Section B. STANDARDS CONCERNING INTELLECTUAL PROPERTY RIGHTS
Subsection 1. COPYRIGHT AND RELATED RIGHTS
Article 92. International Agreements
1. Each Party reaffirms its commitment to and shall comply with:
(a) the Berne Convention;
(b) the Rome Convention;
(a) the Berne Convention;
(b) the Rome Convention;
(c) the WIPO Copyright Treaty (WCT) adopted in Geneva on 20 December 1996;
(d) the WIPO Performances and Phonograms Treaty (WPPT) adopted in Geneva on 20 December 1996; and
(e) the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled adopted in Marrakesh on 28 June 2013.
2. Each Party shall comply with and shall make all reasonable efforts to ratify or accede to the Beijing Treaty on Audiovisual Performances adopted in Beijing on 24 June 2012.
Article 93. Authors
Each Party shall provide for authors the exclusive right to authorise or prohibit:
(a) direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part of their works;
(b) any form of distribution to the public by sale or otherwise of the original of their works or of copies thereof;
(c) 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; and
(d) the commercial rental to the public of originals or copies of their works.
Article 94. Performers
Each Party shall provide for performers the exclusive right to authorise or prohibit:
(a) the fixation (14) of their performances;
(b) the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part of fixations of their performances;
(c) the distribution to the public, by sale or otherwise, of the fixations of their performances;
(d) the making available to the public of fixations of their performances, 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;
(e) 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; and
(f) the commercial rental to the public of the fixation of their performances.
Article 95. Producers of Phonograms
Each Party shall provide for phonogram producers the exclusive right to authorise or prohibit:
(a) the direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part of their phonograms;
(b) the distribution to the public, by sale or otherwise, of their phonograms, including copies thereof;
(c) the making available to the public of their phonograms, 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; and
(d) the commercial rental of their phonograms to the public.
Article 96. Broadcasting Organisations
Each Party shall provide broadcasting organisations with the exclusive right to authorise or prohibit:
(a) the fixation of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite;
(b) the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite;
(c) the making available to the public, by wire or wireless means, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite, in such a way that members of the public may access them from a place and at a time individually chosen by them;
(d) the distribution to the public, by sale or otherwise, of fixations, including copies thereof, of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite; and
(e) the rebroadcasting 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 97. Broadcasting and Communication to the Public of Phonograms Published for Commercial Purposes (15)
1. Each Party shall provide that the performers and producers of phonograms have a right to equitable remuneration if a phonogram published for commercial purposes, or a reproduction of such a phonogram, is used for broadcasting or communication to the public.
2. Each Party shall ensure that the remuneration referred to in paragraph 1 is shared between the relevant performers and phonogram producers. In the absence of an agreement between performers and producers of phonograms, each Party may set the terms according to which the remuneration is to be shared between them.
Article 98. Term of Protection
1. The rights of an author of a work shall run for the life of the author and for 70 years after his or her death, irrespective of the date when the work is lawfully made available to the public.
2. The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not those persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that both contributions were specifically created for the respective musical composition with words.
3. 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.
4. 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 or her identity or if the author discloses his or her identity during the period referred to in the first sentence of this paragraph, the term of protection applicable shall be that which is referred to in paragraph 1.
5. The term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last of the following persons to survive, whether or not those persons are designated as co-authors:
(a) the principal director;
(b) the author of the screenplay;
(c) the author of the dialogue; and
(d) the composer of music specifically created for use in the cinematographic or audiovisual work.
The Kyrgyz Republic may exclude from or add one or several persons to this list in its law.
6. The rights of broadcasting organisations shall expire 50 years after the first transmission of a broadcast, whether that broadcast is transmitted by wire or over the air, including by cable or satellite.
7. The rights of performers shall expire 50 years after the date of the fixation of the performance. However, if a fixation of the performance is lawfully published or lawfully communicated to the public within that period, the term of protection shall be calculated from the date of the first such publication or communication to the public, whichever is the earlier.
With respect to the fixation of the performance in a phonogram, the term of protection shall be 70 years after the date of the first such publication or communication to the public.
8. The rights of producers of phonograms shall expire 50 years after the fixation is made. However, if the phonogram has been lawfully published within this period, those rights shall expire 70 years from the date of the first such 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 70 years from the date of the first lawful communication to the public. Each Party may adopt measures to ensure that the profit generated during the 20 years of protection beyond 50 years is shared fairly between the performers and the producers of phonograms.
9. The terms laid down in this Article shall be calculated from 1 January of the year following the event.
10. Each Party may provide for longer terms of protection than those provided for in this Article.
11. No later than two years after the date on which this Agreement enters into force, the Kyrgyz Republic shall provide for the terms of protection referred to in this Article.
