BERNE, PARIS AND WIPO CONVENTION

Member

1. Trần Thị Thanh Thương BABAWE10534

2. Nguyễn Thị Vân Lam BABAWE10552

3. Trương Tuyết Ngân BABAWE10516

4. Đặng Khánh Nam BAIU08248

• History and development

• Enforcement scope and level

• Three basic principles

• Minimum standards of protection

• Related case

HISTORY AND DEVELPOMENT The world's first copyright law was the Statute of Anne, enacted in

England in 1710

Legislation based on the Statute of Anne gradually appeared in

other countries, such as the Copyright Act of 1790 in the United

States, but copyright legislation remained uncoordinated at an

international level until the 19th century.

Prior to the Berne Convention, copyright law would usually only

apply at a national level.

In 1886, the Berne Convention was introduced to provide mutual

recognition of copyright between nation states, and to promote the

development of international standards for copyright protection

.

REVISION OF BERNE CONVENTION

Revised at Berlin (1908)

Completed at Berne (1914)

Revised at Rome (1928

Revised at Brussels (1948), at Stockholm (1967) and at

Paris (1971

Amended in 1979

Total Contracting Parties : 165 Viet Nam joined Berne convention October 26, 2004,

156th member

Aim of the Berne Convention The aim of the Berne Convention, as indicated in its

preamble, is “to protect, in as effective and uniform a

manner as possible, the rights of authors in their

literary and artistic works.”

Why it’s important Enforcing treaties which protect intellectual property,

such as copyright, are important because they promote creativity, fair trade and the contribution to economic and social development.

Scope of Copyright Protection Copyright protection extends to expressions and not to

ideas, procedures, methods of operation or mathematical concepts as such.

Protected Works

Every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression

Derivative works: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work

Collections of literary or artistic works

Three Basic Principles 1. Principle of national treatment:- works originating in

one contracting state must be given the same protection in other states.

2. Principle of automatic protection:- such protection must not be conditional upon compliance with any formality.

3. Principle of independence of protection:- such protection is independent of the existence of protection in the country of origin of the work

(Art 5)

Minimum Standards of Protection Minimum protection standards depend on:

(a) the work to be protected,

(b) the rights to be protected and

(c) the duration of protection.

The work to be protected The protection must include “every production in the

literary, scientific and artistic domain, whatever may be the mode or form of its expression” Eg: books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works…

(Article 21)

Rights to be Protected Exclusive rights of authorization:

1. The right of Translation (Art 8)

2. The right of reproduction in any manner or form, which

includes any sound or visual (Art 9)

3. The right to perform dramatic, dramatico-musical and musical

works (Art 11)

4. The right to broadcast and communicate to the public, by

wire, rebroadcasting or loudspeaker or any other analogous

instrument, the broadcast of the work (Art 11bis)

5. The right of public recitation in literary works (Art 11ter),

6. The right to make adaptations, arrangements or other

alterations (Art 12)

7. The right to authorize cinematographic adaptations and

reproduction; distribution; public performance and public

communication by wire of works (Art 14)

Moral Right is another exclusive right :

(a) the right to claim authorship of work

(b) the right to object to any mutilation, deformation, modification or derogatory action in relation to the work.

(Art 6bis)

Duration of Protection

The general rule is the life of the author + 50 years after his death.

Exception

cinematographic works: 50 years after the work has been made available to the public with the consent of the author, or, failing such an event within 50 years from the making of such a work, fifty years after the making.

anonymous or pseudonymous works: 50years after the work has been lawfully made available to the public.

photographic works and that of works of applied art in so far as they are protected as artistic works: at least 25 years from the making of such a work.

(Art 7)

EXAMPLE One of the most famous cases of copyright

infringement is related to the music industry. As peer to peer file sharing increased, there are many websites offering downloads of songs of all genre – new and old.

Ex: mp3zing.vn, yeucahat.com, nhaccuatui.com

These acts are deemed to be copyright infringement case of stealing music and making it available to people worldwide at no cost without the consent of composers and singers and paying royalties

Vietnam should apply convention and treaty related to copyright to fine these acts

• History

• Needs for development

• Enforcement scope and level

• Provision of the convention

• Related case

History After a diplomatic conference in Paris in 1880, the

Convention was signed in Paris, France on March 20, 1883 by 11 countries: Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, El Salvador, Serbia, Spain and Switzerland.

Until Dec 2011, the Convention has 174 contracting member countries

Vietnam : March 8, 1949

REVISION OF PARIS CONVENTION

Brussels, Belgium - Dec 14, 1900

Washington, United States - June 2, 1911

The Hague, Netherlands- Nov 6, 1925

London, United Kingdom - June 2, 1934

Lisbon, Portugal - Oct 31, 1958

Stockholm, Sweden - July 14, 1967

amended on September 28, 1979.

