(a) the fixation (1) 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 fixations of their performances;
(d) the making available 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, of fixations of their performances;
(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.
Article 68. Producers of Phonograms
Each Party shall, as regards phonogram producers, provide for 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 of their phonograms to the public, by sale or otherwise, including copies thereof;
(c) the making available of their phonograms 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.
Article 69. Broadcasting Organisations
Each Party shall, as regards broadcasting organisations, provide for the exclusive right to authorise or prohibit:
(a) the fixation of their broadcasts;
(b) the reproduction of fixations of their broadcasts;
(c) the making available to the public, by wire or wireless means, of fixations of their broadcasts 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 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 70. Broadcasting and Communication to the Public
Each Party shall provide for the right to ensure that a single equitable remuneration is paid by the user, 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 to ensure that that remuneration is shared between the relevant performers and phonogram producers. Each Party may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of that remuneration between them.
Article 71. Term of Protection
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 no less than 70 years after his death.
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. The rights of performers shall expire no 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 no less than 50 years after the date of the first such publication or the first such communication to the public, whichever is the earlier.
4. The rights of producers of phonograms shall expire no 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 no less than 50 years after 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 no less than 50 years after the date of the first lawful communication to the public.
5. The rights of broadcasting organisations shall expire no less than 50 years after the first transmission of a broadcast, whether that broadcast is transmitted by wire or wireless means, including by cable or satellite.
6. The terms laid down in this Article shall be calculated from the first of January of the year following the event which gives rise to them.
7. The terms of protection may exceed the terms laid down in this Article.
Article 72. Protection of Technological Measures
1. Each Party 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 to know, that he is pursuing that objective.
2. 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 mainly directed at or enable the circumvention of any effective technological measures.
3. For the purposes of this Agreement, 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 related right as provided for by domestic law. Technological measures shall be deemed ‘effective' where the use of a 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.
Article 73. Protection of Rights-management Information
1. Each Party shall provide adequate legal protection against any person 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 that 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 related right as provided for by domestic law.
2. For the purposes of this Chapter, the expression ‘rights-management information' means any information provided by right holders which identifies the work or other subject matter protected by copyright or related rights, 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
3. Paragraph 1 shall apply when any of the items of information referred to in paragraph 2 is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject matter protected by copyright or related rights.
Article 74. Exceptions and Limitations
1. In accordance with the conventions and international agreements to which they are parties, each Party may provide for limitations or exceptions to the rights set out in Articles 66 to 70 only in certain special cases which do not conflict with a normal exploitation of the works or other subject matter and do not unreasonably prejudice the legitimate interests of the right holders.
2. Each Party shall provide that temporary acts of reproduction referred to in Articles 66 to 70, 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) a transmission in a network between third parties by an intermediary, or
(b) 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 provided for in Articles 66 to 69.
Article 75. Resale Right
Each Party shall provide, for the benefit of the author of an original work of art who is a national of the other Party and for the benefit of his successor in title, 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 the resale of the work subsequent to the first transfer of the work by the author. The thresholds and the rates of the collection of the royalties shall be established according to the domestic law of the Party where the resale takes place (1).
Article 76. Cooperation on Collective Management of Rights
The Parties shall take such reasonable measures as may be available to them to facilitate the establishment of arrangements between their respective collective management societies for the purpose of ensuring easier mutual access and delivery of works and other protected subject matter between the territories of the Parties, as well as the transfer of royalties between them for the use of such works or other protected subject matter. The Parties shall also take such reasonable measures as may be available to them to achieve a high level of rationalisation and transparency with regard to the execution of the tasks of their respective collective management societies.
TRADEMARKS
Article 77. International Agreements
Each Party shall:
(a) comply with the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks and with the WIPO Trademark Law Treaty; and
(b) make all reasonable efforts to accede to the Singapore Treaty on the Law of Trademarks.