Article 99. Resale Right
1. Each Party shall provide, for the benefit of the author of an original work of graphic or plastic art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.
2. The 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.
3. Each Party may provide that the 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 certain minimum amount.
4. The procedure for collection of the remuneration and its amount shall be a matter for determination by domestic legislation.
Article 100. Collective Management of Rights
1. The Parties shall promote cooperation between their respective collective management organisations for the purpose of fostering the availability of works and other protected subject matter in the territories of the Parties and the transfer of rights revenue between the respective collective management organisations for the use of such works or other protected subject matter.
2. Each Party shall promote transparency of collective management organisations, in particular regarding rights revenue they collect, deductions they apply to rights revenue they collect, the use of the rights revenue collected, the distribution policy and their repertoire.
3. Each Party undertakes to ensure that, where a collective management organisation established in the territory of one Party represents another collective management organisation established in the territory of the other Party by way of a representation agreement, the representing collective management organisation does not discriminate against right-holders of the represented collective management organisation.
4. Each Party shall endeavour to provide that, where a collective management organisation established in the territory of one Party represents another collective management organisation established in the territory of the other Party by way of a representation agreement, the representing collective management organisation is to accurately, regularly and diligently pay amounts owed to the represented collective management organisation 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 this rights revenue.
Article 101. Exceptions and Limitations
Each Party shall restrict limitations or exceptions to the rights set out in Articles 93 to 96 to certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right-holders.
Article 102. Protection of Technological Measures
1. Each Party shall provide legal protection against the circumvention of any effective technological measures which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is circumventing an effective technological measure.
2. Each Party shall provide 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 circumventing an effective technological measure;
(b) have only a limited commercially significant purpose or use other than to circumvent an effective technological measure; or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of an effective technological measure.
3. For the purposes of this Sub-Section, "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 national 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 the 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. Notwithstanding the legal protection provided for in paragraph 1 of this Article, in the absence of voluntary measures taken by the right-holders, each Party may take appropriate measures, as necessary, to ensure that the adequate legal protection against the circumvention of effective technological measures provided for in accordance with this Article does not prevent beneficiaries of exceptions or limitations provided for in accordance with Article 101 from enjoying such exceptions or limitations.
Article 103. Obligations Concerning Rights Management Information
1. Each Party shall provide 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 doing so he or she is including, enabling, facilitating or concealing an infringement of a copyright or any related rights provided for in national legislation:
(a) the removal or alteration of any electronic rights-management information; and
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Sub-Section from which electronic rights-management information has been removed or altered without authority.
2. For the purposes of this Article, "rights-management information" means any information provided by right-holders which identifies the work or other subject-matter referred to in this Article, 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.
3. Paragraph 2 shall apply when rights-management 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 Article.
Subsection 2. TRADEMARKS
Article 104. International Agreements
Each Party shall:
(a) accede to the Protocol relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989, as amended on 3 October 2006 and on 12 November 2007;
(b) comply with the Trademark Law Treaty, done at Geneva on 27 October 1994 and with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957; and
(c) make all reasonable efforts to accede to the Singapore Treaty on the Law of Trademarks done at Singapore on 27 March 2006.
Article 105. Signs of Which a Trademark May Consist
1. A trademark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of:
(a) distinguishing the goods or services of one undertaking from those of other undertakings; and
(b) being represented on the respective register of each Party trademarks, in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.
2. No later than five years after the date on which this Agreement enters into force, the Kyrgyz Republic shall endeavour to make it possible to register sound as a trademark.
Article 106. Rights Conferred by a Trademark, Including on Goods In Transit
1. The registered trademark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties, not having the consent of the proprietor, from using in the course of trade any sign:
(a) which is identical to the registered trademark in relation to goods or services which are identical to those for which the trademark is registered;
(b) where, because it is identical or similar to the registered trademark and because the goods or services covered by this trademark are identical or similar to those covered by 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 registered trademark.
2. The proprietor of a registered trademark shall be entitled to prevent all third parties from bringing goods, in the course of trade, into the Party where the trademark is registered without being released for free circulation there, where such goods, including packaging, come from third countries and bear without authorisation a trademark which is identical to the trademark registered in respect of such goods, or which cannot be distinguished in its essential aspects from that trademark (16).
3. The entitlement of the proprietor of the trademark referred to in paragraph 2 shall lapse if, during the proceedings to determine whether the registered trademark has been infringed, evidence is provided by the declarant or the holder of the goods that the proprietor of the registered trademark is not entitled to prohibit the placing of the goods on the market in the country of final destination.
