REVIEW OF LEGISLATION

FIJI^[1]

In connection with the review of legislation initiated at the Council's meeting in June 2001,^[2] the present document reproduces the introductory statement made by the delegation of Fiji at the meeting of the Council of 1 March 2016, the questions put to it and the responses provided. The review was concluded in March 2016.^[3]

 

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1  introductory statement^[4]

1.  I take the floor to report that Fiji has provided its response to the TRIPS Council for the outstanding questions required to complete the review of Fiji's legislation and the Fijian Government is most grateful for all the assistance and support provided by the WTO Secretariat, especially the TRIPS Division and the Trade Policy Review Body in this regard. This is in an effort to conclude the long outstanding review of Fiji's legislation implementing the TRIPS Agreement.

2.  Whilst we acknowledge that the extraordinary long delay in providing a response to the TRIPS Council cannot be justified so simply, Fiji has undergone various political changes over the last decade. Despite the political changes and given the increasing influence intellectual property has had to Fiji's international trade relations and with Fiji being a Member of TRIPS, trademarks and patents have become a source of economic and technological development for Fiji's economy. I am pleased to announce that this gave rise to the establishment of the Fiji Intellectual Property Office (FIPO) in 2011 under the Office of the Attorney-General, charged with implementation of Fijian IP laws.

3.  Between 2009 and 2013, Fiji was focused on domestic reform to set a firm democratic footing for Fiji's future development. This included the elaboration of a Roadmap for Democracy and Sustainable Socio-Economic Development, which in turn, set out a process for widespread consultations for the formulation of a new constitution. This constitution, which is the first constitution in Fiji to eliminate the legal enforcement of ethnic voting, and contains unprecedented provisions for social and economic rights in addition to political and civil rights, came into force on 7 September 2013. During the period where the new Constitution was being formulated, and prior to it entering into force, only priority legislation reform required during that transition period was undertaken.

4.  As such, it was only subsequent to the Constitution entering into force, and subsequent to Fiji's first successful democratic elections held under the provision of this Constitution in September 2014, that Fiji has been able to put in place a comprehensive legislative reform agenda. This legislative reform agenda includes the reform to Fijian IP laws that have been foreshadowed as necessary in the responses provided to the TRIPS Council. This legislative reform agenda has recently been elaborated upon at the WTO during Fiji's 3rd Trade Policy Review last week, on 23 and 25 February 2016. Moreover, it is important to note that since the establishment of Fiji's Permanent Mission in Geneva, Fiji is able to actively participate and promote Fiji's national interest at international organisations, including the WTO.

5.  The various laws that fall within the ambit of FIPO are the Trademarks Act (CAP240), Patents Act (Cap 239) and the Copyright Act 1999. While limited amendments to these IP laws have been passed since the TRIPS Council briefing in 2001, Fiji recognises that much still needs to be done. The Fijian Government is currently working with WIPO to review its intellectual property laws to ensure, inter alia, that they are in conformity with the TRIPS Agreement.

6.  Some of the challenges that Fiji has faced in the intellectual property front is the various institutional realignments that have taken place over the years, lack of awareness and capacity constraints. Notwithstanding these challenges, there have been various cases concerning copyright infringement that have passed through our judicial system, and the judicial and law enforcement units are also developing their understanding of the various offences under Fiji's IP laws.

7.  In the responses circulated by Fiji, we have answered 83 questions in total, with 59 of these being additional question asked by Members subsequent to Fiji's original responses. Without delving into the details of the responses provided, it is clear to us that the process of responding to the outstanding questions from Members, difficult as it was, has been very useful as a transparency exercise. Moreover, it has been helpful to our authorities by highlighting the areas of concern where our legislation reform may need particular focus. In conducting Fiji's legislative reform in this area, Fiji will no doubt seek further cooperation and expertise from the international community where needs are identified.

8.  Fiji thanks the Members for their patience in the conclusion of Fiji's IP legislation review, and trusts that Members are satisfied with the responses that Fiji has been able to provide. Provided that we have done so, and that there are no further questions for Fiji, we hope that we can conclude today the Council's review of Fiji's legislation implementing the TRIPS Agreement.

9.  Allow me to add a few words, not directly related to the review of Fiji's IP legislation, but on an issue of importance. This relates to the protocol amending the TRIPS Agreement that will improve access to affordable medicine. Fiji is fully seized of the benefits of accepting the Protocol amending the TRIPS Agreement, and is positively inclined to undertake the necessary domestic procedures through Cabinet and Parliament in order to deposit the instrument of acceptance of the Protocol amending the TRIPS Agreement.

10.  Finally, Fiji wishes to place on record thanks to the Secretariat which has assisted Fiji in providing the necessary responses to the outstanding questions from Members, and in supporting our efforts to successfully conclude this Review.

2  Responses to questions posed by Canada^[5]

1.     Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and throughout) have been implemented.

In response to Canada's first question, Fiji submits information it had compiled with regard to its copyright law in relation to the questions in the Checklist of Issues on Enforcement as it covers most issues applicable to Fiji's law arising from Articles 41 - 61 of the TRIPS Agreement.  (See document IP/N/6/FJI/1)

 

2.     What protection does your Copyright legislation afford to "foreign works"?

 

Pursuant to s227(2), regulations maybe made by the Minister (in this instance the Attorney-General), applying a specified provision of the Act in relation to:

"(a)    persons who are citizens or subjects of a country or who are domiciled or resident in a place - as it applies in relation to persons who are Fiji Island citizens or are domiciled or resident in the Fiji

 

(b)     bodies incorporated under the law of a country or place - as it applies in relation to bodies incorporated under the law of the Fiji Islands or in the case of an audio-visual work, as it applies to a body which has its headquarters in a prescribed foreign country. (prescribed by regulations under this Act - s2)

 

(c)     works first published in a country or place - as it applies in relation to works first published in the Fiji Islands.

 

(d)     broadcasts made from, or cable programmes sent from a country or place - as it applies in relation to broadcasts made from or cable programmes sent from, the Fiji Islands."

       

Generally these regulations would apply to Convention countries and maybe subject to specified exceptions and modifications or maybe applied generally or to a specified class of works. These Regulations are not in place as yet.

 

 

3  responses to questions posed by the European Union^[6]

A.    General Provisions

1.    Please describe if your legislation includes measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS Agreement. If yes, please explain how such measures are consistent with the provisions of the TRIPS Agreement.

 

The Patents Act [Cap 239], as alluded to earlier, makes an exception to the protection of patent rights under section 3A which allows persons to make, construct, use or sell the patented invention in respect of pharmaceutical product or substance solely for reasons related to the development and submission of information required under any laws of Fiji or of another country.

 

There is no such provision in the Trademarks Act [Cap 240].

 

For the Copyright Act 1999, section 58 ( 1) (b) permits the use of copyright work for the service of the State in the interest of the safety or health of the public or any member of the public.

 

B.    Copyright and Related Rights

2.     Please state how your legislation provides for the protection of the exclusive rights of authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS Agreement which requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the Berne Convention (1971).

 

Under section 14 of the Copyright Act 1999, literary, dramatical, musical or artistic works fall under copyright, however, rights to these works only exist when the same is recorded in writing or otherwise. The owner of the work has the exclusive right to copy, issues copies to the public, publicly perform, broadcast, communicate to the public and adapt the work. These are certain exemptions to these by virtue of Parts IV and IX of the Act. The exemptions are particularly in terms of public interest. The copyright exists at the end of 50 years after the end of the calendar year in which the author dies.

 

3.    Please describe the protection accorded to authors of computer programs, databases or compilations of data.

 

Literary works includes computer programs and compilations (which would include data – see definition of compilation) as defined in section 1 of the Copyright Act 1999. Although Part IV gives provisions for exemptions to copyright work, for instance, research on private study does not apply to literary work that is a computer program. This means that rights of the owners of literary work in relation to computer programs have strict exclusive rights to their work.

 

4.     Please state whether your legislation provides for a rental right and, if so, the works to which it applies.

 

Yes, under section 73 of the Copyright Act 1999, certain rental rights for works that include a computer program, sound recording or audio visual may be accorded to any person of an educational establishment or a prescribed library. However, this right is only applicable to such an establishment or library that does not provide rental of the work for the purpose of making profit and the work is subject the work has previously been put into circulation with the license of the copyright owner.

 

5.     Please describe the rights granted to performers, producers of phonograms (sound recordings) and broadcasting organisations under your legislation.

 

Part X of the Copyright Act 1999 provides for performers rights. Section 164 of the Act, performance means a dramatic performance, musical performance, a reading or recitation of a literary work or a performance of a variety act or any similar presentation. There are certain exception, namely, performance in the course of activities of educational establishments, a reading, recital of any items of news and information, performance of a sporting activity or a participation in a performance as a member of an audience. Accordingly, a performer has exclusive right to his/her performance. The performance shall be made, broadcasted live or communicated to the public, in whole or in part, with the performer's consent. The Act further makes provision for the infringement of the performer's right if the performance was used without specific consent for such use. This is subject to certain exceptions including the use of the performance for the purpose of criticism, reviews and news reporting. Also, the rights to performers is subject to the copying of the performance for a course of instructions, for educational establishments, for parliamentary and judicial proceedings and any acts done under statutory authority.

 

6.     Please state whether your legislation provides for any limitation or exception in relation to each of the rights described above in accordance with the relevant provisions of the Berne and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.

 

Yes, all the works that are accorded rights under the Copyright Act 1999 has certain exception by virtue of Part IV Copyright Act which is attached as Annex – 1 to this response.

 

7.     Please state the terms of protection of each right described above and the work or subject matter to which it applies.

 

Please refer to Part X of the Copyright Act 1999 which is attached as Annex – 2 to this response.

 

8.    Please state how your legislation grants the retroactive protection provided pursuant to Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS Agreement) and Article 14.6 of the TRIPS Agreement.

 

At present, there is no specific provision for the grant of retroactive protection provided pursuant to Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement in the Copyright Act.

 

C.     Trademarks

9.    Please give the definition of a sign under your national legislation and explain under what conditions it is protectable.

 

There is no definition of a sign in the Trademarks Act, however, 'mark' means a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination of these.

 

10.   Please confirm whether or not services are a protectable subject matter in your trademark law.  Please confirm if signs, such as trade names, are protectable.  Please describe if elements such as sound, perfumes and containers are protectable.

 

Services and elements such as sound, perfumes and containers are not expressly protected under the Trademarks Act. Trademarks are defined as marks used or proposed to be used in connection with goods.

