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Hungary Intellectual Property Rights Agreement
AGREEMENT
ON INTELLECTUAL PROPERTY
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF HUNGARY
The Government of the United States of America and the Government of
the Republic of Hungary agree as follows:
ARTICLE I
GENERAL
OBLIGATIONS
1. Each Party shall provide adequate and effective
protection and enforcement for patents, trademarks, copyrights, trade
secrets and layout designs for integrated circuits by, inter
alia, giving effect to the international agreements to which
both are Parties, including this Agreement, in particular to the
substantive provisions of:
(a) the Geneva
Convention for the Protection of Producers of Phonograms Against Unauthorized
Duplication of their Phonograms, 1971 (Geneva Convention)
(b) the Berne Convention for the Protection of Literary and Artistic
Works (Berne Convention) as revised at Paris in 1971; and
(c) the Paris Convention for the Protection of Industrial Property
(Paris Convention) as revised at Stockholm in 1967.
2.
Each Party shall endeavor to become a Party to future international
agreements that it considers will promote the protection of intellectual
property.
3.
Each Party shall accord to the nationals of the other Party treatment no
less favorable than that it accords to its own nationals with regard to
the protection of intellectual property, including trade secrets,
subject to the exceptions already provided in, respectively, the Paris
Convention, the Berne Convention, the Rome Convention and the Treaty on
Intellectual Property in Respect of Integrated Circuits.
4.
Parties may avail themselves of the exceptions permitted under paragraph
3 of this Article in relation to judicial and administrative procedures,
including the designation of an address for service or the appointment
of an agent within the jurisdiction of a Party, only where such
exceptions are necessary to secure compliance with laws and regulations
which are not inconsistent with the provisions of this Agreement and
where such practices are not applied in a manner which would constitute
a disguised restriction on trade.
ARTICLE II
COPYRIGHT AND RELATED RIGHTS
1.
Each Party shall protect the works listed in Article 2 of the Berne
Convention (Paris 1971) and any other works now known or later developed,
that embody original expression within the meaning of the Berne Convention,
including but not limited to the following:
(a) all types of computer
programs (including application programs and operating systems) expressed
in any language, whether in source or object code which shall be
protected as literary works within the meaning of the Berne Convention
for the Protection of Literary and Artistic Works and works created
by or with the use of computers; and
(b) collections or compilations of protected or unprotected material
or data whether in print, machine readable or any other medium, including
data bases, which shall be protected if they constitute intellectual
creation by reason of the selection, coordination, or arrangement of
their contents.
Rights in works protected pursuant
to paragraph 1 of this Article shall include, inter alia,
the following:
(a) the exclusive right to
make or to authorize the first public distribution, including importation,
of the original or each authorized copy of a work by sale, rental, or
otherwise;
(b) the exclusive right to authorize or prohibit the commercial rental
of the original or a copy of a computer program after the first public
distribution of that program; and
(c) the exclusive right to make or to authorize the public communication
of a work (e.g., to perform, project, exhibit, broadcast, transmit,
or retransmit a work); the term "public communication" shall
include:
(i) communicating
a work in a place open to the public or at any place where a substantial
number of persons outside of a normal circle of a family and its social
acquaintances is gathered; or
(ii) communicating or transmitting a work, a performance or a display
of a work, in any form, or by means of anv device or process to a
place specified in clause (c) (i) of paragraph 2 of this Article or
to the public, regardless of whether the members of the public
capable of receiving such communications can receive them in the same
place or separate places and at the same time or at different times.
3.
Each Party shall extend the protection afforded under paragraph 2 of
this Article to authors of the other Party, whether they are natural
persons or, where the other Party's domestic law so provides,
companies and organizations, and to their successors in title.
4. Each Party shall permit protected rights under paragraph 2 of this
Article to be freely and separately exploitable and conferrable.
5. In cases where a Party measures the term of protection of a work
from other than the life of the author, the term of protection shall
be no less than 50 years from authorized publication or, failing such
authorized publication within 50 years from the making of the work, 50
years after the making.
