laws and regulations on the subject matter of this Section, and which wishes to secure compliance with such legislation, without prejudice to any action under the law and to the full freedom of an ultimate decision of either Member. The Member addressed shall accord full and sympathetic consideration to, and shall afford adequate opportunity for, consultations with the requesting Member, and shall cooperate through supply of publicly available non-confidential information of relevance to the matter in question and of other information available to the Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member.

4. A Member whose nationals or domiciliaries are subject to proceedings in another Member concerning alleged violation of that other Member’s laws and regulations on the subject matter of this Section shall, upon request, be granted an opportunity for consultations by the other Member under the same conditions as those foreseen in paragraph 3.

 

PART III. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

Section 1: General Obligations


Article 41

1. Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

3. Decisions on the merits of a case shall preferably be in writing and reasoned. They shall be made available at least to the parties to the proceeding without undue delay. Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.

4. Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member’s law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases.

5. It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.

 

Section 2: Civil and Administrative Procedures and Remedies

 

Article 42. Fair and Equitable Procedures

Members shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances. All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedure shall provide a means to identify and protect confidential information, unless this would be contrary to existing constitutional requirements.

 

Article 43. Evidence

1. The judicial authorities shall have the authority, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, to order that this evidence be produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of confidential information.

2. In cases in which a party to a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes a procedure relating to an enforcement action, a Member may accord judicial authorities the authority to make preliminary and final determinations, affirmative or negative, on the basis of the information presented to them, including the complaint or the allegation presented by the party adversely affected by the denial of access to information, subject to providing the parties an opportunity to be heard on the allegations or evidence.

 

Article 44. Injunctions

1. The judicial authorities shall have the authority to order a party to desist from an infringement, inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.

2. Notwithstanding the other provisions of this Part and provided that the provisions of Part II specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Members may limit the remedies available against such use to payment of remuneration in accordance with subparagraph (h) of Article 31. In other cases, the remedies under this Part shall apply or, where these remedies are inconsistent with a Member’s law, declaratory judgments and adequate compensation shall be available.

 

Article 45. Damages

1. The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.

2. The judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appropriate attorney’s fees. In appropriate cases, Members may authorize the judicial authorities to order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.

 

Article 46. Other Remedies

In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.

 

Article 47. Right of Information

Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution.

 

Article 48. Indemnification of the Defendant

1. The judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide to a party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.

2. In respect of the administration of any law pertaining to the protection or enforcement of intellectual property rights, Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith in the course of the administration of that law.

 

Article 49. Administrative Procedures

To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in this Section.

 

Section 3: Provisional Measures

 

Article 50

1. The judicial authorities shall have the authority to order prompt and effective provisional measures:

(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance;

(b) to preserve relevant evidence in regard to the alleged infringement.

2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.

3. The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.

4. Where provisional measures have been adopted inaudita altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed.

5. The applicant may be required to supply other information necessary for the identification of the goods concerned by the authority that will execute the provisional measures.

6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member’s law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.

7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.

8. To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this Section.

 

Section 4: Special Requirements Related to Border Measures

 

Article 51 Suspension of Release by Customs Authorities

Members shall, in conformity with the provisions set out below, adopt procedures  to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods. Members may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of this Section are met. Members may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories.

 

Article 52. Application

Any right holder initiating the procedures under Article 51 shall be required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country of importation, there is prima facie an infringement of the right holder’s intellectual property right and to supply a sufficiently detailed description of the goods to make them readily recognizable by the customs authorities. The competent authorities shall inform the applicant within a reasonable period whether they have accepted the application and, where determined by the competent authorities, the period for which the customs authorities will take action.

 

Article 53. Security or Equivalent Assurance

1. The competent authorities shall have the authority to require an applicant to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures.

2. Where pursuant to an application under this Section the release of goods involving industrial designs, patents, layout-designs or undisclosed information into free circulation has been suspended by customs authorities on the basis of a decision other than by a judicial or other independent authority, and the period provided for in Article 55 has expired without the granting of provisional relief by the duly empowered authority, and provided that all other conditions for importation have been complied with, the owner, importer, or consignee of such goods shall be entitled to their release on the posting of a security in an amount sufficient to protect the right holder for any infringement. Payment of such security shall not prejudice any other remedy available to the right holder, it being understood that the security shall be released if the right holder fails to pursue the right of action within a reasonable period of time.

 

Article 54. Notice of Suspension

The importer and the applicant shall be promptly notified of the suspension of the release of goods according to Article 51.

 

Article 55. Duration of Suspension

If, within a period not exceeding 10 working days after the applicant has been served notice of the suspension, the customs authorities have not been informed that proceedings leading to a decision on the merits of the case have been initiated by a party other than the defendant, or that the duly empowered authority has taken provisional measures prolonging the suspension of the release of the goods, the goods shall be released, provided that all other conditions for importation or exportation have been complied with; in appropriate cases, this time-limit may be extended by another 10 working days. If proceedings leading to a decision on the merits of the case have been initiated, a review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period, whether these measures shall be modified, revoked or confirmed. Notwithstanding the above, where the suspension of the release of goods is carried out or continued in accordance with a provisional judicial measure, the provisions of paragraph 6 of Article 50 shall apply.

 

Article 56. Indemnification of the Importer and of the Owner of the Goods

Relevant authorities shall have the authority to order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods or through the detention of goods released pursuant to Article 55.

 

Article 57. Right of Inspection and Information

Without prejudice to the protection of confidential information, Members shall provide the competent authorities the authority to give the right holder sufficient opportunity to have any goods detained by the customs authorities inspected in order to substantiate the right holder’s claims. The competent authorities shall also have authority to give the importer an equivalent opportunity to have any such goods inspected. Where a positive determination has been made on the merits of a case, Members may provide the competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee and of the quantity of the goods in question.

 

Article 58. Ex Officio Action

Where Members require competent authorities to act upon their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property right is being infringed:

(a) the competent authorities may at any time seek from the right holder any information that may assist them to exercise these powers;

(b) the importer and the right holder shall be promptly notified of the suspension. Where the importer has lodged an appeal against the suspension with the competent authorities, the suspension shall be subject to the conditions, mutatis mutandis, set out at Article 55;

(c) Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.

 

Article 59. Remedies

Without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 46. In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances.

 

Article 60. De Minimis Imports

Members may exclude from the application of the above provisions small quantities of goods of a non-commercial nature contained in travellers’ personal luggage or sent in small consignments.

 

Section 5: Criminal Procedures

Article 61

Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.

PART IV. ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER PARTES PROCEDURES

Article 62

1. Members may require, as a condition of the acquisition or maintenance of the intellectual property rights provided for under Sections 2 through 6 of Part II, compliance with reasonable procedures and formalities. Such procedures and formalities shall be consistent with the provisions of this Agreement.

2. Where the acquisition of an intellectual property right is subject to the right being granted or registered, Members shall ensure that the procedures for grant or registration, subject to compliance with the substantive conditions for acquisition of the right, permit the granting or registration of the right within a reasonable period of time so as to avoid unwarranted curtailment of the period of protection.

3. Article 4 of the Paris Convention (1967) shall apply mutatis mutandis to service marks.

4. Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member’s law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles set out in paragraphs 2 and 3 of Article 41.

5. Final administrative decisions in any of the procedures referred to under paragraph 4 shall be subject to review by a judicial or quasi-judicial authority. However, there shall be no obligation to provide an opportunity for such review of decisions in cases of unsuccessful opposition or administrative revocation, provided that the grounds for such procedures can be the subject of invalidation procedures.

 

PART V. DISPUTE PREVENTION AND SETTLEMENT

Article 63. Transparency

1. Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

2. Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement. The Council shall attempt to minimize the burden on Members in carrying out this obligation and may decide to waive the obligation to notify such laws and regulations directly to the Council if consultations with WIPO on the establishment of a common register containing these laws and regulations are successful. The Council shall also consider in this connection any action required regarding notifications pursuant to the obligations under this Agreement stemming from the provisions of Article 6ter of the Paris Convention (1967).

3. Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.

4. Nothing in paragraphs 1, 2 and 3 shall require Members to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

 

Article 64. Dispute Settlement

1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.

2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement.

3. During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process.

 

PART VI. TRANSITIONAL ARRANGEMENTS

Article 65. Transitional Arrangements

1. Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.

2. A developing country Member is entitled to delay for a further period of four years the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Articles 3, 4 and 5.

3. Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.

4. To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of five years.

5. A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.

 

Article 66. Least-Developed Country Members

1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

2. Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

 

Article 67. Technical Cooperation

In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.

 

PART VII. INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS

 

Article 68. Council for Trade-Related Aspects of Intellectual Property Rights

The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members’ compliance with their obligations hereunder, and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. In carrying out its functions, the Council for TRIPS may consult with and seek information from any source it deems appropriate. In consultation with WIPO, the Council shall seek to establish, within one year of its first meeting, appropriate arrangements for cooperation with bodies of that Organization.

 

Article 69. International Cooperation

Members agree to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights. For this purpose, they shall establish and notify contact points in their administrations and be ready to exchange information on trade in infringing goods. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods.

 

Article 70. Protection of Existing Subject Matter

1. This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question.

2. Except as otherwise provided for in this Agreement, this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. In respect of this paragraph and paragraphs 3 and 4, copyright obligations with respect to existing works shall be solely determined under Article 18 of the Berne Convention (1971), and obligations with respect to the rights of producers of phonograms and performers in existing phonograms shall be determined solely under Article 18 of the Berne Convention (1971) as made applicable under paragraph 6 of Article 14 of this Agreement.

3. There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain.

4. In respect of any acts in respect of specific objects embodying protected subject matter which become infringing under the terms of legislation in conformity with this Agreement, and which were commenced, or in respect of which a significant investment was made, before the date of acceptance of the WTO Agreement by that Member, any Member may provide for a limitation of the remedies available to the right holder as to the continued performance of such acts after the date of application of this Agreement for that Member. In such cases the Member shall, however, at least provide for the payment of equitable remuneration.

5. A Member is not obliged to apply the provisions of Article 11 and of paragraph 4 of Article 14 with respect to originals or copies purchased prior to the date of application of this Agreement for that Member.

6. Members shall not be required to apply Article 31, or the requirement in paragraph 1 of Article 27 that patent rights shall be enjoyable without discrimination as to the field of technology, to use without the authorization of the right holder where authorization for such use was granted by the government before the date this Agreement became known.

7. In the case of intellectual property rights for which protection is conditional upon registration, applications for protection which are pending on the date of application of this Agreement for the Member in question shall be permitted to be amended to claim any enhanced protection provided under the provisions of this Agreement. Such amendments shall not include new matter.

8. Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:

(a) notwithstanding the provisions of Part VI, provide as from the date entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;

(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and

(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).

9. Where a product is the subject of a patent application in a Member in accordance with paragraph 8(a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI, for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.

 

Article 71. Review and Amendment

1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.

2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.

 

Article 72. Reservations

Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

 

Article 73. Security Exceptions

Nothing in this Agreement shall be construed:

(a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or

(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;

(i) relating to fissionable materials or the materials from which they are derived;

(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

(iii) taken in time of war or other emergency in international relations; or

(c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

Law of the KR “On the legal Protection of Software and Databases”

Published on: 21.08.2011
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(Version of the Laws of the Kyrgyz Republic 2003 – 2006)

 

LAW OF THE KYRGYZ REPUBLIC

On the legal Protection of Software and Databases

 

Section 1. GENERAL PROVISIONS

Article 1. General Terminology

General terms used in this Law are as follows:

  • software is an objective form of presenting aggregation of data and orders aimed at functioning of computers with the purpose of obtaining a certain result;
  • database is an objective form of presenting and arrangement of aggregation of data, systematized in such a way that these data could be found and processed with the help of a computer;
  • adapting of software or database is introduction of changes made exclusively with the purpose of providing functioning of software or database in specific technical facilities of the user or under the administration of specific programs of the user; * modification (processing) of software or database is any changes other than adapting;
  • original text is a text written in any programming language not altered by any compiler;
  • object code is a program obtained in the result of reorganization of the original text into machine code;
  • compilation of software is the technical device which includes transformation of the original text into the object code in order to study the structure and code the software program;
  • de-compilation of software is a technical device which includes transformation of the object code into the original text for the purpose of studying the structure and coding of the software;
  • reproduction of the software or database is manufacturing of one or more copies of the software or database in any material form as well as their saving in computer memory;
  • distribution of software or database is granting an access to software or database reproduced in any material form, including by means of a network or other ways, as well as by means of sale, rent, lease, lending, including import for any of these purposes;
  • public release (publication) of software or database is provision of copies of the software or database to an indefinite number of people under the consent of the author (including by means of computer saving, and issue of the printed text) under condition that the number of such copies meets the needs of this circle of persons taking into account the nature of the works mentioned;
  • use of the software or database is a public release, reproduction, distribution and other actions to introduce them into economic turnover (including in modified form). Transmission of the information through mass media on the published software or database shall not be considered as use of software or database;

In the present Law the right owner shall be understood as an author, his heir, and any physical or juridical person who possesses exclusive proprietary rights acquired by virtue of the law or an agreement.

 

Article 2. Relationships Regulated by this Law

This Law shall regulate relationships connected with creation, legal protection and use of software and database.

Software and database shall be referred to objects of copyright according to the present Law. Software shall be provided with legal protection as to works of literature, and database – as to compilations.

The State Intellectual Property Agency under the Government of the Kyrgyz Republic (hereinafter – Kyrgyzpatent) shall provide state regulation in the area of software and database protection.

 

Article 3. Object and Conditions of Legal Protection of Software and Database

Copyright shall extend to any software and databases both released and never published, presented in the objective form regardless of their material carrier, purpose and merit.

Copyright shall extend to the software and databases that are the results of creative activity of an author. The creative nature of author’s activity shall be implied until otherwise is not proved.

Legal protection granted by this Law shall extend to all kinds of software (including operational systems and program complexes), which may be expressed in any language and in any form, including original texts, and an object code.

Legal protection granted by this Law shall extend to the databases which are the result of creative labor on collection and arrangement of data. Databases shall be protected regardless of whether the data on which they are based or which they include are the objects of copyright.

Legal protection granted by this Law shall not extend to the ideas and principles which underlie software or database or some of their elements, including ideas and principles of arranging interface and algorithms, as well as languages of programming.

Copyright to software and databases shall not be connected with the right of ownership to their material carrier. Any assignment of rights to the material carrier shall not entail the assignment of any rights to software or databases.

 

Article 4. Conditions for Recognition of Copyright

Software or database shall be eligible for copyright by virtue of the mere fact of their creation.

In order to recognize and exercise copyright to software or database depositing, registration or meeting of other formalities shall not be required.

Since the first public release of software or database the right owner, in order to give notice of his rights, may use the copyright mark, consisting of three elements:

  • letter C in a circle © or round parenthesis;
  • denomination (name) of the right owner;
  • year of the first publication of software or database.

 

Article 5. Copyright to Database

Copyright to database consisting of materials other than objects of copyright shall belong to the persons who have created the database.

Copyright to database shall be recognized provided that the copyright to each of the work, included in this database is observed.

Copyright to each of the works included in the database shall be retained. These works may be used regardless of such database.

Copyright to database shall not prevent other persons to independently select and arrange works and documents included in this database.

 

Article 6. Term of Copyright

Copyright shall become effective from the moment of creation of software or database and shall have effect throughout the lifetime of the author and for 50 years after his death calculated from January 1 as of the year following the year of author’s death.

Expiration of copyright to software or database created in co-authorship shall be calculated from the date of death of the last surviving co-author.

Copyright to software, database released anonymously or under the pseudonym shall be effective from the moment of their public release during 50 years. If during the established term the author of software or database released anonymously or under pseudonym reveals his/her identity, or if the author’s pseudonym is not doubtful due to his personality, than the protection term provided by the first item of this Article shall apply.

Personal non-property rights of the author to software or database shall be protected without time limits.

 

Article 7. Scope of the Law

Copyright to software or database first publicly released on the territory of the Kyrgyz Republic or not released, but staying on its territory in any objective form, shall be effective on the territory of the Kyrgyz Republic.

It shall be recognized as belonging to the author, his heirs or other legal successors of the author regardless of citizenship.

Copyright shall be recognized as belonging to the citizens of the Kyrgyz Republic whose software or database have been publicly released or is located in some objective form on the territory of a foreign state or as belonging to their legal successors.

Copyright to software or database first released or staying in some objective form on the territory of the foreign state shall be recognized as belonging to other persons in accordance with international treaties of the Kyrgyz Republic .

 

Section 2. COPYRIGHTS

Article 8. Authorship

Author of software or database shall be a physical person by whose creative labor they have been made.

If the software or database is created by the joint creative activity of two or more physical persons than regardless of whether the program or database consist of elements each of which has an independent significance or is indivisible, then each of these persons shall be recognized as an author of such software or database.

In the event that the software or database elements have an independent significance each of the authors shall have the copyright to the part created by him.

 

Article 9. Personal Non-property Rights

The author of the software or database regardless of his proprietary rights shall enjoy the following personal non-property rights:

  • right of authorship, i.e. the right to be considered the author of the software, or database;
  • right to the name, i.e. the right to determine the form of indication of author’s name in the software, database: under his own name, conditional name (pseudonym) or anonymously;
  • right to inviolability (integrity, i.e. the right to protection) of both the software itself or database and their denominations against various distortions or other infringements capable of inflicting harm to the honor and dignity of the author.

 

Article 10. Economic Rights

The author of software or database or another legal successor shall enjoy the exclusive right to carry out and (or) to permit performance of following actions:

  • public release of software or database;
  • reproduction of software or database (in full or in part) in any form, in any way;
  • distribution of software or database, including rent;
  • modification of software or database including translation of software or database from one language into another;
  • other use of software or database.

The order of exercising the rights that belong to several authors of software or database or other right owners is determined by the agreement between them. In the default of such agreement, each of them may use protected object on his own, but has no right to provide the agreement on full concession of all propriety rights without consent of other right owners. In the event the agreement on provision of the full concession of all propriety rights is not concluded, the arguement between them may be solved in legal form.

 

Article 11. Transfer of Proprietary Rights

Proprietary rights to software or database may be assigned in full or in part to other physical or juridical persons by agreement.

The agreement shall be concluded in writing and must contain the following conditions: the scope of assigned rights and the way of using the software or database, procedure of payment and amount of remuneration, territory and effective term of the agreement.

The agreement on assignment of proprietary rights or a licensing agreement for the registered software or database shall be registered with Kyrgyzpatent.

The agreement on transfer of proprietary rights to software or database is not valid without registration at Kyrgyzpatent.

Proprietary rights to software or database shall be assigned by succession pursuant to the procedure established by the Law.

 

Article 12. Proprietary Rights to Software or Database Created in the Course of Execution of Service Duties

Proprietary rights to software or database created in the course of execution of service duties or under the assignment of the employer shall belong to the employer unless otherwise is provided by the agreement between him and the author.

Procedure of payment and amount of remuneration shall be established by the agreement between the author and the employer.

 

Article 13. Right to Registration

The right owner of all the proprietary rights to software or database may register his software or database directly or through his representative during the effective period of copyright at his sole discretion by way of submitting an applicationto Kyrgyzpatent.

 

Article 14. Registration of Software or Database

Application for official registration of software or database (hereinafter referred to as registration application) shall refer to one software or one database.

Registration application must contain:

  • application for official registration of software or database with the indication of right owner as well as the author, unless he refused to be mentioned as such and their place of location (place of residence);
  • deposited documents identifying the software or database, including an abstract;the abstract shall include mandatory information on documentation developed for software or database; the abstract for database shall indicate decoding of the subject sphere, source of data, composition, name and content of each separate file of the whole database, number of separate records of each file, data retrospective;
  • document confirming the payment of the registration fees due, or grounds for exemption from the payment of registration fees and for reduction of its amount.

Kyrgyzpatent shall determine rules of filing the application for registration.

After receipt of an application for registration Kyrgyzpatent shall check the availability of the documents required and their compliance with the requirements set forth in paragraph 2 of this Article.

Within two months after filing the application, the applicant shall be entitled to update, add and make changes in the materials of the application.

Consideration of the application shall be made within six months.

Should the results of the examination be positive, Kyrgyzpatent shall enter the software or database into the software state register of the Kyrgyz Republic or the database State register respectively, publish the information about registered software or database in the official bulletin of Kyrgyzpatent and grant the certificate on official registration to the applicant.

Procedures for official registration, forms of certificates on official registration, content of the data indicated therein shall be established by Kyrgyzpatent. Kyrgyzpatent shall also define the list of data to be published in the official bulletin.

The information entered into the Software State Register of the Kyrgyz Republic and the Database State Register of the Kyrgyz Republic shall be considered authentic until otherwise is proved.

The liability for authenticity of the indicated information shall be with the applicant.

Registration fees shall be paid for execution of actions connected with the official registration of software or database, contracts and publication of information.

Amounts, deadlines of payment of registration fees and grounds for exemption from payment thereof or reduction of their amounts shall be established by the Government of the Kyrgyz Republic.

All the financial resources accumulated on the Kyrgyzpatent account, including those in foreign currency, shall be used by Kyrgyzpatent to cover costs of activities envisaged in this article and also for creating, equipping and using an automated system, for training and motivating the staff.

 

Section 3. USE OF SOFTWARE OR DATABASE

Article 15. Use of Software or Database under the Contract with the Right Owner

Third persons (users) shall use software or database pursuant to the contract with the right owner, except for cases of resale, transfer of the property right in any way or any other rights to the copy of software or database after the sale or any other transfer of the property right to this copy is allowed without consent of the right owner and payment of additional remuneration.

The contract for use of software or database shall be formalized in writing.

When selling and providing access to software or database to mass users special procedures shall be applied, particularly by setting forth standard conditions for the use determined by the right owner.

 

Article 16. Free Reproduction and Adapting of Software or Database

A person lawfully owning the copy of software or database shall be entitled, without additional authorization of the right-owner to accomplish any actions connected with the functioning of software or database in accordance with its purpose, including saving and storing in the memory of a computer and correcting obvious mistakes. Saving and storing in the memory of the computer shall be allowed in relation to one computer or one user in the network unless otherwise is provided by the contract with the right owner.

With the exception of provisions of paragraph 3, Article 10 of this Law, a person lawfully owning a copy of software or database shall be entitled, without the consent of the right owner and without the payment of additional remuneration to:

  • make adapting of software or database;
  • make or order to make copies of software or database provided that this copy has only archive purposes and, if necessary (in case when the original of the software or database was forfeited, destroyed or became not suitable for use) for substitution of lawfully purchased copy. In this case the software or database can not be used for other purposes and must be destroyed in case if the further use of this program or database ceases to be lawful.

A person lawfully owning the copy of the software shall be entitled without the consent of the right owner and without payment of additional remuneration to de-compile or order to de-compile the software with the purpose to study coding and structure of this program provided that:

  • information necessary for interaction of independently developed by this person software with other programs is not available from other sources;
  • information received in the result of this de-compilation may be used only for arranging interaction of independently developed by this person software with other programs, but not for compiling new software with significantly alike exterior with the de-compiled software or for completion of any other action violating the copyright;
  • de-compilation is accomplished in relation only to those parts of the software which are necessary for arranging such interaction.

 

Section 4. PROTECTION OF RIGHTS

 

Article 17. Infringement of Copyright. Counterfeit Copies of Software or Database

Infringements provided by the Law on protection of copyright to software and database shall entail civil, administrative and criminal liability pursuant to the legislation of the Kyrgyz Republic.

Copies of software or database that are manufactured or used in violation of copyright shall be deemed counterfeit copies.

Copies of software or database protected in the Kyrgyz Republic under this Law that are imported in the Kyrgyz Republic from a state in which this software or database has never been protected or has ceased to be protected by the law, shall also constitute counterfeit copies.

 

Article 18. Protection of Rights to Software or Database

Author of software or database or other right owners have the right to require:

  • recognition of rights;
  • restoration of the position which existed prior to the infringement of the right and cessation of the actions that infringe the right or create the threaten of its infringement;
  • recovery of the losses, the amount of which shall include revenues illegally obtained by the infringer;
  • payment of compensation by the infringer in cases of infringement aimed at gaining profit instead of recovery of losses in the amount of 50 to 20 000 times of the calculation indexes set up by the legislation of the Kyrgyz Republic, in cases of infringement with the aim of making profit instead of covering losses;
  • taking other measures envisaged in regulations connected with protecting their rights;
  • for protecting their rights they can turn to the court;
  • the surrender, in addition to covering losses or paying compensation , penalty in the amount of 10 % of the amount assigned by court in favor of the plaintiff, to the income of the republican budget of the Kyrgyz Republic;

Court may order the confiscation of counterfeit copies of software or database as well as materials and equipment used for their reproduction and manufacture and destruction thereof or transfer to the republican budget of the Kyrgyz Republic or to the plaintiff at his request as compensation for losses.