 

11.   Please explain what the requirements of use are, if any, as a condition for a trademark registration.  Please explain the definition of use and the conditions of maintenance of a registration in that respect.

 

The trademarks are used upon or in connection with goods and are for the purpose of indicating that they are the goods of the proprietor for their manufacture, selection, certification, dealing with or offering for sale. There is no express provisions for the use and conditions of maintenance of trademarks in the current Trademarks Act.

 

12.   Please confirm whether or not your legislation permits that the registration of trademarks be indefinitely renewable.

 

No, the trademark, once registered shall be for a period of 14 years and may be renewed from time to time in accordance with the provisions of the Trademark Act.

 

13.   Please describe the special requirements, if any, prescribed by your legislation concerning the use of a trademark.

 

There are no special requirements for the use of a trademark.

 

D.     Geographical Indications

14.   Please explain whether or not your trademark registration authority refuses a trademark application if it contains a geographical indication.

 

Section 14A of the Trademarks (Amendment) (Decree No. 2) Decree 2012 prohibits the registration of a trademark with the use of the word or mark 'Fiji' or any word that makes reference of implies geographic origins or words or marks making reference or implying an approval from the State for which the proprietor is entitled to disclaim all or any portion of such matter separately or together with other word unless the use of the word or mark or the use of a disclaimer on the word or mark is approved by the Minister.

 

15.   Please give the definition of a geographical indication in your legislation.

 

At present, this is not defined in the Trademarks Act.

 

16.   Please describe and explain the provisions of your legislation establishing a link, if any, between the characteristics of an indication and its geographical origin.

 

The only reference to geographic indications is referred to in section 14A of the Trademarks Act (please see response to No. 14 above).

 

17.   Please describe how additional protection is granted by your legislation to wines and spirits.  Please mention other types of products, if any, covered by this additional protection.

 

There are no additional protection granted by the Trademarks Act in relation to wines and spirits.

 

18.   Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of names considered as generic in your jurisdiction.

 

No such provisions in accordance with Article 24 of the TRIPS Agreement in the Trademarks Act.

 

E.     Industrial Designs

19. Please explain whether or not your legislation extends to the protection of designs dictated essentially by technical or functional considerations.  Please explain how textile designs are protected.

 

At present, the IP framework does not extend to the protection of designs dictated by technical or functional considerations. No provisions are available for protection of textile designs either.

 

20.   Please explain how your legislation protects right holders of a design against importing of articles bearing embodied or copied design.

 

At present, there are no protections for rights holders against imported items bearing embodied or copied designs.

 

21.   Please state whether or not your legislation provides for the right to issue a compulsory licence for industrial designs.

 

The current legislation does not provide for the right to issue compulsory licenses for industrial designs.

 

22.   Please indicate for what period of time your legislation grants protection for industrial designs.

 

There is currently no protection for industrial designs.

 

F.     Patents

23.   Please describe how your legislation defines the notions of: novelty, inventiveness and industrial application.

 

At present, the legislation does not define any of these terms.

 

24.   Please explain whether or not in your legislation, patent or otherwise, patent rights are enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how these exclusions are applied in legal as well as practical terms.

 

Section 3 of the Patents Act provides that every inventor is entitled to the sole exclusive right of and in his invention. This Act does not prescribe any exclusions to the enjoyment of patent rights.

 

25.   Please explain whether your legislation provides for the exclusion of inventions from patentability based on ordre public or morality.  If so, please explain the relevant section of your legislation and explain its formulation.  Please also explain if it has been applied in practice.

 

The Patents Act does not provide for the exclusion of patentability based on ordre public or morality. Please note, however, that the Trademark Act per section 10 restricts registration of "…a trade-mark or part of a trade-mark any matter the use of which would, by reason of its being calculated to deceive or otherwise, be disentitled to protection in a court of justice or would be contrary to law or morality, or any scandalous design."

 

26.   Please explain whether or not diagnostic, therapeutic and surgical methods are excluded from patentability in your legislation. If so, please explain the relevant section of your legislation and explain its formulation.

 

At present, diagnostic, therapeutic, and surgical methods are not excluded from patentability in Fiji's legislation.

 

27.   Please explain whether or not plants, animals and essentially biological processes are excluded from patentability in your legislation. If so, please explain the relevant section of your legislation and explain its formulation.

 

At present, plants, animals and essentially biological processes are not excluded from patentability in Fiji's legislation.

 

28.   Please describe how micro-organisms, non-essentially biological processes, microbiological processes and plant varieties are protected in your legislation. Please explain, in this respect, the relevant sections of your legislation.

 

At present, micro-organisms, non-essentially biological processes, microbiological processes and plant varieties are not protected in the current legislation.

 

29.   Please explain how your legislation protects patent right holders against the importing and against the offering for sale of a patented invention.

 

At present, there are no provision for protection of rights holders against the importing and against the offering for sale of a patented invention.

 

30.   Please state if your legislation provides for patent product protection of pharmaceutical and agricultural chemical products.  In the affirmative, please indicate the legal reference.

 

At present, the Patents Act does not provide protection of pharmaceutical and agricultural chemical products. In fact, section 3A provides that pharmaceutical products and substances are exceptions to infringement of patent rights.

 

31.   Please clarify if the patent protection of a process, as provided for in your legislation, covers the product obtained directly by that process.

 

The legislation does not cover the patent protection of a process or the product obtained directly by that process.

 

32.   Please explain the additional conditions, if any, in your legislation other than the sufficient disclosure of the invention in Article 29 of the TRIPS Agreement (e.g. submission of justification for access to genetic material or prior inform consent to its use). If such additional conditions exist, please point out the relevant legislations and describe the additional conditions in detail.

 

There are no additional conditions other than the sufficient disclosure required in making the petition for a letters patent.

 

33. Please describe if your legislation provides for limited exceptions to the exclusive rights conferred by a patent.  If affirmative, please make a reference to relevant legislation.

 

As stated above, Section 3A provides that "it is not an infringement of patents in pharmaceuticals for any person to make, construct, use or sell the patented invention in respect of a pharmaceutical product or substance, solely for uses reasonably related to the development and submission of information required under any law of the Fiji Islands or of another country that regulates the manufacture, construction, use or sale of such pharmaceutical product or substance."

 

34.   Please explain whether or not your legislation provides for compulsory licensing. If so, please explain in detail the conditions under which a compulsory licence may be granted.  In particular, please explain how your national legislation considers individual merits in the authorization of such use.

 

At present, the Patents Act does not provide for compulsory licensing.

 

35.   Please explain how your legislation explicitly ensures that a 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. In this context, how do you define "reasonable period of time".  Please also explain how your legislation ensures that the use of a compulsory licence shall be authorised predominantly for the supply to the domestic market of the Member authorizing such use.

 

At present, the Patents Act does not provide for a proposed user to obtain authorization from a right holder.

 

36.   Please state if your legislation grants additional protection for innovations after the 20 years of patent protection has lapsed.

 

At present, Section 4 of the Patents Act only allows 14 years of patent protection and there are no additional protections after this period has lapsed.

 

37. Please explain how your legislation provides for the enhanced patent protection of patents or patent applications pending on 1st January 1995.

 

The Patents Act does not provide for enhanced protection of patents or patent applications pending on 01/01/1995.

 

38.   Please explain how your legislation provides for the reversal of the burden of proof in relation to process patents.

 

The Patents Act does not provide for the reversal of burden of proof.

 

G.     Layout-Designs (Topographies) of Integrated Circuits

39.   Please describe how your legislation protects Topographies.

 

40.   Please explain what protection your national legislation grants to right holders against the unlawful importation, sale or distribution for commercial purposes of topographies including integrated circuits or other articles in which a topography is incorporated in accordance with Article 36 of the TRIPS Agreement.

 

41.   Please explain how your legislation provides for the derogation from Article 36 as specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds to know when acquiring an integrated circuit or an article incorporating such an integrated circuit that it contains an unlawful topography.

 

42.   Please state the term of protection granted by your legislation to topographies.

 

(Response to Questions 39 to 42). At present, the legislation does not provide for topographies.

 

H.     Protection of Undisclosed Information

43.   Please explain whether or not your legislation grants a defined period of time for the protection of undisclosed information. If so, please give the time span.

 

44.   Please explain how your legislation defines undisclosed information.

 

(Response to Questions 43 and 44). At present, the legislation does not address protection of undisclosed information

 

45.   Please explain how your legislation defines data submitted to governments or governmental agencies.

 

While sections 58 to 61 of the Copyright Act prescribe the use of copyright material by the State, rights of third parties in respect of State use, proceedings against the State, and Acts done under statutory authority, at present the legislation does not define data submitted to governments or governmental authorities.

 

I.     Enforcement

46.   Please describe how your legislation provides for effective action against infringement of intellectual property rights.

 

Pursuant to section 109 of the Trade-marks Act, an infringement of copyright is actionable by the copyright owner. Reliefs are obtained by way of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right. Furthermore, section 111 prescribes delivery up in civil proceedings if a person has possession, custody or control of an object specifically designed or adapted for making copies of a copyright work and that object has been used or is to be used to make infringing copies.

 

In addition, section 112 allows the copyright holder or a person authorized by the copyright owner to seize and detain an infringing copy of a work which is found exposed or otherwise immediately available for sale or hire. Section 113 extends the rights of exclusive licensee's the same right and remedies under sections 109, 110, 111 and 112, after the grant of a license, as if the license were an assignment.

 

Please note that under the Patents Act, infringement action can only be brought to the high court for UK patents.

 

47.   Please explain whether or not your legislation provides for a mechanism to appeal to judicial bodies of final administrative decisions.

 

The TM Act prescribes under section 11 that in the case of refusal or conditional acceptance by the Solicitor-General to register a trade-mark, shall be subject to appeal to the high court. Further, the Act provides under section 13(5) that the decision of the Solicitor-General after hearing parties on opposition to registration, shall be subject to appeal to the high court. Also, section 32 provides that where a person is entitled by assignment, transmission or other operation of law to a registered trade-mark, he or she shall make an application to the Solicitor-General to register his or her title. Any decision of the Solicitor-General under this section is also subject to appeal to the court.

 

Under the Patents Act, section 13 provides that the Attorney-General's decision in refusing a provisional certificate can be appealed to the court. Further, under section 15, if a person opposes an application for a letters patent, if the decision of the Attorney-General is adverse to the party holding the provisional certificate, that person may appeal such decision to the court.

