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 169. 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 170. Protection of Computer Programs
1. The Parties shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention. For the purposes of this provision, the term "computer programs" shall include their preparatory design material.
2. Protection in accordance with this Agreement shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Agreement.
3. A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.
Article 171. Authorship of Computer Programs
1. The author of a computer program shall be the natural person or group of natural persons that has created the program or, where the legislation of the Parties permits, the legal person designated as the right-holder by that legislation.
2. In respect of a computer program created by a group of natural persons jointly, the exclusive rights shall be owned jointly.
3. Where collective works are recognised by the legislation of the Parties, the person considered by the legislation of the Parties to have created the work shall be deemed to be its author.
4. Where a computer program is created by an employee in the execution of his/her duties or following the instructions given by his/her employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract.
Article 172. Restricted Acts Relating to Computer Programs
Subject to the provisions of Articles 173 and 174 of this Agreement, the exclusive rights of the right-holder within the meaning of Article 171, shall include the right to carry out or to authorise:
(a) permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole. In so far as acts of loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, those acts shall be subject to authorisation by the right-holder;
(b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;
(c) any form of distribution to the public, including the rental, of the original computer program or of copies thereof.
Article 173. Exceptions to the Restricted Acts Relating to Computer Programs
1. In the absence of specific contractual provisions, the acts referred to in Article 172(a) and (b) of this Agreement shall not require authorisation by the right-holder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction.
2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract in so far as itis necessary for that use.
3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right-holder, to observe, study or test the functioning of the programme in order to determine the ideas and principles which underlie any element of the programme if such person does so while performing any of the acts of loading, displaying, running, transmitting or storing the programme which he or she is entitled to do.
Article 174. Decompilation
1. The authorisation of the right-holder shall not be required where reproduction of the code and translation of its form within the meaning of Article 172 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:
(a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;
(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a) of this paragraph; and
(c) these acts are confined to the parts of the original program which are necessary to achieve interoperability.
2. The provisions of paragraph 1 shall not permit the information obtained through its application:
(a) to be used for goals other than to achieve the interoperability of the independently created computer program;
(b) to be given to others, except when necessary for the interoperability of the independently created computer program; or
(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.
3. In accordance with the provisions of the Berne Convention, this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the right-holder's legitimate interests or conflicts with a normal exploitation of the computer program.
Article 175. Protection of Databases
1. For the purposes of this Agreement, "database" shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.
2. Protection under this Agreement shall not apply to computer programs used in the making or operation of databases accessible by electronic means.
Article 176. Object of Protection
1. In accordance with Sub-section 1, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.
2. The copyright protection of databases provided for in Sub-section 1 shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.
Article 177. Database Authorship
1. The author of a database shall be the natural person or group of natural persons who created the database or, where the legislation of the Parties so permits, the legal person designated as the right-holder by legislation.
2. Where collective works are recognised by the legislation of the Parties, the economic rights shall be owned by the person holding the copyright.
3. In respect of a database created by a group of natural persons jointly, the exclusive rights shall be owned jointly.
Article 178. Restricted Acts Relating to Databases
In respect of the expression of a database which is protectable by copyright, the author of the database shall have the exclusive right to carry out or to authorise:
(a) temporary or permanent reproduction by any means and in any form, in whole or in part;
(b) translation, adaptation, arrangement and any other alteration;
(c) any form of distribution to the public of the database or copies thereof;
(d) any communication, display or performance to the public;
(e) any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in subparagraph (b).
Article 179. Exceptions to Restricted Acts Relating to Databases
1. Performance by the lawful user of a database or a copy thereof of any of the acts listed in Article 178 of this Agreement which is necessary for purposes of access to the contents of the database and normal use of the contents by the lawful user shall not require the authorisation of the author of the database. Where the lawful user is authorised to use only part of the database, this provision shall apply only to that part.