 

Article 19. Seizure of Counterfeit Copies of Software and Databases

Copies of software or databases manufactured, reproduced, distributed, sold, imported or used otherwise or intended for use in violation of the rights of authors of software and databases, and of other right owners, may be seized pursuant to the procedure established by the legislation of the Kyrgyz Republic.

 

Article 20. Protection of Rights to Software and Database in Foreign Countries

The author or any right owner may seek legal protection of software or database in foreign countries after registration of a respective application at Kyrgyzpatent. Non compliance with this provision shall entail the liability provided in the legislation of the Kyrgyz Republic.

Expenses related to obtaining legal protection of software or database in foreign countries shall be covered by the person to seek such protection or other natural or legal entity pursuant to the agreement with him.

 

Article 21. Rights of Foreign Physical Persons and Legal Entities

Foreign physical and legal entities shall enjoy the rights provided by this Law equally with natural and legal entities of the Kyrgyz Republic by virtue of international treaties of the Kyrgyz Republic or on the basis of the principle of reciprocity.

 

Article 22. International Treaties

Where an international treaty to which the Kyrgyz Republic is signatory stipulates rules that are differ from those set force in this Law, the provisions of an international treaty shall apply.

 

Article 23. Implementation of the present Law

1. The Law shall come into force from the moment of its publication.

2. Until the legislation of the Kyrgyz Republic is in compliance with the present Law, normative legal acts of the Kyrgyz Republic which don’t contradict the present Law shall be used.

3. The Law of the Kyrgyz Republic “On the legal Protection of Software and Database” covers relations connected with developing and use of software and database which appeared after implementation of the present Law.

4. The Government of the Kyrgyz Republic shall be authorized to put all their normative acts and regulations in compliance with the present Law.

 

Berne Convention for the Protection of Literary and Artistic Works

 

BERNE CONVENTION

for the Protection of Literary and Artistic Works

of September 9, 1886, completed at PARIS on May 4, 1896, revised at BERLIN on November 13, 1908, completed at BERNE on March 20, 1914, revised at ROME on June 2, 1928, at BRUSSELS on June 26, 1948, at STOCKHOLM on July 14, 1967, and at PARIS on July 24, 1971, and amended on September 28, 1979

 

The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works,

Recognizing the importance of the work of the Revision Conference held at Stockholm in 1967,

Have resolved to revise the Act adopted by the Stockholm Conference, while maintaining without change Articles 1 to 20 and 22 to 26 of that Act.

Consequently, the undersigned Plenipotentiaries, having presented their full powers, recognized as in good and due form, have agreed as follows:

 

Article 1. Establishment of a Union 3

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 6bis. Moral Rights: 1. To claim authorship; to object to certain modifications and other derogatory actions; 2. After the author’s death; 3. Means of redress

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

 

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;

(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.

 

Article 22. Assembly: 1. Constitution and composition;  2. Tasks; 3. Quorum, voting, observers; 4. Convocation; 5. Rules of procedure

(1)

(a) The Union shall have an Assembly consisting of those countries of the Union which are bound by Articles 22 to 26.

(b) The Government of each country shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Government which has appointed it.

(2)

(a) The Assembly shall:

(i) deal with all matters concerning the maintenance and development of the Union and the implementation of this Convention;

(ii) give directions concerning the preparation for conferences of revision to the International Bureau of Intellectual Property (hereinafter designated as “the International Bureau”) referred to in the Convention Establishing the World Intellectual Property Organization (hereinafter designated as “the Organization”), due account being taken of any comments made by those countries of the Union which are not bound by Articles 22 to 26;

(iii) review and approve the reports and activities of the Director General of the Organization concerning the Union, and give him all necessary instructions concerning matters within the competence of the Union;

(iv) elect the members of the Executive Committee of the Assembly;

(v) review and approve the reports and activities of its Executive Committee, and give instructions to such Committee;

(vi) determine the program and adopt the biennial budget of the Union, and approve its final accounts;

(vii) adopt the financial regulations of the Union;

(viii) establish such committees of experts and working groups as may be necessary for the work of the Union;

(ix) determine which countries not members of the Union and which intergovernmental and international non-governmental organizations shall be admitted to its meetings as observers;

(x) adopt amendments to Articles 22 to 26;

(xi) take any other appropriate action designed to further the objectives of the Union;

(xii) exercise such other functions as are appropriate under this Convention;

(xiii) subject to its acceptance, exercise such rights as are given to it in the Convention establishing the Organization.

(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Assembly shall make its decisions after having heard the advice of the Coordination Committee of the Organization.

(3)

(a) Each country member of the Assembly shall have one vote.

(b) One-half of the countries members of the Assembly shall constitute a quorum.

(c) Notwithstanding the provisions of subparagraph (b), if, in any session, the number of countries represented is less than one-half but equal to or more than one-third of the countries members of the Assembly, the Assembly may make decisions but, with the exception of decisions concerning its own procedure, all such decisions shall take effect only if the following conditions are fulfilled. The International Bureau shall communicate the said decisions to the countries members of the Assembly which were not represented and shall invite them to express in writing their vote or abstention within a period of three months from the date of the communication. If, at the expiration of this period, the number of countries having thus expressed their vote or abstention attains the number of countries which was lacking for attaining the quorum in the session itself, such decisions shall take effect provided that at the same time the required majority still obtains.

(d) Subject to the provisions of Article 26(2), the decisions of the Assembly shall require two-thirds of the votes cast.

(e) Abstentions shall not be considered as votes.

(f) A delegate may represent, and vote in the name of, one country only.

(g) Countries of the Union not members of the Assembly shall be admitted to its meetings as observers.

(4)

(a) The Assembly shall meet once in every second calendar year in ordinary session upon convocation by the Director General and, in the absence of exceptional circumstances, during the same period and at the same place as the General Assembly of the Organization.

(b) The Assembly shall meet in extraordinary session upon convocation by the Director General, at the request of the Executive Committee or at the request of one-fourth of the countries members of the Assembly.

(5) The Assembly shall adopt its own rules of procedure.

Article 23. Executive Committee: 1. Constitution; 2. Composition; 3. Number of members; 4. Geographical distribution; special agreements; 5. Term, limits of re-eligibility, rules of election; 6. Tasks; 7. Convocation; 8. Quorum, voting; 9. Observers; 10. Rules of procedure

(1) The Assembly shall have an Executive Committee.

(2)

(a) The Executive Committee shall consist of countries elected by the Assembly from among countries members of the Assembly. Furthermore, the country on whose territory the Organization has its headquarters shall, subject to the provisions of Article 25(7)(b), have an ex officio seat on the Committee.

(b) The Government of each country member of the Executive Committee shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Government which has appointed it.

(3) The number of countries members of the Executive Committee shall correspond to one-fourth of the number of countries members of the Assembly. In establishing the number of seats to be filled, remainders after division by four shall be disregarded.

(4) In electing the members of the Executive Committee, the Assembly shall have due regard to an equitable geographical distribution and to the need for countries party to the Special Agreements which might be established in relation with the Union to be among the countries constituting the Executive Committee.

(5)

(a) Each member of the Executive Committee shall serve from the close of the session of the Assembly which elected it to the close of the next ordinary session of the Assembly.

(b) Members of the Executive Committee may be re-elected, but not more than two-thirds of them.

(c) The Assembly shall establish the details of the rules governing the election and possible re-election of the members of the Executive Committee.

(6)

(a) The Executive Committee shall:

(i) prepare the draft agenda of the Assembly;

(ii) submit proposals to the Assembly respecting the draft program and biennial budget of the Union prepared by the Director General;

(iii) [deleted]

(iv) submit, with appropriate comments, to the Assembly the periodical reports of the Director General and the yearly audit reports on the accounts;

(v) in accordance with the decisions of the Assembly and having regard to circumstances arising between two ordinary sessions of the Assembly, take all necessary measures to ensure the execution of the program of the Union by the Director General;

(vi) perform such other functions as are allocated to it under this Convention.

(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Executive Committee shall make its decisions after having heard the advice of the Coordination Committee of the Organization.

(7)

(a) The Executive Committee shall meet once a year in ordinary session upon convocation by the Director General, preferably during the same period and at the same place as the Coordination Committee of the Organization.

(b) The Executive Committee shall meet in extraordinary session upon convocation by the Director General, either on his own initiative, or at the request of its Chairman or one-fourth of its members.

(8)

(a) Each country member of the Executive Committee shall have one vote.

(b) One-half of the members of the Executive Committee shall constitute a quorum.

(c) Decisions shall be made by a simple majority of the votes cast.

(d) Abstentions shall not be considered as votes.

(e) A delegate may represent, and vote in the name of, one country only.

(9) Countries of the Union not members of the Executive Committee shall be admitted to its meetings as observers.

(10) The Executive Committee shall adopt its own rules of procedure.

 

Article 24. International Bureau: 1. Tasks in general, Director General; 2. General information; 3. Periodical; 4. Information to countries;  5. Studies and services; 6. Participation in meetings; 7. Conferences of revision; 8. Other tasks

(1)

(a) The administrative tasks with respect to the Union shall be performed by the International Bureau, which is a continuation of the Bureau of the Union united with the Bureau of the Union established by the International Convention for the Protection of Industrial Property.

(b) In particular, the International Bureau shall provide the secretariat of the various organs of the Union.

(c) The Director General of the Organization shall be the chief executive of the Union and shall represent the Union.

(2) The International Bureau shall assemble and publish information concerning the protection of copyright. Each country of the Union shall promptly communicate to the International Bureau all new laws and official texts concerning the protection of copyright.

(3) The International Bureau shall publish a monthly periodical.

(4) The International Bureau shall, on request, furnish information to any country of the Union on matters concerning the protection of copyright.

(5) The International Bureau shall conduct studies, and shall provide services, designed to facilitate the protection of copyright.

(6) The Director General and any staff member designated by him shall participate, without the right to vote, in all meetings of the Assembly, the Executive Committee and any other committee of experts or working group. The Director General, or a staff member designated by him, shall be ex officio secretary of these bodies.

(7)

(a) The International Bureau shall, in accordance with the directions of the Assembly and in cooperation with the Executive Committee, make the preparations for the conferences of revision of the provisions of the Convention other than Articles 22 to 26.

(b) The International Bureau may consult with intergovernmental and international non-governmental organizations concerning preparations for conferences of revision.

(c) The Director General and persons designated by him shall take part, without the right to vote, in the discussions at these conferences.

(8) The International Bureau shall carry out any other tasks assigned to it.

 

Article 25. Finances: 1. Budget; 2. Coordination with other Unions; 3. Resources; 4. Contributions; possible extension of previous budget; 5. Fees and charges; 6. Working capital fund; 7. Advances by host Government; 8. Auditing of accounts

(1)

(a) The Union shall have a budget.

(b) The budget of the Union shall include the income and expenses proper to the Union, its contribution to the budget of expenses common to the Unions, and, where applicable, the sum made available to the budget of the Conference of the Organization.

(c) Expenses not attributable exclusively to the Union but also to one or more other Unions administered by the Organization shall be considered as expenses common to the Unions. The share of the Union in such common expenses shall be in proportion to the interest the Union has in them.

(2) The budget of the Union shall be established with due regard to the requirements of coordination with the budgets of the other Unions administered by the Organization.

(3) The budget of the Union shall be financed from the following sources:

(i) contributions of the countries of the Union;

(ii) fees and charges due for services performed by the International Bureau in relation to the Union;

(iii) sale of, or royalties on, the publications of the International Bureau concerning the Union;

(iv) gifts, bequests, and subventions;

(v) rents, interests, and other miscellaneous income.

(4)

(a) For the purpose of establishing its contribution towards the budget, each country of the Union shall belong to a class, and shall pay its annual contributions on the basis of a number of units fixed as follows4:

Class I …………………. 25

Class II ………………… 20

Class III ……………….. 15

Class IV ……………….. 10

Class V ………………….. 5

Class VI …………………. 3

Class VII ………………… 1

 

(b) Unless it has already done so, each country shall indicate, concurrently with depositing its instrument of ratification or accession, the class to which it wishes to belong. Any country may change class. If it chooses a lower class, the country must announce it to the Assembly at one of its ordinary sessions. Any such change shall take effect at the beginning of the calendar year following the session.

(c) The annual contribution of each country shall be an amount in the same proportion to the total sum to be contributed to the annual budget of the Union by all countries as the number of its units is to the total of the units of all contributing countries.

(d) Contributions shall become due on the first of January of each year.

(e) A country which is in arrears in the payment of its contributions shall have no vote in any of the organs of the Union of which it is a member if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. However, any organ of the Union may allow such a country to continue to exercise its vote in that organ if, and as long as, it is satisfied that the delay in payment is due to exceptional and unavoidable circumstances.

(f) If the budget is not adopted before the beginning of a new financial period, it shall be at the same level as the budget of the previous year, in accordance with the financial regulations.

(5) The amount of the fees and charges due for services rendered by the International Bureau in relation to the Union shall be established, and shall be reported to the Assembly and the Executive Committee, by the Director General.

(6)

(a) The Union shall have a working capital fund which shall be constituted by a single payment made by each country of the Union. If the fund becomes insufficient, an increase shall be decided by the Assembly.

(b) The amount of the initial payment of each country to the said fund or of its participation in the increase thereof shall be a proportion of the contribution of that country for the year in which the fund is established or the increase decided.

(c) The proportion and the terms of payment shall be fixed by the Assembly on the proposal of the Director General and after it has heard the advice of the Coordination Committee of the Organization.

(7)

(a) In the headquarters agreement concluded with the country on the territory of which the Organization has its headquarters, it shall be provided that, whenever the working capital fund is insufficient, such country shall grant advances. The amount of these advances and the conditions on which they are granted shall be the subject of separate agreements, in each case, between such country and the Organization. As long as it remains under the obligation to grant advances, such country shall have an ex officio seat on the Executive Committee.

(b) The country referred to in subparagraph (a) and the Organization shall each have the right to denounce the obligation to grant advances, by written notification. Denunciation shall take effect three years after the end of the year in which it has been notified.

(8) The auditing of the accounts shall be effected by one or more of the countries of the Union or by external auditors, as provided in the financial regulations. They shall be designated, with their agreement, by the Assembly.

 

Article 26. Amendments: 1. Provisions susceptible of amendment by the Assembly; proposals; 2. Adoption; 3. Entry into force

(1) Proposals for the amendment of Articles 22, 23, 24, 25, and the present Article, may be initiated by any country member of the Assembly, by the Executive Committee, or by the Director General. Such proposals shall be communicated by the Director General to the member countries of the Assembly at least six months in advance of their consideration by the Assembly.

(2) Amendments to the Articles referred to in paragraph (1) shall be adopted by the Assembly. Adoption shall require three-fourths of the votes cast, provided that any amendment of Article 22, and of the present paragraph, shall require four-fifths of the votes cast.

(3) Any amendment to the Articles referred to in paragraph (1) shall enter into force one month after written notifications of acceptance, effected in accordance with their respective constitutional processes, have been received by the Director General from three-fourths of the countries members of the Assembly at the time it adopted the amendment. Any amendment to the said Articles thus accepted shall bind all the countries which are members of the Assembly at the time the amendment enters into force, or which become members thereof at a subsequent date, provided that any amendment increasing the financial obligations of countries of the Union shall bind only those countries which have notified their acceptance of such amendment.

 

Article 27. Revision: 1. Objective; 2. Conferences; 3. Adoption

(1) This Convention shall be submitted to revision with a view to the introduction of amendments designed to improve the system of the Union.

(2) For this purpose, conferences shall be held successively in one of the countries of the Union among the delegates of the said countries.

(3) Subject to the provisions of Article 26 which apply to the amendment of Articles 22 to 26, any revision of this Act, including the Appendix, shall require the unanimity of the votes cast.

 

 

Article 28. Acceptance and Entry Into Force of Act for Countries of the Union:

1. Ratification, accession; possibility of excluding certain provisions; withdrawal of exclusion;

2. Entry into force of Articles 1 to 21 and Appendix; 3. Entry into force of Articles 22 to 38

 

(1)

(a) Any country of the Union which has signed this Act may ratify it, and, if it has not signed it, may accede to it. Instruments of ratification or accession shall be deposited with the Director General.

(b) Any country of the Union may declare in its instrument of ratification or accession that its ratification or accession shall not apply to Articles 1 to 21 and the Appendix, provided that, if such country has previously made a declaration under Article VI(1) of the Appendix, then it may declare in the said instrument only that its ratification or accession shall not apply to Articles 1 to 20.

(c) Any country of the Union which, in accordance with subparagraph (b), has excluded provisions therein referred to from the effects of its ratification or accession may at any later time declare that it extends the effects of its ratification or accession to those provisions. Such declaration shall be deposited with the Director General.

 

(2)

(a) Articles 1 to 21 and the Appendix shall enter into force three months after both of the following two conditions are fulfilled:

(i) at least five countries of the Union have ratified or acceded to this Act without making a declaration under paragraph (1)(b),

(ii) France, Spain, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, have become bound by the Universal Copyright Convention as revised at Paris on July 24, 1971.

(b) The entry into force referred to in subparagraph (a) shall apply to those countries of the Union which, at least three months before the said entry into force, have deposited instruments of ratification or accession not containing a declaration under paragraph (1)(b).

(c) With respect to any country of the Union not covered by subparagraph (b) and which ratifies or accedes to this Act without making a declaration under paragraph (1)(b), Articles 1 to 21 and the Appendix shall enter into force three months after the date on which the Director General has notified the deposit of the relevant instrument of ratification or accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, Articles 1 to 21 and the Appendix shall enter into force with respect to that country on the date thus indicated.

(d) The provisions of subparagraphs (a) to (c) do not affect the application of Article VI of the Appendix.

(3) With respect to any country of the Union which ratifies or accedes to this Act with or without a declaration made under paragraph (1)(b), Articles 22 to 38 shall enter into force three months after the date on which the Director General has notified the deposit of the relevant instrument of ratification or accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, Articles 22 to 38 shall enter into force with respect to that country on the date thus indicated.

 

Article 29. Acceptance and Entry Into Force for Countries Outside the Union: 1. Accession; 2. Entry into force

(1) Any country outside the Union may accede to this Act and thereby become party to this Convention and a member of the Union. Instruments of accession shall be deposited with the Director General.

(2)

(a) Subject to subparagraph (b), this Convention shall enter into force with respect to any country outside the Union three months after the date on which the Director General has notified the deposit of its instrument of accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, this Convention shall enter into force with respect to that country on the date thus indicated.

(b) If the entry into force according to subparagraph (a) precedes the entry into force of Articles 1 to 21 and the Appendix according to Article 28(2)(a), the said country shall, in the meantime, be bound, instead of by Articles 1 to 21 and the Appendix, by Articles 1 to 20 of the Brussels Act of this Convention.

 

Article 29bis. Effect of Acceptance of Act for the Purposes of Article 14(2) of the WIPO Convention

Ratification of or accession to this Act by any country not bound by Articles 22 to of the Stockholm Act of this Convention shall, for the sole purposes of Article 14(2) of the Convention establishing the Organization, amount to ratification of or accession to the said Stockholm Act with the limitation set forth in Article 28(1)(b)(i) thereof.

 

Article 30. Reservations: 1. Limits of possibility of making reservations; 2. Earlier reservations; reservation as to the right of translation; withdrawal of reservation

(1) Subject to the exceptions permitted by paragraph (2) of this Article, by Article 28(1)(b), by Article 33(2), and by the Appendix, ratification or accession shall automatically entail acceptance of all the provisions and admission to all the advantages of this Convention.

(2)

(a) Any country of the Union ratifying or acceding to this Act may, subject to Article V(2) of the Appendix, retain the benefit of the reservations it has previously formulated on condition that it makes a declaration to that effect at the time of the deposit of its instrument of ratification or accession.

(b) Any country outside the Union may declare, in acceding to this Convention and subject to Article V(2) of the Appendix, that it intends to substitute, temporarily at least, for Article 8 of this Act concerning the right of translation, the provisions of Article 5 of the Union Convention of 1886, as completed at Paris in 1896, on the clear understanding that the said provisions are applicable only to translations into a language in general use in the said country. Subject to Article I(6)(b) of the Appendix, any country has the right to apply, in relation to the right of translation of works whose country of origin is a country availing itself of such a reservation, a protection which is equivalent to the protection granted by the latter country.

(c) Any country may withdraw such reservations at any time by notification addressed to the Director General.

 

Article 31. Applicability to Certain Territories: 1. Declaration; 2. Withdrawal of declaration; 3. Effective date; 4. Acceptance of factual situations not implied

(1) Any country may declare in its instrument of ratification or accession, or may inform the Director General by written notification at any time thereafter, that this Convention shall be applicable to all or part of those territories, designated in the declaration or notification, for the external relations of which it is responsible.

(2) Any country which has made such a declaration or given such a notification may, at any time, notify the Director General that this Convention shall cease to be applicable to all or part of such territories.

(3)

(a) Any declaration made under paragraph (1) shall take effect on the same date as the ratification or accession in which it was included, and any notification given under that paragraph shall take effect three months after its notification by the Director General.

(b) Any notification given under paragraph (2) shall take effect twelve months after its receipt by the Director General.

(4) This Article shall in no way be understood as implying the recognition or tacit acceptance by a country of the Union of the factual situation concerning a territory to which this Convention is made applicable by another country of the Union by virtue of a declaration under paragraph (1).

 

Article 32. Applicability of this Act and of Earlier Acts: 1. As between countries already members of the Union; 2. As between a country becoming a member of the Union and other countries members of the Union; 3. Applicability of the Appendix in Certain Relations

(1) This Act shall, as regards relations between the countries of the Union, and to the extent that it applies, replace the Berne Convention of September 9, 1886, and the subsequent Acts of revision. The Acts previously in force shall continue to be applicable, in their entirety or to the extent that this Act does not replace them by virtue of the preceding sentence, in relations with countries of the Union which do not ratify or accede to this Act.

(2) Countries outside the Union which become party to this Act shall, subject to paragraph (3), apply it with respect to any country of the Union not bound by this Act or which, although bound by this Act, has made a declaration pursuant to Article 28(1)(b). Such countries recognize that the said country of the Union, in its relations with them:

(i) may apply the provisions of the most recent Act by which it is bound, and

(ii) subject to Article I(6) of the Appendix, has the right to adapt the protection to the level provided for by this Act.

(3) Any country which has availed itself of any of the faculties provided for in the Appendix may apply the provisions of the Appendix relating to the faculty or faculties of which it has availed itself in its relations with any other country of the Union which is not bound by this Act, provided that the latter country has accepted the application of the said provisions.

 

Article 33. Disputes: 1. Jurisdiction of the International Court of Justice; 2. Reservation as to such jurisdiction; 3. Withdrawal of reservation

(1) Any dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement. The country bringing the dispute before the Court shall inform the International Bureau; the International Bureau shall bring the matter to the attention of the other countries of the Union.

(2) Each country may, at the time it signs this Act or deposits its instrument of ratification or accession, declare that it does not consider itself bound by the provisions of paragraph (1). With regard to any dispute between such country and any other country of the Union, the provisions of paragraph (1) shall not apply.

(3) Any country having made a declaration in accordance with the provisions of paragraph (2) may, at any time, withdraw its declaration by notification addressed to the Director General.

 

Article 34. Closing of Certain Earlier Provisions: 1. Of earlier Acts; 2. Of the Protocol to the Stockholm Act

(1) Subject to Article 29bis, no country may ratify or accede to earlier Acts of this Convention once Articles 1 to 21 and the Appendix have entered into force.

(2) Once Articles 1 to 21 and the Appendix have entered into force, no country may make a declaration under Article 5 of the Protocol Regarding Developing Countries attached to the Stockholm Act.

 

Article 35. Duration of the Convention; Denunciation: 1. Unlimited duration; 2. Possibility of denunciation; 3. Effective date of denunciation; 4. Moratorium on denunciation

(1) This Convention shall remain in force without limitation as to time.

(2) Any country may denounce this Act by notification addressed to the Director General. Such denunciation shall constitute also denunciation of all earlier Acts and shall affect only the country making it, the Convention remaining in full force and effect as regards the other countries of the Union.

(3) Denunciation shall take effect one year after the day on which the Director General has received the notification.

(4) The right of denunciation provided by this Article shall not be exercised by any country before the expiration of five years from the date upon which it becomes a member of the Union.

