15. The Parties shall ensure that any person having or having had an interest in obtaining a particular contract and who has been, or risks, being harmed by an alleged infringement is entitled to effective, impartial judicial protection against any decision of the contracting entity related to the award of that contract. The decisions taken in the course and at the end of such review procedure shall be made public in a manner that is sufficient to inform all interested economic operators.
Article 152. Planning of Legislative Approximation
1. Prior to the commencement of legislative approximation, Ukraine shall submit to the Trade Committee a comprehensive roadmap for the implementation of this Chapter with time schedules and milestones which should include all reforms in terms of legislative approximation and institutional capacity building. This roadmap shall comply with the phases and time Schedules set out in Annex XXI-A to this Agreement.
2. The roadmap shall cover all aspects of the reform and the general legal framework for the implementation of public procurement activities, in particular: legislative approximation for public contracts, contracts in the utilities sector, works concessions and review procedures, and strengthening of the administrative capacity at all levels including review bodies and enforcement mechanisms.
3. Following a favourable opinion by the Trade Committee, this roadmap shall be considered as the reference document for the implementation of this Chapter. The European Union will make its best efforts in assisting Ukraine in the implementation of the roadmap.
Article 153. Legislative Approximation
1. Ukraine shall ensure that its existing and future legislation on public procurement will be gradually made compatible with the EU public procurement acquis.
2. Legislative approximation shall be carried out in consecutive phases as set out in Annex XXI-A and Annexes XXI-B to XXI-E, XXI-G, XXI-H, and XXI-J to this Agreement. Annexes XXI-F and XXI-I to this Agreement identify non-mandatory elements that need not be transposed, whereas Annexes XXI-K to N to this Agreement identify elements of the EU acquis that remain outside the scope of legislative approximation. In this process, due account shall be taken of the corresponding case law of the European Court of Justice and the implementing measures adopted by the European Commission as well as, if this should become necessary, of any modifications of the EU acquis occurring in the meantime. The implementation of each phase shall be evaluated by the Trade Committee, and, following a positive assessment by that the Trade Committee, be linked to the reciprocal granting of market access as set out in Annex XXI-A to this Agreement. The European Commission shall notify without undue delay Ukraine of any modifications of the EU acquis. It will provide appropriate advice and technical assistance for the purpose of implementing such modifications.
3. The Parties agree that the Trade Committee shall only proceed to the evaluation of a subsequent phase once the measures to implement the previous phase have been carried out and approved according to the modalities set out in paragraph 2 of this Article.
4. The Parties shall ensure that those aspects and areas of public procurement which are not covered by this Article shall comply with the principles of transparency, non-discrimination and equal treatment as set out in Article 151 of this Agreement.
Article 154. Market Access
1. The Parties agree that the effective and reciprocal opening of their respective markets shall be attained gradually and simultaneously. During the process of legislative approximation, the extent of the market access mutually granted shall be linked to the progress made in this process as stipulated in Annex XXI-A to this Agreement.
2. The decision to proceed to a further phase of market opening shall be made on the basis of an assessment of the quality of the legislation adopted as well as its practical implementation. Such assessment shall be carried out regularly by the Trade Committee.
3. Insofar as a Party has, according to Annex XXI-A to this Agreement, opened its procurement market to the other Party, the EU Party shall grant access to contract award procedures to Ukrainian companies - whether established or not in the EU Party - pursuant to EU public procurement rules under treatment no less favourable than that accorded to EU Party companies; Ukraine shall grant access to contract award procedures for EU Party companies - whether established or not in Ukraine - pursuant to national procurement rules under treatment no less favourable than that accorded to Ukrainian companies.
4. After the implementation of the last phase in the process of legis- lative approximation, the Parties will examine the possibility to mutually grant market access with regard to procurements even below the value thresholds set out in Article 149(3) of this Agreement.
5. Finland reserves its position with regard to the Aland Islands.
Article 155. Information
1. The Parties shall ensure that contracting entities and economic operators are well informed about public procurement procedures, including through the publication of all relevant legislation and administrative rulings.
2. The Parties shall ensure the effective dissemination of information on tendering opportunities.
Article 156. Cooperation
1. The Parties shall enhance their cooperation through exchange of experience and information relating to their best practices and regulatory frameworks.