6. Each Party shall confine any limitations or exceptions to the
rights provided under paragraph 2 of this Article (including any
limitations or exceptions that restrict such rights to "public"
activity) to clearly and carefully defined special cases which do not
impair an actual or potential market for or the value of a protected
work.
7. Each Partv shaIl ensure that any compulsorv or nonvoluntary
license (or any restriction of exclusive rights o a right of
remuneration) shall provide means to ensure payment and remittance of
royalties at a level consistent with what would be negotiated on a
voluntary basis.
8. Each Party acknowledges its Article 6bis obligations under the
Berne Convention for the Protection of Literary and Artistic Works and
provides for these rights through its copyright law or by other
federal law, state law or common law principles.
9. Each Party shall, at a minimum, extend to producers of sound
recordings the exclusive rights to do or to authorize the
following:
(a) the direct or indirect reproduction
of the recording by any means or process in whole or in part; and
(b) the exercise of the distribution, including importation and rental,
as provided in subparagraph 2(a) of this Article; and
(c) the authorization or prohibition of the commercial rental of the original
or a copy of a sound recording after the first public distribution of
that sound recording. The rental right shall leave intact and shall in
no way affect the protection of literary and artistic works embodied in
any sound recording.
10. Paragraphs 3, 4, and 6 of
this Article shall apply mutatis mutandis to sound recordings.
11. Each Party shall:
(a) protect sound recordings
for a term of at least 50 years from first fixation, and
(b) apply this agreement to all sound recordings which, at the moment
of its coming into force, have not yet fallen into the public domain
in the country of origin through expiry of the term of protection. If,
however, through the expiry of the term of protection which was previously
granted, a sound recording has fallen into the public domain in the
country where protection is claimed, that sound recording shall not
be protected anew.
12. Parties shall not subject
the acquisition or validity of intellectual property rights in sound recordings
to any formalities, and protection shall arise automatically upon creation
of the sound recording.
ARTICLE III
TRADEMARKS
Protectable Subject Matter
1. Trademarks shall consist of at least any sign, words, including
personal names, designs, letters, numerals, colors, the shape of goods
or of their packaging, provided that the mark is capable of
distinguishing the goods or services of one national, company or
organization from those of other nationals, companies or
organizations.
2. The term "trademark" shall include service marks,
collective and certification marks. For purposes of this Agreement,
protection for certification marks may be provided under provisions
for the protection of service marks.
Acquisition of Rights
3. A trademark right may be acquired by registration or by use. Each
Party shall provide a system for the registration of trademarks. Use
of a trademark may be required as a prerequisite for registration.
4. Each Party shall publish each trademark either before it is
registered or promptly after it is registered and shall afford other
parties a reasonable opportunity to petition to cancel the
registration. In addition, each Party may afford an opportunity for
the other Party to oppose the registration of a trademark.
5. The nature of the goods or services to which a trademark is to be
applied shall in no case form an obstacle to registration of the
trademark.
Rights Conferred
6. The owner of a registered trademark shall have exclusive rights
therein. He shall he entitled to prevent all other parties not having
his consent from using in commerce identical or similar signs for
goods or services which are identical or similar to those in respect
of which the trademark is protected, where such use would result in a
likelihood of confusion.
7. Each Party shall refuse to register or shall cancel the
registration and prohibit use of a trademark likely to cause confusion
with a trademark of another which is considered to be well-known. A
Party may not require that the reputation of the well-known trademark
extend beyond the sector of the public which normally deals with the
relevant goods or services.
8. The owner of a trademark shall be entitled to take action against
any unauthorized use which constitutes an act of unfair competition or
passing off.
Term of Protection
9. The registration of a trademark shall be indefinitely renewable
for terms of no less than 10 years when conditions for renewal have
been met. Initial registration of a trademark shall be for a term of
at least 10 years.
Requirement of Use
10. If use of a registered mark is required to maintain trademark
rights, the registration may be canceled only after an uninterrupted
period of at least two years of non-use, unless legitimate reasons for
non-use exist. Use of the trademark with the consent of the owner
shall he recognized as use of the trademark for the purchase of
maintaining the registration.