 

Article 36. Application of the Convention: 1. Obligation to adopt the necessary measures; 2. Time from which obligation exists

(1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention.

(2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention.

 

Article 37. Final Clauses: 1. Languages of the Act; 2. Signature; 3. Certified copies; 4. Registration; 5. Notifications

(1)

(a) This Act shall be signed in a single copy in the French and English languages and, subject to paragraph (2), shall be deposited with the Director General.

(b) Official texts shall be established by the Director General, after consultation with the interested Governments, in the Arabic, German, Italian, Portuguese and Spanish languages, and such other languages as the Assembly may designate.

(c) In case of differences of opinion on the interpretation of the various texts, the French text shall prevail.

(2) This Act shall remain open for signature until January 31, 1972. Until that date, the copy referred to in paragraph (1)(a) shall be deposited with the Government of the French Republic.

(3) The Director General shall certify and transmit two copies of the signed text of this Act to the Governments of all countries of the Union and, on request, to the Government of any other country.

(4) The Director General shall register this Act with the Secretariat of the United Nations.

(5) The Director General shall notify the Governments of all countries of the Union of signatures, deposits of instruments of ratification or accession and any declarations included in such instruments or made pursuant to Articles 28(1)(c), 30(2)(a) and (b), and 33(2), entry into force of any provisions of this Act, notifications of denunciation, and notifications pursuant to Articles 30(2)(c), 31(1) and (2), 33(3), and 38(1), as well as the Appendix.

 

Article 38. Transitory Provisions: 1. Exercise of the “five-year privilege”; 2. Bureau of the Union, Director of the Bureau; 3. Succession of Bureau of the Union

(1) Countries of the Union which have not ratified or acceded to this Act and which are not bound by Articles 22 to 26 of the Stockholm Act of this Convention may, until April 26, 1975, exercise, if they so desire, the rights provided under the said Articles as if they were bound by them. Any country desiring to exercise such rights shall give written notification to this effect to the Director General; this notification shall be effective on the date of its receipt. Such countries shall be deemed to be members of the Assembly until the said date.

(2) As long as all the countries of the Union have not become Members of the Organization, the International Bureau of the Organization shall also function as the Bureau of the Union, and the Director General as the Director of the said Bureau.

(3) Once all the countries of the Union have become Members of the Organization, the rights, obligations, and property, of the Bureau of the Union shall devolve on the International Bureau of the Organization.

 

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 audio-visual fixation where such fixation was itself prepared and published for the sole purpose of being used in connection with systematic instructional activities.

(d) Subject to subparagraphs (a) to (c), the provisions of the preceding paragraphs shall apply to the grant and exercise of any license granted under this paragraph.

 

Article III. Limitation on the Right of Reproduction: 1. 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.

Law of the KR “On copyright and related rights”

Bishkek January 14, 1998 # 6

 

LAW OF THE KYRGYZ REPUBLIC

On copyright and related rights

 

 

Title I. GENERAL PROVISIONS

 

Article 1. Subject of the Law

This Law shall regulate relations arising from creation and exploitation of scientific, literary and artistic works (copyright), phonograms, performances, stage productions, and the programs of television and radio broadcasting and cable distribution organizations (related rights).

 

Article 2. Legislation of the Kyrgyz Republic on Copyright and Related Rights

1. The legislation of the Kyrgyz Republic on copyright and related rights consists of this Law, which forms a part of the civil legislation of the Kyrgyz Republic, other normative legal acts of the Kyrgyz Republic that are enacted pursuant to this Law.

2. Where an international agreement to which the Kyrgyz Republic is party contains rules different from those set forth in the present Law, the rules of the international agreement shall be applicable.

Article 3. State Regulation in the Area of Protecting Copyright and Related Rights

1. State regulation in the field of protection of copyright and related rights is implemented by the State Intellectual Property Agency under the Government of the Kyrgyz Republic (hereinafter referred to as Kyrgyzpatent).

2. Kyrgyzpatent is the body that implements state management in the field of copyright and related rights, promotes establishment of legal conditions for the development of creative work in the field of science, literature and art, realization of authors’ and owners of related rights authorities, including the right to appeal to the court, conclude an agreement on the use of copyright as well as collection and payment of authors’ royalties.

The main tasks, functions and authorities of Kyrgyzpatent shall be specified by the present Law and other normative acts of the Kyrgyz Republic.

The Regulation on Kyrgyzpatent shall be approved by the Government of the Kyrgyz Republic.

3. In order to develop the culture of the Kyrgyz Republic and promote creative activities of the authors, the State Intellectual Property Fund shall be established. Regulation on the State Intellectual Property Fund shall be approved by Kyrgyzpatent.

 

Article 4. Basic Concepts

For the purposes of this Law the following terms shall have the meanings specified:

author” means a natural person, whose creative effort has brought about the creation of a work;

audiovisual work” is a work consisting of a fixed series of interconnected images (with or without sound accompaniment), which is intended to be made visible and (where the images are accompanied by sound) audible via appropriate technical equipment; audio-visual works include cinematographic works and all works expressed by means comparable to cinematography (TV and video films, fixed projections slide shows, and the like), regardless of the manner in which they are initially or subsequently fixed “database” means an objective form for the representation and organization of a body of data (relating to articles, accounts and etc.), so systematized so as to be susceptible of retrieval and processing with a computer; “reproduction of a work” means making of one or more copies of the work or part of a work in any form, including the form of a sound or visual recording; or the making of one or more three-dimensional copies of a two- dimensional work or one or more two-dimensional copies of a three dimensional work; the storage of a work in a computer memory shall also constitute reproduction;

reproduction of a phonogram” means the making of one or more copies of a phonogram or part of a phonogram on any physical medium;

recording” means the fixing, with technical aids, of sounds and/or images in any material form that permits them to be repeatedly perceived, reproduced or communicated;

producer of an audiovisual work” means the natural person or legal entity that has taken the initiative and responsibility for the production of the audio-visual work; in the absence of proof to the contrary, the natural person or legal entity named in the customary manner on an audiovisual work shall be considered the producer of that work;

performance” means presentation of works, phonograms, interpretations or renditions by means of acting, recitation, singing or dancing either live or with technical aids (broadcasting, cable television or the like); or by the showing of the pictures an audiovisual work (with or without sound accompaniment) in their normal sequence;

performer” means the actor, singer, musician, dancer or any other person who performs sings, plays on a musical instrument or in any other way a literary or artistic work (including a variety turn, circus act or puppet show), as well as the producer or director of a play and the orchestra conductor;

counterfeit copies” mean copies of a work or of a phonogram, production and distribution of which shall entail infringement of copyright and related rights as well as copies of the works and phonograms protected in the Kyrgyz Republic in compliance with this Law, which are imported without the consent of copyright and related right holders of the Kyrgyz Republic from the countries in which these works and phonograms have never been protected or ceased to be protected;

the owner of copyright and (or) related rights” means the author or performer, in the cases when the author or performer is endowed with economic rights; natural person or legal entity to whom the economic rights were assigned; natural person other than the author or performer, or a legal entity, in the cases when the economic rights were initially assigned to such a natural person or legal entity;

disclosure of a work” means the act performed with the author’s consent which first makes the work accessible to the public by publication, public presentation, public performance, broadcasting or another means;

publication” means the putting into circulation of copies of the work or phonogram with the consent of the author of such work or phonogram producer and in sufficient quantity to meet the reasonable needs of the public. Publication is also understood as providing access to a work, phonogram, via electronic information systems;

broadcasting” means the communication to the public of works, phonograms, performances or programs of broadcasting or cable distribution organizations (including broadcasts of the presentation and or performance) by means of transmission by radio or television (with the exception of cable television); where works, phonograms, performances or programs of broadcasting or cable distribution organizations are relayed by satellite, broadcasting means the act whereby the satellite receives signals from the ground station and retransmits those signals in such a way that works, phonograms, performances, and programs of broadcasting or cable distribution organizations may be communicated to the public, independently of their actual reception of the said public;

broadcasting by a broadcasting or cable distribution organization” means the broadcast created by the broadcasting or cable distribution organization itself, or, on its instructions and with its funds, by another organization;

presentation of a work” means the fact of showing the original or a copy of the work either direct or on a screen with the aid of film, photographic slides, a television pictures or other technical means, and the fact of showing the individual images of an audiovisual work without concern for their order;

users of copyright and/or related rights” means publishing houses, editorial offices of newspapers and magazines, TV and radio studios, cable studios, theaters, concert-spectacle organizations, cinemas, video salons, trade places dealing with sale of audio and video cassettes and laser discs with records, creative collectives regardless of the form of property, as well as natural persons and users of the computer software;

re-broadcasting” means the broadcasting of works, phonograms, performances, or programs of broadcasting or cable distribution organizations that have already been broadcast; “computer program” means a complex of instructions or rules expressed in words, numbers, codes, symbols, signs or any other form designated for the operation of computers and other computer devices to achieve a certain purpose or result;

work of applied art” means a work of art in two or three dimensions applied to objects intended for practical use, craft works or works produced in an industrial process;

producer of a phonogram” means a natural person or a legal entity that has assumed the initiative and responsibility for the first sound recording of performance or other sounds, where such a person must produce it physically or order it and pay for the production; unless proved otherwise, the natural person or legal entity whose name is indicated on a phonogram and (or) its case in the usual manner shall be recognized a producer of a phonogram;

derivative work” means a product of intellectual creation, based on another work (translation, adaptation, dramatization, alteration, etc.);

public demonstration, public performance or communication to the public” means any presentation, performance or communication of works, phonograms, performances, and other production or broadcasts of broadcasting, and cable distribution organizations either directly or with technical aids, in a public place or a place in which a large number of persons not belonging to the usual family circle are present irrespective of whether the works, phonograms, performances, other productions or broadcasts by broadcasting or cable distribution organizations are perceived at the place of the communication or in another place at the same time as the communication;

show producer or director” means the person w ho carries out the direction of a stage, circus, puppet, variety or any other performance;

reproduction (reprographic reproduction)” means the facsimile reproduction in one or more copies, regardless of the dimensions and form thereof, of originals or copies of written or other graphic works by means of photocopying or with the aid of other technical aid, different from publishing; reprographic reproduction shall not include the storage or reproduction of the said copies in electronic (including digitized) or optical form, or in any other machine-readable form;

“re-broadcasting” means simultaneous transmission of programs (by cable) of one broadcasting organization, exercised by another broadcasting organization;

“rental” means making a copy of a work or phonogram temporarily available for direct or indirect commercial profit;

“communicate” means to show, perform, broadcast or engage in any other act (except for distribution of copies of the work or phonogram), whereby works, phonograms, performances, or programs of broadcasting or cable distribution organizations are made audible or visible whether or not they are actually perceived by the public;

“communicate to the public by cable” means to communicate works, phonograms, performances, or programs of broadcasting or cable distribution organizations to the public by cable, wire, optic fiber or comparable means;

“phonogram” means any exclusive sound recording of performances or other sounds, which may be perceived or reproduced on any other material medium;

“copy of a work” means an exemplar of the work, regardless of the material form in which it is made;

“copy of a phonogram” means the duplicate of a phonogram, on whatever material medium, made directly or indirectly from a phonogram, which includes all or a part of the sounds recorded thereon.

 

Title II. COPYRIGHT

 

Article 5. Scope of Copyright

1. By virtue of this Law, copyright extends:

to works, either disclosed or undisclosed, existing in an objective form in the territory of the Kyrgyz Republic, regardless of the nationality of the authors and successors in title;

to works, either disclosed or undisclosed, existing in an objective form beyond the borders the Kyrgyz Republic, in respect of which it is accorded to authors who are nationals of the Kyrgyz Republic and successors in title; to works either disclosed or undisclosed , but existing in any objective form beyond the borders of the Kyrgyz Republic, in respect of which it is accorded under international treaties to which the Kyrgyz Republic is a party, to authors (and their successors in title) who are nationals of other states.

2. A work shall also be considered published in the Kyrgyz Republic if within 30 days following the date of its first publication outside the territory of the Kyrgyz Republic it is published on the said territory.

3. Where protection is granted to a work in the territory of the Kyrgyz Republic under the international treaties to which the Kyrgyz Republic is party, the authorship of the work shall be determined by the legislation of the State in the territory of which the legal act occurred that gave rise to ownership of copyright.

 

Article 6. Works Protected by Copyright (subject matter of copyright)

1. The copyright extends to works of science, literature and art that are the result of creative activity, irrespective of the purpose, the merit as well as the manner of expression thereof.

2. The work must be expressed in verbal, written or other objective form allowing the possibility of its perception.

The work in written form or otherwise expressed on a material medium (manuscript, typewritten text, musical score, recording with the aid of technical devices, including audio or video recording, fixation of image in dimensional or three dimensional form, etc.) shall be considered to have an objective form irrespective of its availability to the third parties.

Oral or other work not expressed in a material medium shall be considered to have an objective form if it became available to the third parties for perception (public recitation, public performance, etc.).

3. The copyright shall extend both to disclosed and undisclosed works.

4. Ideas, methods, processes, systems, means, concepts, principles, discoveries and facts may not be protected by copyright.

5. For a copyright to occur no registration of work or observation of any other formalities shall be required.

 

Article 7. Types of Objects of Copyright. Parts of Work, Derivative and Composite Works

1. The following shall be referred to the objects of copyright:

literary works (literary – artistic, scientific, educational, publicist etc.); dramatic and scenario works; musical works with text and without it; music-dramatic works; choreographic and mimed works; audiovisual works (cinematographic, television and video films, slide shows and other cinematographic, television and video production), radio works; works of painting, sculpture, graphics, design and other works of fine arts; works of applied and stage designs; works of architecture, urban planning, garden and park designs; photographic works and works obtained by way analogous to photography; geographical, geological and other maps, plans and sketches and other works related to geography, topography and other sciences; computer software for all types of computers including applied programs and operating systems; other works complying with the requirements established in Article 6 of this Law.

2. The objects of copyright shall be deemed parts of works, their designations and derived works that meet the requirements established in Article 6 of this Law.

The derived works shall include works that are re-works of other works (translations, processing, annotations, abstracts, resumes, surveys, dramatizations, arrangements and other similar works of science, literature and art);

The composite work shall include compilations (encyclopedias, anthologies) and other composite works that according to their selection and arrangement present the result of creative labor.

3. The derived and composite works shall be protected by copyright irrespective of whether or not the works, on which they are based or on which they include, are objects of copyright.

 

Article 8. Works and the Results of Activity Similar to them that Are not Objects of Copyright

The following shall not be objects of copyright:

Official documents (laws, resolutions, decisions and etc.) as well as official translations thereof; State emblems and official signs (flags, armorial bearings, orders, monetary signs and etc.); Works of folklore; Information on the news of the day or information on the current events that are of the common press-information character; The results obtained with the help of technical means for the production of a certain type without creative activity of a man directly targeted for creation of an individual work.

 

Article 9. Author of a Work. Presumption of Authorship.

1. A citizen, by whose creative labor the work is created, shall be considered the author of the work.

Unless proven otherwise, the person indicated as the author in the course of the first publication of the work shall be considered its author.

2. Where a published work is anonymous or pseudonymous (unless the author’s pseudonym leaves his identity in no doubt), the publisher, the name or denomination of which is indicated on the work, shall be presumed, in the absence of proof to the contrary, to represent the author and shall be empowered to defend and exercise the author’s rights. . This provision shall be effective until such time the author of the work reveals his identity and claims authorship of the work.

3. In order to have his exclusive economic rights recognized, the owner may use a copyright notice, which should be placed on every copy of the work and should consist of the following three elements:

• a circled capital letter C: © • the name of the owner of the exclusive rights; • the year of first publication of the work.

4. The author of a work or other successor shall have a right to register his/her work any time within the term of protection of copyright in the state registers. The person, registering the copyright object, shall be issued a certificate of an established sample. Fee in the amount of cost of means spent for registration shall be charged.

 

Article 10. Joint Authorship

1. The copyright in a work that is the product of the joint creative work of two or more persons shall belong jointly to co-authors, regardless of whether such work constitutes an indivisible whole or is composed of parts, each with a relevance of its own.

A part of a work shall be deemed to have a relevance of its own, if it can be used independently of the other parts of the same of work.

Unless otherwise agreed between themselves, each of the co-authors may exploit as he sees fit that part of the work with a relevance of its own that he has created.

Each of the co-authors shall be entitled to use part of the work that has been created by him, that has independent meaning, at his own discretion unless otherwise provided by the agreement between them.

2. As a rule, the relationship between co-authors shall be established on the basis of the agreement. In the absence of such agreement right to a work shall be exercised mutually by all co-authors and the remuneration shall be distributed equally among them.

If the work of the co-authors constitutes an indivisible whole, none of the co-authors shall be entitled to prohibit the exploitation of a work without valid reason.

 

Article 11. Copyright of Compilers of Collections and Other Composite Works

1. The author of a collection or any other composite works (compiler) shall enjoy copyright in the selection or arrangement of subject matter that he has made insofar as that selection or arrangement is the result of creative effort of compilation.

The compiler shall enjoy copyright subject to respect the rights of the author of each of the works included into the composite work.

The compiler’s copyright must not be harmful to the rights of authors whose works are included into the composite work.

The authors of the works included into a composite work shall have the right to exploit his own work independently of the composite work unless the author’s contract provides otherwise.

Notwithstanding the compiler’s copyright, any third party may make an independent selection or arrangement of the same subject matter for the purposes of creation of a composite work of his own.

2. The publisher of encyclopedias, encyclopedic dictionaries, periodic and continuing

collections of scientific works, newspapers, magazines and other periodicals shall enjoy the exclusive right to use such publications. The editor shall have the right to mention his name or to demand such mention whenever the said publications are exploited.

The authors of the works included in the said publications shall retain the exclusive rights to exploit their works independently of the publication as of the whole work.

 

Article 12. Copyright of Translators and Other Authors of Derived Works

1. Translators and other authors of derived works shall enjoy copyright in translations, adaptations, arrangements or any other transformations made by them.

The translators and the authors of a derived work shall enjoy copyright in the works created by him, subject to the right of the author of the work that he has translated, adapted, arranged or otherwise transformed.

2. The copyright of translators or authors of a derived works shall not prevent other persons from doing their own translations and transformations of the same works.

 

Article 13. Copyright to Audiovisual Work

1. The following shall be recognized as authors of audiovisual works:

Author of the scenario (scriptwriter); Author of the musical work, (with or without words) that has been specially created for this audiovisual work (composer). Producer; Cameraman; Stage designer.

2. The conclusion of a contract for the making of an audiovisual work shall entail assignment, by the authors of this work to the producer thereof, of the exclusive rights of reproduction, distribution, public performance, communication to the public by cable, broadcasting or any other public communication of the audiovisual work, as well as subtitling and dubbing of the text of this work unless otherwise provided in the contract. These rights shall be effective throughout the period of validity of the copyright in audiovisual work.

The producer of an audiovisual work shall have the right to mention his name or to demand such mention whenever the work is exploited.

3. In the case of public performance of an audiovisual work, the author of a musical work (with or without words) created specially for audiovisual work shall retain the right to remuneration for every public performance of audiovisual work, its public communication as well as rental of copies of an audiovisual work.

4. The authors of works constituting the audiovisual work, whether preexisting (for instance, the author of a novel from which the scenario is taken), or created in the making of the audiovisual work (for instance, the camera director, artistic director and others), shall enjoy copyright in his own work.

5. Destruction of the final version of the film (negatives, original recording) shall be prohibited without consent of the author or other owners of propriety rights to the film.

 

Article 14. Copyright in a Service-Related Work

1. The copyright in a work created in the course of duty obligations or in the performance of an assignment expressly given by the employer (service-related work) shall belong to the author of the said work.

2. The exclusive right to exploit the service related work in a way conditioned by the

purpose of assignment and limits arising from it shall belong to the person with whom the author is bound by employment relations (employer), unless otherwise provided in the contract concluded by the said person with the author.

The amount of author’s remuneration for each type of use of the service-related work, and the manner of payment thereof, shall be specified in the contract concluded by the author and the employer.

3. The employer shall have the right to mention his name or demand such mention in connection with any exploitation of the service-related work.

4. After ten years from the moment of work presentation and even earlier, provided that there is the consent of the employer – and earlier, the right of the author to use the work and to obtain author’s remuneration shall belong to him fully irrespective of the contract concluded with the employer.

5. The provisions of this Article shall not apply to the creation, in the course of duty obligations or the performance of an assignment of encyclopedias, encyclopedic dictionaries, periodicals and collections of scientific works – published in one or in several installments, newspapers, magazines and other periodicals.

 

Article 15. Moral Rights

1. The author shall enjoy the following moral rights in relation to his work:

Right of authorship – the right to be recognized the author of a work/ the right to have his authorship of the work recognized;

Right to be named – the right to exploit or authorize the exploitation of a work thereof, either with the mention of his true name or his pseudonym or without the indication of a name, i.e. anonymously;

Right of disclosure – the right to disclose the work or to authorize the disclosure thereof, including the right to disavow or withdraw;

The right to the protection of the work, including its title thereof, against any distortion or any other derogatory act liable to prejudice his honor or dignity (right to the protection of the author’s reputation).

2. The author shall have the right to renounce a decision taken earlier to disclose the work (right to disavow or withdraw), provided that the user is indemnified for any damages, including lost earnings, attributable to the said decision. If the work has already been disclosed, the author shall be bound to make the said withdrawal known to the public. In this event he may withdraw from circulation, at his own expense, the earlier produced copies of the work. The provision of this paragraph shall not apply to service-related works.

3. The moral rights shall belong to the author independently of his economic rights, and the author shall retain them even where the exclusive rights to exploit the work is assigned.

 

Article 16. Economic Rights

1. The author shall enjoy the exclusive right to use his work in any form and by any means.

2. The exclusive rights of the author to exploit shall be construed to mean the right to perform or authorize the following actions:

Reproduction of the work (right to reproduction); Distribution of copies of the work by any means, including sale, rental and etc., (right of distribution); Importation of copies of the work for the purposes of distribution, including that of copies produced with the permission of the exclusive copyright owner (right to importation); Presentation of the work in public (right to public presentation); Performance of the work in public (right to public performance); Communication of the work to the public by broadcasting and/or re-broadcasting (right of broadcasting); Communication the work to the public by cable, wire or comparable means (right of communication to the public by cable); Translation of the work (right of translation); and

Arrangement, adaptation or other transformation of the work (right of adaptation).

The author’s exclusive rights in relation to the project for a design work, architectural work, a work of urban planning or a work of park and garden design shall extend also to the practical implementation of such projects. The author of the accepted architectural project shall be entitled to demand that the party who commissioned the work allow him to take part in the realization of his project at the stage of the production of the documentary material relating to the construction of the building or other structure. Unless otherwise provided in the agreement.

3. Where copies of a lawfully legitimately published work have been put into circulation by means of sale, their subsequent distribution shall not require authorization by the author and shall not give rise to the payment of remuneration to the author without consent of the author and payment of author’s remuneration.

The right to distribute copies of a work by means rental of an audio-visual work, computer software, database, work fixed in a phonogram, and musical notation shall belong to the author regardless of the property right to such copies.

4. The amount and the procedure for calculating the amount of author’s remuneration for each form of exploitation of a work shall be determined by the author’s contract and by the contracts that organizations for the collective administration of the economic rights of the authors conclude with users.

5. The rights of authors specified in paragraph 2 of this Article shall be subject to limitations specified in Articles 18 to 26 of this Law which shall apply insofar as the uses in question do not unjustifiably prejudice the normal exploitation of the work and do not without valid reason violate the legitimate interests of the author.

 

Article 17. Right of Access to Works of Fine Arts. Right of Succession

1. The author of a work of fine arts shall have the right to require the owner of the work that he allows him to exercise his/her right of reproduction of his work (right of access). The owner of a work should not be required to deliver the work to the author.

2. The transfer of ownership to a work of fine art (whether for consideration or free of charge) from the author to a third party shall constitute the first sale of that work.

For each case of a public resale of the original of a work of fine art (sale by auction, or at an art gallery, art salon, store and etc.,) after the first alienation of the right of ownership for such a work of fine arts, the author or his heirs shall be entitled to receive remuneration from the seller, representing 5 percent of such reselling price (resale royalty). That right shall be inalienable and transferable exclusively to the author’s heirs by law or testament throughout the duration of the copyright.

 

Article 18. Reproduction of Works for Personal Purposes without the Author’s Consent and Payment of Author’s Remuneration

1. The reproduction of a lawfully disclosed work for exclusively personal purposes shall be authorized without need for author’s consent or payment of remuneration except in the cases provided for in Article 26 of this Law.