2. The Parties shall have the option of providing for limitations on the rights set out in Article 178 in the following cases:
(a) in the case of reproduction for private purposes of a non-electronic database;
(b) where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
(c) where there is use for purposes of public security or for the purposes of an administrative or judicial procedure;
(d) where other exceptions to copyright are traditionally authorised by each Party, without prejudice to subparagraphs (a), (b) and (c).
3. In accordance with the Berne Convention, this Article may not be interpreted in such a way as to allow its application in a manner which unreasonably prejudices the right-holder's legitimate interests or conflicts with normal exploitation of the database.
Article 180. Resale Right
1. The Parties shall provide, for the benefit of the author of an original work of art (31), 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. The Parties may provide, in accordance with their legislation, 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 royalty shall be payable by the seller. The Parties may provide that one of the natural or legal persons referred to in paragraph 2 other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty.
Article 181. Broadcasting of Programmes by Satellite
Each Party shall provide the author with an exclusive right to authorise the communication of copyright works to the public by satellite.
Article 182. Cable Retransmission
Each Party shall ensure that when programmes from the other Party are retransmitted by cable in their territory the applicable copyright and related rights are observed and that such retransmission takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators.
Subsection 2. TRADE MARKS
Article 183. Registration Procedure
1. The United Kingdom and Ukraine shall provide for a system for the registration of trade marks in which any refusal by the relevant trade mark administration to register a trade mark is duly reasoned. The reasons for the refusal shall be communicated in writing to the applicant, who will have the opportunity to contest such refusal and to appeal a final refusal before judicial authorities. The United Kingdom and Ukraine shall also introduce the possibility to oppose trade mark applications. Such opposition proceedings shall be adversarial. The United Kingdom and Ukraine shall provide a publicly available electronic database of trade mark applications and trade mark registrations.
2. The Parties shall provide for grounds for refusal or invalidity of a trade mark registration. The following shall not be registered or if registered shall be liable to be declared invalid:
(a) signs which cannot constitute a trade mark;
(b) trade marks which are devoid of any distinctive character;
(c) trade marks consisting exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;
(d) trade marks consisting exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade;
(e) signs which consist exclusively of:
(i) the shape or another characteristic that results from the nature of the goods themselves; or
(ii) the shape or another characteristic of the goods which is necessary to obtain a technical result; or
(iii) the shape or another characteristic which gives substantial value to the goods;
(f) trade marks which are contrary to public policy or to accepted principles of morality;
(g) trade marks which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or service;
(h) trade marks which have not been authorised by the competent authorities and are to be refused or invalidated pursuant to Article 6ter of the Paris Convention.
3. A Party may determine that a trade mark shall not be refused registration by virtue of subsection 2(b), (c) or (d) if, before the date of application for registration it has acquired a distinctive character as a result of a use made. Where a trade mark was registered in breach of subsection 2(b), (c) or (d), a Party may determine that it should not be declared invalid if, in consequence of the use which has been made of it, it has after registration acquired a distinctive character in relation to the goods or services for which it is registered.
4. The Parties shall provide for grounds for refusal or invalidity concerning conflicts with earlier rights. A trade mark shall not be registered or, if registered, shall be liable to be declared invalid:
(a) if it is identical to an earlier trade mark, and the goods or services for which the trade mark is applied or is registered are identical to the goods or services for which the earlier trade mark is protected;
(b) ifbecause of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.
5. The Parties may also provide for other grounds for refusal or invalidity concerning conflicts with earlier rights.
Article 184. Well-known Trade Marks
The Parties shall cooperate with the aim of making protection of well-known trade marks, as referred to in Article 6 bis of the Paris Convention and in Article 16.2 and 16.3 of the TRIPS Agreement, effective.
Article 185. Rights Conferred by a Trade Mark
The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his/her consent from using in the course of trade:
(a) any sign which is identical to the trade mark in relation to goods or services which are identical with those for which the trade mark is registered;
(b) any sign where, because of its identity to, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark 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 trade mark.