11. Legitimate reasons for non-use shall include non-use due to
circumstances arising independently of the will of the trademark
holder (such as import restrictions on or other government
requirements for products protected by the trademark) which constitute
an obstacle to the use of the mark.
Other Requirements
12. The use of a trademark in commerce shall not be encumbered by
special requirements, such as use which reduces the function of a
trademark as an indication of source or use with another trademark.
Compulsory Licensing
13. Compulsory licensing of trademarks shall not be permitted.
Transfer
14. Trademark registrations may be transferred.
ARTICLE IV
PATENTS
Patentable Subject Matter
1. Patents shall be available for all inventions, whether products or
processes, in all fields of technology, with the exception of any
invention which is useful solely in the utilization of special nuclear
material or atomic energy in an atomic weapon.
2. Parties may exclude from patentability
(a) inventions, prevention
within their territory of the commercial exploitation of which is necessary
to protect public order or morality, and
(b) methods for treatment of the human or animal body by surgery or
therapy and diagnostic methods practiced on the human or animal body.
Rights Conferred
3. A patent shall confer the right to prevent others not having the patent
owner's consent from making, using, or selling the subject matter of the
patent. In the case of a patented process, the patent confers the right
to prevent others not having consent from using that process and from
using, selling, or importing at least the product obtained directly by
that process.
4. Where the subject matter of a patent is a process for obtaining a product,
each Party shall provide that the burden of establishing that an alleged
infringing product was not made by the process shall be on the alleged
infringer at least in one of the following situations:
(a) the product is new, or
(b) a substantial likelihood exists that the product was made by the
process and the patent owner has been unable through reasonable efforts
to determine the process actually used. (When the patented process is
the only one known, a substantial likelihood exists, prima facie.)
In gathering and evaluation of evidence to the contrary, the legitimate
interests of the defendant in protecting his manufacturing and business
secrets shall be taken into account.
5. A patent may only be revoked
on grounds that would have justified a refusal to grant the patent.
Exceptions
6. Parties may provide limited exceptions to the exclusive rights conferred
by a patent, such as for acts done for experimental purposes, provided
that such exceptions do not unreasonably conflict with normal exploitation
of the patent and do not unreasonably prejudice the legitimate interests
of the patent owner taking account of the legitimate interests of third
parties.
Term of Protection
7. Each Party shall provide a term of protection of at least 20 years
from the date of filing of the patent application or 17 years from the
date of grant of the patent.
Transitional Protection
8. Subject to the exceptions provided in paragraph 9 of this Article,
the Government of Hungary agrees to provide protection in the form of
exclusive marketing and manufacturing rights for any U.S. pharmaceutical
product that was not eligible for product patent protection in Hungary
but is claimed in a U.S. patent, based on a priority filing date on or
before the date that is twelve months prior to the date on which patent
protection for pharmaceutical products becomes available in Hungary and
not earlier than January 1, 1987. The term of such protection shall expire
at the same time as the original term of the U.S. patent in which that
product is claimed. A request to obtain transitional protection provided
under this paragraph must be submitted to the competent Hungarian authority
within one year from the date on which patent protection for pharmaceutical
products comes into effect in Hungary.
9. A product will be excluded from protection under paragraph 8 of this
Article if:
(a) it was marketed in Hungary
prior to the date on which patent protection for pharmaceutical products
comes into effect in Hungary, or
(b) it was manufactured in Hungary prior to the date on which patent
protection for pharmaceutical products comes into effect in Hungary
provided that:
(i) the right to manufacture
such product shall be exclusive to the company of manufacture at the
time patent protection for pharmaceutical products comes into effect
and shall not be transferable, even in the form of the grant of a
sub-license, except with that part of the enterprise or goodwill which
exploits such license; and
(ii) the manufacturer of such product must provide proof that it was
in fact manufacturing such product prior to the date on which product
patent protection becomes effective in Hungary. Such proof must be
in the form of a certificate of Good Manufacturing Practices or other
Government document completed prior to the date on which product patent
protection becomes effective in Hungary.
10. In cases where the provisions
of paragraphs 8 and 9 of this Article affect rights acquired by patent
owners under the present Hungarian patent law before the product patent
protection comes into effect, either Party may request consultations.