2. The provisions of the first paragraph of this Article shall not apply in relation to:

Reproduction of architectural works in the form of comparable buildings and structures; Reproduction of databases or substantial parts thereof; Reproduction of computer programs with the exception of cases provided for in Article 25 of this Law; Reproduction of books (in full) and musical scores.

 

Article 19. Use of a Work without Consent of the Author and Payment of Author’s Remuneration

1. The following shall be authorized without the author’s consent and without payment of author’s remuneration but with obligatory indication of the author’s name whose work is used and the source of the borrowing:

1) The quotation from lawfully disclosed works in the original and translation for scientific, research, polemic, critic and information purposes to the extent justified by the purpose of such quotation, including reproduction of excerpts from newspaper and magazine articles in the form of press reviews;

2) The use of lawfully disclosed works and excerpts therefrom as illustrations in publications, radio and TV broadcasts and educational audio and video recordings to the extent justified by the intended purpose;

3) The reproduction in newspapers, the broadcasting or communication to general public by cable of legitimately published articles in newspapers or magazines on current economic, politics, social and religious topics or of broadcast works of the same nature in cases where such reproduction, broadcast or communication by cable have not been expressly prohibited by the author,

4) The reproduction in newspapers, the broadcasting or communication to the public by cable of political speeches, addresses, lectures and other works of the same nature given in public to the extent justified by an informational purpose. In such cases the author shall retain the right to publication of such works in collections,

5) The reproduction or communication of the current events to the public in reviews by means of photography, broadcasting or public cable communication of works that are seen or heard in the course of such events to the extent justified by the informational purpose. In such cases the author shall retain the right to publication of such works in collections;

6) The reproduction of lawfully published works without gainful intent by using the Braille system or other special means for the blind, except for works specifically created for such means of reproduction.

2. Export of copy of a work by natural person without consent of the author or other owners of copyright and without payment of remuneration shall be allowed only for personal purposes, with the exception of the works, export of which damages the national interest of the republic, the list of which is determined in the established order.

 

Article 20. Use of Works by Reprographic Reproduction

The following may be reproduced in a single copy without gainful intent and without the author’s consent and payment of remuneration, but with obligatory indication of the author’s name whose works are used and the source of the borrowing:

1) Of a lawfully published works insofar as the reproduction of the work by libraries and archive service and its purpose is to restore or replace lost or damaged copies and provide the work to other libraries that on some reasons do not have lost works from their collections;

2) Isolated articles and succinct works lawfully published in collections, newspapers or other periodical publications, and short extracts from legitimately published written works (with or without illustrations) by libraries and archives as requested by individuals for educational and research purposes; and

3) Isolated articles and succinct works lawfully published in collections, newspapers and other periodical publications or of short extracts from legitimately published written works (with or without illustrations) by educational institutions to be used in classes.

 

Article 21. Free Use of Works Permanently Located in a Public Place

The works of architecture, photography or fine arts permanently located in a place open to general public may be reproduced, broadcast, or communicated to the public by cable without the author’s consent and payment of author’s remuneration, with the exception of cases where the presentation of the work constitutes the main feature of the said reproduction, broadcast or communication to the public by cable or if it is used for commercial purposes.

 

Article 22. Free Public Performance

Musical works may be performed publicly without the author’s consent and payment of the author’s remuneration during official and religious ceremonies, as well as funerals, to such extent as may be justified by the nature of the said ceremonies.

 

Article 23. Free Reproduction for Judicial and Administrative Purposes

Works may be reproduced without the author’s consent and payment of author’s remuneration for the purposes of judicial or administrative proceedings to the extent justified by this purpose.

 

Article 24. Free Ephemeral Recording by a Broadcasting Organization

Radio or television broadcasting organization may, without consent of the author and payment of any additional remuneration, make an ephemeral recording of a work for which such an organization has obtained the right to broadcast provided that such recording is made by a broadcasting organization with its own equipment and for its own broadcasts. The broadcasting organization is obligated to destroy such recording within six months after it was made unless a longer term has been agreed upon with the author of the recorded work. Such recording may be preserved in official archives without the author’s consent if it is of purely documentary nature.

 

Article 25. Free Reproduction of Computer Software and Databases. Decompilation of Computer Programs

1. A person lawfully in possession of a copy of a computer program or database shall have the right, without obtaining permission of the author or other owner of the exclusive rights to use such work and without paying any additional remuneration:

1) make alterations to the computer software or database exclusively where the purposes thereof is solely to ensure their operation on the user’s material , and perform any act in relation to the operation of the computer program or a database according to its intended purpose, including any inputting or storing in computer memory (that of an individual or that of one of computers in a network), as well as correction of obvious errors , unless otherwise provided by the contract concluded with the author; and

2) make a copy of the computer program or data base provided that this copy is solely for archiving or for replacement of a lawfully acquired copy in the event that the original of the software or database having been lost, destroyed or rendered useless . In these events the copy of computer program or database may not be used for purposes other than stipulated in subparagraph (1) of this paragraph and must be destroyed should the possession of the copy of this computer program or database cease to be lawful.

2. Any person lawfully in possession of a copy of a computer program may without permission of the author or any other holder of the exclusive rights and without payment of additional remuneration, reproduce or convert the object code into a source code (decompile the computer program) or entrust other persons to provide these actions if it is necessary to achieve the ability of a computer program independently developed by this person to interact with other programs which may interact with program being decompiled provided that the following conditions are observed:

1) the person concerned must not previously have had access to other sources capable of providing them with the information necessary to insure the interactive capability;

2) the acts mentioned must only be performed in relation to the parts of the computer program the decompilation of which is essential to the achievement of the interactive capability;

3) the information obtained in the result of decompilation may only be used to achieve the interactive capability of independently created computer software with other programs and may not be passed on to third parties except where necessary to insure the interactive capability of the independently created computer program and it may not be used for the development of a computer program of a type essentially comparable to the decompiled computer software or performance of any other action prejudicial to copyright.

3. Application of the provisions of this Article must not cause unjustifiable affect the normal use of a computer software or data base and infringe upon the legitimate interests of the author or any other holder of the exclusive rights to such computer program or data base.

 

Article 26. Reproduction of the Work for Personal Purposes without Author’s Consent but Subject to Payment of Author’s Remuneration

1. Notwithstanding the provisions of Articles 16, 37 and 38 of this Law, the reproduction of an audiovisual work or sound recording of a work for exclusively personal purposes shall be permissible without consent of the author of a work, performer and phonogram producers, but subject to payment of remuneration to them.

2. The remuneration for the reproduction referred to in paragraph 1 of this Article shall be paid by the manufacturers or importers of the equipment (audio and video recorders and other equipment) and recording material (sound and/or video recording and cassettes, optical disks, compact discs and other material media) used for such reproduction.

This remuneration shall be collected and distributed by one of the organizations for collective administration of the economic rights of the authors, phonogram producers and performers under an agreement concluded with the said organization (Article 45 of this Law). Unless otherwise provided by this agreement, remuneration shall be distributed as follows: forty percent shall go to the authors, thirty percent shall go to the performers, and thirty percent to the phonogram producers.

The amount of remuneration and the manner of its payment shall be determined by an agreement between the aforementioned manufacturers and importers on the one hand, and the organizations managing economic rights of authors, phonogram producers and performers on a collective basis on the other hand, but if the parties fail to reach such an agreement, by Kyrgyzpatent.

3. No remuneration shall be paid for the recording equipment and material referred to in paragraph 2 of this Article which are subject to export, or constitute professional equipment not intended for use for home recording.

 

Article 27. Term of Copyright

1. The copyright shall be valid during the lifetime of the author and for fifty years after his death, beginning from the first of January of the year following the year of the author’s death.

2. The copyright to a work created in joint authorship shall be effective during the whole life of co-authors and fifty years after the death of the last co-author who outlived other co-authors.

3. The copyright to a work issued for the first time under pseudonym or anonymously shall have effect during fifty years beginning from the first of January of the year following the year the work was published.

If a pseudonym or anonymous name is disclosed during the established term, the terms indicated in paragraph 1 of this Article shall be applied.

4. The copyright shall belong to the author’s heirs and inherited during the terms indicated in paragraph 1 of this Article. During the same terms the copyright shall belong to successors who obtained this right due to the agreement with the author, his heirs and future legal successors.

5. The copyright in a posthumous work shall have effect for fifty years after the publication of the work, beginning from January 1 after the year following the year of its publication.

6. The authorship, name of the author and inviolability of the work shall be protected permanently.

 

Article 28. Public Domain

1. On the expiration of the term copyright in a work, the work shall fall into the public domain.

Works that have never enjoyed protection in the territory of the Kyrgyz Republic shall likewise be deemed fallen into the public domain.

2. Works that have fallen into the public domain may be freely used by any person without payment of remuneration. In this case the right to authorship, right to a name and the right to inviolability of the work (Article 15 of this Law) shall be respected.

3. The Government of the Kyrgyz Republic shall establish the amount of deductions paid to the State Intellectual Property Fund for the use of works fallen into the public domain in the territory of the Kyrgyz Republic.

 

Article 29. Transfer of Copyright by Succession

The copyright is transferable by succession.

Personal non-economic rights of the author provided by Article 15 of the present Law shall not be transferable by succession. The author’s heirs shall be entitled to protect the indicated rights. These rights of the heirs shall not be limited by any term.

Where the author has no heirs the defense of the rights in question shall be ensure by Kyrgyzpatent.

 

Article 30. Assignment of Economic Rights. Author’s Contracts

1. The assignment of economic rights referred to in Article 16 of this Law shall be effected by means of an author’s contract except as provided in Articles 18 to 26 of this Law.

The economic rights may be the subject of an author’s contract for the assignment of exclusive or an author’s contract for assignment of non-exclusive rights.

2. The author’s contract on the assignment of the exclusive rights shall allow the use of the work in a certain way and within the limits established by the contract only to the assignee and shall confer on that person the right to prohibit the use of the work by third parties.

The right to prohibit third parties from exploiting the work may be exercised by the author of the work where the person to whom the exclusive rights have been assigned does not avail himself of that right.

3. The author’s contract for the assignment of non-exclusive rights shall allow the user to exploit the work under the same conditions as the owner of the exclusive rights who has granted those rights to him and/or other persons who have obtained permission to exploit this work by the same means.

4. The rights to which the author’s contract is related shall be deemed non-exclusive unless otherwise expressly stipulated in the agreement.

 

Article 31. Conditions of the Author’s Agreement

1. The author’s contract shall stipulate:

1) the modes of exploitation of the work (specific rights assigned under the contract ); 2) the period and the territory for which the rights are assignment ; 3) the amount of remuneration and/or the procedure of calculation of the amount of remuneration for each mode of exploitation of the work, the procedure and terms of payment; and 4) other conditions that shall be deemed essential by parties for the contract concerned.

Should an author’s contract not specify the condition on the term for which the right is assigned, the contract may be annulled by the author on the expiration of five years from the date of its conclusion if the user is notified in writing about it six months prior to the annulment.

The author’s contract concluded for a long term may be canceled by the author on the expiration of ten years as of the date of conclusion of an agreement, if the user is notified in a written form in six months before abrogation of an agreement. The author shall have this right every ten years.

Should the author’s contract not specify conditions of the territory to which the right is assigned, the term of the right assigned under the contract shall be limited to the territory of the Kyrgyz Republic.

2. The rights to use a work that have not been directly assigned under the author’s contract shall be deemed as not assigned.

The rights to exploitation of the work that are not known at the moment of conclusion the contract may not be the subject of the author’s contract.

3. Remuneration shall be determined in the author’s contract as a percentage of the revenue derived from the exploitation of the work by the intended means or, where that is not possible in view of the nature of the work or the particular circumstances of the exploitation thereof, in the amount fixed in the contract or otherwise.

The Government of the Kyrgyz Republic shall establish the minimum rates of author’s remuneration. The minimum amounts of author’s remuneration shall be indexed at the same time as minimum wage amounts.

If in the author’s contract for the publication or some other form of reproduction of the work remuneration is calculated as a fixed sum, the contract shall specify the maximum print run of the work.

4. The rights assigned under the author’s contract may be assigned, in its entirety or in part, to other persons only if this is expressly indicated by the contract.

5. The author’s contract may not relate to exploitation rights arising in connection with works that the author may create in the future.

6. Any clause in an author’s contract that imposes limits on the author regarding the future creation of works on a particular subject or in a particular field shall be deemed invalid.

7. The clauses of an author’s contract that are contrary to the provisions of this law shall be deemed invalid.

8. The party that failed to perform or improperly performed its obligations under the author’s contract must indemnify the losses caused to the other party.

 

Article 32. The Form of the Author’s Contract

1. The author’s contract shall be concluded in writing. The author’s contract on the use of a work in the periodical press may be concluded by word of mouth.

2. In the course of sale of copies of a computer programs and databases and granting an access thereto to general users, a special procedure for concluding the agreements may be used as set forth by the legislation of the Kyrgyz Republic.

3. The author’s contract may be registered in Kyrgyzpatent upon the agreement of the parties. Registration fees shall be charged for registration of the agreement, the amount and the procedure of payment shall be established by the Government of the Kyrgyz Republic.

Kyrgyzpatent is drafting samples of the author’s contracts.

 

Article 33. The Author’s Order Contract

1. Personal non-economic right to the work created due to the order contract shall belong to the author.

2. The exclusive rights to use ordered work shall belong to a party specified in the conditions of the author’s order contract.

3. Pursuant to the author’s order contract, the author is obligated to create a work in accordance with the conditions of the agreement and transfer it to the customer.

4. The commissioning party shall be bound to pay an advance to the author on the remuneration determined in the agreement. The amount of the advance, the procedure and time limits for the payment of the advance shall be set forth in the contract upon the agreement of the parties.

5. If the author fails to submit the ordered work in accordance with the conditions of the order agreement, he/she shall be obligated to indemnify/compensate the actual prejudice/damage caused thereby/to the customer.

 

Title III. RELATED RIGHTS

 

Article 34. Scope of Related Rights

1. The rights of a performer shall be recognized as belonging thereto pursuant to this Law in the events if:

1) the performer is a national of the Kyrgyz Republic; 2) the performance, staging has first taken place in the territory of the Kyrgyz Republic; 3) the performance, staging has been recorded on a phonogram protected pursuant to the provisions of item 2 of this Article; and 4) the performance, staging has not been recorded on a phonogram but is included in a program broadcast or transmitted by cable that is protected under the provisions of item 3 of this Article.

2. The rights of a phonogram producer shall be recognized as belonging thereto pursuant to this Law in the events if:

1) the producer of a phonogram is a national of the Kyrgyz Republic or a legal entity that has an official location on the territory of the Kyrgyz Republic; and 2) the phonogram has been first published in the territory of the Kyrgyz Republic. The phonogram shall be also considered published for the first time on the territory of the Kyrgyz Republic, if within 30 days after the date of its publication outside the Kyrgyz Republic it was published in the territory of the Kyrgyz Republic.

3. The rights of broadcasting or cable distribution organization shall be recognized as belonging thereto pursuant to this Law if the organization has its headquarters on the territory of the Kyrgyz Republic and broadcasts its programs by means of transmitters located on the territory of the Kyrgyz Republic.

4. The rights of foreign performers, producers of phonograms, radio, television and cable distribution organizations shall be recognized in the territory of the Kyrgyz Republic according to the international agreements of the Kyrgyz Republic.

 

Article 35. Objects of Related Rights

The related rights shall extend to staging, performances, phonograms, and broadcasting and cable distribution organizations irrespective of their purpose, content and merits, as well as the form of expression thereof.

 

Article 36. Subjects of Related Rights

1. The subjects of related rights shall include performers, phonogram producers, and broadcasting and cable distribution organizations.

2. The producer of a phonogram, broadcasting or cable distribution organization shall exercise their rights as specified in this Title, within the limits of the rights that the performer and the author of the work recorded on the phonogram or broadcast or transmitted by cable have granted them by contract.

Authorization to exploit a staging that has been obtained from the producer of the play shall include the need to obtain permission from the other performers participated in the performance, as well as from the author of the work performed.

3. The performer shall exercise the rights specified in this Title provided the rights of the author of the performed work are observed.

4. The origin and exercise of related rights shall not be subject to compliance with any formality. The producer of a phonogram and performer, in order to publicize their rights, have the right to make use of a reserved rights notice which is affixed to each copy and/or on every inlay card of such a phonogram and should consist of three components:

a circled Latin letter P – (P); the name of the owner of the exclusive rights; and the year of first publication of the phonogram.

5. The performer, producer of a phonogram, broadcasting and cable distribution organizations have the right to register their performance, staging, phonogram and broadcast at any time during the effective term of related rights protection in the state registers. A person registering the object of related right shall be granted a certificate in the established form. Kyrgyzpatent shall carry out registration.

Fees in the amount spent on registration shall be charged for the registration of the objects of related rights.

 

Article 37. Rights of the Performer

1. With the exception of cases provided by this Law, the performer shall enjoy the following personal non-economic and economic rights to his/her performance or staging:

– the right to be named; – the right to the protection of the performance or staging against any distortion or other derogatory act liable to prejudice his honor and dignity; and the right to exploit the performance or staging in any form, including the right to be paid remuneration for each such form of use of the performance or staging.

2. The exclusive rights to exploit the performance or staging shall mean the right to perform, authorize or prohibit the following acts:

1) broadcasting or cable communication of the performance or staging to the public insofar , as the performance or staging used for such a program have not been broadcast previously or is not effected on the basis of a recording; 2) recording of a previously unrecorded performance or staging; 3) reproduction of the recording of a performance; 4)broadcasting or cable communication of the recording of a performance insofar as the said recording was originally made for noncommercial purposes; and 5) rental of a phonogram published for commercial purposes, on which a performance has been recorded with the participation of the performer. The right shall be transferred to the producer of a phonogram on the conclusion of a contract for the recording of the performance or staging on a phonogram; in this case the performer shall nevertheless retain the right to remuneration for rental of copies of a phonogram (point 2, Article 39 of this Law).

3. The exclusive right of the performer under subparagraph 3 of paragraph 2 of this Article shall not apply if:

– the initial recording of a performance was made with the consent of the performer; – the reproduction of the performance is made for the same purposes as the recording of the performance to which the performer consented. – the reproduction of the performance is made for the same purposes for which the recording has been made pursuant to the provisions of Article 42 of this Law.

4. The authorizations referred to in paragraph 2 of this Article shall be granted by the performer, or, in the case of a group performance, by the head of the group, in a written contract concluded with the user.

5. The authorization referred to in subparagraphs 1), 2) and 3) of paragraph 2 of this Article shall not be necessary for the rebroadcasting of a performance or staging, the recording for broadcasting purposes and the reproduction of that recording by broadcasting or cable distribution organizations if they are expressly provided for in the contract concluded by the performer with the broadcasting or cable distribution organization. The amount of performer’s remuneration for such a use shall likewise be specified in the contract.

6. The conclusion of the contract for the making of an audiovisual work by the performer and the maker shall entail granting of rights by the performer referred to in subparagraphs 1), 2), 3) and 4) of paragraph 2 of this Article.

Granting of the said rights by the performer shall be limited by the use of the audiovisual work and, unless otherwise provided in the contract, shall not extend the rights in any separate use of the sound or the pictures embodied in the audiovisual work.

7. The exclusive rights of a performer provided by paragraph 2 of this Article may be assigned to third parties by contract.

8. The agreement on assignment of the exclusive rights may be registered at Kyrgyzpatent. Registration fees shall be collected for the registration, the amount of which and the procedure of their payment shall be established by the Government of the Kyrgyz Republic.

 

Article 38. Rights of the Phonogram Producer

1. Except as provided by this Law, the producer of a phonogram shall enjoy the exclusive rights to exploit the phonogram in any form, including the right to remuneration for each form of use of this phonogram.

The exclusive right to use the phonogram shall mean the right to perform or authorize the following act:

1) reproduction of the phonogram; 2) adaptation or any other transformation of the phonogram; 3) distribution of copies of the phonogram, for instance by sale, rental, etc.; and 4) importation of copies of the phonogram for the purposes of distribution, including copies made with the authorization of the producer of this phonogram in question.

3. Where copies of a lawfully published phonogram have been placed on the market by sale, they may be further distributed without the consent of the producer of the phonogram and without payment of remuneration.

The right to distribute copies of the phonogram by rental shall belong to the producer of a phonogram regardless of the ownership of the said copies.

4. The exclusive rights of the producer of a phonogram provided by paragraph 2 of this Article may be assigned or licensed to third parties by contract.

5. The agreement on assignment of the exclusive rights may be registered at Kyrgyzpatent. Registration fees shall be collected for the registration, the amount and the procedure of payment shall be established by the Government of the Kyrgyz Republic.

 

Article 39. Use of a Phonogram Published for Commercial Purposes without Consent of the Producer of Phonogram and the Performer

1. As an exception to the provisions of Articles 37 and 38 of this Law, the following acts shall be authorized without consent of the producer of a phonogram published for commercial purposes and the performer, whose performance is recorded on such a phonogram, but against payment of remuneration:

1) public performance of the phonogram; 2) broadcasting of the phonogram; and 3) communication of the phonogram to public by cable.

2. Remuneration provided by paragraph 1 of this Article shall be collected, distributed and paid out by an organization for the collective administration of the rights of producers of phonograms and performers (Article 44 of this Law) pursuant to the agreement concluded between these organizations. Except where otherwise provided in the said agreement, the remuneration shall be split equally between the producer of a phonogram and the performer.

3. The amount of the remuneration and the manner of its payment thereof shall be determined by agreement between the user of a phonogram or the unions (associations) of such users, on the one hand, and organizations managing the rights of producers of phonograms and performers, on the other hand, in the event the parties fail to reach such an agreement, by Kyrgyzpatent.

The amount of remuneration shall be set for each form of use of the phonogram.

4. The users of phonograms shall be bound to submit to the organization specified in paragraph 2 of this Article programs containing detailed information on the number of uses of the phonogram, as well as the other information and material as is necessary for collection and distribution of remuneration.

 

Article 40. Rights of Broadcasting Organizations

1. Except as provided by this Law, broadcasting organizations with respect to their program shall enjoy the exclusive rights to use the program in any form and authorize the use of the program, including the right to receive remuneration for granting such permission.

2. The exclusive right to authorize the use of a program shall mean the right of the broadcasting organization to authorize the following acts:

1) the simultaneous broadcasting of this program by the other broadcasting organization; 2) the communication of the program to the public by a cable; 3) the recording of the program; 4) the reproduction of the recording of the program; 5) the communication of the program to the public in places where a charge is made for admission.

3. The exclusive right of the broadcasting organization provided by subparagraph 4 of paragraph 2 of this Article, shall not extend to the cases when:

the recording of the program has been made with the consent of the broadcasting organization; the program is reproduced for the same purposes as those for which it was recorded pursuant to the provisions of Article 42 of this Law.

 

Article 41. Rights of Cable Distribution Organization

1. Except as provided in this Law, cable-broadcasting organizations shall enjoy the exclusive rights to use the program in any form and authorize the use of the program, including the right to receive remuneration for granting such authorization.

2. The exclusive right to authorize the use of a program shall mean the right of the cable distribution organization to authorize the following acts:

1) the simultaneous cable communicate the program to the public by another cable distribution organization; 2) the broadcasting of the program; 3) the recording of the program; 4) the reproduction of the recording of the program; and 5) the communication of the program to general public in places where a charge is made for admission.

3. The exclusive right of a cable distribution organization provided under subparagraph 4 of paragraph 2 of this Article shall not extend to cases in which:

– the program has been recorded with the consent of the cable distribution organization; – the program is reproduced for the same purposes as those for which it was recorded under the provisions of Article 42 of this Law.

 

Article 42. Limits of the Rights of the Performer, the Phonogram Producer, the Broadcasting or Cable Distribution Organization

1. Notwithstanding the provisions of Articles 37 to 41 of this Law it shall be permissible without consent from the performer, the phonogram producer and the broadcasting or cable distribution organization, and without payment of remuneration, to make use of the performance or the broadcast or cabled program or the recording thereof, and to reproduce phonograms:

1) for the inclusion in a report on current events short excerpts from the performance, the phonogram, the broadcast or cabled program; 2) for the sole purposes of teaching or scientific research; 3) as a means of quoting in the form of short excerpts from such performance, the phonogram or the broadcast or cabled program provided that such quotation is done for information purposes. In this case any use of copies of a phonogram published for commercial purposes by broadcasting or cable distribution organization shall be allowed for broadcasting or cable distribution only in compliance with the provisions of Article 39 of this Law; and 4) in the other cases set forth by the provisions of Articles 18-25 of this Law for the limitation of economic rights of the author of works of literature, science and arts.

