Problems relating to Trade and Investment on Peru
17. Implementation of intellectual property rights ("IPRs") |
|||
Issue |
Issue details |
Requests |
Reference |
| (1) Inflow of Counterfeits and Illegal Goods | - It is necessary that Ministries and Agencies will store and expand corresponding know-hows on the measures to deal with counterfeit products. - Inflow in large volume of counterfeits into the market forms a great barrier to sales. Moreover, should quality problems arise due to the counterfeits, Member Firm's reputation is at stake, inflicting damage upon issues besides the product sales. It is difficult to take outright charge against Distributors handling counterfeits as they may be connected to crime organisations such as mafia and narcotic dealers. |
- It is requested that GOP takes steps to: -- tighten border control measures, -- develop rational scheme and campaign for driving out counterfeits. |
|
| (Action) - In December 2005, agreement was reached between the U.S. and Peru on FTA negotiations, inclusive of intellectual property rights. - The U.S. continues to include Peru on "the Watch List" in USTR Special 301 Report. - "Law to combat Pirate Editions" was promulgated in 2004 to protect intellectual property rights such as copyright. However, pirate editions of music CD's and PC software are rampant in the market. National Institute for the Defense of Competition and Protection of Intellectual Property (Indecopi) acknowledges the shortfall of its countermeasure. It cites insufficient know-how and shortage of human resources. |
|||
| (Improvement) - Preparation of legislation on intellectual property rights is being well under way in the manner compatible with WTO/TRIPS and WIPO. - On 12 April 2010, the 1st Investment Environment Overhaul Committee under the Japan-Peru Investment Treaty, where Japan side brought up the 6 issues concerning improvement of taxation system, human affairs/labour questions, protection of intellectual property right, foreign trade procedure, technical standards and specifications and immigration control. |
|||
| (2) Levy Scheme for Private Copying | - Private Copying Compensation Scheme (PCCS) PCCS is an outdated scheme for lack of rationality in collection and transparency in distribution at this time when digitalised networking has far advanced. Incidentally, in Japan, private sound recording scheme has de facto frozen, while private video recording is found by intellectual property high court to be no longer eligible for compensation, with the background where the copyright protection technology is woven into the digital broadcasting. This finding is affirmed by the supreme court Decision of November 2012. |
- It is requested that countries incorporating PCCS, including GOP, review the scheme to make it compatible with the time when the legitimate digitalisation and networking have far advanced. - While member firms would seek countries without PCCS to refrain from its introduction, should it decide for its introduction, it is requested that such countries pay due consideration to the extent comparable to the foregoing review (for example, PCCS commensurate with or reflecting the actual mode of use, not across the board levy on general purpose goods, a levy commensurate with the actual status of use) written into legislation. |
- Scheme is in place (for Recording Media). Since introduction of the Compensation Scheme in 2003, Private Copying Levy is included in Recording Media such as CD-R, DVD and Cassette Tape. |
| (3) Temporary Saving/Storage in the Use of Equipment and for Provision of Service using Information Communication Technology | - The minimum amount of copying should be made possible in the process of communication, viewing, listening and executing copyrighted materials, provision of service using information communication technology, to the extent of facilitating the process smoothly with high efficiency. Further, in Japan, copyright act restricts copying in Article 47-8 (Reproduction in conjunction with the exploitation of works on a computer), and Article 47-5 (Transfer of copies made pursuant to restrictions on the right of reproduction). Furthermore, law reform bill 2014 on Article 49-9 (Transfer of copies made pursuant to restrictions on the right of reproduction, i.e., data processing necessary to prepare for providing information using telecommunication technology) is about to provide more restrictions on copyright. | - It is requested that GOP takes step to introduce restrictions of copyright concerning temporary saving/storage in the use of equipment and in the communication process, as well as the restrictions in copyright use for the purpose of provision of service that employs the information communication technology. | - [USA] GOU has signed the EPAs with countries that claim temporary storage applies to copying case. However, US Court denied copying right infringement by a cached memory within equipment, unless it is affixed for a period exceeding the transient period. - The EU-Colombia and Peru Trade Agreement (Article 251, 252) |
| (4) Copying for Analysis and Research of Information | - Copying of copyrighted materials should be allowed to the extent information analysis using computer, etc. is considered necessary. Further, Article 47-7 of copyright Act restricts copyright. |
- It is requested that GOP takes steps to introduce the limitation upon copyright as related to information analysis and research. | |
| (5) Copying for Providing Internet Information Search Service | - Copying of copyrighted materials should be allowed to the extent that information search services are considered as necessary. Further, Japanese Copyright Act in Article 47-6 provides: "the person must not transmit a work via automatic public transmission ... After coming to know that making such a recording available for transmission in Japan would constitute a copyright infringement." |
- It is requested that GOP takes steps to introduce the limitation upon copyright as related to providing internet information search service. | |
| (6) Copying relative to Testing for Development or Practical Application of Technology | - Copying of copyrighted materials should be allowed to the extent that development or practical application of technology related to audio/visual recording are considered as necessary. Further, in Japan under Article 30-4, copyright is about to be restricted. |
- It is requested that GOP takes steps to introduce the limitation upon copyright as related to testing for development or practical application of technology. | |
| (7) Turning Copyright Infringement into a Crime prosecutable without a Formal Complaint From the Victim | - Copyright infringement being addressed to private right infringement, there can be no necessity for its recovery in the absence of the injured party's wish for the damage recovery. From the perspective of its deterrent effect, it is barely necessary, either. On the contrary, only its negative impact remains. In light of the fact that most creation, expression, etc. begin from copying, tightening of the deterrent measures with criminal fines will only leave the negative atrophic effect upon future expressive works and conducts. Concerning copyright, the vicinity of right is ambiguous, such as restricted right, indirect infringement, etc. Due consideration or deliberation is necessary (from the perspective of atrophic effect) in cases with difficult predictability.) |
- It is requested that GOP refrains from turning copyright infringement into a crime prosecutable without a formal complaint from the victim. | - TPP Agreement Chapter 18 (Intellectual Property): The U.S. seeks Turning Copyright Infringement into a Crime prosecutable without a Formal Complaint From the Victim - The U.S. /Peru FTA 2016.11.27 |
| (Action) - On 5 October 2015, TPP Agreement agreed, in principle, by 13-countries including Peru, "Criminal Procedures and Penalties" provides: Its competent authorities may act upon their own initiative to initiate legal action without the need for a formal complaint by a third person or right holder, provided, however, that, "With regard to copyright and related rights piracy provided for under paragraph 1, a Party may limit application of this subparagraph to the cases in which there is an impact on the right holder's ability to exploit the work, performance or phonogram in the market." (Chapter 18 Intellectual Property, Article 18.77.6g.). |
|||
| (8) Ambiguous Governing Laws | - In filing request for invalidation trial on trademark, legislative provisions applied by trademark offices and courts includes Andean community agreement, pan American agreement, and Paris convention for the protection of industrial property, each with a different judgement. Which claims the priority differs by local attorneys, disabling estimation of litigation risk, including the litigation cost. (Establishment of statutes of limitations on filing complaint against malicious trademark registration) | - It is requested that GOP overhauls and implements laws on protection of IPRs based on internationally recognised Paris convention. | - Andean Community Decision No. 486, Establishing the Common Industrial Property Regime, Chapter VII Invalidity of Registration, Article 172 |
<<BACK |