The other Party agrees to consult promptly. Such consultations would be
held with a view to identify the ways and means by which such acquired
rights and the rights of patent owners acquired pursuant to paragraphs
8 and 9 of this Article could be exercised and the interests of the owners
of the respective rights could be substantiated.
Compulsory Licenses
11. Where the law of a Party allows for use of the subject matter of a
matent, other than use allowed under paragraph 6 of this Article, without
the authorization of the right holder, including use by the government
or third parties authorized by the government, the following provisions
shall be respected:
12. Patents shall be available
and patent rights enjoyable without discrimination as to the field of
technology and whether products are imported or locally produced.
ARTICLE V
LAYOUT-DESIGNS OF SEMICONDUCTOR CHIPS
1.
Each Party shall provide protection for original layout-designs
incorporated in a semiconductor chip, however the
layout-design might be fixed or encoded.
2. Each Party may condition protection on fixation or registration of
the layout-design. If registration is required, applicants shall be
given at least two years from first commercial exploitation of the
layout-design in which to apply. A Party which requires deposits of
identifying material or other material related to the layout-design
shall not require applicants to disclose confidential or proprietary
information unless it is essential to allow identification of the
layout-design.
Rights Acquired
3. Each Party shall provide to right-holders of integrated circuit
lay-out designs of the other Party the exclusive right do or to
authorize the following:
(a) to reproduce the layout-design;
(b) to incorporate the layout-design in a semiconductor chip; and
(c) to import or distribute a semiconductor chip incorporating the layout-design
and products including such chips.
4. The conditions set out in
paragraph 11 of Article IV of this Agreement shall apply, mutatis mutandis,
to the grant of any compulsory licenses for layout-designs.
Neither Party is required to extend protection to layout-designs that
are commonplace in the industry at the time of their creation
or to layout-designs that are exclusively dictated BV the functions of
the circuit to which they apply.
6. Each Party may exempt the following from liability under its law:
(a) reproduction of a layout-design
for purposes of teaching, analysis, or evaluation in the course of preparation
of: a layout-design that is itself original;
(b) importation and distribution of semiconductor chips, incorporating
a protected layout-design, which were sold by or with the consent of
the owner of the layout-design; and
(c) importation or distribution up to the point of notice of a semiconductor
chip incorporating a protected lavout-design and products incorporating
such chips by a person who establishes that he did not know, and had
no reasonable grounds to believe, that the layout-design was protected,
provided that, with respect to stock on hand or purchased at the time
notice is received, such person may import or distribute only such stock,
but is liable for a reasonable royalty on the sale of each item after
notice is received.
Term of Protection
7. The term of protection for the lay-out design shall extend for at least
ten years from the date of first commercial exploitation or the date of
registration of the design, if required, whichever is earlier.
ARTICLE VI
ACTS CONTRARY TO HONEST COMMERCIAL PRACTICES
AND THE PROTECTION OF TRADE SECRETS
1.
In the course of ensuring effective protection against unfair
competition as provided for in Article 10bis of the Paris Convention,
each Party shall provide in its domestic law and practice the legal
means for nationals, companies and organizations to prevent
proprietary information from being disclosed to, acquired by, or used
by others without the consent of the trade secret owner in a manner
contrary to honest commercial practices insofar as such information:
(a) is not, as a body or in
the precise configuration and assembly of its components, generally
known or readily ascertainable;
(b) has actual or potential commercial value because it is not generally
known or readily ascertainable; and
(c) has been subject to reasonable stems under the circumstances to
keep it secret.
Duration
2. Neither Party shall limit the duration of protection for trade secrets
so long as the conditions in paragraph I of this Article exist.
Licensing
3. Neither Party shall discourage or impede voluntary licensing of trade
secrets by imposing excessive or discriminatory conditions on such licenses
or conditions which dilute the value of trade secrets.
Government Use
4. Parties, when requiring, as a condition of approving the marketing
of pharmaceutical or of agricultural chemical products which utilize chemical
entities, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, shall protect such
data against unfair commercial use. In addition, Parties shall protect
such data against disclosure, except where necessary to protect the public,
or unless stems are taken to ensure that the data are protected against
unfair commercial use.