2. The EU Party shall facilitate the implementation of this Chapter, including through technical assistance where appropriate. In line with the provisions on financial cooperation in Title VI (Financial Co-operation, with Anti-fraud Provisions) of this Agreement, specific decisions on financial assistance shall be taken through the relevant EU funding mechanisms and instruments.
3. An indicative list of issues for cooperation is included in Annex XXI-O to this Agreement.
Chapter 9. Intellectual Property
Section 1. General Provisions
Article 157. Objectives
The objectives of this Chapter are to:
(a) facilitate the production and commercialisation of innovative and creative products in the Parties; and
(b) achieve an adequate and effective level of protection and enforce- ment of intellectual property rights.
Article 158. Nature and Scope of Obligations
1. The Parties shall ensure the adequate and effective implementation of the international treaties dealing with intellectual property to which they are parties including the Agreement on Trade-related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement (hereinafter referred to as the "TRIPS Agreement"). The provisions of this Chapter shall complement and further specify the rights and obligations between the Parties under the TRIPS Agreement and other international treaties in the field of intellectual property.
2. For the purposes of this Agreement, intellectual property rights embody copyright, including copyright in computer programs and in databases, and rights related to copyright, rights related to patents including patents for bio-technological inventions, trade-marks, trade names in so far as these are protected as exclusive property rights in the domestic law concerned, designs, layout-designs (topographies) of integrated circuits, geographical indications, including designations of origin, indications of source, plant varieties, protection of undisclosed information and protection against unfair competition as referred to in Article 10 bis of the Paris Convention for the Protection of Industrial Property (1967) (hereinafter referred to as the "Paris Convention").
Article 159. Transfer of Technology
1. The Parties agree to exchange views and information on their domestic and international practices and policies affecting transfer of technology. This shall in particular include measures to facilitate information flows, business partnerships, and licensing and subcontracting deals on a voluntary basis. Particular attention shall be paid to the conditions necessary to create an adequate enabling environment for technology transfer in the host countries, including issues such as the relevant legal framework and development of human capital.
2. The Parties shall ensure that the legitimate interests of the intel- lectual property right holders are protected.
Article 160. Exhaustion
The Parties shall be free to establish their own regime for exhaustion of intellectual property rights, subject to the provisions of the TRIPS Agreement.
Section 2. Standards Concerning Intellectual Property Rights
Subsection 1. Copyright and Related Rights
Article 161. Protection Granted
The Parties shall comply with:
(a) Articles 1 to 22 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) (hereinafter referred to as the "Rome Convention");
(b) Articles 1 to 18 of the Berne Convention for the Protection of Literary and Artistic Works (1886, last amended in 1979) (hereinafter referred to as the "Beme Convention");
(c) Articles 1 to 14 of the World Intellectual Property Organisation (hereinafter referred to as the "WIPO') Copyright Treaty (1996) (hereinafter referred to as the "WCT"); and
(d) Articles 1 to 23 of the WIPO Performances and Phonograms Treaty (1996).
Article 162. Duration of Authors' Rights
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his/her death, irrespective of the date when the work is lawfully made available to the public.
2. In the case of a work of joint authorship, the term referred to in paragraph 1 shall be calculated from the death of the last surviving author.
3. In the case of anonymous or pseudonymous works, the term of protection shall run for 70 years after the work is lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his/her identity, or if the author discloses his/her identity during the period referred to in the first sentence, the term of protection applicable shall be that laid down in paragraph 1.
4. Where a work is published in volumes, parts, instalments, issues or episodes and the term of protection runs from the time when the work was lawfully made available to the public, the term of protection shall run for each such item separately.
5. In the case of works for which the term of protection is not calculated from the death of the author or authors and which have not been lawfully made available to the public within 70 years of their creation, the protection shall terminate.
Article 163. Duration of Protection of Cinematographic or Audiovisual Works
1. The principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. The Parties shall be free to designate other co-authors.
2. The term of protection of cinematographic or audiovisual works shall expire not less than 70 years after the death of the last of a group of specified persons to survive, whether or not these persons are designated as co-authors. This group should at a minimum include the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.
Article 164. Duration of Related Rights
1. The rights of performers shall expire not less than 50 years after the date of the performance. However, if a fixation of the performance is lawfully published or lawfully communicated to the public within this period, the rights shall expire not less than 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier.