Article 78. Registration Procedure
1. Each Party shall provide for a system for the registration of trademarks in which each final decision taken by the relevant competent trademark authority shall be duly reasoned and communicated in writing to the applicant who will have the opportunity to contest it before the competent trademark authority and to appeal it before a court.
2. Each Party shall provide for the possibility of right holders to oppose trademark applications or registrations. The proceedings in case of opposition shall be adversarial.
3. Each Party shall provide a publicly available electronic database of trademark registrations.
Article 79. Well-known Trademarks
The Parties shall cooperate with the aim of making the protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention and in Article 16(2) and (3) of the TRIPS Agreement, effective.
Article 80. Exceptions to the Rights Conferred by a Trademark
Each Party shall provide for limited exceptions to the rights conferred by a trademark, such as the fair use of descriptive terms, the use of geographical indications, or other limited exceptions, which take account of the legitimate interests of the owner of the trademark and of third parties.
GEOGRAPHICAL INDICATIONS
Article 81. Definition
Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
Article 82. Principles of the Protection of Geographical Indications
1. Each Party shall ensure adequate and indefinite protection of geographical indications, by way of a sui generis system of protection and in accordance with domestic law, as long as the geographical indication enjoys legal protection in the country of origin.
2. To that end, the Parties shall cooperate in the area of geographical indications on the basis of this Article, which complements the minimum standards set in the relevant provisions of the TRIPS Agreement.
3. Each Party shall ensure that its geographical indications protection system is open to registration of geographical indications of the other Party. Each Party shall provide for a publicly available electronic database of registered geographical indications.
4. In respect of the geographical indications protected in its respective territory, each Party shall prohibit and prevent:
(a) any direct or indirect commercial use of a registered name in respect of the products not covered by the registration in so far as:
(i) those products are comparable to the products protected under that name, or
(ii) such use exploits the reputation of the protected name;
(b) any misuse, imitation or evocation of a registered name, 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', ‘kind', ‘imitation' or similar;
(c) any other false or misleading indication as to the provenance, 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; or
(d) any other practice liable to mislead the consumer as to the true origin of the good.
5. Each Party shall enforce the protection provided for in Articles 81 to 83, including upon request from an interested party, by appropriate administrative enforcement in accordance with domestic law.
6. Each Party shall ensure that the protected geographical indications may be used by any operator marketing a good conforming to the corresponding specification.
7. Each Party shall ensure that the names that they have protected according to domestic law do not become generic.
8. The Parties shall have no obligation to register a geographical indication where, in the light of a reputed or well-known trademark, registration is liable to mislead consumers as to the true identity of the good.
9. Without prejudice to this Article, each Party shall protect geographical indications also where a prior trademark exists. A ‘prior trademark' shall mean a trademark the use of which corresponds to one of the situations referred to in paragraph 4, which has been applied for, registered or established by use, if that possibility is provided for by domestic law, before the date on which the application for registration of the geographical indication is filed with the competent authority of that Party. Such prior trademark may continue to be used and renewed notwithstanding the protection of the geographical indication, provided that no grounds for the trademark's invalidity or revocation exist in the trademark law of the Party where it is registered or used.
Article 83. Negotiations
The Parties shall, no later than seven years after the date on which this Title starts to apply, commence negotiations with a view to concluding an agreement on the protection of geographical indications in their respective territories.
DESIGNS
Article 84. International Agreements
The European Union reaffirms its commitment to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs of 1999. The Republic of Kazakhstan shall make reasonable efforts to accede to it.
Article 85. Requirements for Protection of Registered Designs
1. Each Party shall provide for the protection of independently created designs that are new and original. This protection shall be provided by registration and shall confer an exclusive right upon the holder of a registered design in accordance with domestic law. For the purposes of this Article, a Party may consider that a design having individual character is original.
2. A design applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new and to have individual character:
(a) if the component part, once it has been incorporated into the complex product, remains visible during normal use of the latter, excluding maintenance, servicing or repair work, and
(b) to the extent that those visible features of the component part fulfil in themselves the requirements as to novelty and individual character.
