The rights of broadcasting organisations shall expire at least twenty years after the first transmission of a broadcast, whether that broadcast is transmitted by wire or over the air3.
The rights of performers shall expire fifty years after the date of the fixation of the performance. However, if a fixation of the performance in a phonogram is lawfully published or, where provided for by a Party, lawfully communicated to the public, within that period, the term of protection shall expire at least fifty years after the date of the first such publication or, where provided for by a Party, the first such communication to the public; where a Party provides for both possibilities, the term of protection shall be calculated from whichever event occurs earlier.
The rights of producers of phonograms shall expire fifty years after the fixation is made. However, if the phonogram has been lawfully published within this period, the said rights shall expire at least fifty years from the date of the first lawful publication. If no lawful publication has taken place within fifty years after the first fixation is made, and if the phonogram has been lawfully communicated to the public within this period the said rights shall expire at least fifty years from the date of the first lawful communication to the public.
The terms laid down in this Article shall be calculated from the first day of January of the year following the event.
The terms of protection of each Party may exceed the periods provided for in this Article.
Article Article 12.15
3 The term “by wire or over the air” includes by cable or satellite.
Each Party shall make all reasonable efforts to provide, for the benefit of the author of works of graphic or plastic art, a “resale right”, defined as an inalienable right, which cannot be waived, even in advance, to receive a percentage of the price obtained from any resale of that work, after the first transfer of that work by the author.
The resale right referred to in paragraph 1 shall apply to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.
Each Party may provide that the resale right referred to in paragraph 1 shall not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed a minimum amount.
Each Party shall provide that authors who are nationals of third countries and their successors in title enjoy the resale right in accordance with this Agreement and the legislation of each Party concerned only if legislation in the third country of which the author or their successor in title is a national permits resale right protection in that country for authors from the Party concerned and their successors in title.
Article Article 12.16
The Parties shall promote cooperation between their respective collective management organisations for the purposes of fostering the availability of works and other protected subject-matter in the territories of the Parties and the transfer of rights revenue for the use of such works or other protected subject-matter.
The Parties agree to promote the transparency of collective management organisations, in particular as regards the rights revenue they collect, deductions they apply to such revenue, the use of the rights revenue collected, the distribution policy and their repertoire.
Each Party shall encourage collective management organisations established in its territory and representing another collective management organisation established in the territory of the other Party by way of a representation agreement, to accurately, regularly and diligently pay amounts owed to the represented collective management organisations as well as provide the represented collective management organisation with the information on the amount of rights revenue collected on its behalf and any deductions made to that rights revenue.
Article Article 12.17
Each Party shall provide for exceptions and limitations to the exclusive rights set out in Articles 12.9 [Authors] to 12.12 [Broadcasting organisations] 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 holders.
Each Party shall provide that temporary acts of reproduction, 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
a 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.
Article Article 12.18
Each Party shall provide adequate legal protection against the circumvention of any effective technological measures in accordance with the laws of the Parties, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
Each Party 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:
are promoted, advertised or marketed for the purpose of circumvention of any effective technological measures;
have only a limited commercially significant purpose or use other than to circumvent any effective technological measures; or
are primarily designed, produced, adapted or performed for the purpose of enabling or facilitation the circumvention of any effective technological measures.
This provision does not limit the judicial authorities of the Parties to evaluate all the circumstances of the case on a case by case basis in accordance with the laws of the Parties.
For the purposes of this Article, the term “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 related right as provided for by the law of the Parties. Technological measures are “effective” where the use of a protected work or other subject matter is controlled by the right holder 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 objective of protection.
Article Article 12.19
Each Party shall provide adequate legal protection against any person knowingly performing, without authority, any of the following acts, if such person knows, or has reasonable grounds to know, that by so doing he or she is inducing, enabling, facilitating or concealing an infringement of any copyright or any related rights:
the removal or alteration of any electronic rights-management information; or
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 authorisation.
For the purposes of this Sub-Section, “rights-management information” means any information provided by right holders which identifies the work or other subject matter referred to in this Chapter, the author or any other right holder, information about the terms and conditions of use of the work or other subject matter, or any numbers or codes that represent such information.
Paragraph 2 shall apply if 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 this Chapter.