ARTICLE VII
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
1.
Each Partv shall ensure that enforcement procedures are available
under its national civil, criminal or administrative laws so as to
permit effective action against any act of infringement of
intellectual property rights that are covered by this Agreement,
including expeditious remedies to prevent infringement and remedies
which constitute a deterrent to further infringement. These procedures
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.
2. Procedures concerning the enforcement of intellectual property
rights shall be fair and equitable. They shall not be unnecessarily
complicated or costly, or entail unreasonable time limits or
unwarranted delays.
3. Decisions on the merits of a case shall, as a general rule, be in
writing and reasoned. Thev shall be made known at least to the parties
to the dispute without undue delay.
4. Each Party shall provide an opportunity for judicial review of
final administrative decisions on the merits of an action concerning
the protection of an intellectual property right. Subject to
jurisdictional provisions in national laws concerning the importance
of a case, an opportunity for judicial review of the legal aspects of
initial judicial decisions on merits of a case concerning the
protection of an intellectual property right shall also be provided.
5. Notwithstanding the other provisions of this section, when a Party
is sued for infringement of an intellectual property right as a result
of public, non-commercial use of that right by or for the government,
the Party may limit remedies against the government to payment of full
compensation to the right-holder.
ARTICLE
VIII
NATIONAL SECURITY EXCEPTION
The
provisions of this Agreement shall not be construed to prevent either
Party from taking any action obligations under the United Nations
Charter for the maintenance of international peace and security or
which it considers necessary for the protection of its essential
security interests:
(a) relating to fissionable
materials or the materials from which they are derived;
(b) relating to the traffic in arms, ammunition, and implements of war
and to such traffic in other goods and materials as carried on directly
or indirectly for the purpose of supplying a military establishment;
or
(c) taken in time of war or other emergency in international relations.
ARTICLE IX
CONSULTATIONS
The Parties agree to consult promptly at the request of either Party
upon any matter concerning the interpretation, implementation or
operation of this Agreement. The Parties further agree to work
constructively toward a resolution of any problems that may arise in
this regard.
ARTICLE X
RELATIONSHIP TO OTHER OBLIGATIONS
I.
Nothing in this Agreement shall be construed to prevent Hungary from
honoring its commitments in Article 65 and Annex XIII of the Europe
Agreement concluded with the European Communities on December 16,
1991.
2. Nothing in this agreement shall be construed to prevent Hungary
from formulating and/or adjusting its national laws and regulations
relating to the protection of intellectual property in accordance with
its commitment under the Europe Agreement concluded with the European
Communities on December 16, 1991, to ensure conformity with the
European Communities' regulations, decisions, directives, and European
Court decisions, the taking over or application of which is binding
for EC Member States. If European Communities regulations, decisions,
directives, and European Court decisions allow choice as to the manner
of their implementation, including a possibility that ensures that the
obligations of this Agreement are maintained, Hungary will exercise
its rights under this paragraph in a manner that gives
effect to the provisions of this Agreement.
3. In the event that either Party believes that the exercise of
Article X would contravene an obligation in this Agreement, that Party
may request consultations. The other Party agrees to consult promptly
ons of this Agreement are maintained to the extent possible.
ARTICLE XI
IMPLEMENTATATION
Each
Party agrees to submit for enactment no later than December 31, 1993,
the legislation necessary to carry out the obligations of this
Agreement, and to exert its best efforts to enact and implement this
legislation by June 10, 1994.
ARTICLE
XII
DEFINITIONS
For purposes of this Agreement:
(a) "right-holder,"
means the right-holder himself; any other natural or legal persons authorized
by the rightholder, who are exclusive licensees of the right; or other
authorized persons, including federations and associations, having legal
standing under domestic law to assert such rights; and
(b) "a manner contrary to honest commercial practice" is understood
to encompass, inter alia, practices such as theft, bribery, breach of
contract, inducement to breach, electronic and other forms of commercial
espionage, and includes the acquisition of trade secrets by third parties
who knew, or had reasonable grounds to know, that such practices were
involved in the acquisition.
ARTICLE XIII
TERM AND TERMINATION
I.
