FTAA - Free Trade Area of the Americas
Draft Agreement
Chapter on Intellectual Property Rights
(Continuation)
Article XX. Requirement of Use
[1. [Registration may be cancelled if, after five years of the date of registration, a trademark has not been effectively and genuinely used by the owner or by a third party with the express consent of the owner, within the territory of the Party that has granted the registration for specific goods or services; or if such use has been suspended for the same uninterrupted. This may be claimed through the exercise of the relevant action, unless there are valid reasons for non-use of the trademark.]
[If use is required by a Party to maintain registration of a trademark, 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.]
[ [Use of a trademark is required by a Party to maintain registration of a trademark.] [A trademark shall be understood to be in use when goods or services identified by the trademark have been introduced in trade or are available on the market with said trademark, in the normal amount and mode, considering the nature of the goods or services and the modalities used to market such goods or services on the market [of the Parties.] ]
[Registration may be cancelled or declared expired due to lack of use only after an uninterrupted period of no more than five (5) years of non-use, immediately before the request for cancellation or the declaration of expiration, unless valid reasons based on the existence of obstacles to such use are shown by the trademark right holder.]
2. 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 governmental requirements for goods or services protected by the trademark, shall be recognized as valid reasons for non-use.
[3. In procedures for cancellation due to non-use, the burden of proof on actual use of the trademarks shall be on the responding party.]
4. 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.
[5. For the purpose of the preceding article, Parties shall consider the following to constitute use:
a) Use of the trademark in a different manner, without thereby varying substantially from the manner in which it was originally registered.
b) Use of the trademark to distinguish goods and services intended solely and exclusively for purposes of export.
c) Likewise, use of the trademark for a good or service shall serve to certify use with respect to related goods or services, whether or not they belong to the same class of the international classification system under the Nice Agreement.]
[5. The following acts, among others, shall be understood as use of a sign for commercial purposes:
a) Place on the market, sell, offer for sale or distribute products or services under the sign;
b) Import, export, store or transport products with the sign;
c) Use the sign in publicity, publications, commercial documents or communications, whether written or oral, regardless of the means of communication used, without prejudice to applicable rules on comparative publicity; and
d) Adopt or use the sign as a domain name or electronic mail address, or as a name or identification in electronic media or other similar items used in electronic communications media or electronic commerce.]
[6. Each Party shall undertake ex-officio if its legislation so permits, or at the request of an interested Party, to cancel the registration of a trademark as provided in Article 1 of this section. Notwithstanding the above, cancellation due to non-use of the trademark shall be effective until after this has been declared.]
Article XX. [Exceptions to use
Registration of a trademark shall not confer on its owner:
a) The right to prohibit a third party from using their own name, pseudonym or domicile, a geographic name or any other true indication, for the purpose of identifying its products or its services, or giving information about them, provided that such use is made in good faith and is not liable to mislead the public as to the origin of those goods or services.
b) The right to prohibit a third party from using the mark in relation to legitimately marked products, which the owner, or his or her licensee, or any other person having the owner’s consent, may have sold or in any other way put on the market, domestically or abroad, provided that those products, and the containers or packages in immediate contact with such products, have not suffered any modification, alteration or deterioration.]
Article XX. 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 and 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 XX. Licensing and Assignment
[ [Parties] [Each Party] 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.]
[2. Licensing agreements shall be [in writing and] registered with the competent body of the Member and shall not include clauses that restrain trade. [If a license is not registered it shall not have effect against third parties.] ]
[2. The competent authorities of Parties may implement mechanisms for the recording of trademark licenses.]
[2. Parties shall not require recordal of trademark licenses to establish the validity of the license or to assert any rights in a trademark.]
[3. Licenses may be exclusive or non-exclusive use. If the license does not include an exclusivity clause, it shall be presumed that non-exclusive rights have been granted to the licensee.]
Article XX. [Procedural Issues]
[1. Parties shall ensure that procedures for the registration of trademarks for goods and services are sufficiently clear and transparent, respecting principles of due process.]
[2. Parties shall adopt the principle of priority (first to file) and priority in registration shall be determined on the date and hour of the presentation of the application.]