2. The rights of producers of phonograms shall expire not less than 50 years after the fixation is made. However, if the phonogram has been lawfully published within this period, the said rights shall expire not less than 50 years from the date of the first lawful publication. If no lawful publication has taken place within the period mentioned in the first sentence, and if the phonogram has been lawfully communicated to the public within this period, the said rights shall expire 50 years from the date of the first lawful communication to the public.
3. The rights of producers of the first fixation of a film shall expire not less than 50 years after the fixation is made. However, if the film is lawfully published or lawfully communicated to the public during this period, the rights shall expire not less than 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier. The term "film" shall designate a cinematographic or audiovisual work or moving images, whether or not accompanied by sound.
4. The rights of broadcasting organisations shall expire not less than 50 years after the first transmission of a broadcast, whether this broadcast is transmitted by wire or over the air, including by cable or satellite.
Article 165. Protection of Previously Unpublished Works
Any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The term of protection of such rights shall be 25 years from the time when the work was first lawfully published or lawfully communicated to the public.
Article 166. Critical and Scientific Publications
The Parties may also protect critical and scientific publications of works which have come into the public domain. The maximum term of protection of such rights shall be 30 years from the time when the publication was first lawfully published.
Article 167. Protection of Photographs
Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 162 of this Agreement. Parties may provide for the protection of other photographs.
Article 168. Cooperation on Collective Management of Rights
The Parties recognise the necessity of establishing agreements between their respective collecting societies for the purpose of mutually ensuring easier access to and delivery of content between the territories of the Parties, as well as ensuring mutual transfer of royalties for use of the Parties' works or other protected subject matter. The Parties recognise the need for their respective collecting societies achieve a high level of rationalisation and transparency with respect to the execution of their tasks.
Article 169. Fixation Right
1. For the purpose of this Article, fixation means the embodiment of sounds and images, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device.
2. The Parties shall provide performers with the exclusive right to authorise or prohibit the fixation of their performances.
3. The Parties shall provide broadcasting organisations with the exclusive right to authorise or prohibit the fixation of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
4. A cable distributor shall not have the right provided for in paragraph 2 where it merely retransmits by cable the broadcasts of broadcasting organisations.
Article 170. Broadcasting and Communication to the Public
1. For the purposes of this Article:
(a) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite; and transmission of encrypted signals, where the means for decrypting are provided to the public by the broadcasting organisation or with its consent;
(b) "communication to the public" means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of paragraph 3, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.
2. The Parties shall provide performers with the exclusive right to authorise or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.
3. The Parties shall provide performers and producers of phonograms with the right to a single equitable remuneration if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and ensure that this remuneration is shared among the relevant performers and phonogram producers. The Parties may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration among them.
4. The Parties shall provide broadcasting organisations with the exclusive right to authorise or prohibit re-broadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
Article 171. Distribution Right
1. The Parties shall provide authors, in respect of the original of their works or of copies thereof, with the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.
2. The Parties shall provide the exclusive right to make available to the public, by sale or otherwise, the objects indicated in subparagraphs (a) to (d) of this paragraph, including copies thereof:
(a) for performers, in respect of fixations of their performances;
(b) for phonogram producers, in respect of their phonograms;
(c) for producers of the first fixation of films, in respect of the original and copies of their films;
(d) for broadcasting organisations, in respect of fixations of their broadcasts as set out in Article 169(3) of this Agreement.
Article 172. Limitations
1. Parties may provide for limitations on the rights referred to in Articles 169, 170 and 171 of this Agreement in respect of
(a) private use;
(b) use of short excerpts in connection with the reporting of current events;
(c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research.
2. Notwithstanding paragraph 1, Parties may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and producers of the first fixations of films, as they provide for in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with the Rome Convention.
3. The limitations set out in paragraphs 1 and 2 of this Article shall be applied only in certain special cases which do not conflict with a normal exploitation of the subject matter and do not unreasonably prejudice the legitimate interests of the right holder.
Article 173. Reproduction Right
The Parties shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
(b) for performers, of fixations of their performances;
(c) for phonogram producers, of their phonograms;
(d) for the producers of the first fixations of films, in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.