This Agreement shall enter into force upon exchange of diplomatic
notes by the Parties. It shall remain in force for an initial period
of five years and shall continue in force unless terminated in
accordance with paragraph two of this Article.
2. Either Party may, by giving one year's written notice to the other
Party, terminate this Agreement at the end of the initial five year
period or at any time thereafter.
3. The protocol shall form an integral part of this Agreement.
IN WITNESS WHEREOF, the respective representatives have signed this
Agreement.
DONE in duplicate at Washington, D.C. on the 24th day of September,
1993.
| FOR
THE GOVERNMENT OF THE UNITED STATES OF AMERICA: |
FOR THE GOVERNMENT
OF THE REPUBLIC OF HUNGARY:
|
|
[signature of Charlene
Barshefsky]
|
[signature
of Bela Kadar] |
PROTOCOL
1. Public Performance --Right of Display
It is understood that the right to exhibit includes a right to
display the copyrighted work publicly.
2. National Treatment --Performers and Producers of Phonograms
It is understood that the United States and Hungary protect
performers and producers of phonograms without any criteria of
nationality.
3. Enforcement --Article VII
It is understood that the provisions of this Article do not create
any obligation to put in place a judicial system for the enforcement
of intellectual property rights distinct from that for the
enforcement of laws in general, nor does it affect the capacity of a
Party to enforce its laws in general.
4. Regulatory Approval of Products
The Parties agree that the following procedure is in conformity with
the provisions of paragraph 4 of Article VI of this Agreement:
When applying for an application for marketing approval of a generic
product, the applicant (the "second" submitter) can prove
the equivalence of its own product with the original one, on the basis
of a sample of the commercially available original product, while
referring to the original documentation if needed.
When deciding on the approval of the "second" application,
the competent authority bases its decision on the examination of the
documentation attached to this application.
During the procedure the authority in question does not reveal any
information in any form on the documentation of the original product.
Washington, September 24, 1993
Dear Mr. Minister:
I have the honor to provide the following information regarding
performers' rights in the United States.
In the United States performers are eligible to be joint authors of a
sound recording under the copyright law, and thus foreign performers
are entitled to national treatment under Article 5 of the Berne
Convention. In addition, state courts and legislators have taken
strong steps to protect performers against the unauthorized
fixation of their performances without regard to international
obligations of the United States --thus extending the protection of
United States law to performers of all nationalities regardless of
where the performance took place, provided that some restricted act
occurred within the jurisdiction of a relevant court.
Two underlying principles of the protection of performers' rights in
the United States deserve mention. The first is that the ability of a
performer to prevent unauthorized fixations and reproductions of his
or her live performance is deemed to be so fundamental that
legislators and courts alike are willing and prepared to find creative
solutions to ensure basic fairness and justice. The second, in many
respects related to the first, is that because such protection is so
fundamental, it is not tied to reciprocity or obligations under
existing international conventions. The nationality of the performer
and the location of the performance have no relevance to any
determination under United States law. Under the statutes referenced
herein, the analysis is simple. If a person fixes the sounds of a live
performance, or reproduces, distributes, or sells such a fixation, he
or she commits an offense that in many states is punishable by up to
five years imprisonment and/or a fine of up to $250,000. United States
law would obviously have no application to acts committed outside the
jurisdiction of United States courts, but it would give rise to
cognizable offense if the reproduction, distribution or sale were
committed in a territory within the jurisdiction of a relevant court,
even if the actual fixation was lawful but nonconsensual under the
relevant law of the place where that act occurred.
Whereas U.S. copyright law at a federal level does not protect
against the unauthorized fixation and reproduction of the sounds of a
live performance unless such sounds were simultaneously fixed with the
consent of the performer, many states have undertaken to provide
specific statutory remedies against such activities, and to ensure
that performers or their agents can take effective action to prohibit
such unauthorized fixation and reproduction.