[3. Each Member shall establish a system for the registration of trademarks, which shall include at least:
a) background search,
b) the publication of the application,
c) a reasonable period of time for any person with a legitimate interest to oppose the registration of a trademark,
d) the possibility to petition to cancel the registration of a trademark that violates existing regulations.]
[3. Each Party shall provide a system for the registration of trademarks, which shall include:
a) written notice to the applicant of the reasons for the refusal to register its trademark;
b) a reasonable opportunity for the applicant to respond to the notice;
c) in the case of a final refusal to register, written notice to the applicant of the reasons for the final refusal; and
d) for each decision rendered in an opposition or cancellation proceeding, a written explanation of the reasons for the decision.]
[4. Each Party shall work, to the maximum degree practical, to provide a system for the electronic application, processing, registration and maintenance of trademarks.]
[5. International Classification System
a) Each registration or publication which concerns a trademark application or registration and which indicates goods or services shall indicate the goods or services by their names, grouped according to the classes of the Nice Classification.
b) Goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they appear in the same class of the Nice Classification. Conversely, goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they appear in different classes of the Nice Classification.]
Article XX. [Domain names on the Internet
1. Parties shall participate in the Government Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) to promote appropriate country code Top Level Domain (ccTLD) administration and delegation practices and appropriate contractual relationships for the administration of the ccTLDs in the Hemisphere.
2. Parties shall have their domestic Network Information Centers (NICs) participate in the ICANN Uniform Dispute Resolution Procedure (UDRP) to address the problem of cyber-piracy of
trademarks.]
Article XX. [Cancellation and transfer of domain name
In the event that a well known distinctive sign has been inappropriately registered in the country of the Party, as part of a domain name or electronic mail address of an unauthorized third party, on request by the owner or legitimate rightholder of that sign, the competent authority shall consider the matter and, where appropriate, shall order cancellation or amendment of the registration of such domain name or electronic mail address, in accordance with the respective national law, provided that use thereof would be liable to have one of the following effects:
1. Risk confusion or association with the owner or legitimate rightholder of the sign, or with his or her establishments, activities, products or services;
2. Cause unfair economic or commercial injury to the owner or lawful rightholder of the sign, arising from a dilution of its distinctive force or commercial or publicity value;
3. Make unfair use of the prestige of the sign, or of the good name of its owner or lawful rightholder.
The action of cancellation or amendment shall prescribe, for a period of five (5) years from the date on which the disputed domain name or electronic mail address was registered, or from the date on which electronic media, whichever period expires later, except where the registration was made in bad faith, in which case the action shall not be prescribed. This action shall not affect any other action that might be available with respect to injuries and damages under common law.]
2) GEOGRAPHICAL INDICATIONS – APPELATIONS OF ORIGIN
Article XX. [Protection of Geographical Indications and Appellations of Origin]
[1. Each Party shall protect appellations of origin and geographical indications under the terms of its legislation.
2. Each Party may declare protection for appellations of origin or, as appropriate, of geographical indications, pursuant to the provisions of its legislation, at the request of the competent authorities of the Party where the appellation of origin is protected.
3. Appellations of origin or geographical indications protected in a Party shall not be considered common or generic for distinguishing the good, while its protection in the country of origin subsists. ]
Article XX. [Definition]
[“Geographical indication” or “appellation of origin” shall be understood to be a geographical name of a particular country, region or locality, or a name that, without being that of a particular country, region or locality, refers to a specific geographical zone, which name is used to designate a product originating therein, the qualities, reputation or other characteristics are due exclusively or essentially to the geographical environment in which it is produced, including both natural and human
factors.]
[For the purposes of this chapter, appellation of origin or geographic indication shall be understood to mean the name of a country, region or specific locality, that is used to identify a product originating from such places, whose characteristics, including natural and human factors, are due exclusively or essentially to the geographic locality in which they are produced; in addition, a name which, without being a country, region or specific locality, refers to a given geographic area, shall also be considered as an appellation of origin when used in relation to products originating from that area.]
[According to the provisions of this chapter, geographical indication or appellation of origin shall be understood to be a geographical name of a particular country, region or locality to designate a good as originating from the territory of a country or of a region or of a locality of that territory, the qualities or characteristics of which are due exclusively to the geographical environment in which it is produced, including both natural and human factors.