Article 186. Exceptions to the Rights Conferred by a Trade Mark
1. The Parties shall provide for the fair use of descriptive terms, including geographical indications, as a limited exception to the rights conferred by a trade mark, provided that such limited exceptions take account of the legitimate interests of the owner of the trade mark and of third parties. Under the same conditions, the Parties may provide for other limited exceptions.
2. A trade mark shall not entitle the proprietor to prohibit a third party from using, in the course of trade:
(a) The name or the address of the third party, where that third party is a natural person;
(b) signs or indications which are not distinctive or which concern the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of a service, or other characteristics of goods or services;
(c) the trade mark for the purpose of identifying or referring to goods or services as those of the proprietor of the trade mark in particular, where the use of the trade mark is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts, the use made by the third party is in accordance with honest practices in industrial or commercial matters.
3. A trade mark 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 Parties in question and the use of that right is within the limits of the territory in which it is recognised.
Article 187. Use of Trade Marks
1. If, within five years of the date of completion of the registration procedure, the proprietor has not put a trade mark to genuine use in connection with the goods or services in respect of which it is registered in the relevant territory, or if such use has been suspended during an uninterrupted period of five years, the trade mark shall be subject to the sanctions provided for in this Sub-section, unless there are proper reasons for non-use.
2. The following shall also constitute use within the meaning of paragraph 1:
(a) use of the trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered;
(b) affixing of the trade mark to goods or to the packaging thereof solely for export purposes.
3. Use ofa trade mark with the consent of the proprietor or by any person who has authority to use a collective mark or a guarantee or certification mark shall be deemed to constitute use by the proprietor within the meaning of paragraph 1.
Article 188. Grounds for Revocation
1. The Parties shall provide that a trade mark shall be liable to revocation if, within a continuous period of five 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; however, no person may claim that the proprietor's rights in a trade mark should be revoked where, during the interval between expiry of the five-year period and filing of the application for revocation, genuine use of the trade mark 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 five years of non-use, shall, however, be disregarded where preparations for the commencement or resumption occur only after the proprietor becomes aware that the application for revocation may be filed.
2. A trade mark 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 product or service in respect of which it is registered;
(b) in consequence of the use made of it by the proprietor of the trade mark or with his/her 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.
Article 189. Partial Refusal, Revocation or Invalidity
Where grounds for refusal of registration or for revocation or invalidity of a trade mark exist in respect of only some of the goods or services for which that trade mark has been applied for or registered, refusal of registration or revocation or invalidity shall cover those goods or services only.
Article 190. Term of Protection
The duration of protection available in the United Kingdom and Ukraine following the date of filing of an application shall amount to at least 10 years. The right-holder may have the term of protection renewed for further periods of 10 years.
Subsection 3. GEOGRAPHICAL INDICATIONS
Article 191. Scope of the Sub-section
1. This Sub-section applies to the recognition and protection of geographical indications originating in the territories of the Parties.
2. Geographical indications of a Party to be protected by the other Party shall only be subject to this Agreement if covered by the scope of the legislation referred to in Article 192 of this Agreement.
Article 192. Established Geographical Indications
1. Having examined the Ukrainian legislation listed in Annex XVII-A Part A to this Agreement, the United Kingdom concludes that these laws meet the elements laid down in Annex XVII-A Part B to this Agreement.
2. Having examined the United Kingdom's legislation listed in Annex XVII-A Part A to this Agreement, Ukraine concludes that these laws meet the elements laid down in Annex XVII-A Part B to this Agreement.
3. Ukraine shall protect the geographical indications for the agricultural products and foodstuffs of the United Kingdom listed in Annex XVII-C to this Agreement and the geographical indications for wines, aromatised wines and spirit drinks of the United Kingdom listed in Annex XVI-D to this Agreement, which have been registered by the United Kingdom under the legislation referred to in paragraph 2, according to the level of protection laid down in this Sub section.
