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Draft EU-Canada CETA
22.9.2009
Limited
C
HAPTER
XX
I
NTELLECTUAL
P
ROPERTY
Article 1
Objectives
The objectives of this chapter are to:
(a) facilitate the production and commercialization of innovative and creative
products between the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of
intellectual property rights.
Sub-Section 1
Principles
Article 2
Nature and Scope of Obligations
1. The Parties shall ensure an adequate and effective implementation of the international
treaties dealing with intellectual property to which they are parties including the WTO
Agreement on Trade-related Aspects of Intellectual Property (hereinafter called TRIPS
Agreement). The provisions of this chapter shall complement and further specify the rights
and obligations between the Parties under the TRIPS Agreement and other international
treaties in the field of intellectual property.
2.
For the purpose of this Agreement, intellectual property rights embody at least:
(a) copyright, including copyright in computer programs and in databases;
(b) rights related to copyright;
(c) rights related to patents, including rights derived from supplementary
protection certificates;
(d) utility models in so far as these are protected as exclusive property rights in the
domestic law concerned;
(e) trade marks;
(f) trade names in so far as these are protected as exclusive property rights in the
domestic law concerned;
(g)
designs;
(h)
layout-designs (topographies) of integrated circuits;
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(i)
geographical indications, including designations of origin;
(j)
plant variety rights; and
(k)
protection of undisclosed information.
3. Protection of intellectual property includes protection against unfair competition as
referred to in Article 10
bis
of the Paris Convention for the Protection of Industrial Property
(Stockholm Act 1967).
Article 3
Public health concerns
1. The Parties recognise the importance of the Doha Declaration on the TRIPS Agreement
and Public Health adopted on 14 November 2001 by the Ministerial Conference of the
World Trade Organisation. In interpreting and implementing the rights and obligations
under this Chapter, the Parties shall ensure consistency with this Declaration.
2. The Parties shall contribute to the implementation and respect the Decision of the WTO
General Council of 30 August 2003 on Paragraph 6 of the Doha Declaration on the TRIPS
Agreement and Public Health, as well as the Protocol amending the TRIPS Agreement,
done at Geneva on 6 December 2005.
Article 4
Exhaustion
The Parties shall be free to establish their own regime for exhaustion of intellectual property
rights, subject to the provisions of the TRIPS Agreement.
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Sub-Section 2
Standards Concerning Intellectual Property Rights
Article 5
Copyright and Related Rights
Article 5.1 – Protection Granted
1. The Parties shall respect the rights and obligations as set out in the Berne Convention
for the Protection of Literary and Artistic Works (1886, last amended in 1979), the WIPO
Copyright Treaty – WCT (Geneva, 1996), and the WIPO Performances and Phonograms
Treaty – WPPT (Geneva, 1996). The Parties shall comply with Articles 1 through 22 of the
Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations (1961).
2. The moral rights of the authors and performers shall be protected in accordance with
Article 6
bis
of the Berne Convention for the Protection of Literary and Artistic Works and
Article 5 of the WIPO Performances and Phonograms Treaty (WPPT).
3. The Parties may provide for limitations to the rights set out in this Article only in
certain special cases which do not conflict with a normal exploitation of the subject matter
and do not unreasonably prejudice the legitimate interests of the right holder.
Article 5.2 - Duration of Authors' Rights
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of
the Berne Convention shall run for the life of the author and for 70 years after his death,
irrespective of the date when the work is lawfully made available to the public.
2. In the case of a work of joint authorship, the term referred to in paragraph 1 shall be
calculated from the death of the last surviving author.
3. In the case of anonymous or pseudonymous works, the term of protection shall run for
70 years after the work is lawfully made available to the public. However, when the
pseudonym adopted by the author leaves no doubt as to his identity, or if the author discloses
his identity during the period referred to in the first sentence, the term of protection applicable
shall be that laid down in paragraph 1.
4. Where a work is published in volumes, parts, installments, issues or episodes and the
term of protection runs from the time when the work was lawfully made available to the
public, the term of protection shall run for each separately.
5. In the case of works for which the term of protection is not calculated from the death
of the author or authors and which have not been lawfully made available to the public within
70 years from their creation, the protection shall terminate.