To the same end, geographic indication or appellation of origin of a country, region or locality used in the presentation of a good to indicate its place of origin, provenance, preparation, collection or extraction.]
[Any sign, or any combination of signs, capable of identifying a good or service as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good or service is essentially attributable to the geographical origin of the good or service, shall be capable of constituting a geographical indication.]
Article XX.[Protectable Subject Matter]
[The use of appellations of origin in relation to natural, agricultural, handcraft or industrial products from the Parties shall be exclusively reserved for the producers, manufacturers and craftsmen who have their production or manufacturing facilities in the locality or region of the Member identified or referred to by such appellation.
Only producers, manufacturers and craftsmen authorized to use a registered appellation of origin are allowed to use with it the expression “Appellation of Origin.”]
[Each of the Parties shall recognize geographical indications and appellations of origin of the other States for exclusive use in products originating in that location. ]
[Appellations of origin protected in one Party shall not be considered common or generic for distinguishing a good while it continues to be protected in the country of origin.]
Article XX. [Ownership
Parties may establish that the declaration of protection of an appellation of origin be made ex-officio or at the request of persons who can prove a legitimate interest, understood as a natural or juridical persons directly engaged in the extraction, production or manufacture of the goods to be covered by the appellation of origin as well as producer associations. State, departmental, provincial or municipal authorities shall also be considered interested parties when the appellations of origin in question are located within their
jurisdiction.]
Article XX. [Rights Conferred]
[1. Applications for authorization of use of appellations of origin may be made by those directly engaged in the extraction, production or processing of products covered by appellation of origin, as well as by those carrying out such activity within the geographic area delimited by the declaration of protection. In both cases, applicants shall comply with the requirements established by the competent national offices.
2. Authorization to use a protected appellation of origin shall have a term of ten years that may be renewed for equal periods.
3. Use of appellations of origin by unauthorized persons that creates confusion shall be considered an infringement of industrial property right subject to be sanctioned, including those cases in which they are used in conjunction with qualifying terms such as style, type, imitation and other similar terms that may create confusion for the consumer.
4. Parties shall prohibit the use of an appellation of origin that identifies wines and spirits for goods of this type not originating in the place indicated by the appellation of origin in question, even where the true origin of the goods is indicated or used in translation or accompanied by expressions such as “kind,” type,” “style,” “imitation” or the like.
5. Parties may not prevent continued and similar use of an appellation of origin of another country identifying wines or spirits in connection with goods or services by any of its nationals who have used that appellation of origin in a continuous manner with regard to the same or related goods or services in the territory of the Party for (a) at least ten years preceding April 15, 1994, or (b) in good faith preceding that
date.]
[Consequently, no Party shall permit the importation, manufacture or sale of a product that uses a geographical indication or appellation of origin protected in another Party, unless it has been manufactured and certified therein, pursuant to its laws, regulations and other norms applicable to that product.
The obligation recognized above shall only have effect with respect to those geographical indications and appellations of origin protected by the domestic legislation of the Party that is claiming protection and whose definition is consistent with No. 1 of Article 22 of TRIPS. Further, to gain protection, each contracting Party shall notify the corresponding FTAA body (as determined by the Parties, pursuant to the results of negotiations in progress) of the geographical indications or appellations of origin which, fulfilling the requirements indicated herein, shall be considered within the scope of the protection.
All of the above shall be understood without prejudice to the recognition that each Party may grant to homonymous geographical indications and appellations of origin that legitimately could belong to third countries that re not Parties to the
Agreement.]
[1. In respect of appellations of origin and geographical indications, each Party shall provide the legal means for interested parties to prevent:
a) the use of any means that, in the designation or presentation of a good that indicates or suggests that the good in question originates from a territory, region or locality other than the true place of origin, in a manner which misleads the public as to the geographic origin of the good; and
b) any use which constitutes an act of unfair competition within the meaning of Article 10 bis of the Paris Convention.
2. Each Party 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 or appellation of origin with respect to goods not originating in the territory, region or locality indicated, if the use of the indication in the trademark for such goods in that Party is of a nature such as to mislead the public as to the true place of origin
3. Paragraphs 1 and 2 shall be applicable against any appellation of origin or geographical indication that, although literally true as to the territory, region or locality in which the good originates, falsely represents to the public that the goods originate in another territory, region or
locality.]