 

48.   Please describe how your legislation authorizes judges to order production of evidence by the opposing party.  Please give precise information on what measures are taken to ensure the protection of confidential information.

 

Section 213 of the Copyright Act allows the Tribunal to issue a witness summons to a person requiring the person to appear before the Tribunal to give evidence. Failure to attend incurs a penalty of $2000.00.

 

At present, neither the Patent Act nor Trade-mark Act contain provisions which authorize judges to order production of evidence. The Patents Act at present has no provision on the protection of confidential information.

 

49.   Please quote provisions of your legislation that authorize judges to order a defendant to desist from an infringement.

 

Under the Copyright Act, the court can order injunctions pursuant to sections 109(2), 110(3), 115(3) and 191(a).

 

50.   Please quote what provisions of your legislation authorize judges to order the payment to the right holder of adequate damages to compensate the injury he suffered.

 

Under the Copyright Act, damages can be awarded pursuant to sections 80(2)(c), 101(2), 109(2), 110(2), 114(4)(a), 115(2), 169(2), and 191(3)(b) and 191(4).

 

51.   Please quote what provisions of your legislation authorize judges to order the payment of the right holder's expenses by the infringer.

 

At present, there are no specific provisions for the court to order payment of the right holder's expenses by the infringer. However, as alluded in #50 above, under the Copyright Act, damages are a remedy for infringement and will cover losses suffered by the right holder.

 

52.   Please explain if and how judges have the authority to order that infringing goods are placed outside channels of commerce or destroyed.

 

Division 6 of the Copyright Act prescribes the procedures relating to disposal of infringing copy or other objects. Pursuant to Division 6, Section 125 (a) and (b) of the Copyright Act allow the court to make orders for forfeiture to the copyright owner or for the infringing items to be destroyed or otherwise dealt with as the court thinks fit.

 

53.   Please quote what provisions of your legislation authorize judges to indemnify a defendant in the event of abuse by the plaintiff.

 

At present, the legislation has no provisions allowing judges to indemnify a defendant in the event of abuse by a Plaintiff.

 

54.   Please explain how your legislation implements Article 50 of the TRIPS Agreement.

 

At present, there are no provisions implementing Article 50 of the TRIPS Agreement.

 

55.   Please identify the competent authorities in your jurisdiction who receive requests from right holders for an application to suspend the release of counterfeit goods by the customs authorities.

 

Section 35 of the Copyright Act prevents the importation of infringing copies. However, at present, there is not competent authority with the power to suspend the release of counterfeit goods.

 

56.   Please indicate whether or not procedures are available to suspend the exporting of counterfeit goods.

 

At present, there are no legal provisions to suspend the export of counterfeit goods.

 

57.   Please quote what provisions of your legislation authorize the competent authorities to order the destruction or disposal of infringing goods.

 

Section 125 of the Copyright Act allows the court to make orders for the disposal of infringing goods.

 

Section 125 stipulates that:

 

"125.-(1) An application may be made to the court for an order that an infringing copy or other object delivered up pursuant to an order under section 111 or 123 or seized pursuant to section 112 or 122 be-

(a) forfeited to the copyright owner; or

(b) destroyed or otherwise dealt with as the court thinks fit.

 

(2) In considering what order (if any) should be made under subsection (1), the court must have regard to-

(a)whether other remedies available in proceedings for infringement of copyright would be adequate to compensate the copyright owner and to protect the interests of the copyright owner; and

(b) the need to ensure that no infringing copy is disposed of in a manner that would adversely affect the copyright owner.

 

(3) Before making an order under subsection (1), a court must issue directions as to the service of notice on persons who have an interest in the copy or other object.

 

(4) A person who has an interest in a copy or other object which is the subject of an application under subsection (1) is entitled-

(a) to appear in proceedings for an order under this section, whether or not the person is served with notice; and

(b) to appeal against any order made, whether or not the person appears in the proceedings.

 

(5) An order made under subsection (1) does not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

 

(6) If there is more than one person interested in a copy or other object, a court may direct that the object be sold, or otherwise dealt with, and the proceeds divided, and make any other order it thinks just.

 

(7) If a court decides that no order should be made under this section, the person in whose possession, custody, or control the copy or other object was before being delivered up is entitled to its return."

 

58.   Please indicate whether or not your legislation provides for a de minimis imports exception.

 

At present, the legislation does not provide for a de minimis imports exception.

 

59.   Please explain how your legislation implements Article 61 of the TRIPS Agreement.

 

Division 5 of the Copyright Act which governs Offences addresses criminal liability for making or dealing with infringing objects. Sections 121 (1) – (3) set out the criminal acts and states:

 

121.-(1) A person who, other than pursuant to a copyright licence-

(a) makes for sale or hire;

(b) imports into the Fiji Islands otherwise than for that person's private and domestic use;

(c) possesses in the course of a business with a view to committing any act infringing the copyright;

(d) in the course of a business-

(i) offers or exposes for sale or hire;

(ii) exhibits in public; or

(iii) distributes;

(e) in the course of a business or otherwise, sells or lets for hire; or

(f) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,

an object that is, and that the person knows or our ought reasonably to know is, an infringing copy of a copyright work, commits an offence.

 

(2) A person who-

(a) makes an object specifically designed or adapted for making copies of a particular copyright work; or

(b) has such an object in the person's possession,

when the person knows or ought reasonably to know that the object is to be used to make infringing copies for sale or hire or for use in the course of a business, commits an offence.

 

(3) Subject to subsection (4), a person who-

(a) causes a literary, dramatic, or musical work to be performed, if the performance infringes copyright in the work; or

(b) causes a sound recording or film to be played in public or shown in public, if the playing or showing infringes copyright in the sound recording or film,

and who knows or ought reasonably to know that copyright in the work or in the sound recording or visual image, as the case may be, would be infringed by the performance, playing or showing respectively, commits an offence.

 

(4) Nothing in subsection (3) applies in respect of infringement of copyright by the reception of a broadcast or cable programme.

 

Penalties for the above offences are prescribed under section 121(5) as follows:

 

(5) A person who commits an offence under this section is liable on conviction-

(a) in the case of an offence against subsection (1), to a fine of $5,000 for every infringing copy to which the offence relates, but not exceeding $50,000 in respect of the same transaction, and to imprisonment for 12 months;

(b) in the case of an offence against subsection (2) or (3) to a fine of $50,000 and to imprisonment for 12 months,

(c) in the case of a second or subsequent offence against subsection (2) or (3), to a fine of $100,000 and to imprisonment for 2 years.

 

 

 

4  reponses to questions posed by JAPAN^[7]

A.     COPYRIGHT AND RELATED RIGHTS

1.     Please explain exceptions or exemptions of the National Treatment and Most-Favoured-Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in Articles 3 and 4 of the TRIPS Agreement.

 

At present there are no exceptions or exemptions in place of the National Treatment and the Most Favored Nation Treatment under Fiji's Copyright and Neighbouring Right Law, although the power to do so is vested in the responsible Minister by way of regulations which he has not exercised as yet.

 

Performers' Rights (Part X)

 

        Division 8 which governs the Extraterritorial Application of Part X of the Copyright Act 1999 (which deals with Performer's Rights), contains the relevant regulation making power.

 

"201-(1)          The Minister may by regulations apply in relation to any country or place outside the Fiji Islands, any provision of this Part specified in the regulations.

 

         (2)          Regulations made under this section may -

 

                                 (a)           apply any provision of this Part subject to specified exceptions and              modifications; and

 

                                 (b)          direct that any provision of this Part applies either generally or in relation to a specified class of performances

 

         (3)          The Minister must not make regulations under this section in relation to a country or place unless satisfied

 

                                 (a)           in the case of a country that it is a Convention country, or

 

                                 (b)           in either case - that reciprocal provision has been or will be made under the law of the country or place in respect of the class of performances to which the regulations relate."

 

Copyright (Part XIII - Division 3)

        No exemptions or exceptions to the national treatment or most favoured nation treatment have been formulated as yet since the passage of the Copyright Act 1999, although the powers are vested on the Minister under it to do so by way of regulations, pursuant to section 227 (3) which stipulates:

 

"(3)       Regulations made under this section may –

 

(a)        apply any provision of this Act subject to specified exceptions and modifications; and

(b)        direct that any provision of this Act applies either generally or in relation to a specified class of works, or other class of cases.

Section 227(4) of the Act stipulates:

 

(4)          The Minister must not make any regulations under this section in relation to a country or place unless satisfied -

 

(a)        in the case of a country that it is a Convention country; or

 

(b)        in either case that provision has been or will be made under the law of the country or place, in respect of the class of works to which the regulation relates, giving adequate protection to copyright owners under this Act."

 

5  responses to questions posed by SWITZERLAND^[8]

A. GEOGRAPHICAL INDICATIONS

1.     Please explain in detail how your legislation provides protection for geographical indications.

 

Fiji's current legislative framework does not prescribe protections for geographical indications.

 

B.     patents

2.     Does your legislation grant patent protection to all categories of products or are there any exceptions?  If so, please explain in detail what kind of exceptions exist  and how they comply with Article 27 of the TRIPS Agreement.

 

At present, there are no exceptions, although pursuant to section 23 of the Patents Act allows the Attorney-General to make regulations for regulating procedure under this Act.

 

3.     Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude compulsory licensing, if a product is being imported)?

 

At present, the legislation does not address importation of patents.

 

4.     Does your legislation make the granting of a compulsory license subject to all the conditions enumerated in Article 31 of the TRIPS Agreement? Please cite the relevant provisions of law.

 

At present, the legislation does not address granting of a compulsory licence.

 

5.   Does your legislation provide for the principle of the reversal of burden of proof in a process patent litigation?  Please cite the relevant provisions of law.

 

At present the legislation does not make express provisions for the reversal of burden of proof.

 

C.     Protection of undisclosed information

6.     Please explain in detail if your legislation ensures that undisclosed test or other data submitted by an applicant to the responsible State agency in the procedure for market authorisation of a pharmaceutical or of an agricultural chemical product is protected against disclosure and against unfair commercial use by a competitor, for example by prohibiting a second applicant from relying on, or from referring to the original data of the first applicant, when applying subsequently for market authorisation for his own product. Does your legislation provide for exceptions to this?  If yes, under what conditions would such exceptions apply? Does your legislation set a specific term of protection for undisclosed test or other data of the first applicant?

 

At present, there is no provision in the legislation for protection of undisclosed information.