2. As an exception to provisions of Article 37 to 41 of this Law, the program may be used for broadcasting and cable distribution organization and its recording and a phonogram may be reproduced for personal purposes without consent of the performer, producer of a phonogram, and broadcasting or cabled program. Reproduction of the phonogram shall be permissible against payment of remuneration under Article 26 of this Law.

3. The provisions of Articles 37, 38, 40 and 41 of this Law concerning the authorization of the performer, producer of a phonogram or radio broadcasting and cable TV organization to make a short term use recordings of a performance, program, reproduce such recordings and reproduce a phonogram published for commercial purposes if such a short term use of the ephemeral recording or the reproduction is made by broadcasting or cable distribution organization on its own equipment and for the purposes of its own broadcasts shall not be applied based upon the conditions that:

1) the broadcasting organization has obtained prior authorization to broadcast the performance or the program of which an ephemeral recording is made or performed under the provisions of this paragraph; and 2) the ephemeral recording is destroyed within the period laid down for ephemeral recordings of works of literature, science and the arts made for the short term use by the broadcasting organization pursuant to the provisions of Article 24 of this Law, with the exception of a single copy which may be preserved in official archives if it is of purely documentary character.

4. The limitations stipulated in this Article shall not prejudice either normal exploitation of the phonogram, the performance, or the program broadcast or cable transmission and recordings thereof, as well as the normal exploitation of works of literature, science and the arts incorporated therein, and it shall likewise prejudice the legitimate interests of the performer, producer of the phonogram, the broadcasting or cable distribution organization and the authors of the works in question.

 

Article 43. Term of Related Rights

1. The rights of the performer provided in this Title shall remain effective for 50 years following the first performance.

The performer’s rights to be named and to have the performance protected against any distortion or any other derogatory act, laid down in Article 37 of this Law shall be protected without limitation in time.

2. The rights provided by this Title to the phonogram producer shall remain in effect for 50 years following the first publication of the phonogram or during 50 years following the first recording if the phonogram has not been published in the course of that period.

3. The rights provided under this Title for the broadcasting organizations shall remain effective for 50 years following the first broadcast effected by this organization.

4. The rights of the cable distribution organizations under this Title shall be protected for 50 years following the first cable transmission made by this organization.

5. Any period under paragraphs 1, 2, 3, and 4 of this Article shall be calculated as from January 1 of the year following the year in which the legal act occurred that marks the starting point of the period.

6. In the event the performer has been rehabilitated posthumously after having been the subject of repressive measures, the period of protection of his/her rights under this Article shall start from January 1 of the year following the year of rehabilitation.

7. The heirs (in the case of a legal entities, the successors in title) of the performer, the phonogram producers, broadcasting or cable distribution organization shall inherit the right to permit the use of the performance, phonogram, broadcast or cable transmissions and the right to remuneration within the limits of the non-elapsed portion of the terms as specified in paragraphs 1, 2, 3, 4 of this Article.

 

Title IV. COLLECTIVE ADMINISTRATION OF ECONOMIC RIGHTS

 

Article 44. Objectives of Collective Administration of Economic Rights

1. Organizations for the collective administration of the economic rights of authors, performers, phonogram producers and other owners of copyright or related rights may be created in cases where the individual exercise thereof is hampered by difficulties of a practical nature.

Such organizations shall be established directly by the owners of copyright and related rights and operate within the limits of the mandate entrusted to them and also on the basis of statutes adopted according to a procedure laid down by law. The charter of the organization, which administers the economic rights on a collective basis, must contain the provisions, which comply with the requirements of this Law. The refusal to register the organization that administers economic rights of the authors on a collective basis is allowed in the cases if the provisions of the present Law as well as legislation establishing the order of registration of public associations have been violated.

2. Either separate organizations with respect to different rights and different categories of right holders or organizations administering various rights in the interests of different categories of right owners or a single organization simultaneously administering copyright and related rights may be established.

 

Article 45. Organizations for the Collective Administration of Economic Rights

1. The mandate for the collective administration of economic rights shall be entrusted either direct, by the owners of copyright or related rights in written contracts, or under appropriate contracts with foreign organizations that administer equivalent rights. Such contracts shall not constitute author’s contracts, and the provisions of Articles 30-33 of this Law shall not extend to them.

Any author, his heir or any other owner of copyright or related rights protected pursuant to Title III of this Law, has, by contract, the right to entrust the exercise of his/her economic rights to such an organization, and the organization shall agree to exercise of those rights on a collective basis if the administration of such category of rights forms part of the statutory activities of this organization.

The organization administering economic rights on a collective basis shall not be entitled to engage in commercial activities or exploitation of the works or subject matter of related rights for which they have received a collective administration mandate.

The activity of the collective administration organization shall not be considered as monopoly, and therefore shall not be subject to limitations set forth by the anti-monopoly legislation.

2. An organization for the collective administration of economic rights shall grant users licenses for the use of the relevant works and subject matter of related rights by appropriate means. The conditions on which such licenses are granted shall be identical for all users in a given category. Such an organization shall not be entitled to refuse a license to a user without valid reason. Procedure of concluding licensing agreements shall be conducted in accordance with of Article 406 of the Civil Code of the Kyrgyz Republic.

These licensing agreements shall authorize the use of all the works and objects of related rights in any ways provided therein and shall be granted on behalf of all owners of copyright and related rights, including those who have not mandated the organization pursuant to paragraph 1 of this Article.

All users who have concluded licensing agreement must carry out the state registration in the established order and obtain the state registration certificate of an appropriate form at Kyrgyzpatent. Fee in the amount spent for registration shall be charged for issuance of a certificate.

The organization that grants shall settle problems arising from claims made by owners of copyright and related on users in connection with the use, under the license, of their works or subject matter of related rights.

3. If an organization for the administration of economic rights has remuneration in its possession that has been claimed for three years following the date of the collection thereof, it may retain it and either include it in the sums that it distributes or assign it to other purposes of interest to the owners of copyright or related rights that it represents. (as amended by Law # 120 from November 6, 1999).

 

Article 46. Functions and Obligations of the Organizations for Collective Administration of Economic Rights

1. An organization for the collective administration of economic rights shall, on behalf of the owners of copyright and related rights that it represents and on the basis of the mandates entrusted to it, perform the following functions:

1) negotiation with the users, of remuneration amounts and other conditions to which the grant of licenses is subject; 2) concluding licensing agreements with the users for the exploitation of rights, the administration of which forms part of its activities; 3) negotiation, with the users, of the amount of remuneration in the event the organization is responsible for collecting such remuneration without granting a license (Article 26 and paragraphs 2 and 3 of Article 39 of this Law); 4) collection of the remuneration as provided by licensing agreement and/or that referred to in subparagraph 3 of this paragraph; 5) allocation and payment of the collected remuneration to the owners of copyright and related rights represented by the organization; 6) performance of any legal act essential to the defense of the rights under the administration of which forms part of its activities; and 7) performance of any other activities in accordance with powers under mandates received from the owners of copyright and related rights.

Performance of functions, provided by subparagraphs 4 and 5 of the present point by more than one organization for the collective administration of economic rights shall not be permissible.

2. The organization for the collective administration of economic rights shall carry out the following duties in the interests of owners of copyright and related rights:

1) it shall use the remuneration collected exclusively for allocation and payment to the owners of copyright and related rights pursuant to the provisions of subparagraph 4 of paragraph 1 of the present Article. However, the organization shall have the right to deduct from the amount of remuneration collected a sum intended to cover expenditure actually incurred by it in the collection, allocation and payment of such remuneration, as well as a sum payable to a special fund established by the organization on the decision of its members. The Government of the Kyrgyz Republic shall establish the amounts of deductions to the State Intellectual Property Fund for the use of works and objects of related rights on the territory of the Kyrgyz Republic. 2) it shall allocate and regularly pay the collected amounts of remuneration with the deduction of the amounts referred to in subparagraph 1 of this paragraph proportionally to the actual use of works and objects of related rights concerned; 3) simultaneously with payment of remuneration to the owners of copyright and related rights it shall submit the statements containing the data on the use their rights.

2. Owners of copyright and related rights who have not mandated the organization to collect the remuneration in compliance with subparagraph 4 of paragraph 1 of this Article, shall have the right to demand that the organization pay them the remuneration accruing to them according to the allocation made or alternatively that it exclude their works or subject matter of related rights from the licenses that it grants users.

 

Article 47. Control over the Activities of Organizations for Collective Administration of Economic Rights

1. An organization for collective administration of economic rights must submit to Kyrgyzpatent that controls its activities the following data:

1) changes introduced to the charter or other founding documents of such an organization; 2) bilateral and multilateral agreements concluded by this organization with foreign organizations administering similar rights; 3) decisions of the general meetings; 4) annual balance sheet, annual statement including data on unclaimed remuneration and auditing; 5) persons, authorized to represent the organization;

2. Kyrgyzpatent has the right to require additional information from this organization, which is necessary to check the activities of this organization for compliance with this Law, legislation on public associations or other legislation, as well as the charter of the organization.

3. Kyrgyzpatent shall carry out the functions and obligations of these organizations in compliance with the present section before the creation of organizations that administer economic rights on a collective basis.

 

Title V. PROTECTION OF COPYRIGHT AND RELATED RIGHTS

 

Article 48. Violation of Copyright and Related Rights

Violation of the copyright and related rights provided by this Law shall make the offender liable to civil, criminal and administrative sanctions pursuant to legislation of the Kyrgyz Republic.

 

Article 49. Civil-Legal and Other Measures for Protection of Copyright and Related Rights

Protection of copyright and related rights is carried out by the court by way of:

1) recognition of the said rights; 2) restoration of the situation obtaining prior to the infringement of the right; 3) cessation of acts that infringe or create a threat of infringement; 4) payment of damages; 5) the surrender, in place of the payment of damages, of revenue derived by the infringer from the infringement; 6) payment, in place of damages or the surrender of revenue, of an indemnity in an amount between 20 and 50000 times the minimum salary set by the legislation of the Kyrgyz Republic, at the discretion of the court; 7) the adoption of such other measures provided for in legislative texts and related to protection of their rights.

The choice between the measures referred to in subparagraphs 4, 5 and 6 of this paragraph shall be made by the owner of the copyright and related rights.

2. For the defense of his/her exclusive rights the owner of copyright or related rights may, according to the established procedure, bring action before a court, arbitration court, private arbitration, investigation body or bodies of preliminary investigation according to the competence thereof.

3. The counterfeit copies of the works or phonograms shall be subject to mandatory confiscation on the decision of the court or a single judge as well as the decision of the arbitration court. The confiscated counterfeit copies of the works or phonograms shall be destroyed, except for the cases when such copies are transferred to the owner of the copyright or related rights, by his request. The court or a single judge as well as arbitration court may order the confiscation of the materials and the equipment used for manufacture and reproduction of counterfeit copies of the works or phonograms.

4. By the demand of the author or owner of related rights, the person guilty of willful destruction or negligent destruction of the original of a work of fine art, manuscript or final variant of the audio-visual work (negative, original record), shall be obliged to pay material and moral damage, pursuant to requirements of paragraph 1 of this Article.

 

Article 50. Injunctions in the Cases of Violation of Copyright and Related Rights

1. The court or a single judge, as well as arbitration court may rule to prohibit the defendant or the person alleged to be an infringer of copyright or related rights provided sufficient evidence is available, to perform certain acts (production, reproduction, sale, rental, import or other use provided by this Law, as well as transportation, storage or possession with the purpose of releasing into civil turnover copies of the works or phonograms assumed to be counterfeit).

2. The court or a single judge, as well as the arbitration court may issue an injunction to seize and confiscate all copies of the works or phonograms allegedly counterfeit, as well as materials and equipment intended for their manufacture and reproduction.

In the presence of sufficient information on violation of copyright or related rights the investigation body, investigator, court or a single judge are obligated to take measures in the form of the location and descriptive seizure of allegedly counterfeit copies of works or phonograms and also of the materials and equipment intended for manufacture and reproduction thereof, as well as documents providing evidence of violation of the provisions of this Law, and where appropriate in the form of actual seizure and delivery to a custodian.

 

Title VI. FINAL PROVISIONS

 

Article 51. Enactment of the Present Law

1. Implement the present Law as of the date of its publication.

(Erkin-Too as of January 23, 1998, # 6-7; Nasha gazeta as of January 28, 1998, # 6).

2. The present Law shall extend to the relations on creation as well as use of copyright and related rights objects arisen after its implementation.

3. Until the compliance of the legislation of the Kyrgyz Republic with the present Law, the normative acts of the Kyrgyz Republic shall be applied in the parts where they do not contradict to the present Law.

4. The Law shall extend to the works and objects of related rights that have not been earlier protected by copyright, for the period remaining before expiration of 50 years from the date of its legitimate publication or before expiration of 50 years as of the date of its creation if not promulgated.

5. The term of protection of the authors’ rights stipulated by Article 27 of the present Law shall be applied to the works for which the effective term of copyright before publication of the present Law is not expired.

Within three months after publication of the present Law the Government of the Kyrgyz Republic shall:

– prepare and introduce to the Jogorku Kenesh of the Kyrgyz Republic proposals on brining the legislation in compliance with the present Law; – bring into compliance with the present Law normative acts issued by the Government of the Kyrgyz Republic, ministries and administrative agencies of the Kyrgyz Republic.

The President of the Kyrgyz Republic A. Akaev Adopted by the Legislative Assembly of the Jogorku Kenesh (Parliament) of the Kyrgyz Republic December 16, 1997

 

Cection V. Civil code of Kyrgyz Republic

CIVIL CODE OF THE KYRGYZ REPUBLIC

SECTION V. INTELLECTUAL PROPERTY

Chapter 53. General Provisions

 

Article 1037. Objects of Intellectual Property

Objects of intellectual property shall include:

1) results of intellectual activities:

  • works of science, literature and art;
  • performances, phonograms, programs of a broadcasting organization;
  • programs of computer software and databases;
  • integrated circuits topographies;
  • inventions, utility models, industrial designs;
  • breeding achievements;
  • undisclosed information, including secrets of production (know-how);

2) means of individualization of participants of the civil turnover, goods, works and services;

  • trade names;
  • trademarks (service marks);
  • appellations of places of origin of goods;

(3) other results of intellectual activity and means of individualization of participants of civil turnover, goods, works and services in the cases stipulated by this Code or other laws.

 

Article 1038. Legal Protection of Intellectual Property Objects

Legal protection of intellectual property objects arises due to the fact of their creation or as a result of rendering legal protection by an authorized state body in the cases and in the procedure stipulated by this Code and by other statutes.

 

Article 1039. Personal Economic and Non-Economic Rights to the Objects of Intellectual Property

(1) Authors of the results of intellectual activity shall have personal non-economic and economic rights in respect of these results.

Personal non-economic rights shall belong to the author irrespective of his economic rights and shall be retained by him in the case when his economic rights to the results of intellectual activity are transferred to another person.

(2) Owners of the right to the means of individualization of participants of civil turnover, goods, works or services (hereinafter referred to as “individualization means”) shall have economic rights in respect of these means.

(3) The right of authorship (the right to be recognized as the author of intellectual activity result) shall be a personal non-economic right and may belong only to the person who created the result of intellectual activity.

The right of authorship shall be inalienable and non-transferable.

(4) If the result is created by joint creative labor of two or more persons, they shall be considered co-authors.

 

Article 1040. Exclusive Rights to the Objects of Intellectual Property

1) The owner of economic rights to the result of intellectual activity or individualization means shall enjoy the exclusive right to make legal use of this object of intellectual property at his discretion in any form and way.

Use of intellectual property objects by other persons in respect of which the owner of the right enjoys the exclusive right, shall be permitted only upon the consent of the owner of the right.

(2) The owner of the exclusive right to the intellectual property object shall have the right to delegate the right to another person fully or partially, to authorize another person to use an intellectual property object and to enjoy the right to dispose it at his discretion provided it does not collide with the rules of this Code and other laws.

(3) Limitation of the exclusive rights, including the cases of doing it through rendering possibility to use intellectual property objects by other persons, recognition of these rights to be ineffective and their annulment (cancellation), shall be permitted in the cases, limits and procedure stipulated by this Code and other laws.

Limitation of the exclusive rights shall be permitted provided that such a limitation does not cause damage to the normal use of an intellectual property object and does not infringe the legitimate interests of the right owners.

 

Article 1041. Transfer of the Exclusive Rights to Another Person

(1) The economic rights belonging to an owner of the exclusive rights to an intellectual property object, if it is not stipulated otherwise by this Code or other laws, may be transferred by the owner of the right fully or partially to another person on the basis of a contract as well as transferred on inheritance or in the procedure of succession in the course of reorganization of a legal entity-right owner.

(2) The transfer of economic rights on a contractual basis or their transfer in the procedure of universal legal succession does not entail transfer or limitation of the right of authorship and other personal non-economic rights. The terms of the contract on transfer or limitation of such rights are void.

The exclusive rights that are being transferred according to the contract, shall be defined in it. The rights which are not specified in the contract as alienable shall be assumed to be not transferred because otherwise has not been proved.

The rules of licensing agreement shall be applied to a contract, which stipulates granting of the exclusive right within the term of its effectiveness, to another person for a limited period of time.

 

Article 1042. Licensing Agreement

(1) According to the licensing agreement the party which holds the exclusive right to the result of intellectual activity or means of individualization (licenser) shall grant to other party (licensee) permission for the use of a certain object of intellectual property.

The licensing agreement shall be assumed to be compensable.

(2) The licensing agreement may stipulate the following to be granted to a licensee:

– the right to use an object of intellectual property with the right of a licenser to use it and the right to grant the license to other persons (non exclusive license);

– the right to use an object of intellectual property with the right of a licenser to use it within the part not transferred to the licensee to other persons (exclusive license);

– other types of license allowed by the law.

Unless otherwise provided in the licensing agreement, the license shall be presumed to be (non exclusive).

(3) An agreement under which a licensee grants the right to use the object of intellectual property to another person is considered to be sub-license agreement. The licensee has the right to conclude a sub-license agreement in the cases stipulated by the licensing agreement.

Responsibility to the licenser for actions of a sub-licensee shall be carried by the licensee unless the licensing agreement stipulates otherwise.

 

Article 1043. The Agreement on Creation and Use the Results of Intellectual Activity

(1) According to the agreement on creation and use the results of intellectual activity the author may assume an obligation to create in the future a work, invention or other result of intellectual activity and grant to the client, who is not his employer, the exclusive rights to use this result.

Such an agreement must determine the nature of the result of intellectual activity which is subject to creation, as well as purposes or methods of its use.

(2) An agreement binding the author to grant to any person the exclusive rights to use any results of intellectual activity, which this author will create in the future shall be deemed void.

Conditions of the agreement on creation and use the results of intellectual property limiting the author to create the results of intellectual activity of certain type or in certain area in the future shall be deemed void.

 

Article 1044. The Exclusive Right and Property Right

The exclusive right to the result of intellectual property or means of individualization shall exist irrespective of property right to the material object in which such result or means of individualization are expressed.

 

Article 1045. .Effective Term of the Exclusive Right to the Objects of Intellectual Property

(1) The exclusive right to the objects of intellectual activity shall be effective for the term established by this Code or other laws.

(2) Personal non economic rights in respect of objects of intellectual property shall be effective without time-limits.

(3) In the cases stipulated by the law, validity of the exclusive right to the objects of intellectual property may be terminated in the result of failure to use it within certain period.

 

Article 1046. Methods of Protection of the Exclusive Rights to the Objects of Intellectual Property

(1) Protection of the exclusive rights to the objects of intellectual property is implemented by the methods stipulated in Article 11 of this Code. Protection of the exclusive rights may be implemented by the following methods:

– withdrawal of material objects with the help of which the exclusive rights are violated and material objects created in the result of such violation;

– obligatory publication on the violation committed, with the inclusion of the information as to who owns the violated right;

– other methods stipulated by the law.

(2) In the case of violation the agreement on creation and use the results of intellectual activity and means of individualization, general rules on the responsibility for violation of obligations shall be applied.

 

Chapter 54. Copyright

 

Article 1047. Works Protected by Copyright (Objects of Copyright)

(1) The copyright shall extend to the works of science, literature and art which are the result of creative activity, irrespective of the purpose, the merit and the manner of expression thereof.

(2) The work must be expressed in verbal, written or other objective form allowing the possibility of its perception.

The work in the written or otherwise expressed in a material carrier (manuscript, typewritten, musical score, recording with the help of technical means, including audio or video recording, fixation of the imprint in three dimensional or optical form, etc.) shall be deemed to have an objective form irrespective of its availability to the third persons.

Verbal and other work not expressed in a material carrier shall be deemed to have an objective form if it became available for perception by third persons (public recitation, public performance, etc.).

(3) The copyright shall extend both to promulgated and non-promulgated works.

(4) The copyright shall not extend to ideas, procedures, methods, concepts, principles, systems, proposed solutions, discoveries of objectively existing phenomena.

(5) No registration of work or observation of any other formalities shall be required for a copyright to emerge.

 

Article 1048. Types of Objects of Copyright

The following shall be referred to the objects of copyright:

? literary works (literary-artistic, scientific, educational, publicistic and etc.);

? dramatic and scenario works;

? musical works with text and without it;

? music-dramatic works;

? choreographic works and pantomime;

? audiovisual works (cinema, television and video films, slide films and other cinema, television and video works), radio works;

? works of painting, sculpture, graphics, design and other works of fine arts;

? works of applied art and stage designs;

? works of architecture, urban planning, garden and park designs;

? photographic works and works obtained by way analogous to photography;

? geographical, geological and other maps, plans and sketches and other works related to geography, topography and other sciences;

? computer software programs of all types including applied programs and operational systems;

? other works complying with the requirements established in Article 1047 of this Code.

 

Article 1049. Parts of a Work, Derivative and Composite Works

(1) The objects of copyright shall be deemed parts of works, their designations and derivative works which meet the requirements established in Article 1047 of this Code.

The derivative works are works that present re-works of other works (translations, processing, annotations, abstracts, resumes, surveys, screen versions, arrangements and other similar works of science, literature and art);

Composite works shall include compilations (encyclopedias, anthologies) and other composite works that present the result of creative labor due to their set and arrangement.

(2) Derivative and composite works shall be protected by copyright irrespective of whether or not the works, on which they are based on or which they include, are the objects of copyright.

 

Article 1050. Works and Similar Results of Activity Which are not Objects of Copyright

The following shall not be deemed to be objects of copyright:

? official documents (laws, resolutions, decisions, etc.), as well as official translations thereof;

? official symbols and signs (flags, emblems, armorial bearings, monetary signs, etc.);

? works of folklore;

? information on daily news or information on current events which are of the common press nature;

? results gained with the help of technical means for production of a work of a certain type, but without creative activity of a man directly intended to create an individual work.

 

Article 1051. Rights to the Drafts of Official Documents, Symbols and Signs

(1) The right of authorship to a draft of official document, symbol or mark shall belong to an individual who developed the draft (the developer).

Developers of the drafts of official documents, symbols or marks shall have the right to publish such drafts if this is not prohibited by the body on whose order the draft was developed. Developers have the right to specify their names when publishing the draft.

(2) A draft may be used by a competent body to prepare an official document without developer’s consent if the draft was published by him and sent to a relevant body.

In the course of preparation the official documents, symbols and marks on the basis of a draft, amendments and addenda may be introduced into it at the discretion of the body who prepares the official document, symbol or mark.

After the draft is approved by a competent body, it may be used without indication the name of developer.

 

Article 1052. The Author of a Work Presumption of Authorship

(1) A citizen by whose creative labor the work is produced, shall be recognized as an author of the work.

A person, whose name is specified as an author’s name at the first publication of a work, shall be considered its author unless otherwise is proved.

(2) Where a published work is anonymous or pseudonymous (except for the cases when the author’s pseudonym leaves no doubt in his identity) the publisher, whose name is indicated on the work, unless proved otherwise, shall be considered the author’s representative and have the right to defend and enforce the author’s rights. This provision shall remain in force until the author of such a work discloses his identity and claims his authorship.

 

Article 1053. Co-Authorship

(1) The copyright to the work, created by joint creative labor of two or more citizens, shall belong to co-authors mutually, irrespective of whether such a work constitutes an indivisible whole or consists of the parts each of which also has an independent standing.

Part of a work shall be recognized as having its independent standing if it can be used independently from other parts of this work.

Each of the co-authors shall have the right to use part of the work created by him and having its independent standing at his discretion, unless otherwise is stipulated by the agreement between them.