SUB-SECTION 2
Article Article 12.20
A registered trademark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade:
any sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered; and
any sign where, because of its identity with, or similarity to, the trademark and the identity or similarity of the goods or services covered by the trademark and the sign,
there exists a likelihood of confusion on the part of the public, which includes the likelihood of association between the sign and the trademark.
The following, in particular, may be prohibited under paragraph 1:
affixing the sign to the goods or to the packaging of those goods;
offering the goods, putting them on the market, or stocking them for those purposes under the sign, or offering or supplying services thereunder;
importing or exporting the goods under the sign;
using the sign as a trade or company name or part of a trade or company name; and
using the sign on business papers and in advertising.
Article Article 12.21
Each Party shall establish a system for the registration of trademarks in which each final refusal decision4, including the partial refusal of registration issued by the relevant trademark administration shall be notified in writing, duly reasoned and open to challenge.
Each Party shall provide for the possibility to oppose applications to register trademarks or, where appropriate, trademark registrations. Such opposition proceedings shall be adversarial.
Each Party shall provide a publicly available electronic database of applications and registrations of trademarks.
Article Article 12.22
For the purposes of giving effect to the protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention and paragraphs 2 and 3 of Article 16 of the TRIPS Agreement, each Party shall apply the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO on 20 to 29 September 1999.
Article Article 12.23
4 Final negative decision
Each Party shall provide for limited exceptions to the rights conferred by a trademark such as the fair use of descriptive terms, including geographical indications, as appropriate and may provide other limited exceptions, provided such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.
Each Party shall provide that the trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade:
his or her own name or address, where the third party is a natural person;
indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services; or
the trademark where it is necessary to indicate the intended purpose of a good or service, in particular as accessories or spare parts.
Paragraph 2 shall only apply where the use made by the third party is in accordance with honest practices in industrial or commercial matters. Each Party may provide that a use under point (a) of paragraph 2 is only considered to be in accordance with honest practices in industrial or commercial matters if it relates to goods or services which are dissimilar to those of the earlier trademark.
Article Article 12.24
Each Party shall provide that a trademark shall be liable to revocation if, within a continuous period of at least three years, the trademark has not been put to genuine use in the relevant territory in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use. However, no person may claim that the proprietor’s rights in a trademark should be revoked where, during the interval between expiry of the period of at least three years and filing of the application for revocation, genuine use of the trademark has been started or resumed. The commencement or resumption of use within a period of three months preceding the filing of the application for revocation, which began at the earliest on expiry of the continuous period of at least three years of non-use, shall, however, be disregarded where preparations for the commencement or resumption of use takes place only after the holder has been informed that the application for revocation may be filed.
A trademark shall also be liable to revocation if, after the date on which it was registered:
in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for a good or service in respect of which it is registered; or
in consequence of the use made of it by the proprietor of the trademark or with his consent in respect of the goods or services for which it is registered, it is liable to
mislead the public, particularly as to the nature, quality or geographical origin of those goods or services.
The grounds for invalidation of a trademark may be determined by the laws of each Party.
Article Article 12.25
A trademark shall be liable to be declared invalid where the application for registration of the trademark was made in bad faith by the applicant. Each Party may provide that such a trademark shall not be registered.
SUB-SECTION 3
Article Article 12.26
Each Party shall provide for the protection of independently created designs that are new or original5. This protection shall be provided by registration and shall confer an exclusive right upon their holders in accordance with this Sub-Section.
Each Party shall provide for the holder of a registered design to have the right at least to use it and to prevent third parties not having the holder’s consent at least from using and notably making, offering for sale, selling, putting on the market, importing, exporting, stocking such a product or using articles bearing or embodying the protected design if such acts are undertaken for commercial purposes, unduly prejudice the normal exploitation of the design, or are not compatible with fair trade practice.
A design applied to or incorporated in a product which constitutes a component part of a complex product shall be granted design protection by each Party:
if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter; and
to the extent that those visible features of the component part fulfil in themselves the requirements pursuant to paragraph 1.
“Normal use” in point (a) paragraph 3 shall mean use by the end user, excluding maintenance, servicing or repair work.