 

D.     ENFORCEMENT

7.     Please indicate remedies provided by your legislation, which constitute effective deterrents to infringements of intellectual property rights.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

Follow-up question 7

 

With regard to the issue of remedies in case of infringements of intellectual property rights, you refer to the responses you gave to the checklist of issues on enforcement (document IP/N/6/FJI/1).  These answers, however, seem to deal only with copyright.  Please give complementary information on remedies provided by your legislation in the other fields of intellectual property, which constitute effective deterrents to infringements of these rights.

 

Pursuant to sections 44 and 60 of the Trademarks Act, a person may bring a claim in the Fijian Court for alleged infringement of a trademark.

 

Under section 28 of the Patents Act, a person may bring a claim in the Fijian Court for being prejudicially affected by the issue of a certificate of registration.

 

8.     Please describe any new initiatives that are planned to improve enforcement of intellectual property rights in your country, particularly initiatives related to criminal enforcement.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

Follow-up question 8

 

With regard to the issue of new initiatives that are planned to improve enforcement of intellectual property rights in your country, you refer to the responses you gave to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1). These answers, however, seem to deal only with copyright. Please give complementary information on new initiatives that are planned in your country to improve enforcement of rights in the other fields of intellectual property, and particularly initiatives relating to criminal enforcement.

 

At present, there have been no new initiatives to improve enforcement of patents and trademarks, however we are currently in the process of reviewing our laws on patents and trademarks.

 

 

6  responses to questions posed by the UNITED STATES^[9]

A.     GENERAL

1.     Please describe, in relation to each form of intellectual property covered by the TRIPS Agreement, including plant variety protection, the manner in which nation treatment and most favoured nation treatment are provided to nationals of other WTO Members and cite to the relevant provisions of law.

 

Pursuant to s227(2), regulations may be made by the Minister (in this instance the Attorney-General), applying a specified provision of the Act in relation to:

 

(a)        persons who are citizens or subjects of a country or who ore domiciled or resident in a place - as it applies in relation to persons who are Fiji Island citizens or are domiciled or resident in the Fiji Islands.

 

(b)        in relation to bodies incorporated under the law of a country or place ‑ as it applies in relation to bodies incorporated under the law of the Fiji Islands or in the case of an audio-visual work, as it applies to a body which has its headquarters in a prescribed foreign country. (prescribed by regulations under this Act - s2)

 

(c)        in relation to works first published in a country or place - as it applies in relation to works first published in the Fiji Islands.

 

(d)        in relation to broadcasts made from, or cable programmes sent from, a country or place - as it applies in relation to broadcasts made from or cable programmes sent from, the Fiji Islands."

 

Generally these regulations would apply to Convention countries and maybe subject to specified exceptions and modifications or maybe applied generally or to a specified class of works.  These Regulations are not in place as yet.

 

B.     COPYRIGHT AND RELATED RIGHTS

2.     Please explain how the copyright law of Fiji protects computer programs as literary works and complications of data as required by Article 10 of the TRIPS Agreement and cite to the relevant provisions of law.

 

Computer programs are protected as any other work, with the issue of the author covered by section 5(2) (a) of the Act which stipulates:

 

"(2)      For the purposes of subsection (1), the person who creates a work is -

(a)        in the case of literary, dramatic, musical or artistic work that is computer-generated-the person by whom the arrangements necessary for the creation of the work are undertaken."

3.     Article 11 of the TRIPS Agreement requires that rental rights for computer programs and cinematographic works be available.  Please cite to the corresponding provision of the copyright law of Fiji.

 

Section 229(o) of the Act stipulates that:

 

            "229.    The Minister may make regulations for all or any of the following purposes –

 

                                (o)    authorising, subject to specified conditions, the rental to the public of copies of -

 

(i) any specified class or classes of computer program;

(ii)        any specified class or classes of sound recording, or

(iii)       any audio visual work or specified class or classes of audio visual work, without the consent of the owner of the copyright in the work."

Pursuant to s73 of the Act, copyright in a work (being a computer program, sound recording, or audio visual work) is not infringed by the rental of that work to any person by an educational establishment or a prescribed library if they do not rent out the work for profit or if the work has previously been put into circulation with the licence of the copyright owner.

 

4.     Please state the length and terms of protection the copyright law of Fiji provides for a work other than a photographic work or a work of applied art and cite to the relevant provision of law.

 

Section 22                               Copyright in a literary, dramatic, musical or artistic work expires at the end of 50 years after the end of the calendar year in which the author dies.

 

Section 22(3)                           If the work is computer generated copyright expires at the end of 50 years after the end of the calendar year of a authorized publication of the work or if there is no authorized publication within 50 years after the making of the work, at the end of 50 years after the end of the calendar year of its making.

 

Section 22(4)                          If the work is of unknown authorship copyright expires at the end of 50 years after the end of the calendar year of authorized publication of the work.

 

Section 23(3)                          Copyright in a sound recording or audio visual works expires at the end of the period of 50 years from the end of the calendar year in which the work is made or is first made available to the public, or is first published, whichever is the latest.

 

Section 24                               Copyright in a broadcast or a cable programme expires at the end of the period of 50 years from the end of the calendar year in which the broadcast is made or the cable programme is communicated to the public.

 

Section 25                               Copyright in a typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition is first published.

 

5.     Please describe the protection the copyright law of Fiji provides for performers, and the term of the protection.

 

Part X of the Copyright Act 1999 (Fiji), covers Performers' Rights, sections 166, 167 168 and 169 of which cover infringements by a person or persons, who without a performer's consent for a commercial purpose makes a recording of the whole or substantial part of a performance, by means of an illicit recording or copies of a recording knowing or having reason to believe that it was made without the performer's consent.

 

A performer's rights are infringed by a person who without the performer's consent imports into Fiji other than for his private and domestic use or in the course of business possesses, sells or lets for hire c recording that the person knows or ought to have known is on illicit recording.

 

6.     Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2 requires that producers of phonograms are to have the right to authorize or prohibit the commercial rental to the public of originals or copies of their phonograms.  Please describe how the copyright law of Fiji implements these obligations and indicate the term of protection.

 

As indicated in response to question 5, the performer's rights ore protected in a number of ways, but all of which require that the performer's consent is required.  For example, s166(1) of the Act stipulates:

 

"(1)      A performer's rights are infringed by a person who without the performer's consent -

(a)        makes, otherwise than for the person's private and domestic use, a recording of the whole or any substantial part of the performance; or

(b)        broadcasts live, or communicates to the public, the whole or any substantial part of a performance."

The performer's right to authorize or prohibit the commercial rental to the public of originals or copies of their program may be implemented by regulations made by the Minister.

Section 201(2) of the Act, (contained in Part X covering Performer's Rights) stipulates:

"Regulations made under this section may -

(a)        apply any provisions of this Part subject to specified exceptions and modifications; and

(b)        direct that any provision of this Part applies either generally or in relation to a specified class of performers."

C.    trademarks

7.     Please describe the subject matter that can comprise a trademark under the trademark law of Fiji.

 

Under section 2 of the Trademarks Act, trade-mark included a device, brand, heading, label, ticket, name, signature, word, letter, numeral or any combination of these.

 

8.     Please describe the procedure that must be followed to register a trademark in Fiji, citing the relevant provisions of the law, and describe the rights that the owner of a registered mark can exercise.

 

The procedure for the registration of a Trade mark is under section 11 (1) of the Trademarks Act and the prescribed manner is provided in the Second Schedule of the Act.

       

        Section 11 (1) of the Act stipulates:

 

          "11.-(1) Any person claiming to be the proprietor of a trade-mark who is desirous of registering the same shall apply in writing to the Registrar in the prescribed manner.

       

          (2) Subject to the provisions of this Act, the Registrar may refuse such application or may accept it absolutely or subject to conditions, amendments or modifications or to such limitations, if any, as to mode or place of user or otherwise as he may think right to impose.

       

          (3) In case of any such refusal or conditional acceptance the Registrar shall, if required by the applicant, state in writing the grounds of his decision and the materials used by him in arriving at the same, and such decision shall be subject to appeal to the court.

       

          (4) An appeal under this section shall be made in the prescribed manner and on such appeal the court shall, if required, hear the applicant and the Registrar, and shall make an order determining whether and subject to what conditions, amendments or modifications, if any, or to what limitations, if any, as to mode or place of user or otherwise the application is to be accepted.

       

          (5) Appeals under this section shall be heard on the materials so stated by the Registrar to have been used by him in arriving at his decision and no further grounds of objection to the acceptance of the application shall be allowed to be taken by the Registrar other than those stated by him except by leave of the court hearing the appeal. Where any further grounds of objection are taken, the applicant shall be entitled to withdraw his application without payment of costs on giving notice as prescribed.

       

          (6) The Registrar or the court as the case may be may at any time, whether before or after acceptance, correct any error in or in connection with the application or may permit the applicant to amend his application upon such terms as they may think fit."

       

As outlined above under Section 11 (3), if the Registrar after considering the application for registration of a trademark refuses or accepts the application on conditional grounds, the applicant if he or she requires has the right to ask the Registrar to state in writing the grounds of the Registrar's decision and the materials used by the Registrar in arriving at the same, and such decision shall be subject to appeal to the court.

 

9.     Please provide the length and terms of protection the trademark law of Fiji provides for a trademark. 

 

Registered trademarks are protected for 14 years from the date of registration, as per section 27 of the Act. Registration of a trademark can be renewed within the prescribed time for another period of 14 years.

 

        Section 27 stipulates that:

 

          "27. The registration of a trade-mark shall be for a period of fourteen years but may be renewed from time to time in accordance with the provisions of this Act."

       

10.   Please explain whether the laws of Fiji provide well-known servicemarks with the same protection as well-known trademarks under Article 6bis of the Paris Convention, as required by Article 16.2 of the TRIPS Agreement.

 

At present, the Trademarks Act only provides for trademarks in connection with goods.

 

11.   Please explain whether the relevant authorities in Fiji, in determining whether a mark is well-known, take account of knowledge of a trademark in the relevant sector of the public, including knowledge obtained as a result of promotion of the trademark.

 

The Fiji Intellectual Property Office in receiving application for trademarks considers well known trademarks in the relevant sector of the public, including knowledge obtained as a promotion of the mark; however, there are no prescribed procedures for this process. Further, the notice period for opposition will cater for any objections albeit from a well-known trademark holder or not.

 

12.   Please explain in detail how well-known trademarks are protected in Fiji and cite to the relevant provisions of law.