(2) As a rule the relations between the co-authors are determined on the basis of the agreement. If there is not such an agreement, the copyright to the work shall be exercised by all the authors jointly and the remuneration shall be distributed among them equally.

If the work of co-authors forms an indivisible whole, none of the co-authors shall be entitled to prohibit the exploitation of the work without valid reasons.

 

Article 1054. The Authors of Derivative and Composite Works

(1) The authors of derivative and composite works shall be considered the persons who processed other works, translators, compilers of collections and other composite works that present the result of creative labor due to the set or arrangement.

The author of a derivative and composite work shall enjoy the copyright to such a work provided that he observes with the rights of the author of the work which was subject to processing, translation or incorporation into a composite work.

(2) The copyright of creators of derivative and composite works shall not prevent other persons from creating their own derivative works on the basis of the works used previously.

 

Article 1055. Rights of Persons Organizing Creation of Works

(1) Persons who organize creation of works (encyclopedia publishers, film makers, producers, etc.) shall not be recognized as authors of the appropriate works.

However, in the cases stipulated by this Code or other laws, such persons shall acquire the exclusive rights to use these works.

(2) Publishers of encyclopedia, encyclopedic dictionaries, periodical and continuos collections of scientific works, newspapers, magazines and other periodicals shall enjoy the exclusive right to use these publications. The publisher has the right to specify his name or require such specification at any use of such publication.

(3) The authors of the works included into such publications shall retain the exclusive right to use their own works irrespective of the publication in whole, unless otherwise is stipulated by the agreement to create the work.

(4) Conclusion of the agreement to create an audio-visual work, including a movie, does not entail transfer of the exclusive right from the author of the work to the producer to reproduction, distribution, public performance, cable communication for public information, broadcasting or any other public use of the product, subtitling or dubbing of the text of the movie, unless otherwise is stipulated by the agreement. The rights mentioned shall be in force for the term of validity of a copyright to an audio-visual work.

Producer of an audio-visual work shall have the right to specify its (his) name or demand such a specification at any use of this work.

At a public display (show) of an audio-visual work the author of a musical work (either with text or without it) shall retain the right to remuneration for public performance of his musical work, unless the agreement provides otherwise.

Destruction of the final version of the movie (original, negative) without consent of the author and other holders of economic rights to a movie shall be prohibited.

 

Article 1056. The Mark of Protection Copyright

(1) In order to inform about his rights, the owner of the exclusive copyright may use a copyright protection mark on each copy of the work. The mark consists of three elements:

– the Latin letter “C” in a circle;

– the name of the holder of the exclusive copyright;

– the year of the first publication of the work.

(2) A person specified on the copyright protection mark shall be deemed to be the right holder, unless proved otherwise.

 

Article 1057. Personal Non-Economic Rights of the Author

(1) The author of a work shall have the following personal non-economic rights:

? right of authorship;

? right to the name;

? right to promulgation including the right to revoke;

? right to work inviolability;

(2) The agreement of the author with somebody and application of the author on revocation of personal non-economic rights shall be void.

 

Article 1058. Right of Authorship

The right of authorship to created work that belongs to an author (co-authors) shall exclude acknowledgment of authorship of other persons to the same work.

 

Article 1059. Right to the Name

The author shall have the exclusive right to use or authorize the use of the work under his name, pseudonym or anonymously (right to the name).

 

Article 1060. Right to Inviolability of the Work

(1) The author shall have the exclusive right to introduce amendments and addenda to his work and to protect his work from the introduction of amendments and addenda by somebody without consent of the author (right to inviolability of the work).

In publishing, public performance or other use of a work any amendments may be introduced to the work itself as well as its name and the author’s name only with the consent of the author.

It shall be prohibited to include illustrations, prefaces, epilogues, comments and any other explanations in the work without the consent of the author.

(2) After the death of an author the inviolability of the work shall be provided by the person indicated in the will and in the absence of such indications-by the heirs of the author as well as the persons responsible for protection of copyright in accordance with the Law.

 

Article 1061. Right to Promulgation of a Work

(1) The author shall have the right to open an access to the work for an indefinite group of people (right to publication).

(2) The work shall be deemed promulgated when the access to the work for an indefinite group of people is opened for the first time by the author or under his consent by means of publication, public performance, public demonstration of the work or its issuance otherwise.

The author shall have the right to refuse from the previously made decision on promulgation of the work (right to revoke) under condition that the losses, including lost profits caused to the persons entitled to use the work, are covered. If the work was promulgated the author must publicly inform about its revocation. He shall have the right to withdraw from circulation the earlier produced copies of the work at his own expense. These provisions shall also apply to the work products unless the agreement with the author stipulates otherwise.

 

Article 1062. Author’s Right to Use a Work

(1) An author shall have the exclusive rights to use the work in any form and way.

(2) The use of a work shall be considered its reproduction and distribution, as well as its sale in other ways, that, in particular shall include:

? public demonstration (exhibition, display) of the work;

? renting of a copy which is the material carrier of the work;

? public performance of the work;

? transmission of the work to air (broadcast by radio or TV) including transmission via cable or satellite;

? technical record of the work;

? reproduction of technical record of the work including by radio or television;

? translation or re-doing of the work for its further use;

? practical implementation of urban planning, architectural and design project.

Reproduction shall be considered repeated creation of an objective form of the work at least the one it had in the original form (publication of the work, copying of audio or video records etc.).

The distribution of the work shall include the sale, exchange, rent and other operations with copies of the work.

(3) When the copies of the work are alienated legally, their further distribution shall be allowed without consent of the author and without payment of author’s remuneration, except for the cases stipulated by the Law.

(4) The work shall be deemed used irrespective of whether it is used in order to get income (profit) or it is not the purpose of the use.

(5) The practical application of principles composing the content of a work (invention, technical, economic, organizational and other similar solutions) shall not be deemed as the use of a work in terms of copyright.

 

Article 1063. Disposal of the Right to Use a Work

(1) The author or other owner of the right may transfer all the rights to use the work to another person in accordance with the agreement, including the one concluded at public auctions (alienation of the right to use).

(2) The right to use the work shall be transferred in accordance with the procedure of universal legal succession.

(3) The right-holder may grant the permission (license) to another person to use the work within certain limits. The permission is required to use the work both in the original and revised version, in particular-in the form of translation, arrangement, etc.

(4) Every method of use of the work requires special permission of the right holder.

 

Article 1064. Limits of Copyrights

The exclusive rights of the author and other persons to use the work shall be allowed only in the cases stipulated by Articles 1065-1068 of this Code or other Laws.

The indicated restrictions shall be applied under condition that it neither damages the normal use of the work nor unreasonably infringes the legal interests of the author.

 

Article 1065. Reproduction of Alien Work for Personal Purposes

(1) The alien work which was publicly released shall be allowed to use for personal purposes without consent of the author and without payment of author’s remuneration provided that the normal use of the work is not damaged and the legal interests of the author are not infringed.

(2) The rules of the first paragraph of this Article shall not apply in relation to:

? the use of architectural works in the form of buildings and similar structures;

? the use of data bases or their significant parts;

? the use of computer software, except for the cases stipulated by the Law;

? reproduction of books (as a whole) and musical scores;

(3) In the first paragraph of this Article the Law shall have an exception to stipulate that if an audiovisual work or work fixed on a phonogram is used for personal purposes, the author, performer and producer of the record shall be entitled to the commensurate remuneration.

The remuneration for reproduction shall be paid in the form of deductions (interests) by the producers and importers of equipment (audio electronics, video-tape recorders, etc.) and material carriers (audio and (or) video tapes, cassettes, laser disks, compact disks, etc.) which are used for such reproduction.

 

Article 1066. Free Public Performance of Works

Public performance of the legally published musical compositions during the official religious and funeral ceremonies shall be allowed without consent of the author and without payment of author’s remuneration in the volume justified by the nature of such ceremonies.

 

Article 1067. Free Reproduction of Works for Judicial Purposes

The reproduction of works for the purposes of judicial and administrative work in the volume justified by the purpose of use shall be allowed without consent of the author and without the payment of author’s remuneration.

 

Article 1068. Right to the Work Product

(1) Personal non-economic rights to the work created in the course of execution of service assignment (work product) shall belong to the author of the work.

(2) The right to use the work product in the way set by the purpose of the assignment and limits preconditioned by it, shall belong to the person on whose assignment the work has been created and with whom the author has labor relations (employer) unless the agreement between him and the author stipulates otherwise. The employer shall be entitled to transfer this right of use to another person.

The agreement of the employer with the author may stipulate payment of remuneration to the author for the use of the work product and contain other conditions of its use.

(3) After ten years from the date of submission of the work and with the consent of the employer-earlier, the author shall obtain the full right to use the work and receive author’s remuneration, irrespective of the agreement concluded with the employer.

(4) The author’s right to use a work product in a way not conditioned by the purpose of the assignment, shall not be limited.

 

Article 1069. Validity of Copyright in the Territory of the Kyrgyz Republic

(1) The copyright to the work promulgated in the territory of the Kyrgyz Republic or non-promulgated but the original copy of which in any form is located in the territory of the Republic, shall be valid in the territory of the Kyrgyz Republic. In this case the copyright shall belong to the author and his heirs as well as other legal successors of the author irrespective of their citizenship.

(2) The copyright shall also belong to the citizens of the Kyrgyz Republic whose works are promulgated or exist in some objective form in the territory of a foreign state, as well as to their heirs and other legal successors.

(3) When the author is protected legally in accordance with the international agreements the fact of promulgation in the territory of a foreign state shall be determined in accordance with the provisions of the appropriate international agreement.

In order to protect the work in the territory of the Kyrgyz Republic the person who is recognized as the author of the work shall be determined in accordance with the Laws of the state where the work commenced being protected for the first time.

 

Article 1070. Commencement of Copyright Effectiveness

(1) The copyright to the work shall be in force from the date of shaping it into an objective form simple for perception by the third parties irrespective of promulgation. The copyright to the oral work shall be in force from the moment of its communication to the third persons.

(2) Where the work does not come under Article 1069 of this Code the copyright to such a work shall be protected from the moment of promulgation of the work provided that it carried out in the Kyrgyz Republic.

 

Article 1071. Term of Copyright Validity

(1) The copyright shall be valid during the whole life of the author and fifty years after his death, beginning from the first of January of the year following the year of the author’s death.

(2) The copyright to the work created in co-authorship shall be valid during the whole life of the co-authors and fifty years after the death of the last of co-author who outlived other co-authors.

(3) The copyright to the work issued for the first time under pseudonym or anonymously shall be valid during fifty years, beginning from January 1 of the year following the year when the work was issued.

Where the pseudonym or an anonymous author is disclosed, the terms indicated in the first paragraph of this Article shall be applied.

(4) During the period indicated in the first paragraph of this Article the copyright shall belong to the author’s heirs and be inherited. During the same terms the copyright shall belong to the legal successors who obtained this right on the basis of the contract with the author, his heirs and future legal successors.

(5) The copyright to the work issued for the first time during fifty years after the author’s death shall be valid during fifty years after its issue, beginning from January 1 of the year following the year when the work was issued.

(6) The authorship, name of the author and inviolability of the work shall be protected without fixed limits.

 

Article 1072 Transfer of a Work to the Public Domain

(1) Upon expiration of copyright validity term for the work, it shall become public domain.

The works which have never been protected in the territory of the Kyrgyz Republic shall be deemed to be public domain.

(2) The works which belong to public domain may be used freely by any person without payment of the author’s remuneration. The right of authorship, right to the name and the right to inviolability of the work shall be observed.

 

Article 1073. Author’s Contract

(1) The author or his heirs may transfer the right to use his work to another person by the way of conclusion of the author’s contract. The author’s contract shall be for pay.

(2) The author’s contract may be concluded for a prepared work or for the work which will be created by the author under his obligation (order contract). The author’s contract shall also be the contract permitting the use of the work within certain limits, which is concluded by the author or his heirs (author’s licensing contract).

 

Article 1074. Conditions of the Author’s Contract

(1) The author’s contract must stipulate:

– methods of use of the work (specific rights transferred in accordance with this contract);

– term and territory for which the right is transferred;

– the amount of remuneration and (or) procedure for determination the amount of remuneration for every method of use of the work, procedure and terms of payment.

If the author’s contract does not stipulate conditions on the term for which the right to use the work is transferred, the contract may be canceled by the author in five years from the date of its conclusion provided that the user is informed about it in writing, six month before the cancellation of the contract.

If the author’s contract does not stipulate the conditions about the territory on which the right to use the work is valid, the validity of the right transferred in accordance with the contract shall be limited by the territory of the Kyrgyz Republic.

(2) The subject of the author’s contract can not include the rights to use the work which are unknown at the moment of conclusion the contract.

(3) The amount of remuneration for the use of the work shall be specified in the author’s contract under the agreement of the parties.

Where the author’s contract on publication or other reproduction of performance of the work sets the fixed amount of the remuneration, the contract shall stipulate the maximum number of copies of the work.

The waiver of the author and his heirs from the right to remuneration is void.

(4) The rights transferred under the author’s contract can be transferred by any party of the contract fully or partially to other persons only if it is directly stipulated by such a contract.

 

Article 1075. Form of the Author’s Contract

The author’s contract shall be concluded in the written form except the cases stipulated by the Law.

 

Article 1076. Responsibility Under the Author’s Contract

The party which did not fulfill or improperly fulfilled the liabilities under the author’s contract must cover the losses caused to the other party including lost profit.

 

Article 1077. Term of Validity of the Author’s Licensing Contract

(1) The author’s licensing contract shall be valid during the period stipulated by it, but not longer than the term of the copyright validity.

(2) Irrespective of weather the term of validity is included in the author’s licensing contract or not, the author of the work and his heirs shall be entitled to cancel the contract unilaterally in ten years after the date of the conclusion of the contract, informing his contract agent about it in writing, six months prior to the cancellation of the contract. The author and his heirs shall have this right every ten years.

(3) The contract can stipulate the terms of use of the work, the violation of which results in the right of the legal successor to cancel the contract.

 

Article 1078. Liability for Illegal Use of a Work Without Contract

In the event the work is used without a contract concluded with the owner of the right, the violator is obliged to indemnify the losses caused to the right owner, including lost profit. The right owner shall be entitled to disgorge from the violator the revenues obtained in the result of the violation instead of the losses.

The use of the work in a way which is not stipulated by the author’s contract or after expiration of validity of such a contract shall be considered the use of the work without a contract.

 

Article 1079. Legal Regulation of Authors’ Relations

The authors’ relations shall be regulated by this Code and other legislation.

 

Chapter 55. Neighboring Rights

 

Article 1080. Object of Neighboring Rights

Neighboring rights shall extend to staging, performance, phonograms, programs of broadcasting and cable organizations.

 

Article 1081. Subjects of Neighboring Rights

(1) The right to performance shall belong to actors-performers, director-stagers, conductors. The right to use such a performance may be transferred to heirs and other legal successors.

(2) The right to record a performance shall belong to the person who created such a record or to his/her legal successors.

(3) The right to transmission shall belong to the broadcasting or cable organization that created a program or to its legal successors.

 

Article 1082. Mark of Protection of Neighboring Rights

The producer of a phonogram and the performer may, in order to inform about his rights, use the mark of protection neighboring rights which is placed on each copy of a phonogram and (or) on each sleeve and consists of three elements:

? a circled Latin letter “P”;

? name of the owner of the exclusive neighboring rights;

? year of the first publication of the recording.

 

Article 1083. Rights of a Performer

(1) The performer has the right for:

? indication of his/her name during performance, on copies of the record of performance or staging, in the course of broadcast or reproduction of the performance or staging;

? protection of the performance or staging against distortion;

? provision or permission to use the performance or staging;

(2) The right to use the performance or staging includes the right to allow:

? broadcast or cable transmission of the performance or staging;

? record of the performance or staging with the help of technical devices;

? broadcast and public reproduction of the produced record of a performance or staging;

? copying and distribution of the copies of a record of a performance and staging.

(3) Performers shall exercise their rights with the observation of the rights of authors of the works performed.

(4) Restrictions of the right to use or stage the performance shall be established by the law.

(5) The provisions of Article 1068 shall accordingly apply to the right to performance made in the course of execution of the work related assignment (work performance or staging).

 

Article 1084. Rights of a Producer of a Phonogram

(1) Producer of a phonogram and his legal successor shall have the exclusive right to this phonogram.

Exploitation of such a phonogram by other persons is allowed only upon the permission of the producer of a phonogram or his legal successor.

(2) Producer of a phonogram or his legal successor shall have the right to perform or to authorize the following:

? public reproduction of the phonogram;

? adaptation or any other transformation of the phonogram;

? distribution of copies of the phonogram (sale, rental etc.), including their transfer abroad;

? import copies of the phonogram.

(3) If the property right to the copy of the record of performance belongs not to its creator, the exclusive right to use the record, including its commercial rental belongs to the person who created the record.

(4) Restrictions of the rights of the producer of performance shall be established by the law.

(5) Holders of the right to the phonogram shall exercise their rights taking into account the rights of authors of the work and rights of the performers.

 

Article 1085. Rights of a Cable Broadcasting Organization

(1) Broadcasting company shall have the exclusive right to exploit its program in any form and give permission to third persons to use such a program.

Exploitation of the program by the third persons shall be done on the basis of a contract. The right-holder shall be entitled to remuneration for each type of use.

(2) Restrictions of the rights of a broadcasting company shall be established by the law.

(3) The broadcasting company shall implement its rights taking into account the rights of authors of works and rights of performers, and in certain cases – holders of the rights to the record of performance and other broadcasting companies.

 

Article 1086. Rights of a Cable Broadcasting Organization

Rights of the cable broadcasting organization shall be established as applicable to the rights of a broadcasting organization established by this Code and the law.

 

Article 1087. Responsibility for Non-Implementation or Inappropriate Implementation of the Contract on the Use of Neighboring Rights and Illegal Use of a Work Without the Contract

A person who failed to implement or who inappropriately implemented the contract on use of neighboring rights or used the work illegally without the contract, shall bear the responsibility in accordance with general rules on responsibilities for failure to implement or inappropriate implementation of the contract, or accordingly to responsibility for the damage caused.

 

Chapter 56. Right to Industrial Property (Right to Invention, Utility Model, Industrial Design)

 

Article 1088. Legal Protection of Invention, Utility Model and Industrial Design

(1) The right to an invention and industrial design is protected under condition that a preliminary patent, patent and certificate for utility model is granted

(2) Requirements claimed to the invention, utility model, industrial design, under which the right to get preliminary patent, patent, certificate for utility model (hereinafter referred to as protected document), the procedure of their issuance by the patent agency shall be established by the law.

 

Article 1089. Right to Use an Invention, Utility Model, Industrial Design

(1) A patent owner shall have the exclusive right to use an invention, utility model, industrial design protected by a protected document, at his discretion; including the right to produce the good with application of protected decisions, apply technological processes protected by the patent in his own production, sell or offer for sale goods that contain protected decisions and import relevant goods.

Persons, other than the patent owner, shall not be entitled to use the invention, utility model, industrial design without his permission, except for the cases when such a use is not considered violation of the rights of the patent owner according to the present Code and other laws.

(2) Unauthorized manufacture, application, import, offer for sale, sale and any other introduction into the economic turnover or storage for that purpose of the good that contain patented invention, utility model or industrial design, as well as application of the method protected by a preliminary patent, patent for an invention or introduction to the economic turnover or storage for this purpose of the goods manufactured directly by the method protected by a preliminary patent, patent for an invention, device in the functioning or exploitation of which the method, pursuant to its purpose, is automatically realized shall be recognized as the violation of the exclusive right of the patent owner.

The good is considered to be manufacture by a patented method unless proved otherwise.

 

Article 1090. Disposal of the Right to a Patent

The right to obtain a patent, the rights coming from registration of the application, the right to own the patent and rights coming from the patent may be transferred entirely or partially to the other person.

 

Article 1091. The Right of Authorship

(1) The author of invention, utility model or industrial design shall have the right to authorship and the right to give a special name to an invention, utility model or industrial design.

The right of authorship and other personal rights to an invention, utility model or industrial design shall arise from the moment of appearance of the rights based on the patent.

(2) The author of the invention, utility model or industrial design may have special rights, privileges and advantages of social nature according to the law.

(3) A person indicated in the application as the author shall be deemed the author unless otherwise is proved. Only the facts and the circumstances existing before the right’s appearance may be used as proofs.

 

Article 1092. Co-Authors of an Invention, Utility Model or Industrial Design

Relations of co-authors of an invention, utility model or industrial design shall be established by the agreement between them.

Uncreative assistance to creation of an invention, utility model or industrial design (technical, organizational or mathematics assistance, assistance in registration of rights, etc.) does not entail co-authorship.

 

Article 1093. Work Inventions, Utility Models and Industrial Designs

(1) The right to obtain protected document for an invention, utility model, industrial design created by an employee during execution of his service duties or a concrete task of the employer (work invention) shall belong to the employer provided that it is stipulated by the contract between them.

(2) The amount, conditions and procedure of payment of remuneration to the author for work invention, utility model or industrial design shall be established by the agreement between him and the employer. In case of failure to reach the agreement, the decision shall be made by court. Where it is impossible to measure contribution of the author and the employer to the creation of work invention, utility model or industrial design, the author shall have the right to the half of profit gained or to be gained by the employer.

 

Article 1094. Form of the Contract on Transfer of Right to a Protected Document

The contract on transfer of the right to protected document (concession of protected document) should be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements of registration entails illegality of the contract.

 

Article 1095. Form of Permission (License) to Use an Invention, Utility Model, Industrial Design

The licensing agreement and sub-licensing contract shall be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements on registration entails illegality of the contract.

 

Article 1096. Responsibility for Violation of a Protected Document

On the basis of the request of the patent owner, violation of the protected document must be stopped, and the violator must compensate the patent owner all his losses. Instead of the losses the patent owner has the right to charge from the violator the income gained by him from the violation.

 

Chapter 57. Rights to New Varieties of Plants  and New Animal Breeds

 

Article 1097. Protection of Right to New Varieties of Plants and New Animal Breeds

(1) Rights to the new varieties of plants and new animal breeds (breeding achievements) shall be protected provided that the patent is granted.

(2) Requirements under which the right to obtain a patent arises, the procedure of granting the patent for breeding achievements shall be established by the law.

(3) The rules of Articles 1090-1096 of this Code shall accordingly apply to the relations connected with the rights to breeding achievements and protection of these rights, unless otherwise is stipulated by the rules of the present chapter and the law.

 

Article 1098. Rights of the Author of a Breeding Achievement to Remuneration

The author of a breeding achievement who is not a patent owner shall have the right to receive the remuneration from the patent owner for the use of the breeding achievement within the term of patent validity.

The amount and conditions of payment of remuneration to the author of breeding achievement shall be established in the contract concluded between him and the patent owner.

 

Article 1099. Rights of the Patent Owner

The patent owner of a breeding achievement shall have the exclusive right to use this achievement within the limits established by the law.

 

Article 1100. Obligations of the Patent Owner

The patent holder of a breeding achievement shall be obliged to support appropriate variety of plant or animal breed within the validity term of the patent in a way to preserve the features indicated in the description of the variety of plant or breed of animal compiled at their registration.

 

Chapter 58. Protection of Undisclosed Information from Illegal Use

 

Article 1101.  Right to Protection of Undisclosed Information

A person who legally possesses technical, organizational or commercial information including production secrets (know-how) unknown to the third parties (undisclosed information) shall have the right for protection of this information from illegal exploitation unless the conditions established by Article 34 of the present Code are observed.

The right to protection of undisclosed information from illegal use arises irrespective of any formality carried out in respect of this information (its registration, receiving of certificate, etc.).

Rules on protection of undisclosed information shall not be applied in relation to the information which, in accordance with the law, cannot make up official or commercial secret (information on legal entities, rights to property and transactions with it which are subject to state registration, information subject to presentation as a state statistics reporting and others).

The right to protection of undisclosed information is valid until the conditions stipulated by Article 34 of this Code are valid.

 

Article 1102. Responsibility for Illegal Use of Undisclosed Information

(1) A person who has obtained or distributed undisclosed information or used it without legal grounds must recover losses caused in the result of illegal use to the person who legally possess the information.

Where a person illegally using undisclosed information received it from the person who has no right to distribute it, of which the acquirer of the information did not know and did not have to know (fair acquirer), the legal holder of undisclosed information shall have the right to demand him to compensate the losses caused by the use of undisclosed information after the fair acquirer became aware that the use is illegal.

(2) A person lawfully possessing undisclosed information shall be entitled to require form the person who illegally uses it, to stop this use immediately. However, the court may allow its further use under the conditions of payable exclusive license taking into consideration the means spent for its use by fair acquirer of undisclosed information.