Honorable Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary
As of today, there are twenty-six states that have criminalized the
unauthorized fixation of live performances, on the reproduction,
distribution or sale of such fixations made without the consent of the
performer. These include the critical states of New York, Illinois,
Tennessee, Texas and California. Interested parties have targeted an
additional fourteen states for legislation this year which would bring
the number of states to 40. The twenty-six states with existing
statutes constitute nearly seventy percent of the population in the
United States, and an even larger percentage of the record buying
public. If laws are passed in the fourteen targeted states, they would
cover an additional twenty-six percent of the U.S. population.
In addition to these statutory provisions, there is a burgeoning body
of law emanating from principles of common law copyright, unfair
competition and rights of publicity, that recognizes a property
interest of a performer in the sounds of her or her voice and his or
her physical likeness, and to control the commercial exploitation of
these interests. Recent cases have expanded this property interests to
include misappropriation of the likeness of a performer's voice, even
when the actual sounds have not been created by the aggrieved
performer.
I would be grateful if you would confirm the receipt of this
information by your government.
Sincerely,
| |
[signature]
Charlene Barshefsky
Deputy United States Trade Representative
|
Washington, September 24, 1993
Dear Mr. Minister:
I have the honor to provide the following information regarding
protection of moral rights in the United States.
When the United States Congress agreed to adhere to the Berne
Convention for Literary and Artistic Works, it was determined that
current federal, state and common law provided sufficient
protection to meet the test of Article 6bis. The Ad Hoc Working Group
on U.S. Adherence to the Berne Convention (convened by the
State Department) concluded in its final report that:
Given the
substantial protection now available for the real equivalent of moral
rights under statutory and common law in the U.S., the lack of uniformity
in protection of other Berne nations, the absence of moral rights
provisions in some of their copyright laws, and the reservation of
control over remedies to each Berne country, the protection of moral
rights in the United States is compatible with the Berne Convention.
The
Ad Hoc Group's final report identified those various federal and state
laws which meet the test of Article 6bis and their conclusions were
reprinted in the House and Senate committee reports.
The Ad Hoc Group's report noted two sections of the copyright act:
sections 106 (2) [the right to prepare derivative works] and 115 (a) (2)
[the mechanical license for phonorecords).
The Ad Hoc Group also identified the Lanham Act (federal law), state
statutes and state and federal decisions "protecting various rights
equivalent to those granted in Article 6bis under state common law
principles,” including contract, unfair competition, tort, libel,
and right of privacy/publicity.
In December 1990, Congress enacted the Visual Artists Rights Act (Pub.
L. 101-650), which created additional federal moral rights for certain
classes of works -- known as "works of visual arts." The law
creates a new section 106A establishing new rights of attribution and
integrity, in a unified federal system, effective June 1, 1991. The
right of attribution (also called a right to paternity) includes the
right to claim authorship or to disclaim authorship -- to have one's
name removed from a work. The right of integrity creates a right to
prevent the intentional distortion,
Honorable Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary
mutilation, and other modification of a work which would be prejudicial
to the honor or reputation of the author. The new federal rights run for
the life of the author (the state laws go into force after the life of
the author). The new rights also preempt all legal or equitable rights
that are equivalent to any of the rights conferred by section 106A.
I would be grateful if you would confirm the receipt of this
information by your government.
| |
[signature]
Charlene Barshefsky
Deputy United States Trade Representative
|
Washington, September 24, 1993
Dear Mr. Minister:
I have the honor to confirm the receipt of your letter dated
September 24 describing Hungary's current practice regarding contract
rights for copyright.
The United States would regard any deviation from Hungary's current
practice as described in your letter with respect to rights and
benefits provided now and in the future as a serious matter that would
require immediate consultations.
| |
[signature]
Charlene Barshefsky
Deputy United States Trade Representative
|
Honorable Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary
Washington, September 24, 1993
Dear Mr. Minister:
I have the honor to confirm receipt of your letter dated September
24, regarding the proposed amendments of Hungarian legislation that
will be submitted to conform with the Agreement on Intellectual
Property of September 24 between our countries.
| |
[signature]
Charlene Barshefsky
Deputy United States Trade Representative
|
Honorable Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary
Washington, September 24, 1993
Dear
Madame Ambassador:
I
have the honor to inform you that in order to give effect to the
provisions of the Agreement on Intellectual Property concluded on
September 24, 1993 between the United States of America and the Republic
of Hungary, the Government of Hungary will submit, in conformity with
Article XI, to the Hungarian Parliament the proposed amendments of
legislation with respect to the following laws:
Article l
l, paragraph 9.
b,
new rights to be introduced in the Hungarian Copyright Act (Law No.III.
of 1969 as amended by the Law Decree No.27. of 1978, HCA)
c, new rights to be introduced in the HCA
Article l l, paragraph 11.
a, new term of protection
to be introduced in the HCA
b, to be added to the HCA
Article IV, paragraph 1.