 

At present, there is no provision for well-known trademarks.

 

D.     GEOGRAPHICAL INDICATIONS

13 .         Please describe in detail how the laws of Fiji provide for the recognition and protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing to the relevant provisions of law or regulation, and provide examples of geographical indications so protected.

 

At present, there are no provisions for the recognition and protection of geographical indicators.

 

14.   Please describe in detail the manner in which the additional protection required for wines and spirits under Article 23.1 of the TRIPS Agreement is implemented, citing to the relevant provisions of law or regulation, and provide examples of geographical indications for such products.

 

At present, there are no provisions for the protection of wines and spirits.

 

E.     industrial designs

15.   Please describe the procedure that must be followed to obtain protection for industrial designs, citing to the provisions of the law of Fiji, and describe the nature of the protection provided.

 

At present there are no provisions for the protection of industrial designs however we are in the process of drafting a legislation governing industrial designs.

 

16.   Please describe the procedure that must be followed to obtain protection for textile designs and cite to the relevant provisions of law or regulation.

 

At present, there are no provisions for the protection of textile designs.

 

F.     patents

17.   Please describe in detail the way in which the patent law of Fiji implements Article 27 of the TRIPS Agreement, indicating any exceptions provided for, and including details regarding the protection for micro-organisms and non-biological and microbiological processes and plant varieties.  Please cite to the relevant provisions of the law.

 

Under section 5 of the Patent Laws, the exceptions are:

        (a)    if the invention is of no utility;

        (b)   if the invention at the time of presenting the petition was not a new invention;

        (c)   if the petitioner is not the true and first inventor thereof; or

        (d)   if the petition or any specification contains a wilfully false statement.

 

The only other exception is pharmaceuticals as provided in section 3A of the Patents (Amendment) Act 2002.

 

18.   Please describe in detail the rights provided patent holders under the patent law of Fiji and cite to the relevant provisions of law.

 

The patent holder is granted exclusive rights to his/her invention, unless it is for making, constructing, using or selling a patented invention in respect of a pharmaceutical product or substance, as provided in section 3A.

 

19.   Please describe in detail any provisions in the laws of Fiji permitting unauthorized use of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which such use can occur. 

 

As stated above, unauthorized use of a patent is provided for solely in respect of pharmaceutical products or substances.

 

20.   What term of protection does the patent law of Fiji provide for patents? Please describe any provisions for extension of the term of protection and cite to the relevant provisions of the law.

 

Under section 3 of the Patents Act, the inventor has exclusive right to his/her invention. This is further provided under section 4 which entitles the inventor to the exclusive right to use, sell or make his/her invention for a period of 14 years from the date of the grant of the letters of patent.

 

For all patents granted in the United Kingdom, the inventor may accordingly apply to the Solicitor-General within 3 years from the date of its issue for registration of the patent in Fiji. Once granted, the patent shall continue in force in Fiji for so long as the patent remains in force in the United Kingdom.

 

There is no specific provision in the Patents Act for the extension of the patent once the term expires, however, a person who requires an extension would normally apply for grant of a new letters of patent.

 

G. Layout-designs (topographies) of integrated circuits

21.   Please describe in detail the protection for layout-designs of integrated circuits provided under the laws of Fiji, including the term of protection, and cite to the relevant provisions of law.

 

At present, there are no express provisions for the protection of layout-designs of integrated circuits provided under the laws of Fiji.

 

H.     protection of undisclosed information

22.   Please describe in detail how the laws of Fiji provide for the protection of undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide citations to the relevant provisions of law.

 

As far as the laws pertaining to intellectual property is concerned, there are no express provision for the protection of undisclosed information in the relevant laws.

 

23.   Please describe in detail the manner in which protection is provided test data regarding pharmaceutical and agricultural chemical products submitted to the government in order to obtain marketing approval in Fiji and cite to the relevant provisions of law.

 

24.   Are other applicants for marketing approval for their own versions of a previously approved pharmaceutical or agricultural chemical products permitted to rely on data submitted by the earlier applicant?  If so, how long a period of exclusivity is given the earlier applicant before such reliance becomes possible.

 

(Response to Questions 23 and 24) There are no provisions for test data regarding pharmaceutical and agricultural products submitted to the Government in order to obtain market approval in Fiji. However, please note that under section 3A of the Patents Act, it is not an infringement for persons to make, construct, use or sell the patented invention in respect of a pharmaceutical product or substance solely for reasons related to the development and submission of information required under any laws of Fiji or of another country.

 

I.     ENFORCEMENT

25.   Please describe in detail the manner in which the laws of Fiji provide for effective action against infringement of intellectual property rights as required by Article 41 of the TRIPS Agreement.

                       

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

26.   Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production of evidence necessary to substantiate a party's claims where that party has been unable to obtain such evidence from the opposing party.  Please describe how the laws or regulations of Fiji provide this authorization, citing to the relevant provisions of law or regulation.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

27.   Please describe in detail all of the civil remedies that are available to right holders under the laws of Fiji, citing to the relevant provisions of law or regulation.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

28. Please describe in detail the provisional procedures and remedies available to right holders under the laws of Fiji, citing to the relevant provisions of law and regulation, and indicate any condition under which a right holder may avail itself of those procedures and remedies.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

J.     SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES

29.   Please describe in detail the procedures under the laws of Fiji that provide for border enforcement at least for trademark counterfeiting and copyright piracy, identifying the competent authority and citing to the relevant provisions of law or regulation.

                       

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

30. Please indicate if border enforcement is available to owners of other forms of intellectual property and, if so, please describe the procedures and remedies available in relation to each form of intellectual property, citing the relevant provisions of law.

                       

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

31.   Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent authorities can act ex officio.  Please explain whether the competent authorities in Fiji are empowered to act ex officio and, if so, please identify the intellectual property areas subject to ex officio action.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

K.     CRIMINAL PROCEDURES

32.   Please describe in detail how the laws of Fiji implement Article 61 of the TRIPS Agreement that requires Members to have criminal procedures and penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark counterfeiting and copyright infringement on a commercial scale.  Please cite to the relevant provisions of law and regulation.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

33.   Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and destruction of infringing goods and any materials and implements the predominant use of which has been the commission of the offence.  Please describe the provisions in the laws of Fiji that provide for such remedies, and describe the circumstances in which those remedies would be imposed, citing to the relevant provisions of law or regulation.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

L.     STATISTICAL QUESTIONS

34. Please provide statistical information related to civil copyright, trademark, geographical indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement for 2000, including the number of cases filed;  injunctions issued;  infringing products seized;  infringing equipment seized;  cases resolved (including settlement); and the amount of damages awarded.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

35. Please provide statistical information related to criminal enforcement in the area of copyright piracy and trademark infringement for 2000, including the number of raids, prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines were paid and whether the jail term was actually served or was suspended) and any other information establishing that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.

 

Please see Fiji's responses to the Checklist of Issues on Enforcement (document IP/N/6/FJI/1).

 

 

 

Annex 1^[10]

 

Copyright Act 1999

ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

Division 1-General

Incidental copying of copyright work

40.-(1) Copyright in a work is not infringed by-

(a) the incidental copying of the work in an artistic work, a sound recording, an audio visual work, a broadcast, or a cable programme;

(b) the issue to the public of copies of an artistic work, the playing of a sound recording, the showing of an audio visual work, the making of a broadcast or the inclusion of a cable programme in a cable programme service, in which a copyright work has been incidentally copied; or

the issue to the public of copies of a sound recording, audio visual work, broadcast, or cable programme to which paragraph (a) or (b) applies.

(2) For the purposes of this subsection, a musical work, words spoken or sung with music, or so much of a sound recording, broadcast, or cable programme as includes a musical work or such words, is not to be regarded as incidentally copied in another work if the musical work or, as the case requires, such words of that sound recording, broadcast, or cable programme is deliberately copied.

Criticism, review and news reporting

41.-(1) Copying a work for the purpose of criticism or review of that or another work, or of a performance of a work, does not infringe copyright in the work if the copy is accompanied by a sufficient acknowledgement.

(2) Copying a work for the purpose of reporting current events by means of a sound recording, audio visual work, broadcast or cable programme does not infringe copyright in the work.

(3) Copying a work (other than a photograph) for the purpose of reporting current events by any means other than those referred to in subsection (2) does not infringe copyright in the work if the copy is accompanied by a sufficient acknowledgement.

Research or private study

42.-(1) Copying a work for the purposes of research or private study by an individual does not infringe copyright in a literary, dramatic, musical or artistic work, unless there is a collective licence available of which the individual is or should be aware under which the copying can be done.

(2) For the avoidance of doubt, it is declared that copying a published edition for the purposes of research or private study by an individual does not infringe copyright in either the typographical arrangement of the edition or in any literary, dramatic, or musical work or part of a work in the edition.

(3) In relation to-

(a) a literary, dramatic, or musical work that is contained in a book by one author; or

(b) a published edition that is a book by one author,

copying for the purposes of research or private study by an individual is limited to the making of one copy of the same work, or the same part of a work, on any one occasion.

(4) In relation to-

(a) a literary, dramatic, or musical work that is contained in an article in a periodical;

(b) a published edition that is an article in a periodical,

copying for the purposes of research or private study by an individual does not include copying for the purposes of research or private study the whole or part of the work or edition if another article dealing with a different subject matter is copied, on the same occasion, from the same issue of the periodical; but in any other case, includes copying for the purposes of research or private study by an individual the whole or part of the work or edition and any artistic work included in the whole or part.

(5) In relation to a literary, dramatic, or musical work or a published edition, other than a work or edition to which subsection (3) or subsection (4) applies, copying for the purposes of research or private study by an individual includes copying for the purposes of research or private study not more than 10% of the work or edition and any artistic work included in that 10%.

(6) Except as provided in subsections (3) to (5), copying a work for the purposes of research or private study by an individual may include copying for the purposes of research or private study the whole or part of the work.

(7) In determining, for the purposes of subsection (6), whether copying is for the purposes of research or private study by an individual, a court must have regard to-

(a) the purpose of the copying;

(b) the nature of the item copied;

(c) whether the item could have been obtained within a reasonable time at an ordinary commercial price;

(d) the effect of the copying on the potential market for, or value of, the work; and

(e) where part of an item is copied - the amount and substantiality of the part copied taken in relation to the whole item.

(8). This section does not apply to a literary work that is a computer program.