(3) A person who independently and lawfully got the data which makes up the content of undisclosed information shall have the right to use this data irrespective of the rights of the holder of appropriate undisclosed information and does not report to him for such a use.

 

Article 1103. Transfer of the Right to Protection of  Undisclosed Information from Illegal Use

The person possessing undisclosed information may transfer all or a part of the data, which makes up the content of this information, to another person on the basis of licensing agreement.

A licensee is obliged to undertake proper measures to protect confidentiality of the information received on the basis of the contract, and has the same rights to its protection from illegal use by third persons as a licenser has. Given that the agreement does not stipulate otherwise, the liability to preserve confidentiality of the information shall be with the licensee even after termination of the licensing agreement, provided that the relevant data continue to be undisclosed information.

 

Chapter 59. Means of Individualization of Participants of the Civil Turnover, Goods, Works and Services

 

Paragraph 1. Trade Name

 

Article 1104.  Right to a Trade Name

(1) A legal entity whose trade name is registered in the established order shall have the exclusive right to use the trade name on goods, packaging, advertisements, sign boards, prospectus, bill boards, publications, official stationery and other documentation related to its activity, as well as in the course of demonstration of goods at fairs and exhibitions held in the territory of the Kyrgyz Republic.

(2) The order of registration of a trade name of a legal entity shall be determined by the normative legal acts.

 

Article 1105. Use of the Trade Name of a Legal Entity in a Trademark

The trade name of a legal entity may be used in his trademark.

 

Article 1106. Effectiveness of the Right to a Trade Name

(1) The exclusive right to a trade name registered in the Kyrgyz Republic as the designation of a legal entity shall be effective in the territory of the Kyrgyz Republic.

(2) The exclusive right to a trade name registered or commonly recognized in a foreign country shall be effective within the territory of the Kyrgyz Republic in cases provided by the law.

(3) The effectiveness of the right to a trade name shall be terminated with the liquidation of a legal entity or with a change of it trade name as well as in the other cases provided by the law.

 

Article 1107. Alienation of the Right to a Trade Name

Alienation or transfer of the right to the trade name of a legal entity shall be allowed only in cases of reorganization of the legal entity or the alienation of an enterprise as a whole.

The holder of the right to a trade name may authorize other person to use his trade name (grant a license). However, the licensing agreement must spell out measures excluding delusion of a consumer.

 

Paragraph 2. Trademark (service mark)

 

Article 1108. Legal Protection of a Trademark

(1) Legal protection of a trademark (service mark) shall be granted on the basis of its registration.

(2) The right to the trademark shall be certified by a certificate.

 

Article 1109. Right to Use the Trademark

(1) The owner of the right to the trademark shall have the exclusive right to use and dispose the mark which belongs to him.

(2) Any introduction of a trademark into turnover in the order established by the law shall be considered the use of a trademark.

 

Article 1110. Consequences of Non-Exploitation of a Trademark

(1) When a trademark is not used without valid reason continuously for 3 years from the date of its registration, it may be canceled at the request of any interested person.

(2) The grant of a license to use the trademark shall be deemed its use.

 

Article 1111. Transfer of the Right to the Trademark

(1) The right to the trademark in relation of all types of goods, works and services or their parts, indicated in the certificate, may be transferred by the right holder to another person under the agreement.

Transfer of the right to the trademark shall not be allowed if it can be the reason for mislead in relation to goods or their producer.

Transfer of the right to the trademark, including its transfer on the basis of the contract or in the procedure of right-succession should be registered in the patent agency.

 

Article 1112. Form of the Agreement on Transfer of the Right to a Trademark

The agreement on transfer of the right to the trademark or on granting a license should be concluded in written form and registered in the patent agency.

Failure to do it in written form and to comply with the requirement of the registration entails invalidity of the agreement.

 

Article 1113. Responsibility for Violation of the Right to a Trademark

The person unlawfully using the trademark shall be obliged to stop the violation and compensate the owner of the trademark his losses.

The person unlawfully using the trademark shall be obliged to destroy designations of the trademark produced, to remove the illegally used trademark or the sign which is identical to it to the extent of confusion from the goods and their packages.

If it is impossible to fulfill the requirements of the second paragraph of this Article the relevant good shall be subject to destruction.

 

Paragraph 3. Appellations of Origin of Goods

 

Article 1114. Legal Protection of Appellations of Origin of Goods

(1) Legal protection of appellations of origin of good shall be granted on the basis of its registration.

(2) Appellation of origin (indication of origin) of a good means the name of a country, settlement, locality or another geographical place used for designation of a product the special characteristic features of which are exclusively or mainly determined by natural conditions peculiar to this geographic place or by other factors or combination of natural conditions and these factors.

Appellation of origin of goods may be a historical name of a geographic place.

(3) A designation providing or including the name of a geographical object, but which is generally used in the Kyrgyz Republic as a designation of a certain type of goods not related to the place of its production, shall not be considered to be the appellation of origin of goods and is not subject to registration for the purpose of legal protection in accordance with the provisions of this paragraph. However, this does not deprive a person, whose rights are violated by unfair use of such an appellation, of the opportunity of their protection through other means stipulated by the law.

(4) Registration of the appellation of origin of goods shall be made by the patent agency.

(5) A certificate on the right to use the appellation of origin of goods shall be issued on the basis of the registration.

(6) The procedure and the conditions of registration, issuance of certificates, recognition of invalidity and termination of the validity of the registration and the certificates shall be established by the law.

 

Article 1115. The Right to Use the Appellation of the Origin of Goods

(1) A person holding the right to use the appellation of origin of goods shall be entitled to place this name on a product, package, advertisement, prospects, accounts and use it otherwise due to the introduction of this good into civil turnover.

(2) Appellation of origin of a product may be registered by several persons both jointly and in separation from each other for designation of the product which complies with the requirements of paragraphs 1 and 2, Article 1114 of this Code. The right to use the appellation of origin of good shall belong to each of these persons.

(3) Alienation and other deals on assignment of the right to use the appellation of origin of goods, as well as permission to use them on the basis of a license shall be prohibited.

 

Article 1116. Scope of the Legal Protection of Appellation of Origin of Goods

(1) Legal protection of appellation of origin of goods located on the territory of the Kyrgyz Republic shall be granted in the Kyrgyz Republic.

(2) Legal protection of the appellation of origin of goods located in another state shall be granted in the Kyrgyz Republic provided that this appellation is registered in the country of origin of goods, as well as in the patent agency of the Kyrgyz Republic and in accordance with the Code.

 

Article 1117. Responsibility for Unlawful Use of Appellation of Place of Origin of Goods

(1) A person holding the right to use the appellation of origin of goods, as well as the organizations on protection of consumer’s rights may demand from the person, who illegally uses this appellation, to stop the use, to remove the illegally used appellation or designation which are identical to the extent of confusion, from the goods, packages, forms and similar documents, to destroy the produced imprint of the appellation or sign which are identical to the extent of confusion, and if its impossible-to withdraw and destroy the goods and/or packages.

(2) A person holding the right to use the appellation of origin of goods shall be entitled to require the compensation of the losses from the violator of this right.

 

Civil Code

SECTION V. INTELLECTUAL PROPERTY

Chapter 53. General Provisions

Article 1037. Objects of Intellectual Property

Objects of intellectual property shall include:

1) results of intellectual activities:

– works of science, literature and art;

– performances, phonograms, programs of a broadcasting organization;

– programs of computer software and databases;

– integrated circuits topographies;

– inventions, utility models, industrial designs;

– breeding achievements;

– undisclosed information, including secrets of production (know-how);

2) means of individualization of participants of the civil turnover, goods, works and services;

– trade names;

– trademarks (service marks);

– appellations of places of origin of goods;

(3) other results of intellectual activity and means of individualization of participants of civil turnover, goods, works and services in the cases stipulated by this Code or other laws.

Article 1038..Legal Protection of Intellectual Property Objects

Legal protection of intellectual property objects arises due to the fact of their creation or as a result of rendering legal protection by an authorized state body in the cases and in the procedure stipulated by this Code and by other statutes.

Article 1039..Personal Economic and Non-Economic Rights to the Objects of Intellectual Property

(1) Authors of the results of intellectual activity shall have personal non-economic and economic rights in respect of these results.

Personal non-economic rights shall belong to the author irrespective of his economic rights and shall be retained by him in the case when his economic rights to the results of intellectual activity are transferred to another person.

(2) Owners of the right to the means of individualization of participants of civil turnover, goods, works or services (hereinafter referred to as “individualization means”) shall have economic rights in respect of these means.

(3) The right of authorship (the right to be recognized as the author of intellectual activity result) shall be a personal non-economic right and may belong only to the person who created the result of intellectual activity.

The right of authorship shall be inalienable and non-transferable.

(4) If the result is created by joint creative labor of two or more persons, they shall be considered co-authors.

Article 1040..Exclusive Rights to the Objects of Intellectual Property

1) The owner of economic rights to the result of intellectual activity or individualization means shall enjoy the exclusive right to make legal use of this object of intellectual property at his discretion in any form and way.

Use of intellectual property objects by other persons in respect of which the owner of the right enjoys the exclusive right, shall be permitted only upon the consent of the owner of the right.

(2) The owner of the exclusive right to the intellectual property object shall have the right to delegate the right to another person fully or partially, to authorize another person to use an intellectual property object and to enjoy the right to dispose it at his discretion provided it does not collide with the rules of this Code and other laws.

(3) Limitation of the exclusive rights, including the cases of doing it through rendering possibility to use intellectual property objects by other persons, recognition of these rights to be ineffective and their annulment (cancellation), shall be permitted in the cases, limits and procedure stipulated by this Code and other laws.

Limitation of the exclusive rights shall be permitted provided that such a limitation does not cause damage to the normal use of an intellectual property object and does not infringe the legitimate interests of the right owners.

Article 1041. Transfer of the Exclusive Rights to Another Person

(1) The economic rights belonging to an owner of the exclusive rights to an intellectual property object, if it is not stipulated otherwise by this Code or other laws, may be transferred by the owner of the right fully or partially to another person on the basis of a contract as well as transferred on inheritance or in the procedure of succession in the course of reorganization of a legal entity-right owner.

(2) The transfer of economic rights on a contractual basis or their transfer in the procedure of universal legal succession does not entail transfer or limitation of the right of authorship and other personal non-economic rights. The terms of the contract on transfer or limitation of such rights are void.

The exclusive rights that are being transferred according to the contract, shall be defined in it. The rights which are not specified in the contract as alienable shall be assumed to be not transferred because otherwise has not been proved.

The rules of licensing agreement shall be applied to a contract, which stipulates granting of the exclusive right within the term of its effectiveness, to another person for a limited period of time.

Article 1042. Licensing Agreement

(1) According to the licensing agreement the party which holds the exclusive right to the result of intellectual activity or means of individualization (licenser) shall grant to other party (licensee) permission for the use of a certain object of intellectual property.

The licensing agreement shall be assumed to be compensable.

(2) The licensing agreement may stipulate the following to be granted to a licensee:

– the right to use an object of intellectual property with the right of a licenser to use it and the right to grant the license to other persons (non exclusive license);

– the right to use an object of intellectual property with the right of a licenser to use it within the part not transferred to the licensee to other persons (exclusive license);

– other types of license allowed by the law.

Unless otherwise provided in the licensing agreement, the license shall be presumed to be (non exclusive).

(3) An agreement under which a licensee grants the right to use the object of intellectual property to another person is considered to be sub-license agreement. The licensee has the right to conclude a sub-license agreement in the cases stipulated by the licensing agreement.

Responsibility to the licenser for actions of a sub-licensee shall be carried by the licensee unless the licensing agreement stipulates otherwise.

Article 1043. The Agreement on Creation and Use the Results of Intellectual Activity

(1) According to the agreement on creation and use the results of intellectual activity the author may assume an obligation to create in the future a work, invention or other result of intellectual activity and grant to the client, who is not his employer, the exclusive rights to use this result.

Such an agreement must determine the nature of the result of intellectual activity which is subject to creation, as well as purposes or methods of its use.

(2) An agreement binding the author to grant to any person the exclusive rights to use any results of intellectual activity, which this author will create in the future shall be deemed void.

Conditions of the agreement on creation and use the results of intellectual property limiting the author to create the results of intellectual activity of certain type or in certain area in the future shall be deemed void.

Article 1044. The Exclusive Right and Property Right

The exclusive right to the result of intellectual property or means of individualization shall exist irrespective of property right to the material object in which such result or means of individualization are expressed.

Article 1045. .Effective Term of the Exclusive Right to the Objects of Intellectual Property

(1) The exclusive right to the objects of intellectual activity shall be effective for the term established by this Code or other laws.

(2) Personal non economic rights in respect of objects of intellectual property shall be effective without time-limits.

(3) In the cases stipulated by the law, validity of the exclusive right to the objects of intellectual property may be terminated in the result of failure to use it within certain period.

Article 1046. Methods of Protection of the Exclusive Rights to the Objects of Intellectual Property

(1) Protection of the exclusive rights to the objects of intellectual property is implemented by the methods stipulated in Article 11 of this Code. Protection of the exclusive rights may be implemented by the following methods:

– withdrawal of material objects with the help of which the exclusive rights are violated and material objects created in the result of such violation;

– obligatory publication on the violation committed, with the inclusion of the information as to who owns the violated right;

– other methods stipulated by the law.

(2) In the case of violation the agreement on creation and use the results of intellectual activity and means of individualization, general rules on the responsibility for violation of obligations shall be applied.

Chapter 54. Copyright

Article 1047. Works Protected by Copyright (Objects of Copyright)

(1) The copyright shall extend to the works of science, literature and art which are the result of creative activity, irrespective of the purpose, the merit and the manner of expression thereof.

(2) The work must be expressed in verbal, written or other objective form allowing the possibility of its perception.

The work in the written or otherwise expressed in a material carrier (manuscript, typewritten, musical score, recording with the help of technical means, including audio or video recording, fixation of the imprint in three dimensional or optical form, etc.) shall be deemed to have an objective form irrespective of its availability to the third persons.

Verbal and other work not expressed in a material carrier shall be deemed to have an objective form if it became available for perception by third persons (public recitation, public performance, etc.).

(3) The copyright shall extend both to promulgated and non-promulgated works.

(4) The copyright shall not extend to ideas, procedures, methods, concepts, principles, systems, proposed solutions, discoveries of objectively existing phenomena.

(5) No registration of work or observation of any other formalities shall be required for a copyright to emerge.

Article 1048Types of Objects of Copyright

The following shall be referred to the objects of copyright:

? literary works (literary-artistic, scientific, educational, publicistic and etc.);

? dramatic and scenario works;

? musical works with text and without it;

? music-dramatic works;

? choreographic works and pantomime;

? audiovisual works (cinema, television and video films, slide films and other cinema, television and video works), radio works;

? works of painting, sculpture, graphics, design and other works of fine arts;

? works of applied art and stage designs;

? works of architecture, urban planning, garden and park designs;

? photographic works and works obtained by way analogous to photography;

? geographical, geological and other maps, plans and sketches and other works related to geography, topography and other sciences;

? computer software programs of all types including applied programs and operational systems;

? other works complying with the requirements established in Article 1047 of this Code.

Article 1049. Parts of a Work, Derivative and Composite Works

(1) The objects of copyright shall be deemed parts of works, their designations and derivative works which meet the requirements established in Article 1047 of this Code.

The derivative works are works that present re-works of other works (translations, processing, annotations, abstracts, resumes, surveys, screen versions, arrangements and other similar works of science, literature and art);

Composite works shall include compilations (encyclopedias, anthologies) and other composite works that present the result of creative labor due to their set and arrangement.

(2) Derivative and composite works shall be protected by copyright irrespective of whether or not the works, on which they are based on or which they include, are the objects of copyright.

Article 1050. Works and Similar Results of Activity Which are not Objects of Copyright

The following shall not be deemed to be objects of copyright:

? official documents (laws, resolutions, decisions, etc.), as well as official translations thereof;

? official symbols and signs (flags, emblems, armorial bearings, monetary signs, etc.);

? works of folklore;

? information on daily news or information on current events which are of the common press nature;

? results gained with the help of technical means for production of a work of a certain type, but without creative activity of a man directly intended to create an individual work.

Article 1051. Rights to the Drafts of Official Documents, Symbols and Signs

(1) The right of authorship to a draft of official document, symbol or mark shall belong to an individual who developed the draft (the developer).

Developers of the drafts of official documents, symbols or marks shall have the right to publish such drafts if this is not prohibited by the body on whose order the draft was developed. Developers have the right to specify their names when publishing the draft.

(2) A draft may be used by a competent body to prepare an official document without developer’s consent if the draft was published by him and sent to a relevant body.

In the course of preparation the official documents, symbols and marks on the basis of a draft, amendments and addenda may be introduced into it at the discretion of the body who prepares the official document, symbol or mark.

After the draft is approved by a competent body, it may be used without indication the name of developer.

Article 1052. The Author of a Work Presumption of Authorship

(1) A citizen by whose creative labor the work is produced, shall be recognized as an author of the work.

A person, whose name is specified as an author’s name at the first publication of a work, shall be considered its author unless otherwise is proved.

(2) Where a published work is anonymous or pseudonymous (except for the cases when the author’s pseudonym leaves no doubt in his identity) the publisher, whose name is indicated on the work, unless proved otherwise, shall be considered the author’s representative and have the right to defend and enforce the author’s rights. This provision shall remain in force until the author of such a work discloses his identity and claims his authorship.

Article 1053. Co-Authorship

(1) The copyright to the work, created by joint creative labor of two or more citizens, shall belong to co-authors mutually, irrespective of whether such a work constitutes an indivisible whole or consists of the parts each of which also has an independent standing.

Part of a work shall be recognized as having its independent standing if it can be used independently from other parts of this work.

Each of the co-authors shall have the right to use part of the work created by him and having its independent standing at his discretion, unless otherwise is stipulated by the agreement between them.

(2) As a rule the relations between the co-authors are determined on the basis of the agreement. If there is not such an agreement, the copyright to the work shall be exercised by all the authors jointly and the remuneration shall be distributed among them equally.

If the work of co-authors forms an indivisible whole, none of the co-authors shall be entitled to prohibit the exploitation of the work without valid reasons.

Article 1054. The Authors of Derivative and Composite Works

(1) The authors of derivative and composite works shall be considered the persons who processed other works, translators, compilers of collections and other composite works that present the result of creative labor due to the set or arrangement.

The author of a derivative and composite work shall enjoy the copyright to such a work provided that he observes with the rights of the author of the work which was subject to processing, translation or incorporation into a composite work.

(2) The copyright of creators of derivative and composite works shall not prevent other persons from creating their own derivative works on the basis of the works used previously.

Article 1055. Rights of Persons Organizing Creation of Works

(1) Persons who organize creation of works (encyclopedia publishers, film makers, producers, etc.) shall not be recognized as authors of the appropriate works.

However, in the cases stipulated by this Code or other laws, such persons shall acquire the exclusive rights to use these works.

(2) Publishers of encyclopedia, encyclopedic dictionaries, periodical and continuos collections of scientific works, newspapers, magazines and other periodicals shall enjoy the exclusive right to use these publications. The publisher has the right to specify his name or require such specification at any use of such publication.

(3) The authors of the works included into such publications shall retain the exclusive right to use their own works irrespective of the publication in whole, unless otherwise is stipulated by the agreement to create the work.

(4) Conclusion of the agreement to create an audio-visual work, including a movie, does not entail transfer of the exclusive right from the author of the work to the producer to reproduction, distribution, public performance, cable communication for public information, broadcasting or any other public use of the product, subtitling or dubbing of the text of the movie, unless otherwise is stipulated by the agreement. The rights mentioned shall be in force for the term of validity of a copyright to an audio-visual work.

Producer of an audio-visual work shall have the right to specify its (his) name or demand such a specification at any use of this work.

At a public display (show) of an audio-visual work the author of a musical work (either with text or without it) shall retain the right to remuneration for public performance of his musical work, unless the agreement provides otherwise.

Destruction of the final version of the movie (original, negative) without consent of the author and other holders of economic rights to a movie shall be prohibited.

Article 1056. The Mark of Protection Copyright

(1) In order to inform about his rights, the owner of the exclusive copyright may use a copyright protection mark on each copy of the work. The mark consists of three elements:

– the Latin letter “C” in a circle;

– the name of the holder of the exclusive copyright;

– the year of the first publication of the work.

(2) A person specified on the copyright protection mark shall be deemed to be the right holder, unless proved otherwise.

Article 1057. Personal Non-Economic Rights of the Author

(1) The author of a work shall have the following personal non-economic rights:

? right of authorship;

? right to the name;

? right to promulgation including the right to revoke;

? right to work inviolability;

(2) The agreement of the author with somebody and application of the author on revocation of personal non-economic rights shall be void.

Article 1058. Right of Authorship

The right of authorship to created work that belongs to an author (co-authors) shall exclude acknowledgment of authorship of other persons to the same work.

Article 1059. Right to the Name

The author shall have the exclusive right to use or authorize the use of the work under his name, pseudonym or anonymously (right to the name).

Article 1060. Right to Inviolability of the Work

(1) The author shall have the exclusive right to introduce amendments and addenda to his work and to protect his work from the introduction of amendments and addenda by somebody without consent of the author (right to inviolability of the work).

In publishing, public performance or other use of a work any amendments may be introduced to the work itself as well as its name and the author’s name only with the consent of the author.

It shall be prohibited to include illustrations, prefaces, epilogues, comments and any other explanations in the work without the consent of the author.

(2) After the death of an author the inviolability of the work shall be provided by the person indicated in the will and in the absence of such indications-by the heirs of the author as well as the persons responsible for protection of copyright in accordance with the Law.

Article 1061. Right to Promulgation of a Work

(1) The author shall have the right to open an access to the work for an indefinite group of people (right to publication).

(2) The work shall be deemed promulgated when the access to the work for an indefinite group of people is opened for the first time by the author or under his consent by means of publication, public performance, public demonstration of the work or its issuance otherwise.

The author shall have the right to refuse from the previously made decision on promulgation of the work (right to revoke) under condition that the losses, including lost profits caused to the persons entitled to use the work, are covered. If the work was promulgated the author must publicly inform about its revocation. He shall have the right to withdraw from circulation the earlier produced copies of the work at his own expense. These provisions shall also apply to the work products unless the agreement with the author stipulates otherwise.

Article 1062. Author’s Right to Use a Work

(1) An author shall have the exclusive rights to use the work in any form and way.

(2) The use of a work shall be considered its reproduction and distribution, as well as its sale in other ways, that, in particular shall include:

? public demonstration (exhibition, display) of the work;

? renting of a copy which is the material carrier of the work;

? public performance of the work;

? transmission of the work to air (broadcast by radio or TV) including transmission via cable or satellite;

? technical record of the work;

? reproduction of technical record of the work including by radio or television;

? translation or re-doing of the work for its further use;

? practical implementation of urban planning, architectural and design project.

Reproduction shall be considered repeated creation of an objective form of the work at least the one it had in the original form (publication of the work, copying of audio or video records etc.).

The distribution of the work shall include the sale, exchange, rent and other operations with copies of the work.

(3) When the copies of the work are alienated legally, their further distribution shall be allowed without consent of the author and without payment of author’s remuneration, except for the cases stipulated by the Law.

(4) The work shall be deemed used irrespective of whether it is used in order to get income (profit) or it is not the purpose of the use.

(5) The practical application of principles composing the content of a work (invention, technical, economic, organizational and other similar solutions) shall not be deemed as the use of a work in terms of copyright.

Article 1063. Disposal of the Right to Use a Work

(1) The author or other owner of the right may transfer all the rights to use the work to another person in accordance with the agreement, including the one concluded at public auctions (alienation of the right to use).

(2) The right to use the work shall be transferred in accordance with the procedure of universal legal succession.

(3) The right-holder may grant the permission (license) to another person to use the work within certain limits. The permission is required to use the work both in the original and revised version, in particular-in the form of translation, arrangement, etc.

(4) Every method of use of the work requires special permission of the right holder.

Article 1064. Limits of Copyrights

The exclusive rights of the author and other persons to use the work shall be allowed only in the cases stipulated by Articles 1065-1068 of this Code or other Laws.

The indicated restrictions shall be applied under condition that it neither damages the normal use of the work nor unreasonably infringes the legal interests of the author.

Article 1065. Reproduction of Alien Work for Personal Purposes

(1) The alien work which was publicly released shall be allowed to use for personal purposes without consent of the author and without payment of author’s remuneration provided that the normal use of the work is not damaged and the legal interests of the author are not infringed.