(Patentable Subject Matter)
Article 6, paragraph 3a,
of the Law on the Protection of Inventions by Patents (Law No II.
of 1969. as amended (HPL)) to be amended
Article 3 paragraph 1 of the Joint Decree No. 4/1969 (XII.28.) of
the National Committee for
Technical Development and of the Minister of Justice, as amended
on the implementation of the HPL (HPD) to be amended
Article IV, paragraph 4.
(Burden of Proof)
Article 6 of the HPD to
be amended
Article IV, paragraph 8.
(Transitional protection)
The law on the amendment
of the HPL to contain provisions relating to transitional protection.
Article IV, paragraph 11.
(Compulsory Licenses)
Article 21-23 of the HPL
and eventually Article 9 of the HPD to be revised.
Honorable Charlene Barshefsky
Deputy United States Trade Representative
The Government of Hungary does not intend to initiate changes in the
legislation concerning other provisions of the above Agreement, as
the existing legislation is considered to be in conformity with those
provisions.
I would be obliged if you could confirm that the United States take
note of the contents of this letter.
Please accept, Sir, the assurances of my highest consideration.
| |
Sincerely,
[signature]
Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary |
Washington, September 24, 1993
Dear Madame Ambassador:
I have the honor to provide the following information regarding contract
rights in Hungary.
The national treatment principle, the cornerstone of the Berne Convention
(Article 5(1)), applies unequivocally to all rights under copyright
(authors' rights) and benefits flowing from those rights. Benefits
include the same possibility to exploit and enjoy rights in the national
territory of a country of the Berne Convention as the respective country
grants to its own nationals. Additionally, Hungarian legislation provides
protection for performers, producers of phonograms and broadcasting
organizations as related rights without any criteria of nationality.
Therefore, Hungary gives effect to foreign, including U.S., voluntary
agreements on copyright, including employment contracts, but the copyright
terms of the contract are interpreted according to Hungarian copyright
law (national treatment). The legal persons considered under certain
foreign laws as original owners of copyright are regarded as successors
in title; the assignment is considered as exclusive license without
territorial or time limitation. The same principle applies to contracts
concerning related rights. The scope of the conferred economic rights
is, generally, not limited by these Hungarian laws. In special cases,
however, there may be certain limitations applicable to owners and
users of copyright (e.g., moral rights)
I would be grateful if you would confirm the receipt of this information
by your government.
| |
Sincerely,
[signature]
Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary |
Honorable Charlene Barshefsky
Deputy United States Trade Representative
Washington, September 24, 1993
Dear Madame Ambassador:
The Government of Hungary agrees to consult promptly at the request
of the Government of the United States with respect to your letter in
response to my letter describing Hungary's current practice regarding
contract rights for copyright dated September 24, 1993.
| |
Sincerely,
[signature]
Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary |
Honorable Charlene Barshefsky
Deputy United States Trade Representative
Washington, September 24, 1993
Dear Madame Ambassador:
I have the honor to confirm receipt of your letter dated September
24, regarding United states current practices with respect to the
protection of performers' rights.
| |
Sincerely,
[signature]
Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary |
Honorable Charlene Barshefsky
Deputy United States Trade Representative
Washington, September 24, 1993
Dear Madame Ambassador:
I have the honor to confirm receipt of your letter dated September
24, regarding United states current practices with respect to the
protection of moral rights.
| |
Sincerely,
[signature]
Bela Kadar
Minister of Foreign Economic Relations
Republic of Hungary |
Honorable Charlene Barshefsky
Deputy United States Trade Representative
|
|