Division 2-Education

Exemption from copyright infringement

43.-(1) Copying by a school referred to in subsection (2) for the purposes of research or private study by an individual does not infringe copyright in a literary, dramatic, musical or artistic work, unless there is a collective licence available of which the school is or should be aware under which the copying can be done.

2) A school referred to in subsection (1) includes-

(a) a kindergarten;

(b) a primary school;

(c) an intermediate school;

(d) a secondary school;

(e) a special school.

(3) For the purposes of subsection (1) copying for purposes of research or private study means-

(a) the whole or part of a literary, dramatic, musical or artistic work is copied for supply to any student or staff member of the school;

(b) the school supplies no more than one copy of the copied material to any student or staff member of that school: and

(c) if any student or staff member is required to pay for a copy, the payment required is no higher than the cost of production of the copy together with a reasonable contribution to the general expenses of the school.

(4) Subsection (1) does not apply to a literary work that is a computer program.

Partial exemption from copyright infringement

44.-(1) Copying by an educational establishment for the purposes of research or private study by an individual does not infringe copyright in a literary, dramatic, musical or artistic work, unless there is a collective licence available of which the educational establishment is or should be aware under which the copying can be done.

(2) For the purposes of subsection (1), copying for the purposes of research or private study by an individual means copying not more than-

(a) one chapter of the literary, dramatic, musical or artistic work; or

(b) 10% of the literary, dramatic, musical or artistic work, for supply to any student or staff member of the educational establishment,

whichever is the less.

(3). An educational establishment may apply to the Minister for a certificate of exemption entitling the establishment to exemption similar to those provided pursuant to section 43 for a school.

(4) In determining, for the purposes of subsection (2), whether copying is for the purpose of research or private study, a court must have regard to-

(a) the purpose of the copying;

(b) the nature of the item copied;

(c) whether the item could have been obtained within a reasonable time at an ordinary commercial price;

(d) the effect of copying on the potential market for, or value of, the work; and

(e) where part of an item is copied - the amount and substantiality of the part copied taken in relation to the whole item.

(5) Copyright in a dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying-

(a) is done by a person giving or receiving instruction; and

(b) is not by means of a reprographic process.

(6) Copyright in a sound recording, audio visual work or audio visual soundtrack, broadcast or cable programme is not infringed by its being copied by making an audio visual work or audio visual soundtrack in the course of instruction, or of preparation for instruction, in the making of an audio visual work or audio visual soundtrack, provided the copying is done by a person giving or receiving instruction.

(7) Subsection (1) does not apply to a literary work that is a computer program.

Performing, playing, or showing work in course of activities of educational establishment

45.-(1) The performance of a literary, dramatic, or musical work before an audience consisting of persons who are students or staff members at a school or educational establishment or are directly connected with the activities of the school or establishment-

(a) by a student or staff member in the course of the activities of the school or establishment; or

(b) at the school or establishment by any person for the purposes of instruction,

is not a performance in public for the purposes of section 32(1).

(2) The playing or showing, for the purposes of instruction, of a sound recording, audio visual work, broadcast, or cable programme before an audience as described in subsection (1) at a school or educational establishment is not a playing or showing of the work in public for the purposes of section 32(2).

(3) A parent or guardian of a student at a school or educational establishment is not, for the purposes of this section, to be treated as a person directly connected with the activities of the school or educational establishment.

Recording by educational establishments of broadcasts and cable programmes

46. A recording of a broadcast or cable programme, or a copy of such a recording may be made by or on behalf of a school or educational establishment for the educational purposes of that school or establishment without infringing copyright in the broadcast or cable programme, or in any work included in it, unless there is a collective licence available of which the school or educational establishment is or should or be aware under which copying can be done.

Things done for purposes of examination

47. Copyright is not infringed by anything done for the purposes of an examination, whether by way of setting the questions, communicating the questions to the candidates or answering the questions.

Division 3-Libraries and Archives

Prescribed libraries and archives

48. In sections 49 to 53, unless the context otherwise requires-

(a) "archive" means-

(i) the National Archives of the Fiji Islands;

(ii) any library, museum or other body approved by the Minister of Information to be a repository of archival material under section 3 of the Libraries (Deposit of Books) Act (Cap 109) (http://www.paclii.org/fj/legis/consol_act/loba262/);

(iii) any collection of documents (within the meaning of section 7 of the Public Records Act (Cap 108)) http://www.paclii.org/fj/legis/consol_act/pra153/ of historical significance or public interest that is in the custody of and maintained by a person or body, whether incorporated or unincorporated, that does not keep and maintain the collection for the purpose of deriving a profit;

(b) "prescribed library'' means-

(i) the Parliamentary Library;

(ii) a library maintained by an educational establishment, government department, or local authority;

(iii) any other library or class of library prescribed by regulations made under section 229, not being a library conducted for profit;

(c) a reference to the librarian of a prescribed library or the archivist of an archive includes a person acting on behalf of the librarian or archivist.

Copying by librarians of parts of published works

49.-(1) The librarian of a prescribed library may, if the conditions contained in subsection (2) are complied with make from a published edition, for supply to another person-

(a) in relation to a literary, dramatic, or musical work contained in a book by one author, not more than one copy of a short excerpt from the work;

(b) in relation to a literary, dramatic, or musical work other than-

(i) a work contained in a book by one author; or

(ii) an article in a periodical,

not more than one copy of a short excerpt of each author's work and any artistic work included in that work, without infringing copyright in the literary, dramatic, musical or artistic work or the typographical arrangement of the published edition.

(2) The conditions referred to in subsection (1) are-

(a) that a copy is supplied only to a person who satisfies the librarian that the person requires it for the purposes of research or private study;

(b) that a copy must be supplied only to a person who satisfies the librarian that the requirement is not related to any similar requirement of another person;

(c) that no person is supplied on the same occasion with more than one copy of the same material;

(d) if a person to whom a copy is supplied is required to pay for it, the payment required is no higher than the cost of production of the copy together with a reasonable contribution to the general expenses of the library; and

(e) that there is no collective licence available of which the librarian is or should be aware under which the copying can be done.

(3) Subsection (1) does not apply to a literary work that is a computer program.

Copying by librarians of articles in periodicals

50.-(1) The librarian of a prescribed library may, if the conditions contained in subsection (2) are complied with, make for supply to any person a copy of-

(a) a literary, dramatic, or musical work, and any artistic work included in that work, contained in an article in a periodical; or

(b) a published edition that is an article in a periodical,

without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.

(2) The conditions referred to subsection (1) are-

(a) that no person is supplied on the same occasion with more than one copy of the same article;

(b) that no person is supplied on the same occasion with copies of more than one article contained in the same issue of a periodical unless the copies supplied all relate to the same subject matter;

(c) if a person to whom a copy is supplied is required to pay for it, the payment required is no higher than the cost of production of the copy together with a reasonable contribution to the general expenses of the library; and

(d) that there is no collective licence available of which the librarian is or should be aware under which the copying can be done.

Copying by librarians for supply to other libraries

51.-(1) The librarian of a prescribed library may make from a published edition, for supply to another prescribed library-

(a) in the case of a literary, dramatic or musical work contained in a book by one author - not more than one copy of the work;

(b) in the case of a literary, dramatic or musical work contained in an article in a periodical - the whole article and any artistic work included in that work;

(c) in the case of a literary, dramatic or musical work other than a work to which paragraph (a) or (b) applies - not more than one copy of the work or edition and any artistic work included in that work,

without infringing copyright in the literary, dramatic, musical., or artistic work or the typographical arrangement of the published edition.

(2) The librarian of a prescribed library may, if the conditions contained in subsection (3) are complied with, make a copy of a literary, dramatic or musical work, and any artistic work included in the work, if the copy is-

(a) from a published edition that is a book; and

(b) for supply to the librarian of another prescribed library;

without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.

(3) The conditions referred to in subsection (2) are that the librarian to whom the copy of the work is supplied-

(a) has been unable to obtain the work at a commercial price within the 6 months preceding the supply;

(b) makes and keeps a record sufficient to identify the work copied;

(c) permits the inspection of the record by the copyright owner during normal office hours; and

(d) pays, on demand, equitable remuneration to the copyright owner for the work copied.

(4) In subsection (3)(d), the term "equitable remuneration" means a sum agreed the librarian and the copyright owner.

(5) Subsections (1) and (2) do not apply to a literary work that is a computer program.

Copying by librarians or archivists to replace copies of works

52-(1) The librarian of a prescribed library or the archivist of an archive may make a copy of any item in the permanent collection of the library or archive for the purpose of-

(a) preserving or replacing that item by placing the copy in the permanent collection of the library or archive in addition to or in place of the item; or

(b) replacing in the permanent collection of another prescribed library or archive an item that has been lost, destroyed, or damaged,

without infringing copyright in any literary, dramatic or musical work, in any artistic work included in the work or in the typographical arrangement of a published edition.

(2) Subsection (1) applies only where it is not reasonably practicable to purchase a copy of the item in question to fulfil the purpose in question.

Copying by librarians or archivists of certain unpublished works

53.-(1) The librarian of a prescribed library or the archivist of an archive may, if the conditions contained in subsection (3) are complied with, copy for supply to any person a copy of an unpublished work in the library or archive, without infringing copyright in that work.

(2) This section does not apply if the copyright owner has prohibited copying of the work and at the time the copy is made the librarian or archivist making it is, or ought to be aware of that fact.

(3) The conditions referred to in subsection (1) are-

(a) that no person is supplied on the same occasion with more than one copy of the same work;

(b) that if a person to whom a copy is supplied is required to pay for the copy, the payment required is no higher than the cost of production of the copy together with a reasonable contribution to the general expenses of the library or archive; and

(c) that there is no collective licence available of which the library or archive is or should be aware under which the copying can be done.

Division 4-Public Administration

Parliamentary and judicial proceedings

54. Copyright is not infringed by anything done for the purposes of-

(a) parliamentary judicial proceedings;

(b) reporting such proceedings.

Commissions of inquiry and statutory inquiries

55. Copyright is not infringed by anything done for the purposes of-

(a) the proceedings of a commission of inquiry, a ministerial inquiry or a statutory inquiry;

(b) reporting any such proceedings that are held in public.

(2) Subsection (1)(b) does not authorise the copying of a work that is itself a published report of the proceedings of a committee of inquiry, ministerial inquiry or statutory inquiry.

(3) Copyright in a work is not infringed by the issue to the public of copies of the report of a commission of inquiry, ministerial inquiry or statutory inquiry containing the work or material from it.