[1. The owner of a geographical indication shall have the exclusive right to prevent all persons not having the owner's consent from using in trade identical or similar signs, including trademarks, for goods or services that are related to those in respect of which the owner’s geographical indication is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign for related 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 Parties making rights available on the basis of use.
2. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to geographical indications. In determining whether a geographical indication is wellknown, Parties shall take account of the knowledge of the geographical indication in the relevant sector of the public, including knowledge in the Party concerned which has been obtained as a result of the promotion of the geographical indication.
3. Parties shall not require that the reputation of the geographical indication extend beyond the sector of the public that normally deals with the relevant goods or services, or that the geographical indication be registered.]
[Article XX. Exceptions
An appellation of origin may not be registered if it is:
a) Contrary to good customs or public order, or could mislead the public concerning the origin, nature, mode of manufacture, characteristics or qualities, or the aptitude for use in consumption of the
products concerned; and
b) The common or generic name of a certain product. ]
Article XX. [Relation to Trademark Protection
Signs that reproduce, imitate or include a protected appellation of origin for the same goods or for different goods may not be registered as trademarks where such use would result in a likelihood of confusion or of association with the appellation, or taking an unfair advantage of their good will; as well as those including a protected appellation of origin for wines and
spirits.]
Article XX. [Transparency
If Parties provide for notification and/or recordal as a legal means to protect geographical indications:
a) Parties shall accept applications for such notification and/or recordal of geographical indications without the requirement for intercession by a Party on behalf of its nationals;
b) Parties shall ensure that geographical indications are published for opposition, as well as cancellation, and shall provide processes to effect opposition and cancellation of geographical indications that are the subject of such notification and/or recordal
systems.]
3) COPYRIGHT AND RELATED RIGHTS
Article XX. Definitions
[For the purposes of this [Agreement,] [Section,] the following will be understood to mean:]
-[Author: Natural person who produces the intellectual creation]
-[Performer: the person who performs, sings, reads, recites, interprets or in any way executes a work;]
-[Performers: all actors, singers, musicians, dancers, or other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore; ]
-[Variety artist: a clown, contortionist, magician, trapeze artist or other person that performs in a show giving a public exhibition of their artistic ability;]
-[Competent National Authority: Body appointed for the purpose by the relevant national legislation;]
-[Copy: Physical medium in which the work is embodied as a result of an act of reproduction.]
-[Copy of a phonogram: a medium containing sounds taken directly or indirectly from a phonogram, which embodies all or part of the sounds fixed in that phonogram;]
-[Right holder: The person, whether natural person or legal entity, to whom rights accorded by this Agreement are transferred for any reason.]
-[Distribution to the public: The original or copies of the work made available to the public through sale, rental, lending or otherwise.]
-[Distribution to the public: any act by which the copies of a work are offered directly or indirectly to the general public or to a part thereof;]
-[Dissemination: To make a work available to the public by any means or procedure]
-[Publisher: the natural person or legal entity in whom is vested the exclusive right of reproduction of the work and the duty to disseminate it, within the limits stipulated in the publishing contract;]
-[Publisher: Natural or juridical person who, by contract with the author or his successor in title, is personally responsible for ensuring the publication and dissemination of the work.]
-[Broadcast: The transmission of sounds or images and sounds over a distance for public reception.]
-[Expressions of folklore: Productions using elements characteristic of the traditional cultural patrimony, consisting of all literary and artistic works created in the national territory by unknown or unidentified authors presumed to be nationals or members of their ethnic communities, and that are transmitted from generation to generation, reflecting the traditional artistic or literary perspective of a community.]
-[Fixation: The incorporation of signs, sounds or images, or a combination thereof, in a physical material that enables them to be perceived, reproduced or communicated]
-[Phonogram: Any exclusively aural fixation of sounds of a performance or of other sounds; phonographic and magnetic recordings shall be considered copies of phonograms;]
-[Phonogram: any fixation of sounds of a performance or of other sounds, or a representation of sounds that are not [in the form of] a fixation included in [a cinematographic or] an audiovisual work;]
-[Ephemeral Recording: Sound or audiovisual fixation of a performance or broadcast made for a finite period by a broadcasting organization by means of its own facilities and used for the transmission of its own broadcasts.]