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6. The term of protection of cinematographic or audiovisual works shall expire 70 years
after the death of the last of the following persons to survive, whether or not these persons are
designated as co-authors: the principal director, the author of the screenplay, the author of the
dialogue and the composer of the music specifically created for use in the cinematographic or
audiovisual work.
Article 5.3 - Duration of Related Rights
1. The rights of performers shall expire not less than 50 years after the date of the
performance. However, if a fixation of the performance is lawfully published or lawfully
communicated to the public within this period, the rights shall expire 50 years from the date
of the first such publication or the first such communication to the public, whichever is the
earlier.
2. The rights of producers of phonograms shall expire not less than 50 years after the
fixation is made. However, if the phonogram has been lawfully published within this period,
the said rights shall expire 50 years from the date of the first lawful publication. If no lawful
publication has taken place within the period mentioned in the first sentence, and if the
phonogram has been lawfully communicated to the public within this period, the said rights
shall expire 50 years from the date of the first lawful communication to the public.
3. The rights of producers of the first fixation of a film shall expire not less than 50 years
after the fixation is made. However, if the film is lawfully published or lawfully
communicated to the public during this period, the rights shall expire not less than 50 years
from the date of the first such publication or the first such communication to the public,
whichever is the earlier. The term "film" shall designate a cinematographic or audiovisual
work or moving images, whether or not accompanied by sound.
4. The rights of broadcasting organizations shall expire not less than 50 years after the
first transmission of a broadcast, whether this broadcast is transmitted by wire or over the air,
including by cable or satellite.
Article 5.4 – Protection of previously unpublished works
The Parties shall ensure that any person who, after the expiry of copyright protection, for the
first time lawfully publishes or lawfully communicates to the public a previously unpublished
work, shall benefit from a protection equivalent to the economic rights of the author. The term
of protection of such rights shall be 25 years from the time when the work was first lawfully
published or lawfully communicated to the public.
Article 5.5 – Co-operation on Collective Management of Rights
The Parties shall endeavour to facilitate the establishment of arrangements between their
respective collecting societies with the purpose of mutually ensuring easier access and
delivery of content between the territories of the Parties, as well as ensuring mutual transfer of
royalties for use of the Parties' works
or other copyright-protected subject matters. The Parties
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shall endeavour to achieve a high level of rationalisation and transparency with regard to the
execution of their tasks of their respective collecting societies.
Article 5.6 – Resale Right
1. The Parties shall provide, for the benefit of the author of an original work of art, a
resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to
receive a royalty based on the sale price obtained for any resale of the work, subsequent to the
first transfer of the work by the author.
2. The right referred to in paragraph 1 shall apply to all acts of resale involving as sellers,
buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in
general, any dealers in works of art.
3. The Parties may provide that the right referred to in paragraph 1 shall not apply to acts
of resale where the seller has acquired the work directly from the author less than three years
before that resale and where the resale price does not exceed a certain minimum amount.
4. The royalty shall be payable by the seller. The Parties may provide that one of the
natural or legal persons referred to in paragraph 2 other than the seller shall alone be liable or
shall share liability with the seller for payment of the royalty.
Article 5.7 - Fixation right
1. For the purpose of this provision fixation means the embodiment of sounds and
images, or of the representations thereof, from which they can be perceived, reproduced or
communicated through a device
2. The Parties shall provide for performers the exclusive right to authorise or prohibit the
fixation of their performances.
3. The Parties shall provide for broadcasting organisations the exclusive right to
authorise or prohibit the fixation of their broadcasts, whether these broadcasts are transmitted
by wire or over the air, including by cable or satellite.
4. A cable distributor shall not have the right provided for in paragraph 2 where it merely
retransmits by cable the broadcasts of broadcasting organisations.
Article 5.8 – Broadcasting and Communication to the Public
1. The Parties shall provide performers the exclusive right to authorize or prohibit the
broadcasting by wireless means and the communication to the public of their performances,
except where the performance is itself already a broadcast performance or is made from a
fixation.
2. The Parties shall ensure that a single equitable remuneration is paid by the user if a
phonogram published for commercial purposes, or a reproduction of such phonogram, is used
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