Need for development Before the existence of any international convention in the

field of industrial property, it was difficult to obtain protection for industrial property rights in the various countries of the world because of the diversity of their laws.

The development of a more internationally oriented flow of technology and the increase of international trade made harmonization of industrial property laws urgent in both the patent and the trademark field

require the protection to help people of one country obtain protection in other countries for their intellectual creations in the form of industrial property rights

Enforcement scope & level The protection of industrial property has as its object:

patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.

Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products

( Article 1, Paris Convention)

Provision of the convention Three main categories:

national treatment

right of priority

common rules

National treatments Nationals of Countries of the Union: Each contracting

State must grant the same protection to nationals of the other contracting States as it grants to its own nationals.

Nationals of non-contracting States who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union shall be treated in the same manner as nationals of the countries of the Union.

(Article 2,3 Paris Convention)

Right of priority The Convention provides for the right of priority in the case of patents, marks

and industrial designs.

on the basis of a regular first application filed in one of the contracting States,

the applicant may, within a certain period of time (12 months for patents and

utility models; 6 months for industrial designs and marks), apply for protection

in any of the other contracting States; these later applications will then be

regarded as if they had been filed on the same day as the first application.

these later applications, being based on the first application, will not be affected

by any event that may have taken place in the interval.

(Article 4, Paris Convention)

Common Rules 1.As to Patents:

Patents granted in different contracting States for the

same invention are independent of each other

(Article 4bis, Paris Convention)

The inventor shall have the right to be mentioned as such

in the patent.

(Article 4ter, Paris Convention)

2.As to Marks The conditions for the filing and registration of trademarks

shall be determined in each country of the Union by its domestic legislation.

(Item 1, Article 6, Paris Convention)

Where a mark has been duly registered in the country of origin, it must, on request, be accepted for filing and protected in its original form in the other contracting States

(Item A, Article 6quinquies, Paris Convention)

Each contracting State must refuse registration and prohibit the use of marks which constitute a reproduction, imitation or translation, liable to create confusion, of a mark considered by the competent authority of that State to be well known in that State as being already the mark of a person entitled to the benefits of the Convention and used for identical or similar goods.

(Article 6bis, Paris Convention)

3.As to Industrial Designs:

Industrial designs shall be protected in all the countries of the Union.

(Article 5quinquies)

4.As to Trade Names: A trade name shall be protected in all the countries of the Union without the obligation of filing or registration, whether or not it forms part of a trademark.

(Article 8, Paris Convention)

5.As to Indications of Source:

Measures must be taken by each contracting State against direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or trader.

(Article 10, Paris Convention)

6.As to Unfair Competition: Each contracting State must provide for effective protection against unfair competition

(Article 10bis, Paris Convention)

Related Case (Case No. D2010-0305)

The “electroluxtr.com” case

The Parties

The Complainant is Aktiebolaget Electrolux of Stockholm, Sweden, represented by Melbourne IT Digital Brand Services, Sweden.

The Respondent is Mehmet Kirci of Istanbul, Turkey.

Factual Background

The Complainant :

Swedish joint stock company founded in 1901 and registered as a Swedish

company in 1919

devoted substantial resources to advertising and promoting its trademark

ELECTROLUX.

has trademark registrations containing its trade name, ELECTROLUX in 150

countries, and registered ELECTROLUX as a Community Trademark (CTM)

the registered owner of close to 700 domain names including the word

ELECTROLUX, including <electrolux.com.tr> registered by Electrolux Turkey

on August 7, 1997

The Respondent : Mehmet Kirci of Istanbul, Turkey. The Respondent

registered the disputed domain name <electroluxtr.com> on April 13, 2009.

Parties’ Contentions

A. Complainant

The disputed domain name is confusingly similar to

Complainant’s trademark ELECTROLUX and the dominant

part of the disputed domain name is “electrolux,” which is

identical to its registered trademark

The addition of the suffix “tr” does not have any impact on the

overall impression of the dominant part of the disputed domain

name and is therefore not relevant in determining whether it is

confusingly similar to a trademark.

The web site is almost identical to the Complainant’s official Turkish Electrolux web site displaying its trade logo

The Respondent has no connection with Complainant, and that Complainant has not licensed or otherwise authorised the Respondent to use the trademark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions

Discussion and Findings

In view of the foregoing, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this element under the Policy.

In the absence of a response, the Respondent was unable to demonstrate a legitimate interest or right in the disputed domain name and therefore the Panel accepts the Complainant’s contentions as true.