Article 174. Right of Communication to the Public of Works and Right of Making Available to the Public other Subject-matter
1. The Parties shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. The Parties shall provide for the exclusive right to authorise or prohibit the making available of works to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them, namely:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. Both Parties agree that the rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making them available to the public as set out in this Article.
Article 175. Exceptions and Limitations
1. The Parties shall provide that temporary acts of reproduction referred to in Article 173 of this Agreement, which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable:
(a) transmission in a network between third parties by an intermediary; or
(b) lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 173.
2. Where the Parties provide for an exception or limitation to the right of reproduction provided for in Article 173, they may provide similarly for an exception or limitation to the right of distribution provided for in Article 171(1) of this Agreement to the extent justified by the purpose of the authorised act of reproduction.
3. The Parties may provide for exceptions and limitations to the rights set out in Articles 173 and 174 of this Agreement only in certain special cases which do not conflict with normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder.
Article 176. Protection of Technological Measures
1. The Parties shall provide adequate legal protection against the circumvention of any effective technological measures which the person concerned carries out in the knowledge, or with reasonable grounds for knowing, that he/she is pursuing that objective.
2. The Parties shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circum- vention of or
(b) have only a limited commercially significant purpose or use other than to circumvent; or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.
3. For the purposes of this Section, the expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the right holder of any copyright or any right related to copyright as provided for by each Party's legislation. Technological measures shall be deemed "effective" where the use of a protected work or other subject matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.
4. Where Parties provide for limitations to the rights set out in Articles 172 and 175 of this Agreement, they may also ensure that right holders make available to a beneficiary of an exception or limi- tation the means of benefiting from that exception or limitation to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject matter concerned.
5. The provisions of Article 175(1) and (2) of this Agreement shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 177. Protection of Rights Management Information
1. The Parties shall provide for adequate legal protection against any person knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Agreement from which electronic rights-management information has been removed or altered without authority,
if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any rights related to copyright as provided by the law of the relevant Party.
2. For the purposes of this Agreement, the expression "rights- management information" means any information provided by right holders which identifies the work or other subject-matter referred to in Sub-section 1, the author or any other right holder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.
The first paragraph shall apply when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject-matter referred to in Sub-section 1.
Article 178. Right Holders and Subject Matter of Rental and Lending Right
1. The Parties should provide the exclusive right to authorise or prohibit rental and lending for the following:
(a) the author in respect of the original and copies of his/her work;
(b) the performer in respect of fixations of his/her performance;
(c) the phonogram producer in respect of his/her phonograms;
(d) the producer of the first fixation of a film in respect of the original and copies of his film.
2. These provisions shall not cover rental and lending rights in relation to buildings and to works of applied art.
3. The Parties may derogate from the exclusive right provided for in paragraph 1 in respect of public lending, provided that at least authors obtain remuneration for such lending. The Parties shall be free to determine this remuneration, taking account of their cultural promotion objectives.
4. Where the Parties do not apply the exclusive lending right provided for in this Article as regards phonograms, films and computer programs, they shall introduce, at least for authors, remuneration.
5. The Parties may exempt certain categories of establishments from the payment of the remuneration referred to in paragraphs 3 and 4.
Article 179. Unwaivable Right to Equitable Remuneration
1. Where an author or performer has transferred or assigned his/her rental right concerning a phonogram or an original or copy of a film to a phonogram or film producer, that author or performer shall retain the right to obtain equitable remuneration for the rental.
2. The right to obtain equitable remuneration for rental cannot be waived by authors or performers.
3. The administration of the right to obtain equitable remuneration may be entrusted to collecting societies representing authors or performers.
4. The Parties may regulate whether and to what extent administration by collecting societies of the right to obtain equitable remuneration may be imposed, as well as the question from whom this remuneration may be claimed or collected.
Article 180. Protection of Computer Programmes
1. The Parties shall protect computer programmes, by copyright, as literary works within the meaning of the Berne Convention. For the purposes of this provision, the term "computer programmes" shall include their preparatory design material.
2. Protection in accordance with this Agreement shall apply to the expression in any form of a computer programme. Ideas and principles which underlie any element of a computer programme, including those which underlie its interfaces, are not protected by copyright under this Agreement.