Article 107. Registration Procedure
1. Each Party shall provide for a system for the registration of trademarks in which each final negative decision, including partial refusal, taken by the relevant trademark administration is communicated in writing to the relevant party, duly reasoned and subject to appeal.
2. Each Party shall provide for the possibility for third parties to oppose trademark applications or, where appropriate, trademark registrations. Such opposition proceedings shall be adversarial.
3. Each Party shall provide a publicly available electronic database of trademark applications and trademark registrations. The Kyrgyz Republic shall, no later than two years after the date on which this Agreement enters into force, provide for electronic database of trademark applications referred to in the first sentence of this paragraph, on the condition that the European Union has provided adequate technical assistance in conformity with European Union's law.
Article 108. Well-known Trademarks
For the purpose of giving effect to protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention and Article 16(2) and (3) 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 from 20 to 29 September 1999.
Article 109. Exceptions to the Rights Conferred by a Trademark
1. Each Party:
(a) shall provide for limited exceptions to the rights conferred by a trademark such as the fair use of descriptive terms including geographical indications; and
(b) may provide for other limited exceptions to the rights conferred by a trademark.
When providing for the limited exceptions referred to in points (a) and (b) of the first paragraph, each Party shall take account of the legitimate interests of the proprietor of the trademark and third parties.
2. A trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade, the following provided that he or she uses them in accordance with honest practices in industrial or commercial matters:
(a) the name or address of the third party, where the third party is a natural person;
(b) signs or 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; and
(c) the trademark where it is necessary to indicate the intended purpose of a good or service, in particular as accessories or spare parts.
3. The trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade, an earlier right which only applies in a particular locality if that right is recognised by the laws of the Party in question and within the limits of the territory in which it is recognised.
Article 110. Grounds for Revocation
1. Each Party shall provide that a trademark shall be liable to revocation if, within a continuous period of at least three years, it 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.
2. No person may claim that the proprietor's rights in a trademark should be revoked where, during the interval between expiry of minimum three-year period and filing of the application for revocation, genuine use of the trademark has been started or resumed.
3. The commencement or resumption of use within a period of three months preceding the filing of an application for revocation which began at the earliest on expiry of the continuous period of five years of non-use shall be disregarded where preparations for the commencement or resumption occur only after the proprietor becomes aware that the application for revocation may be filed.
4. A trademark shall also be liable to revocation if, after the date on which it was registered:
(a) 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;
(b) in consequence of the use made of it by the proprietor of the trademark or with the consent of the proprietor 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.
Article 111. Bad-faith Applications
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 also provide that such a trademark is not to be registered.
Subsection 3. DESIGNS
Article 112. International Agreements
The European Union reaffirms its commitment under and the Kyrgyz Republic shall comply with the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted on 2 July 1999.
Article 113. Protection of Registered Designs
1. Each Party shall provide for the protection of independently created designs that are new and original. Such protection shall be provided by means of registration and shall confer an exclusive right upon the holder of a registered design in accordance with this Sub-Section.
(a) if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter; and
(b) to the extent that those visible features of the component part fulfil in themselves the requirements as to novelty and originality.
4. For the purposes of point (a) of paragraph 3, "normal use" means use by the end user, excluding maintenance, servicing or repair work.
5. For the purposes of this Article, a Party may consider that a design having individual character is original.
Article 114. Duration of Protection
Each Party shall ensure that a design is protected for a period of five years as from the date of the filing of the application and that the right-holder has the right to renew the term of protection for one or more five-year periods, up to a total term of at least 15 years from the date of filing.
Article 115. Protection of Unregistered Designs
1. Each Party shall provide the legal means to prevent the use of the unregistered design only if the contested use results from copying the unregistered design in its territory. Such use shall at least cover offering for sale, putting on the market, importing or exporting the product.
2. The Kyrgyz Republic shall provide the protection available for the unregistered design referred to in paragraph 1 of this Article no later than 10 years after the date on which this Title starts to apply on the condition that the European Union has provided technical assistance, upon request and according to the needs of the Kyrgyz Republic, in conformity with European Union law.
3. The duration of protection available for the unregistered design as referred to in paragraph 1, shall amount to at least three years from the date on which the design was made available to the public in one of the Parties.
Article 116. Exceptions and Exclusions
1. Each Party may provide limited exceptions to the protection of designs including unregistered 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.
2. Design protection shall not be extended to a design solely on the basis of its technical or functional considerations. A design shall not subsist in features of appearance of a product which necessarily have to be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function.
3. A design right shall not subsist in a design which is contrary to public policy or to accepted principles of morality.