5 The Parties agree that if the law of the EU so provides, the individual character of designs can also be required].
Article Article 12.27
Each Party shall provide that the duration of the protection available shall amount to at least ten years from the date of filing of the application. If a Party increases the duration of protection beyond 10 years, before or after the entry into force of this Agreement, the minimum duration of protection pursuant to the first sentence shall be set at that increased level of duration, which shall amount to at least 15 years.
Article Article 12.28
Each Party may establish limited exceptions to the protection of designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the holder of the protected design, taking account of the legitimate interests of third parties.
Design protection shall not extend to designs dictated essentially by technical or functional considerations. In particular, a design right shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions for the product in which incorporated or to which the design is applied to be mechanically connected to, or placed in, or around or contact with another product so that either product may perform its function.
By way of derogation from paragraph 2, a design may subsist in a design, which has the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.
Article Article 12.29
The Parties shall not prevent a design to be eligible for protection under the copyright law of a Party from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Party.
SUB-SECTION 4
Article Article 12.30
This Sub-Section applies to the protection of geographical indications originating in the territories of the Parties.
Geographical indications of a Party which are to be protected by the other Party shall only be subject to this Sub-Section if covered by the scope of the legislation referred to in Article 12.31 (Procedures).
Article Article 12.31
Having examined the legislation of Indonesia listed in Section A of Annex 12-A, the Union concludes that this legislation meets the elements laid down in Section B of Annex 12-A.
Having examined the Union legislation listed in Section A of Annex 12-A, Indonesia concludes that this legislation meets the elements laid down in Section B of Annex 12-A.
Following the completion of an opposition procedure in accordance with the criteria set out in Annex 12-B and an examination of the geographical indications of the Union listed in Annex 12-C, which have been registered by the Union under the legislation referred to in paragraph 2 as geographical indication complying with paragraph 1 of TRIPS Article 22, Indonesia shall protect those geographical indications according to the level of protection laid down in this Sub-Section.
Following the completion of an opposition procedure in accordance with the criteria set out in Annex 12-B and an examination of the geographical indications of Indonesia listed in Annex 12-C, which have been registered by Indonesia under the legislation referred to in paragraph 1 as geographical indication complying with paragraph 1 of TRIPS Article 22, the Union shall protect those geographical indications according to the level of protection laid down in this Sub-Section.
Article Article 12.32
The list of geographical indications to be protected in Annex [XX]-C may be amended by the Trade Committee in accordance with Article 24.2 (Functions of the Trade Committee) of Chapter 24 (Institutional Provisions)]. New geographical indications shall be added following the completion of the opposition procedure and their examination as referred to in paragraphs 3 or 4 of Article 12.31 (Procedures).
Article Article 12.33
Each Party shall ensure that the geographical indications listed in Annex 12-C shall be protected against:
any direct or indirect commercial use of a protected name:
for comparable products not compliant with the product specification of the protected name, or
in so far as such use exploits the reputation of a geographical indication;
any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated, transcribed, transliterated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation”, “flavour”, “like” or similar, including when those products are used as an ingredient;
any other false or misleading indication as to the origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin, including when those products are used as an ingredient; and
any other practice liable to mislead the consumer as to the true origin of the product.
Geographical indications listed in Annex 12-C shall not become generic in the territories of the Parties.
Nothing in this Agreement shall oblige a Party to protect a geographical indication of the other Party which is not, or ceases to be, protected in the territory of origin. Each Party shall notify the other Party if a geographical indication ceases to be protected in the territory of that Party of origin. Such notification shall take place in accordance with procedures laid down in Article 12.61 (Committee on Services, Investment, Digital Trade, Government Procurement, Intellectual Property).
Nothing in this Agreement shall prejudice the right of any person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business, except where such name is used in such a manner to mislead the public.
Article Article 12.34
Each Party shall provide that a name protected under this Agreement may be used by any operator marketing a product which conforms to the corresponding specification.
Each Party shall provide that once a geographical indication is protected under this Agreement, the use of such protected name shall not be subject to any registration of users or further charges.
Article Article 12.35
Each Party shall, where a geographical indication is protected under this Sub-Section, refuse to register a trademark the use of which would contravene paragraph 1 of Article
12.33 (Protection of Geographical Indications), provided an application to register the trademark is submitted after the applicable date of protection of the geographical indication in the territory of the Party concerned.