Material open to public inspection or on official register

56.-(1) If material is open to public inspection or public reference pursuant to a statutory requirement, or is on a statutory register, copyright in the material is not infringed by the copying of the material, by or with the authority of the appropriate person, for a purpose that does not involve the issuing of copies to the public.

(2) If material is open to public inspection or public reference pursuant to a statutory requirement, copyright is not infringed by the copying or issuing to the public or copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.

(3) If material that is open to public inspection or public reference pursuant to a statutory requirement, or that is on a statutory register, contains information about matters of general scientific, technical, commercial, or economic interest, copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of disseminating that information.

The Minister may by regulations provide that all or any of subsections (1) to (3), in such cases as may be specified in the regulations, apply only to copies marked in a specified manner.

(5) The Minister may by regulations provide that all or any of subsections (1) to (3) apply, to the extent and with any modifications specified in the regulations, in relation to-

(a) material made open to public inspection or public reference by-

(i) an international organisation specified in the regulations; or

(ii) a person specified in the regulation who has functions in the Fiji Islands under an international agreement to which the State is a party; or

(b) a register maintained by an international organisation specified in the regulations,

as those provisions apply in relation to material open to public inspection or public reference pursuant to a statutory requirement or by virtue of being on a statutory register.

(6) In this section-

"appropriate person" means a person required to make material in a register open to public inspection or public reference on payment of any fee prescribed by or under a written law or, as the case may be, the person maintaining the register:

"statutory register" means a register maintained pursuant to a statutory requirement;

"statutory requirement" means a requirement of a written law.

Material communicated to the State in the course of public business

57.-(1) This section applies where-

(a) a literary, dramatic, musical, or artistic work has, in the course of public business, been communicated to the State for any purpose, by or with the licence of the copyright owner; and

(b) a document (within the meaning of section 12 of the Official Secrets Act 1911 (UK)) recording or embodying the work is owned by, or is in the custody or control of, the State.

(2) The State may, for-

(a) the purpose for which the work was communicated to the State; or

(b) any related purpose that could reasonably have been anticipated by the copyright owner,

copy the work, and issue copies of the work to the public, without infringing copyright in the work.

(3) The State may not copy a work, or issue copies of a work to the public, under this section if the work has previously been published otherwise than under this section.

(4) In subsection (1) "public business" includes any activity carried on by the State.

(5) This section has effect subject to any agreement to the contrary between the State and the copyright owner.

Use of copyright material for service of the State

58.-(1) Copyright in a work is not infringed by anything done in relation to the work, by or on behalf of the State or by any person authorised in writing by a government department-

(a) for the purpose of national security or during a period of emergency; or

(b) in the interests of the safety or health of the public or any member of the public.

(2) If an act is done under subsection (1), the State must pay reasonable remuneration to the copyright owner upon terms agreed between the State and the copyright owner.

(3) An act to which subsection (1) applies does not-

(a) constitute publication of a work; or

(b) affect the term of copyright in a work.

Rights of third parties in respect of State use

59.-(1) No provision of any assignment or licence in force between the copyright owner and a person other than a government department is effective to prevent any act being done in relation to a copyright work, if the act is done under section 58.

(2) If-

(a) an act is done under section 58; and

(b) an exclusive licence is in force in respect of the work in relation to which the act is done,

the State must pay reasonable remuneration to the licensee upon terms agreed between the State and the licensee.

(3) If-

(a) a person has a right in relation to a work by any licence other than an exclusive licence; and

(b) a payment is made, in respect of that work, under section 58 to the copyright owner or under subsection (2) of this section to the exclusive licensee,

the person is entitled to recover from the owner or exclusive licensee, as the case may be, such part of any payment as is agreed between that person and the copyright owner or the exclusive licensee, as the case may be.

Proceedings against the State

60.-(1) If an employee or agent of the State infringes copyright in a work, and the infringement is committed with the authority of the State, civil proceedings in respect of the infringement lie against the State under the State Proceedings Act (Cap 24), but subject to this Act.

(2)Nothing in subsection (1) affects the rights of the State, or any person authorised by a government department, under section 58.

Acts done under statutory authority

61.-(1) If the doing of a particular act is specifically authorised by a written law, the doing of that act does not infringe copyright unless the written law provides otherwise.

(2) Nothing in this section excludes any defence of statutory authority otherwise available under or pursuant to an enactment.

Division 5-Literary, Dramatic, Musical, And Artistic Works

Acts permitted on assumptions as to expiry of copyright or death of author in relation to

anonymous or pseudonymous works

62.-(1) Copyright in a literary, dramatic, musical, or artistic work is not infringed by any act done at a time when, or in pursuance of arrangements made at a time when-

(a) it is not possible for a person who wishes to do so to ascertain the identity of the author by reasonable inquiry; and

(b) it is reasonable to assume-

(i) that copyright has expired; or

(ii) that the author died 50 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to-

(a) a work in which State copyright exists under section 26;

(b) a work-

(i) in which copyright originally vested in an international organisation under section 28; and

(ii) in respect of which an order made under that section specifies a copyright period longer than 50 years.

(3) In relation to a work of joint authorship-

(a) the reference in subsection (1)(a) to its being not possible to ascertain the identity of the author is a reference to the identity of any of the authors; and

(b) the reference in subsection (1)(b)(ii) to the author having died is a reference to all the authors having died.

Use of recording of spoken words in certain cases

63.-(1) If a recording of spoken words is made, in writing or otherwise, for the purpose of-

(a) reporting current events; or

(b) broadcasting or including in a cable programme service the whole or part of the work,

it is not an infringement of copyright in the words as a literary work to use the recording or material taken from it (or to copy the recording, or any such material, and use the copy) for that purpose, if the conditions in subsection (2) are complied with.

(2) The conditions referred to in subsection (1) are that-

(a) the recording is a direct record of the spoken words and is not taken from a previous recording or from a broadcast or cable programme;

(b) the making of the recording was not prohibited by the speaker and, if copyright already existed in the work, did not infringe copyright;

(c) the use made of the recording or material taken from it is not of a kind prohibited by or on behalf of the speaker or copyright owner before the recording was made; and

(d) the use is by or with the authority of a person who is lawfully in possession of the recording.

Public reading or recitation

64.-(1) The reading in public or recitation in public by one person of a reasonable extract from a published literary or dramatic work is not to be treated as a performance in public for the purposes of section 32(1), if that reading or recitation is accompanied by a sufficient acknowledgement.

(2) Copyright in a work is not infringed by the making of a sound recording, or the broadcasting or inclusion in a cable programme, of a reading or recitation that pursuant to subsection (1) is not treated as a performance in public, if the recording, broadcast. or cable programme consists mainly of material in relation to which it is not necessary to rely on that subsection.

Abstracts of scientific or technical articles

65. If an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of that article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or to issue copies of the abstract to the public, unless there is a collective licence available of which the copier is or should be aware under which the copying can be done.

Recordings of folk-songs

66.-(1) A sound recording of a performance of a song may be made for the purpose of including the song in an archive maintained by a body prescribed by regulations under section 229 without infringing copyright in the words as a literary work or in the accompanying musical work, if the conditions in subsection (2) are complied with.

(2) The conditions referred to in subsection (1) are that-

(a) the words are unpublished and of unknown authorship at the time the recording is made;

(b) the making of the recording does not infringe any other copyright; and

(c) the making of the recording is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subsection (1) and included in an archive maintained by a body prescribed by regulations made under this Act may, if the condition contained in subsection (4) is complied with, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.

(4) The condition referred to in subsection (3) is that no person is furnished with more than one copy of the same recording.

Representation of certain artistic works on published display

67.-(1) This section applies to-

(a) buildings; and

(b) works (being sculptures, models for buildings, or works of artistic craftsmanship) that are permanently situated in a public place or in premises open to the public.

(2) Copyright in a work to which this section applies is not infringed by-

(a) copying the work by making a graphic work representing it;

(b) copying the work by making a photograph or audiovisual work of it; or

(c) broadcasting, or including in a cable programme, a visual image of the work.

(3) Copyright is not infringed by the issue to the public of copies, or the broadcasting or communication to the public or inclusion in a cable programme, of anything the making of which was, under this section, not an infringement of copyright.

Special exception from protection of literary or artistic works

68.-(1) The making of any object in 3 dimensions (including, subject to subsection (2), a copy in 2 dimensions reasonably required for the making of the object) does not infringe copyright in a literary or artistic work, if the work or a copy of i -

(a) forms part of-

(i) a patent specification that is open to public inspection in the Office of the Administrator-General in respect of a Fiji Islands patent that has ceased to exist; or

(ii) a representation or specimen of a design that is open to public inspection in the Office of the Administrator-General in respect of a design for which registered protection in the Fiji Islands has ceased; and

(b) is used for the purpose of making the object.

(2) Subsection (1) does not authorise-

(a) the making of a copy in 2 dimensions of an artistic work-

(i) to which subsection (1) applies; and

(ii) that is in 2 dimensions,

if the copy is made directly from that artistic work; or

(b) the making of a copy of a literary work to which subsection (1) applies, if the copy is made directly from that literary work.

Special exception from protection of artistic work that has been applied industrially

69.-(1) -The making of-

(a) any object in 3 dimensions; or

(b) a copy in 2-dimensions reasonably required for the making of the object,

does not infringe copyright in an artistic work, if, when the object or copy is made, the artistic work has been applied industrially, in the Fiji Islands or in any other country, by or with the licence of the copyright owner-

(i) in the case of a work of artistic craftsmanship - more than 25 years before the object or copy is made;

(ii) in the case of a sculpture that is a cast or pattern for an object that has a primarily utilitarian function -more than 25 years before the object or copy is made;

(iii) subject to subsection (2), in the case of any other artistic work -more than 25 years before the object or copy is made.

(2) Subsection (1) does not apply to-

(a) a sculpture that is not a cast or pattern for an object that has a primarily utilitarian function; or

(b) a work of architecture, being a building or a model for a building.

(3) Subsection (1) does not authorise the making of a copy in 2 dimensions of an artistic work that is in 2 dimensions, if the copy is made directly from that artistic work.

(4) For the purposes of subsection (1), an artistic work is applied industrially if-

(a) more than 50 copies in 3 dimensions are made of the work, for the purposes of sale or hire;

(b) the work is copied in 3 dimensions in one or more objects manufactured in lengths, for the purposes of sale or hire; or

(c) the work is copied as a plate that has been used to produce -

(i) more than 50 copies of an object in 3 dimensions for the purpose of sale or hire; or

(ii) one or more objects in 3 dimensions manufactured in lengths for the purposes of sale or hire.