Article 86. Rights Conferred by Registration
The holder of a registered design shall have the exclusive right to use it and to prevent any third party not having the holder's consent from, inter alia, making, offering for sale, selling, importing, exporting, stocking or using a product bearing or embodying the protected design when such acts are undertaken for commercial purposes.
Article 87. Protection Conferred to Unregistered Designs
The Republic of Kazakhstan shall, no later than seven years after the date on which this Title starts to apply, effectively provide for legal protection against copying unregistered designs, on the condition that the European Union has, no later than two years before the end of that seven-year period, provided adequate training for representatives of the authorised bodies, organisations and judges.
Article 88. Term of Protection
The duration of protection as from the date of the filing of the application shall amount to at least 10 years. Each Party may provide that the right holder may have the term of protection renewed for one or more periods of five years each, up to the maximum term of protection established according to domestic law.
Article 89. Exceptions
1. Each Party may provide for 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 owner of the protected design, taking account of the legitimate interests of third parties.
2. Design protection shall neither extend to features of appearance dictated solely by technical functions of the product nor to features of appearance of a product that are necessary to ensure interoperability with another product (1).
3. A design right shall not subsist in a design which is contrary to public policy or to accepted principles of morality.
Article 90. Relationship to Copyright
A design protected by a design right registered in a Party shall also be eligible for protection under the copyright law of that Party as 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.
PATENTS
Article 91. International Agreements
Each Party shall make all reasonable efforts to comply with Articles 1 to 16 of the Patent Law Treaty.
Article 92. Patents and Public Health
1. The Parties recognise the importance of the Declaration of the Ministerial Conference of the WTO on the TRIPS Agreement and Public Health, adopted on 14 November 2001. In interpreting and implementing the rights and obligations under this Chapter, each Party shall ensure consistency with that Declaration.
2. Each Party shall respect the Decision of the WTO General Council of 30 August 2003 on paragraph 6 of the Declaration referred to in paragraph 1.
Article 93. Supplementary Protection Certificates
1. The Parties recognise that medicinal and plant protection products protected by a patent on their respective territory may be subject to an administrative authorisation procedure before being put on the market. They recognise that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on the market, as defined for that purpose by the relevant domestic law, may shorten the period of effective protection under the patent.
2. Each Party shall provide for a further period of protection for a medicinal or plant protection product which is protected by a patent and which has been subject to an administrative authorisation procedure, that period being equal to the period referred to in the second sentence of paragraph 1, reduced by a period of five years.
3. Notwithstanding paragraph 2, the duration of the further period of protection may not exceed five years.
Article 94. Protection of Data Submitted to Obtain an Authorisation to Put a Pharmaceutical Product on the Market (1)
1. Each Party shall implement a comprehensive system to guarantee the confidentiality, non-disclosure and nonreliance of data submitted for the purpose of obtaining an authorisation to put a pharmaceutical product on the market.
2. Each Party shall ensure that any information submitted to obtain an authorisation to put a pharmaceutical product, as referred to in Article 39(3) of the TRIPS Agreement, on the market remains undisclosed to third parties and benefits from a period of at least six years of protection against unfair commercial use starting from the date of the grant of a marketing authorisation in either Party.
To that end,
(a) during a period of at least six years starting from the date of the grant of a marketing authorisation, no person or entity, whether public or private, other than the person or entity who submitted such undisclosed data, shall be allowed to rely directly or indirectly on such data, without the explicit consent of the person or entity who submitted this data, in support of an application for the authorisation to put a pharmaceutical product on the market;
(b) during a period of at least six years starting from the date of the grant of a marketing authorisation, any subsequent application for the authorisation to put a pharmaceutical product on the market shall not be granted, unless the subsequent applicant submits his own data, or data used with authorisation of the holder of the first authorisation, meeting the same requirements as the first applicant. During this six-year period, products registered without submission of such data shall be removed from the market until the requirements are met.