-[Work: Any original intellectual creation of an artistic, scientific or literary nature, susceptible of disclosure or reproduction in any form.]
-[Anonymous work: one in which no mention is made of the identity of its author, either by decision of the author, or when the author’s name is unknown;]
-[Audiovisual work: Any creation expressed by a series of linked images, with or without the incorporation of sound, which is intended essentially for showing by means of projection apparatus or any other means of communicating images and sounds, regardless of the characteristics of the physical medium in which said work is embodied.]
-[Audiovisual work: work consisting of a sequence of connected images, with or without sound, intended for exhibition by means of a suitable device for public communication of sound and images;]
-[Audiovisual work: a work resulting from the fixation of images, with or without sound, intended for creating, by means of reproduction thereof, the impression of movement independently of the processes used to capture it, the carrier used initially or subsequently to fix it, as well as the means used for conveying it;]
-[Collective work: a work created under the initiative, organization and responsibility of a natural person or legal entity, which is published under that person’s or legal entity’s name or mark and which is formed through the participation of various authors, whose contributions are fused into an independent creation;]
-[Collective work: [That] [The work] created by several authors under the [initiative and] responsibility of a natural or legal person, which publishes the work [under] [with] his own name, and in which [it is not possible to identify the separate contributions of the corresponding authors;] [,due to the number of contributions by participating authors and the indirect nature of these contributions that are merged to create the work, it is impossible to identify the different contributions of the authors who participated in its creation.] ]
-[Work of applied art: two- or three-dimensional artistic creation with utilitarian functions or incorporated in a useful article, whether a work of handicraft or one produced on an industrial scale.]
-[Derived work: creation resulting from the adaptation, translation, arrangement or other transformation of an original work [, collections of works or collections of simple data, provided that such collections are original in terms of their selection, coordination or arrangement of content;] ]
-[Collaborative work: that created jointly by two or more natural persons, provided the work cannot be classified as a collective work;]
-[Unpublished work: that which has not been made public with the consent of the author, in any form;]
-[Original work: work that is an original creation]
-[Plastic works or fine arts: Artistic creation intended to appeal to the aesthetic sense of the person perceiving it, such as paintings, drawings, engravings and lithographs; this definition does not, for the purposes of this Agreement, include photographs, architectural works and audiovisual works.]
-[Posthumous work: work published subsequent to the death of the author;]
-[Work published for the first time in the Party: any work made available for the first time in the national territory of the Party. This includes work that was not initially published in the country, but is made available to the public in the Party for the first time, within thirty days following its publication abroad;]
-[Pseudonymous work: work that is published under a different name from that of the author;]
-[Broadcasting organization: Radio or television company that transmits programs to the public.]
-[Producer: Person, whether natural person or legal entity, who takes on the initiative and coordination of and responsibility for producing the work; for example, an audiovisual work or a computer program.]
-[Producer: the natural person or legal entity which takes the initiative to and has the responsibility for the first fixation of the phonogram or the audiovisual work, whatever the nature of the carrier used;]
-[Producer of a phonogram: The person, or the legal entity, who or which takes the initiative, coordination and has the responsibility for the first fixation of the sounds of a performance or other sounds.]
-[Producer of a phonogram: a person or legal entity that takes the initiative, has the responsibility for and coordinates the first fixation of the sounds of an interpretation, performance or other sounds, or representation thereof;]
-[Producer of audiovisual work: a natural or legal person that, on his or her own initiative, and under his or her own responsibility and coordination, for the first time fixes an audiovisual work;]
-[Computer programs (software): The expression in words, codes, plans or any other form of a set of instructions which, on being incorporated into an automated reading device, is capable of making a computer, an electronic or similar device capable of processing information to execute a specific task or produce a specific result. Software also includes technical documentation and users’ manuals.]
-[Publication: Production and offering copies to the public, with the consent of the right holder, provided that copies are offered to the public in a reasonable quantity, bearing in mind the nature of the work.]