(5) For the purposes of subsection (4), 2 or more copies in 3 dimensions that are of the same general character and intended for use together are a single copy.

Special exception from protection of literary and artistic works relating to medicines

70. The copying, adaptation or publication of a literary work or an artistic work does not infringe copyright in that work if the work-

(a) relates to a medicine that has been imported by the State pursuant to sections 2 and 2A of the Pharmacy and Poisons Act (Cap 115); and

(b) has been made, copied, published, adapted, or distributed in an overseas country by or with the licence of the owner of the copyright in the work in that country.

Making of subsequent works by same artist

71. If the author of an artistic work is not the copyright owner, the author does not infringe copyright in that work by copying the work in making another artistic work, if the main design of the earlier work is not repeated or imitated

Reconstruction of buildings

72. Anything done for the purposes of reconstructing a building does not infringe copyright-

(a) in the building; or

(b) in any drawings or plans in accordance with which the building was, by or with the licence of the copyright owner, constructed.

Division 6-Computer Programs, Sound Recordings, and Audio Visual Works

Rental by educational establishments and libraries

73. Copyright in a work (being a computer program, sound recording, or audio visual work) is not infringed by the rental of that work to any person by an educational establishment or a prescribed library within the meaning of section 49 if -

(a) the educational establishment or prescribed library does not effect the rental of the work for the purposes of making a profit; and

(b) the work that is the subject of the rental has previously been put into circulation with the licence of the copyright owner.

Back-up copy of computer program

74.-(1) Subject to subsection (3), copyright in a computer program is not infringed by the making of a copy of the computer program if-

(a) the copy is made by or on behalf of the lawful user of the copy of the program (in this section referred to as the "original copy") from which the first-mentioned copy is made;

(b) the copy is made solely for the purpose of being used by or on behalf of the lawful user of the original copy instead of the original copy if the original copy is lost, destroyed, or rendered unusable; and

(c) there is no collective licence available of which the lawful user is or should be aware under which the copy can be made.

(2) If an original copy is lost, destroyed or rendered unusable, a copy made pursuant to subsection (1) is to be deemed for the purposes of this section to be the original copy.

(3) Subsection (1) does not apply to the making of a copy of a computer program

(a) from an infringing copy of the computer program; or

(b) contrary to an express direction by or on behalf of the owner of the copyright in the computer program given to the lawful user of the original copy not later than the time when the lawful user of the original copy acquired that original copy.

(4) For the purposes of this section-

(a) a reference to a copy of a computer program is a reference to any object in which the program is reproduced in a material form; and

(b) a reference to an express direction, in relation to a copy of a computer program, includes a reference to a clearly legible direction printed on the copy or on a package in which the copy is supplied.

Playing of sound recordings for purposes of club, society, etc.

75.-(1) It is not an infringement of copyright in a sound recording to play the recording as part of the activities of, or for the benefit of, a club, society, or other organisation, if the conditions contained in subsection (2) are complied with.

(2) The conditions referred to in subsection (1) are-

(a) that the club, society or organisation is not established or conducted for profit;

(b) that the main objects of the club, society, or organisation are charitable or are otherwise concerned with the advancement of religion, education, or social welfare; and

(c) that the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the club, society or organisation.

Division 7-Broadcasts and Cable Programmes

Recording for purposes of time shifting

76.-(1) The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling the recording to be viewed or listened to at a more convenient time does not infringe copyright in the broadcast or cable programme or in any work included in the broadcast or cable programme.

(2) A recording that is-

(a) made under subsection (1); and

(b) retained for any longer than is reasonably necessary to enable the recording to be viewed or listened to at a more convenient time,

infringes copyright in the broadcast or cable programme recorded and in any work included in the recording, and is to be treated as an infringing copy.

Incidental recording for purposes of broadcast or cable programme

77.-(1) This section applies where, under an assignment or licence, a person is authorised to broadcast or include in a cable programme service-

(a) a literary, dramatic, or musical work, or an adaptation of such a work;

(b) an artistic work; or

(c) a sound recording or audio visual work.

(2) Where this section applies, the person so authorised may, if the conditions contained in subsection (3) are complied with, do or authorise the doing of any of the following for the purposes of the broadcast or cable programme-

(a) in the case of a literary, dramatic, or musical work, or an adaptation of such a work - copy the work or adaptation by making a sound recording or audio visual work of the work or adaptation;

(b) in the case of an artistic work - copy the work by taking a photograph or making an audio visual work of the work;

(c) in the case of a sound recording or an audio visual work - make a copy of the recording or audio visual work.

(3) The conditions referred to in subsection (2) are-

(a) that the recording, audio visual work, photograph, or copy is not used for any other purpose; and

(b) that the recording, audio visual work, photograph, or copy is destroyed within 6 months of being first used for broadcasting the work or, as the case may be, including the work in a cable programme, unless the Minister has authorised the preservation of any recording, audio visual work; photograph or copy in the records of a government department or in the national archives because of its documentary character or exceptional importance.

(4) A recording, audio visual work, photograph, or copy made in accordance with this section is to be treated as an infringing copy-

(a) for the purposes of any use in breach of the condition contained in subsection (3) (a); and

(b) for all purposes after either of the conditions contained in subsection (3) is broken.

Photographs of television broadcasts or cable programmes

78. Copyright in-

(a) a television broadcast or cable programme; or

(b) any audio visual work included in that broadcast or programme,

is not infringed by the copying for private and domestic use of the whole or any part of an image forming part of the television broadcast or cable programme by-

(i) the taking of a photograph of the image; or

(ii) the making of a copy of such a photograph.

Free public playing or showing of broadcast or cable programme

79.-(1) The playing in public or showing in public of a broadcast or cable programme to an audience which has not paid for admission to the place where the broadcast or cable programme is to be heard or seen does not infringe any copyright in-

(a) the broadcast or cable programme; or

(b) any sound recording or audio visual work included in the broadcast or programme.

(2) For the purposes of subsection (1) an audience is to be treated as having paid for admission on to a place if-

(a) members of the audience have paid for admission to a place of which that place forms part;

(b) goods or services are supplied at that place, or at a place of which that place forms part at prices-

(i) that are substantially attributable to the facilities afforded for hearing or seeing the broadcast or cable programme; or

(ii) that exceed those usually charged there and that are partly attributable to those facilities; or

(c) if the place is a hotel, motel, camping ground or similar place and the audience consists of persons residing at the hotel, motel, camping ground or place.

(3) For the purposes of subsection (1) the following are not to be treated as having paid for admission to a place-

(a) persons admitted as residents or inmates of a place (other than a hotel, motel, or camping ground);

(b) persons admitted as members of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing broadcasts or cable programmes is only incidental to the main purposes of the club or society.

(4) If the making of the broadcast or inclusion of the programme in a cable programme service was an infringement of the copyright in a sound recording or audio visual work, the fact that the broadcast or programme was heard or seen in public by the reception of the broadcast or cable programme must be taken into account in assessing the damages for that infringement.

Reception and re-transmission of broadcast in cable programme service

80.-(1) This section applies where a broadcast made from a place in the Fiji Islands is, by reception and immediate re-transmission, included in a cable programme service.

(2) Where this section applies-

(a) copyright in the broadcast is not infringed if and to the extent that the broadcast-

(i) is made for reception in the area in which the cable programme service is provided; and

(ii) is not a satellite transmission or an encrypted transmission;

(b) copyright in any work included in the broadcast is not infringed if and to the extent that the broadcast is made for reception in the area in which the cable programme service is provided;

(c) where the making of the broadcast was an infringement of the copyright in any work included in the broadcast, the fact that the broadcast was retransmitted as a programme in a cable programme service is to be taken into account in assessing the damages for that infringement.

(3) This section does not apply if or to the extent that a licence authorising the reception and immediate re-transmission of a broadcast is available under a licensing scheme to the person providing the cable programme service and the person providing the cable programme service knew or ought to have known that fact.

Provision of subtitled copies of broadcast or cable programme

81.-(1) A body prescribed by regulations made under this Act may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally disabled in any other way, with copies that are subtitled or otherwise modified for their special needs, make copies of television broadcasts or cable programmes and issue copies to the public, without infringing any copyright in the broadcasts or programmes or works included in those broadcasts or programme.

(2) A body must not be prescribed for the purposes of subsection (1) if it is established or conducted for profit.

Recording for archival purposes

82.-(1) A recording of a broadcast or cable programme of a class prescribed by regulations made under this Act, or a copy of such a recording, maybe made for the purpose of being placed in an archive maintained by a body prescribed by regulations made under section 229 without infringing copyright in the broadcast or programme or in any work included in the broadcast or programme.

(2) A body must not be prescribed for the purposes of subsection (1) if it is established or conducted for profit.

Division 8-Adaptations

Adaptations

83. An act that under this Act may be done without infringing copyright in a literary, dramatic, or musical work does not, if that work is an adaptation, infringe any copyright in the work from which the adaptation was made.

Division 9-Subsequent Dealings

Subsequent dealings with copies made under this Part

84.-(1) If a copy that would otherwise be an infringing copy is made in accordance with any of the provisions of this Act referred to in subsection (2) but is subsequently dealt with, it must be treated as an infringing copy for the purposes of that dealing and,. if that dealing infringes copyright, for all subsequent purposes.

(2) The provisions referred to in subsection (1) are-

(a) section 43 (which relates to copying by educational establishments for the purposes of research or private study);

(b) section 44 (which relates to copying in the course of instruction);

(c) section 46 (which relates to recording by educational establishments of broadcasts and cable programmes);

(d) section 47 (which relates to things done for the purposes of an examination);

(e) section 49 (which relates to copying by librarians of parts of published works);

(f) section 50 (which relates to copying by librarians of articles in periodicals);

(g) section 51 (which relates to copying by librarians for supply to other libraries);

(h) section 52 (which relates to copying by librarians or archivists to replace copies of works);

(i) section 53 (which relates to copying by librarians or archivists of certain unpublished works);

(j) section 58 (which relates to use of copyright material for the service of the State);

(k) section 74 (which relates to back-up copy of computer programs);

(l) section 76 (which relates to recording for the purposes of time shifting).

(3) In subsection (1), the term "dealt with" mean-

(a) sold or let for hire in the course of a business or otherwise; or

(b) offered or exposed for sale or hire in the course of a business.

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