Trademarks registered in breach of the first paragraph shall be invalidated.
For geographical indications referred to in Article 12.31 (Procedures), the applicable date of protection referred to in paragraph 1 shall be the date of entry into force of this Agreement.
For geographical indications referred to in Article 12.32 (Amendment of the List of Geographical Indications), the applicable date of protection referred to in paragraph 1 shall be the date of the transmission of a request to the other Party to protect a geographical indication.
The Parties shall protect geographical indications where a prior trademark exists. A prior trademark shall mean a trademark the use of which contravenes paragraph 1 of Article
12.33 (Protection of Geographical Indications) which has been applied for, registered or established by use, if that possibility is provided for by the legislation concerned, in good faith in the territory of one Party before the date on which the application for protection of the geographical indication is submitted by the other Party under this Agreement, which the proprietor of the prior trademark has right to use for the geographical indications according to the respective laws and regulations of a Party. Such trademark may continue to be used and renewed provided that no grounds for the trademark’s invalidity or revocation exist in the legislation on trademarks of the Parties. In such cases, the use of the protected geographical indication shall be permitted as well as the use of the relevant trademarks.
Article Article 12.36
The Parties shall enforce the protection provided for in Articles 12.31 (Procedures) to 12.35 (Relationship to Trademarks) by appropriate administrative and judicial steps to prevent or stop the unlawful use of protected designations of origin and protected geographical indications. They shall also enforce such protection at the request of an interested party.
Article Article 12.37
A Party shall not be required to protect a name as a geographical indication under this Sub-Section if that name conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product.
A Party shall not be required to protect a homonymous name which misleads consumers into believing that a product comes from another territory even if the name is accurate as far as the actual territory, region or place of origin of the product in question is concerned. Without prejudice to Article 23 of the TRIPS Agreement, the Parties shall mutually decide the practical conditions of use under which wholly or partially homonymous geographical indications will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
Ifa Party, in the context of bilateral negotiations with a third party, proposes to protect a geographical indication of that third party which is wholly or partially homonymous with a geographical indication of the other Party protected under this Sub-Section, it shall inform the other Party thereof and give it an opportunity to comment before the third party’s geographical indication becomes protected.
Any matter arising from product specifications of protected geographical indications shall be dealt with in the Committee on Services, Investment, Digital Trade, Government Procurement, Intellectual Property referred to in Article 12.61 (Committee on Services, Investment, Digital Trade, Government Procurement, Intellectual Property ).
The protection of geographical indications protected under this Agreement may only be cancelled by the Party in which the product originates.
A product specification referred to in this Sub-Section shall be that approved, including any amendments also approved, by the authorities of the Party in the territory from which the product originates.
SUB-SECTION 5
Article Article 12.38
Subject to the provisions of paragraphs 2 and 3 of Article 27 of the TRIPS Agreement, each Party shall ensure at least adequate and effective patent protection for inventions in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of Article 27 of the TRIPS Agreement, each Party shall ensure that patents are available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
Article Article 12.39
The Parties recognise that medicinal products or plant protection products protected by a patent in their respective territory may be subject to an administrative authorisation6 procedure before being put on their market. They acknowledge that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on their respective market, as defined for that purpose by the relevant legislation, may shorten the period of effective protection under the patent.
SUB-SECTION 6
Article Article 12.40
6 The term “administrative authorisation” refers to the formal approval granted by regulatory authorities to allow the marketing of medicinal and plant protection products. This authorisation ensures that the product meets all necessary regulatory requirements, including safety and efficacy.
7 The terms “trade secret” and “undisclosed” information are interchangeable for the purposes of Article 40 and 41.
In fulfilling its obligation under paragraph 1 of Article 2 to comply with the TRIPS Agreement, and in particular paragraphs 1 and 2 of Article 39 of the TRIPS Agreement, each Party shall provide for appropriate civil judicial procedures and remedies for any trade secret holder to prevent, and obtain redress for, the acquisition, use or disclosure of a trade secret without the consent of the holder, whenever carried out in a manner contrary to honest commercial practices.
For the purposes of this Sub-section:
“trade secret” means information that:
is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
has commercial value because it is secret; and
has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret; and
“trade secret holder” means any natural or legal person lawfully controlling a trade secret.