-[Publication: the act of lawfully making a work available to the public, with the author’s consent, in sufficient amounts to satisfy reasonable needs given the nature of the work. Representation of dramatic, dramatico-musical, or cinematographic works, the performance of a musical work, public recital of a literary work, transmission or broadcast of literary or artistic works, exhibition of a work of art, or the construction of an architectural design do not constitute publication.]
-[Publication: the offering of a literary or artistic work to the public, with the consent of the author, or any other copyright holder, through any form or process, in a quantity of copies that reasonably satisfies the needs of the public;]
-[Public: any aggregation of individuals intended to be the object of, and capable of perceiving, communications or performances of works, regardless of whether they can do so at the same or different times or in the same or different places, provided that such an aggregation is larger than a family and its immediate circle of acquaintances or is not a group comprising a limited number of individuals having similarly close ties that has not been formed for the principal purpose of receiving such performances and communications of works.]
-[Public: includes for the purposes of copyright and related rights with respect to rights of communication and performance of works provided for under Articles 11,
11bis.(1) and 14(ii) of the Berne Convention, with respect to dramatic, dramatico-musical, musical, literary, artistic or cinematographic works, at least, any aggregation of individuals intended to be the object of, and capable of perceiving, communications or the performance of works, regardless of whether they can do so at the same or different times or in the same or different places, provided that such an aggregation is larger than a family and its immediate circle of acquaintances or is not a group comprising a limited number of individuals having similarly close ties that has not been formed for the principal purpose of receiving such performances and communications of works;]
-[Broadcasting: communication at a distance of sounds, or images and sounds, or representations or both, via electromagnetic waves propagated through space without artificial guidance, for the purpose of their reception by the public;]
-[Broadcasting: the wireless transmission, including via satellites, of sounds or images or images and sounds or representations thereof for public reception and the transmission of encrypted signals, where the means of decryption are offered to the public by the broadcasting entities or with their consent;]
-[Reproduction: the realization, by any medium, of one or more copies of a work, phonogram, or of a sound or audiovisual fixation, either total or partial, permanent or temporary, on any type of material base, including storage by electronic media.]
-[Fraudulent or unlawful reproduction: any reproduction not authorized by the owner of the copyright;]
-[Graphic Reproduction: The making of facsimile copies of the original or copies of a work by means other than printing, such as photography.]
-[Retransmission: Relaying of a signal or of a program received from another source, through the distribution of signs, sounds or images by wireless means, or by wire, cable, fiber optics or other comparable means.]
-[Retransmission: the simultaneous [or subsequent] broadcast by a broadcasting entity of a broadcast from another broadcasting entity;]
-[Encrypted program-carrying satellite signal: means a program-carrying satellite signal that is transmitted in a form whereby the aural or visual characteristics, or both, are modified or altered for the purpose of preventing the unauthorized reception, by persons without the authorized equipment that is designed to eliminate the effects of such modification or alteration, of a program carried in that signal.]
-[Ownership: The holding of rights recognized under this Agreement.]
-[Transmission or broadcasting: the dissemination of sounds or of sounds and images by wireless means, satellite signals, wire, cable or other channel, optical media or any other wireless means;]
-[Cable transmission: transmission by wire, cable, fiber optic cable or any other analogous medium for the transmission of signals;]
-[Fair use: Use that does not interfere with the normal exploitation of the work or [unreasonably] prejudice the legitimate interests of the author.]
-[Personal use: Reproduction or other use of the work of another person in a single copy, exclusively for an individual’s own purposes, in cases such as research and personal entertainment.]
-[Videogram: Audiovisual fixation incorporated in cassettes, disks or other physical support media.]
[For the purposes of this Agreement, the following definitions apply with respect to performers and producers of phonograms:]
-[Performers: actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore; ]
-[Fixation: means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;]
-[Phonogram: means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;7 ]
-[Producer of a phonogram: means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds;]
-[Publication of a fixed performance or a phonogram: means the offering of copies of the fixed performance or the phonogram to the public, with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity;]
-[Broadcasting: means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also ‘broadcasting’; transmission of encrypted signals is ‘broadcasting’ where the means for decrypting are provided to the public by the broadcasting organization or with its consent.]
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It is understood that the definition of phonogram provided herein does not suggest that rights in the phonogram are in any way affected through their incorporation into a cinematographic or other audiovisual work. |
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