Article 95. Data Protection on Plant Protection Products and Rules on Avoidance of Duplicative Testing
1. The Parties shall determine safety and efficacy requirements before authorising the placing on the market of plant protection products.
2. Each Party shall recognise a temporary data protection right to the owner of a test or study report submitted for the first time to obtain a marketing authorisation for a plant protection product.
During the period of validity of the data protection right, the test or study report shall not be used for the benefit of any other person aiming to achieve a marketing authorisation for a plant protection product, except when the explicit consent of the owner is provided. This right shall be hereinafter referred to as ‘data protection'.
3. The test or study report shall:
(a) be necessary for the authorisation or for an amendment of an authorisation in order to allow the use on other crops, and
(b) be certified as compliant with the principles of good laboratory practice or of good experimental practice.
4. The term of data protection for plant protection products in a Party shall be 10 years starting on the date of the first authorisation in that Party. Longer periods may be granted by each Party in order to encourage the authorisation of, for instance, low risk plant protection products or minor uses.
5. A test or study shall also be protected if it was necessary for the renewal or review of an authorisation.
6. The Parties shall lay down rules on the avoidance of duplicative testing on vertebrate animals. Any applicant intending to perform tests and studies involving vertebrate animals shall take the necessary measures to verify that those tests and studies have not already been performed or initiated.
7. The prospective applicant and the holder or holders of the relevant authorisations shall make every effort to ensure that they share tests and studies involving vertebrate animals. The costs of sharing the test and study reports shall be determined in a fair, transparent and non-discriminatory way. The prospective applicant shall only be required to share the costs of information he is required to submit to meet the authorisation requirements.
8. Where the prospective applicant and the holder or holders of the relevant authorisations of plant protection products cannot reach agreement on the sharing of test and study reports involving vertebrate animals, the prospective applicant shall inform the competent authority of the Party concerned.
9. The failure to reach agreement on the sharing of test and study reports involving vertebrate animals shall not prevent the competent authority of the Party concerned from using those reports for the purpose of the application of the prospective applicant.
The holder or holders of the relevant authorisation shall have a claim on the prospective applicant for a fair share of the costs incurred by him. The Party may direct the parties involved to resolve the matter by formal and binding arbitration administered under domestic law.
Article 96. Plant Varieties
The European Union reaffirms its commitment to the International Convention for the Protection of New Varieties of Plants (the UPOV Convention), to which the Republic of Kazakhstan shall make reasonable efforts to accede.
Section 3. Enforcement of Intellectual Property Rights
Article 97. General Obligations
1. The Parties reaffirm their commitments under the TRIPS Agreement, in particular Part III thereof, and shall provide for the complementary measures, procedures and remedies set out in this Section, which are necessary to ensure the enforcement of the intellectual property rights (1).
2. Those measures, procedures and remedies shall be fair and equitable, and shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays. They shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
Article 98. Entitled Applicants
Each Party shall recognise as persons entitled to seek application of the measures, procedures and remedies referred to in this Section and in Part III of the TRIPS Agreement:
(a) the holders of intellectual property rights in accordance with the provisions of domestic law;
(b) all other persons authorised to use those rights, in particular licensees, in so far as permitted by and in accordance with the provisions of domestic law;
(c) intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of domestic law;
(d) professional defence bodies or other persons which are recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of domestic law.
Article 99. Evidence
1. The judicial authorities of each Party shall have the authority, where a party has presented reasonably available evidence sufficient to support its claims and has in substantiating its claims specified evidence which lies in the control of the opposing party, to order that this evidence be produced by the opposing party, subject to the protection of confidential information.
2. Under the conditions referred to in paragraph 1, each Party shall take such measures as are necessary, in the case of an infringement of an intellectual property right committed on a commercial scale, to enable the competent judicial authorities to order, where appropriate and following an application, the communication of banking, financial or commercial documents under the control of the opposing party, subject to the protection of confidential information.