4. The United Kingdom shall protect the geographical indications for the wines, aromatised wines and spirit drinks of Ukraine listed in Annex XVII-D to this Agreement, which have been registered by Ukraine under the legislation referred to in paragraph 1, according to the level of protection laid down in this Sub-section.
Article 193. Addition of New Geographical Indications
1. The Parties agree on the possibility of adding new geographical indications to be protected in Annexes XVII-C and XVII-D to this Agreement in accordance with Article 201(3) of this Agreement after having completed the objection procedure in accordance with the criteria set out in Annex XVII-B to this Agreement and having examined the geographical indications to the satisfaction of both Parties.
2. A Party shall not be required to protect as a geographical indication a name that 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.
Article 194. Scope of Protection of Geographical Indications
1. The geographical indications listed in Annexes XVII-C and XVII-D to this Agreement, including those added pursuant to Article 193 of this Agreement, shall be protected against:
(a) any direct or indirect commercial use ofa 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;
(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated, transcripted, transliterated or accompanied by an expression such as "style", "type", "method", "as produced in", "imitation", "flavour", "like", 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, in advertising material or documents relating to the product concerned, and on the packing of the product in a container liable to convey a false impression as to its origin;
(d) any other practice liable to mislead the consumer as to the true origin of the product.
2. Protected geographical indications shall not become generic in the territories of the Parties.
3. If geographical indications are wholly or partially homonymous, protection shall be granted to each indication provided that it has been used in good faith and with due regard for local and traditional usage and the actual risk of confusion. Without prejudice to Article 23 of the TRIPS Agreement, the Parties shall mutually decide the practical conditions of use under which the 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. A homonymous name which misleads the consumer into believing that products come from another territory shall not be registered even if the name is accurate as far as the actual territory, region or place of origin of the product in question is concerned.
4. Where a Party, in the context of negotiations with a third country, proposes to protect a geographical indication of the third country, and the name is homonymous with a geographical indication of the other Party the latter shall be informed and be given the opportunity to comment before the name is protected.
5. 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 its country of origin. The Parties shall notify each other if a geographical indication ceases to be protected in its country of origin. Such notification shall take place in accordance with Article 201(3) of this Agreement.
6. 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 as to mislead the public.
Article 195. Right of Use of Geographical Indications
1. The commercial use of a name protected under this Agreement for agricultural products, foodstuffs, wines, aromatised wines or spirit drinks conforming to the corresponding specification is open to any entity.
2. 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 196. Relationship with Trade Marks
1. The Parties shall refuse to register or shall invalidate a trade mark that corresponds to any of the situations referred to in Article 194(1) of this Agreement in relation to a protected geographical indication for like products, provided an application to register the trade mark is submitted after the date of application for registration of the geographical indication in the territory concerned.
2. For geographical indications referred to in Article 192 of this Agreement, the date of application for registration shall be 1 January 2016.
3. For geographical indications referred to in Article 193 of this Agreement, the date of application for registration shall be the date of the transmission of a request to the other Party to protect a geographical indication.
4. The Parties shall have no obligation to protect a geographical indication pursuant to Article 193 of this Agreement where, in the light of a reputed or well- known trade mark, protection is liable to mislead consumers as to the true identity of the product.
5. Without prejudice to paragraph 4 of this Article, the Parties shall protect geographical indications also where a prior trade mark exists. Prior trade mark shall mean a trade mark, the use of which corresponds to one of the situations referred to in Article 194(1) of this Agreement, which has been applied for, registered or established by use, if that possibility is provided for by the legislation concerned, in the territory of one of the Parties before the date on which the application for protection of the geographical indication is submitted by the other Party under this Agreement. Such trade mark may continue to be used and renewed notwithstanding the protection of the geographical indication, provided that no grounds for the trade mark's invalidity or revocation exist in the legislation on trade marks of the Parties.