The Panel finds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to an on-line location, by creating a likelihood of confusion with the Complainant’s mark

DECISION

For all the foregoing reasons, on May 10, 2010 the Panel orders that the disputed domain name

<electroluxtr.com> be transferred to the Complainant

• History

• Objectives

• Organs of WIPO

• WIPO treaties

• Relate case

HISTORY AND DEVELOPMENT The WIPO Convention, the constituent instrument

of the World Intellectual Property Organization (WIPO), was signed at Stockholm on July 14, 1967, entered into force in 1970 and was amended in 1979.

WIPO became in 1974 one of the specialized agencies of the United Nations system of organizations.

WIPO Convention(1970)-Merger of Paris & Berne

Membership : 184 States

(Vietnam was party to WIPO on 2/6/2976)

Divisions of IP

Intellectual

Property

CopyrightIndustrial

Property

inventions

trademarks

industrial designs

graphic indicators

of source

literary works

artistic works

(novels, poems,

plays, films,

musical works)

(drawings,

paintings,

photographs,

sculptures,

architectural

designs)

Divisions of IP

OBJECTIVES

to promote the protection of intellectual property throughout the world.

to ensure administrative cooperation among the intellectual property Unions.

( Article 3, Convention Establishing the WIPO)

ORGANS OF WIPO 3 governing bodies :

General Assembly

The Conference

Coordination Committee

( Đại Hội Đồng Liên Hiệp ) whose members are the States members of WIPO which are also members of the Paris and/or Berne Unions

( Hội Nghị ) whose members are all the States members of WIPO

( Uỷ Ban Phối Hợp ) whose members are elected among the members of WIPO and the Paris and Berne Unions (68 members )

WIPO TREATIES WCT ( WIPO Copyright Treaty ) : aims to protect authors, composers and other creators of

literature, art, music, films, software and other such creative works, and requires members to recognize works set in a digital form and to implement anti-circumvention measures for those works.

WPPT ( WIPO Performance and Phonogram Treaty ): protects producers of “sound recordings” including music CDs,

cassettes and other recordings, as well as performers, such as singers and musicians. The WPPT can be seen as a specialized version of the WCT with a particular focus on the music recording industry.

WIPO Copyrights Treaty 3 rights of authors: 1. Right of distribution - the exclusive right to authorize the making

available to the public of the original and copies of a work through sale or other transfer of ownership (Art 6, WCT)

2. Right of rental - 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.” ( Art 7, WCT) 3. Right of communication to the public - authors of literary and

artistic works shall enjoy the exclusive right to authorize any communication to the public, by wire or wireless means

(Art 8,WCT)

WIPO COPYRIGHTS TREATY 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”

( Art 4 , WCT )

WIPO Performances and Phonograms Treaty WPPT recognizes four rights of performers and producers:

1. Right of reproduction –the exclusive right to authorize the direct or indirect reproduction of their performance fixed in phonograms or phonograms (Art 7,11 WPPT)

2. Right of distribution – the exclusive right to authorize the making available to public of the original and copies of performances fixed in phonograms or phonograms through sale or other transfer of ownership (Art 8,12 WPPT)

3. Right of rental – the exclusive right to authorize the commercial rental of a work to the public (Art 9, 13 WPPT)

4. Right of making available – the exclusive right to authorize the making available to the public of performance fixed in phonograms or phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them (Art 10, 14 WPPT)

WIPO PERFORMANCES AND PHONOGRAMS TREATY Term of Protection :

“(1) The term of protection to be granted to performers under this

Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram.

(2) The term of protection to be granted to producers of phonograms under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made. “

( chapter IV, art 17, WPPT )

Example The lawsuit case of Tri Viet as a first alarm to express the

determination of the publisher community in Vietnam.Tri Viet sued two English centers which are Uc Chau and Viet Uc. According to Nguyen Van Phuoc, director of Tri Vietnam, the Viet Tri side has gathered sufficient evidences to provide to the court and they are quite confident in their victory.

It is also a double lawsuit case.

Tri Viet sued for their benefits: the exclusive agreement which was bought from Compass has been violated

For Compass, the copyright owner of the English curriculum of the TOEIC and New TOEIC, has authorized Tri Viet to sue for their logo and trademark infringement.

claimed amount is 760 million for the two cases

REFERENCES Berne Convention for the Protection of Literary and

Artistic Works (1979)

Paris Convention for the Protection of Industrial Property (1979)

Convention establishing the World Intellectual Property Organization (1979)

WIPO Copyright Treaty (1996)

WIPO Performances and Phonograms Treaty (WPPT)- (1996)

www.innovationlaw.org/archives/projects/dcr/reform/wipo.htm

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