(2) The rules of the first paragraph of this Article shall not apply in relation to:

? the use of architectural works in the form of buildings and similar structures;

? the use of data bases or their significant parts;

? the use of computer software, except for the cases stipulated by the Law;

? reproduction of books (as a whole) and musical scores;

(3) In the first paragraph of this Article the Law shall have an exception to stipulate that if an audiovisual work or work fixed on a phonogram is used for personal purposes, the author, performer and producer of the record shall be entitled to the commensurate remuneration.

The remuneration for reproduction shall be paid in the form of deductions (interests) by the producers and importers of equipment (audio electronics, video-tape recorders, etc.) and material carriers (audio and (or) video tapes, cassettes, laser disks, compact disks, etc.) which are used for such reproduction.

Article 1066. Free Public Performance of Works

Public performance of the legally published musical compositions during the official religious and funeral ceremonies shall be allowed without consent of the author and without payment of author’s remuneration in the volume justified by the nature of such ceremonies.

Article 1067. Free Reproduction of Works for Judicial Purposes

The reproduction of works for the purposes of judicial and administrative work in the volume justified by the purpose of use shall be allowed without consent of the author and without the payment of author’s remuneration.

Article 1068. Right to the Work Product

(1) Personal non-economic rights to the work created in the course of execution of service assignment (work product) shall belong to the author of the work.

(2) The right to use the work product in the way set by the purpose of the assignment and limits preconditioned by it, shall belong to the person on whose assignment the work has been created and with whom the author has labor relations (employer) unless the agreement between him and the author stipulates otherwise. The employer shall be entitled to transfer this right of use to another person.

The agreement of the employer with the author may stipulate payment of remuneration to the author for the use of the work product and contain other conditions of its use.

(3) After ten years from the date of submission of the work and with the consent of the employer-earlier, the author shall obtain the full right to use the work and receive author’s remuneration, irrespective of the agreement concluded with the employer.

(4) The author’s right to use a work product in a way not conditioned by the purpose of the assignment, shall not be limited.

Article 1069. Validity of Copyright in the Territory of the Kyrgyz Republic

(1) The copyright to the work promulgated in the territory of the Kyrgyz Republic or non-promulgated but the original copy of which in any form is located in the territory of the Republic, shall be valid in the territory of the Kyrgyz Republic. In this case the copyright shall belong to the author and his heirs as well as other legal successors of the author irrespective of their citizenship.

(2) The copyright shall also belong to the citizens of the Kyrgyz Republic whose works are promulgated or exist in some objective form in the territory of a foreign state, as well as to their heirs and other legal successors.

(3) When the author is protected legally in accordance with the international agreements the fact of promulgation in the territory of a foreign state shall be determined in accordance with the provisions of the appropriate international agreement.

In order to protect the work in the territory of the Kyrgyz Republic the person who is recognized as the author of the work shall be determined in accordance with the Laws of the state where the work commenced being protected for the first time.

Article 1070. Commencement of Copyright Effectiveness

(1) The copyright to the work shall be in force from the date of shaping it into an objective form simple for perception by the third parties irrespective of promulgation. The copyright to the oral work shall be in force from the moment of its communication to the third persons.

(2) Where the work does not come under Article 1069 of this Code the copyright to such a work shall be protected from the moment of promulgation of the work provided that it carried out in the Kyrgyz Republic.

Article 1071. Term of Copyright Validity

(1) The copyright shall be valid during the whole life of the author and fifty years after his death, beginning from the first of January of the year following the year of the author’s death.

(2) The copyright to the work created in co-authorship shall be valid during the whole life of the co-authors and fifty years after the death of the last of co-author who outlived other co-authors.

(3) The copyright to the work issued for the first time under pseudonym or anonymously shall be valid during fifty years, beginning from January 1 of the year following the year when the work was issued.

Where the pseudonym or an anonymous author is disclosed, the terms indicated in the first paragraph of this Article shall be applied.

(4) During the period indicated in the first paragraph of this Article the copyright shall belong to the author’s heirs and be inherited. During the same terms the copyright shall belong to the legal successors who obtained this right on the basis of the contract with the author, his heirs and future legal successors.

(5) The copyright to the work issued for the first time during fifty years after the author’s death shall be valid during fifty years after its issue, beginning from January 1 of the year following the year when the work was issued.

(6) The authorship, name of the author and inviolability of the work shall be protected without fixed limits.

Article 1072 Transfer of a Work to the Public Domain

(1) Upon expiration of copyright validity term for the work, it shall become public domain.

The works which have never been protected in the territory of the Kyrgyz Republic shall be deemed to be public domain.

(2) The works which belong to public domain may be used freely by any person without payment of the author’s remuneration. The right of authorship, right to the name and the right to inviolability of the work shall be observed.

Article 1073. Author’s Contract

(1) The author or his heirs may transfer the right to use his work to another person by the way of conclusion of the author’s contract. The author’s contract shall be for pay.

(2) The author’s contract may be concluded for a prepared work or for the work which will be created by the author under his obligation (order contract). The author’s contract shall also be the contract permitting the use of the work within certain limits, which is concluded by the author or his heirs (author’s licensing contract).

Article 1074. Conditions of the Author’s Contract

(1) The author’s contract must stipulate:

– methods of use of the work (specific rights transferred in accordance with this contract);

– term and territory for which the right is transferred;

– the amount of remuneration and (or) procedure for determination the amount of remuneration for every method of use of the work, procedure and terms of payment.

If the author’s contract does not stipulate conditions on the term for which the right to use the work is transferred, the contract may be canceled by the author in five years from the date of its conclusion provided that the user is informed about it in writing, six month before the cancellation of the contract.

If the author’s contract does not stipulate the conditions about the territory on which the right to use the work is valid, the validity of the right transferred in accordance with the contract shall be limited by the territory of the Kyrgyz Republic.

(2) The subject of the author’s contract can not include the rights to use the work which are unknown at the moment of conclusion the contract.

(3) The amount of remuneration for the use of the work shall be specified in the author’s contract under the agreement of the parties.

Where the author’s contract on publication or other reproduction of performance of the work sets the fixed amount of the remuneration, the contract shall stipulate the maximum number of copies of the work.

The waiver of the author and his heirs from the right to remuneration is void.

(4) The rights transferred under the author’s contract can be transferred by any party of the contract fully or partially to other persons only if it is directly stipulated by such a contract.

Article 1075. Form of the Author’s Contract

The author’s contract shall be concluded in the written form except the cases stipulated by the Law.

Article 1076. Responsibility Under the Author’s Contract

The party which did not fulfill or improperly fulfilled the liabilities under the author’s contract must cover the losses caused to the other party including lost profit.

Article 1077. Term of Validity of the Author’s Licensing Contract

(1) The author’s licensing contract shall be valid during the period stipulated by it, but not longer than the term of the copyright validity.

(2) Irrespective of weather the term of validity is included in the author’s licensing contract or not, the author of the work and his heirs shall be entitled to cancel the contract unilaterally in ten years after the date of the conclusion of the contract, informing his contract agent about it in writing, six months prior to the cancellation of the contract. The author and his heirs shall have this right every ten years.

(3) The contract can stipulate the terms of use of the work, the violation of which results in the right of the legal successor to cancel the contract.

Article 1078. Liability for Illegal Use of a Work Without Contract

In the event the work is used without a contract concluded with the owner of the right, the violator is obliged to indemnify the losses caused to the right owner, including lost profit. The right owner shall be entitled to disgorge from the violator the revenues obtained in the result of the violation instead of the losses.

The use of the work in a way which is not stipulated by the author’s contract or after expiration of validity of such a contract shall be considered the use of the work without a contract.

Article 1079. Legal Regulation of Authors’ Relations

The authors’ relations shall be regulated by this Code and other legislation.

Chapter 55. Neighboring Rights

Article 1080. Object of Neighboring Rights

Neighboring rights shall extend to staging, performance, phonograms, programs of broadcasting and cable organizations.

Article 1081. Subjects of Neighboring Rights

(1) The right to performance shall belong to actors-performers, director-stagers, conductors. The right to use such a performance may be transferred to heirs and other legal successors.

(2) The right to record a performance shall belong to the person who created such a record or to his/her legal successors.

(3) The right to transmission shall belong to the broadcasting or cable organization that created a program or to its legal successors.

Article 1082. Mark of Protection of Neighboring Rights

The producer of a phonogram and the performer may, in order to inform about his rights, use the mark of protection neighboring rights which is placed on each copy of a phonogram and (or) on each sleeve and consists of three elements:

? a circled Latin letter “P”;

? name of the owner of the exclusive neighboring rights;

? year of the first publication of the recording.

Article 1083. Rights of a Performer

(1) The performer has the right for:

? indication of his/her name during performance, on copies of the record of performance or staging, in the course of broadcast or reproduction of the performance or staging;

? protection of the performance or staging against distortion;

? provision or permission to use the performance or staging;

(2) The right to use the performance or staging includes the right to allow:

? broadcast or cable transmission of the performance or staging;

? record of the performance or staging with the help of technical devices;

? broadcast and public reproduction of the produced record of a performance or staging;

? copying and distribution of the copies of a record of a performance and staging.

(3) Performers shall exercise their rights with the observation of the rights of authors of the works performed.

(4) Restrictions of the right to use or stage the performance shall be established by the law.

(5) The provisions of Article 1068 shall accordingly apply to the right to performance made in the course of execution of the work related assignment (work performance or staging).

Article 1084. Rights of a Producer of a Phonogram

(1) Producer of a phonogram and his legal successor shall have the exclusive right to this phonogram.

Exploitation of such a phonogram by other persons is allowed only upon the permission of the producer of a phonogram or his legal successor.

(2) Producer of a phonogram or his legal successor shall have the right to perform or to authorize the following:

? public reproduction of the phonogram;

? adaptation or any other transformation of the phonogram;

? distribution of copies of the phonogram (sale, rental etc.), including their transfer abroad;

? import copies of the phonogram.

(3) If the property right to the copy of the record of performance belongs not to its creator, the exclusive right to use the record, including its commercial rental belongs to the person who created the record.

(4) Restrictions of the rights of the producer of performance shall be established by the law.

(5) Holders of the right to the phonogram shall exercise their rights taking into account the rights of authors of the work and rights of the performers.

Article 1085. Rights of a Cable Broadcasting Organization

(1) Broadcasting company shall have the exclusive right to exploit its program in any form and give permission to third persons to use such a program.

Exploitation of the program by the third persons shall be done on the basis of a contract. The right-holder shall be entitled to remuneration for each type of use.

(2) Restrictions of the rights of a broadcasting company shall be established by the law.

(3) The broadcasting company shall implement its rights taking into account the rights of authors of works and rights of performers, and in certain cases – holders of the rights to the record of performance and other broadcasting companies.

Article 1086. Rights of a Cable Broadcasting Organization

Rights of the cable broadcasting organization shall be established as applicable to the rights of a broadcasting organization established by this Code and the law.

Article 1087. Responsibility for Non-Implementation or Inappropriate Implementation of the Contract on the Use of Neighboring Rights and Illegal Use of a Work Without the Contract

A person who failed to implement or who inappropriately implemented the contract on use of neighboring rights or used the work illegally without the contract, shall bear the responsibility in accordance with general rules on responsibilities for failure to implement or inappropriate implementation of the contract, or accordingly to responsibility for the damage caused.

Chapter 56. Right to Industrial Property (Right to Invention, Utility Model, Industrial Design)

Article 1088. Legal Protection of Invention, Utility Model and Industrial Design

(1) The right to an invention and industrial design is protected under condition that a preliminary patent, patent and certificate for utility model is granted

(2) Requirements claimed to the invention, utility model, industrial design, under which the right to get preliminary patent, patent, certificate for utility model (hereinafter referred to as protected document), the procedure of their issuance by the patent agency shall be established by the law.

Article 1089. Right to Use an Invention, Utility Model, Industrial Design

(1) A patent owner shall have the exclusive right to use an invention, utility model, industrial design protected by a protected document, at his discretion; including the right to produce the good with application of protected decisions, apply technological processes protected by the patent in his own production, sell or offer for sale goods that contain protected decisions and import relevant goods.

Persons, other than the patent owner, shall not be entitled to use the invention, utility model, industrial design without his permission, except for the cases when such a use is not considered violation of the rights of the patent owner according to the present Code and other laws.

(2) Unauthorized manufacture, application, import, offer for sale, sale and any other introduction into the economic turnover or storage for that purpose of the good that contain patented invention, utility model or industrial design, as well as application of the method protected by a preliminary patent, patent for an invention or introduction to the economic turnover or storage for this purpose of the goods manufactured directly by the method protected by a preliminary patent, patent for an invention, device in the functioning or exploitation of which the method, pursuant to its purpose, is automatically realized shall be recognized as the violation of the exclusive right of the patent owner.

The good is considered to be manufacture by a patented method unless proved otherwise.

Article 1090. Disposal of the Right to a Patent

The right to obtain a patent, the rights coming from registration of the application, the right to own the patent and rights coming from the patent may be transferred entirely or partially to the other person.

Article 1091. The Right of Authorship

(1) The author of invention, utility model or industrial design shall have the right to authorship and the right to give a special name to an invention, utility model or industrial design.

The right of authorship and other personal rights to an invention, utility model or industrial design shall arise from the moment of appearance of the rights based on the patent.

(2) The author of the invention, utility model or industrial design may have special rights, privileges and advantages of social nature according to the law.

(3) A person indicated in the application as the author shall be deemed the author unless otherwise is proved. Only the facts and the circumstances existing before the right’s appearance may be used as proofs.

Article 1092. Co-Authors of an Invention, Utility Model or Industrial Design

Relations of co-authors of an invention, utility model or industrial design shall be established by the agreement between them.

Uncreative assistance to creation of an invention, utility model or industrial design (technical, organizational or mathematics assistance, assistance in registration of rights, etc.) does not entail co-authorship.

Article 1093. Work Inventions, Utility Models and Industrial Designs

(1) The right to obtain protected document for an invention, utility model, industrial design created by an employee during execution of his service duties or a concrete task of the employer (work invention) shall belong to the employer provided that it is stipulated by the contract between them.

(2) The amount, conditions and procedure of payment of remuneration to the author for work invention, utility model or industrial design shall be established by the agreement between him and the employer. In case of failure to reach the agreement, the decision shall be made by court. Where it is impossible to measure contribution of the author and the employer to the creation of work invention, utility model or industrial design, the author shall have the right to the half of profit gained or to be gained by the employer.

Article 1094. Form of the Contract on Transfer of Right to a Protected Document

The contract on transfer of the right to protected document (concession of protected document) should be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements of registration entails illegality of the contract.

Article 1095. Form of Permission (License) to Use an Invention, Utility Model, Industrial Design

The licensing agreement and sub-licensing contract shall be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements on registration entails illegality of the contract.

Article 1096. Responsibility for Violation of a Protected Document

On the basis of the request of the patent owner, violation of the protected document must be stopped, and the violator must compensate the patent owner all his losses. Instead of the losses the patent owner has the right to charge from the violator the income gained by him from the violation.

Chapter 57. Rights to New Varieties of Plants and New Animal Breeds

Article 1097. Protection of Right to New Varieties of Plants and New Animal Breeds

(1) Rights to the new varieties of plants and new animal breeds (breeding achievements) shall be protected provided that the patent is granted.

(2) Requirements under which the right to obtain a patent arises, the procedure of granting the patent for breeding achievements shall be established by the law.

(3) The rules of Articles 1090-1096 of this Code shall accordingly apply to the relations connected with the rights to breeding achievements and protection of these rights, unless otherwise is stipulated by the rules of the present chapter and the law.

Article 1098. Rights of the Author of a Breeding Achievement to Remuneration

The author of a breeding achievement who is not a patent owner shall have the right to receive the remuneration from the patent owner for the use of the breeding achievement within the term of patent validity.

The amount and conditions of payment of remuneration to the author of breeding achievement shall be established in the contract concluded between him and the patent owner.

Article 1099. Rights of the Patent Owner

The patent owner of a breeding achievement shall have the exclusive right to use this achievement within the limits established by the law.

Article 1100. Obligations of the Patent Owner

1100. The patent holder of a breeding achievement shall be obliged to support appropriate variety of plant or animal breed within the validity term of the patent in a way to preserve the features indicated in the description of the variety of plant or breed of animal compiled at their registration.

Chapter 58. Protection of Undisclosed Information from Illegal Use

Article 1101. Right to Protection of Undisclosed Information

A person who legally possesses technical, organizational or commercial information including production secrets (know-how) unknown to the third parties (undisclosed information) shall have the right for protection of this information from illegal exploitation unless the conditions established by Article 34 of the present Code are observed.

The right to protection of undisclosed information from illegal use arises irrespective of any formality carried out in respect of this information (its registration, receiving of certificate, etc.).

Rules on protection of undisclosed information shall not be applied in relation to the information which, in accordance with the law, cannot make up official or commercial secret (information on legal entities, rights to property and transactions with it which are subject to state registration, information subject to presentation as a state statistics reporting and others).

The right to protection of undisclosed information is valid until the conditions stipulated by Article 34 of this Code are valid.

Article 1102. Responsibility for Illegal Use of Undisclosed Information

(1) A person who has obtained or distributed undisclosed information or used it without legal grounds must recover losses caused in the result of illegal use to the person who legally possess the information.

Where a person illegally using undisclosed information received it from the person who has no right to distribute it, of which the acquirer of the information did not know and did not have to know (fair acquirer), the legal holder of undisclosed information shall have the right to demand him to compensate the losses caused by the use of undisclosed information after the fair acquirer became aware that the use is illegal.

(2) A person lawfully possessing undisclosed information shall be entitled to require form the person who illegally uses it, to stop this use immediately. However, the court may allow its further use under the conditions of payable exclusive license taking into consideration the means spent for its use by fair acquirer of undisclosed information.

(3) A person who independently and lawfully got the data which makes up the content of undisclosed information shall have the right to use this data irrespective of the rights of the holder of appropriate undisclosed information and does not report to him for such a use.

Article 1103. Transfer of the Right to Protection of Undisclosed Information from Illegal Use

The person possessing undisclosed information may transfer all or a part of the data, which makes up the content of this information, to another person on the basis of licensing agreement.

A licensee is obliged to undertake proper measures to protect confidentiality of the information received on the basis of the contract, and has the same rights to its protection from illegal use by third persons as a licenser has. Given that the agreement does not stipulate otherwise, the liability to preserve confidentiality of the information shall be with the licensee even after termination of the licensing agreement, provided that the relevant data continue to be undisclosed information.

Chapter 59. Means of Individualization of Participants of the Civil Turnover, Goods, Works and Services

Paragraph 1. Trade Name

Article 1104. Right to a Trade Name

(1) A legal entity whose trade name is registered in the established order shall have the exclusive right to use the trade name on goods, packaging, advertisements, sign boards, prospectus, bill boards, publications, official stationery and other documentation related to its activity, as well as in the course of demonstration of goods at fairs and exhibitions held in the territory of the Kyrgyz Republic.

(2) The order of registration of a trade name of a legal entity shall be determined by the normative legal acts.

Article 1105. Use of the Trade Name of a Legal Entity in a Trademark

The trade name of a legal entity may be used in his trademark.

Article 1106. Effectiveness of the Right to a Trade Name

(1) The exclusive right to a trade name registered in the Kyrgyz Republic as the designation of a legal entity shall be effective in the territory of the Kyrgyz Republic.

(2) The exclusive right to a trade name registered or commonly recognized in a foreign country shall be effective within the territory of the Kyrgyz Republic in cases provided by the law.

(3) The effectiveness of the right to a trade name shall be terminated with the liquidation of a legal entity or with a change of it trade name as well as in the other cases provided by the law.

Article 1107. Alienation of the Right to a Trade Name

Alienation or transfer of the right to the trade name of a legal entity shall be allowed only in cases of reorganization of the legal entity or the alienation of an enterprise as a whole.

The holder of the right to a trade name may authorize other person to use his trade name (grant a license). However, the licensing agreement must spell out measures excluding delusion of a consumer.

Paragraph 2. Trademark (service mark)

Article 1108. Legal Protection of a Trademark

(1) Legal protection of a trademark (service mark) shall be granted on the basis of its registration.

(2) The right to the trademark shall be certified by a certificate.

Article 1109. Right to Use the Trademark

(1) The owner of the right to the trademark shall have the exclusive right to use and dispose the mark which belongs to him.

(2) Any introduction of a trademark into turnover in the order established by the law shall be considered the use of a trademark.

Article 1110. Consequences of Non-Exploitation of a Trademark

(1) When a trademark is not used without valid reason continuously for 3 years from the date of its registration, it may be canceled at the request of any interested person.

(2) The grant of a license to use the trademark shall be deemed its use.

Article 1111. Transfer of the Right to the Trademark

(1) The right to the trademark in relation of all types of goods, works and services or their parts, indicated in the certificate, may be transferred by the right holder to another person under the agreement.

Transfer of the right to the trademark shall not be allowed if it can be the reason for mislead in relation to goods or their producer.

Transfer of the right to the trademark, including its transfer on the basis of the contract or in the procedure of right-succession should be registered in the patent agency.

Article 1112. Form of the Agreement on Transfer of the Right to a Trademark

The agreement on transfer of the right to the trademark or on granting a license should be concluded in written form and registered in the patent agency.

Failure to do it in written form and to comply with the requirement of the registration entails invalidity of the agreement.

Article 1113. Responsibility for Violation of the Right to a Trademark

The person unlawfully using the trademark shall be obliged to stop the violation and compensate the owner of the trademark his losses.

The person unlawfully using the trademark shall be obliged to destroy designations of the trademark produced, to remove the illegally used trademark or the sign which is identical to it to the extent of confusion from the goods and their packages.

If it is impossible to fulfill the requirements of the second paragraph of this Article the relevant good shall be subject to destruction.

Paragraph 3. Appellations of Origin of Goods

Article 1114. Legal Protection of Appellations of Origin of Goods

(1) Legal protection of appellations of origin of good shall be granted on the basis of its registration.

(2) Appellation of origin (indication of origin) of a good means the name of a country, settlement, locality or another geographical place used for designation of a product the special characteristic features of which are exclusively or mainly determined by natural conditions peculiar to this geographic place or by other factors or combination of natural conditions and these factors.

Appellation of origin of goods may be a historical name of a geographic place.

(3) A designation providing or including the name of a geographical object, but which is generally used in the Kyrgyz Republic as a designation of a certain type of goods not related to the place of its production, shall not be considered to be the appellation of origin of goods and is not subject to registration for the purpose of legal protection in accordance with the provisions of this paragraph. However, this does not deprive a person, whose rights are violated by unfair use of such an appellation, of the opportunity of their protection through other means stipulated by the law.

(4) Registration of the appellation of origin of goods shall be made by the patent agency.

(5) A certificate on the right to use the appellation of origin of goods shall be issued on the basis of the registration.

(6) The procedure and the conditions of registration, issuance of certificates, recognition of invalidity and termination of the validity of the registration and the certificates shall be established by the law.

Article 1115. The Right to Use the Appellation of the Origin of Goods

(1) A person holding the right to use the appellation of origin of goods shall be entitled to place this name on a product, package, advertisement, prospects, accounts and use it otherwise due to the introduction of this good into civil turnover.

(2) Appellation of origin of a product may be registered by several persons both jointly and in separation from each other for designation of the product which complies with the requirements of paragraphs 1 and 2, Article 1114 of this Code. The right to use the appellation of origin of good shall belong to each of these persons.

(3) Alienation and other deals on assignment of the right to use the appellation of origin of goods, as well as permission to use them on the basis of a license shall be prohibited.

Article 1116. Scope of the Legal Protection of Appellation of Origin of Goods

(1) Legal protection of appellation of origin of goods located on the territory of the Kyrgyz Republic shall be granted in the Kyrgyz Republic.

(2) Legal protection of the appellation of origin of goods located in another state shall be granted in the Kyrgyz Republic provided that this appellation is registered in the country of origin of goods, as well as in the patent agency of the Kyrgyz Republic and in accordance with the Code.

Article 1117. Responsibility for Unlawful Use of Appellation of Place of Origin of Goods

(1) A person holding the right to use the appellation of origin of goods, as well as the organizations on protection of consumer’s rights may demand from the person, who illegally uses this appellation, to stop the use, to remove the illegally used appellation or designation which are identical to the extent of confusion, from the goods, packages, forms and similar documents, to destroy the produced imprint of the appellation or sign which are identical to the extent of confusion, and if its impossible-to withdraw and destroy the goods and/or packages.

(2) A person holding the right to use the appellation of origin of goods shall be entitled to require the compensation of the losses from the violator of this right.

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