RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/317
15 November 2001
(01-5800)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal: English
REVIEW OF LEGISLATION
Responses from Antigua and Barbuda to questions posed by Canada,
the European Communities and their member States,
Japan, Switzerland and the United States
By means of a communication from the Permanent Mission of Antigua and Barbuda dated
7 November 2001, the Secretariat has received the following responses to questions posed by Canada,
the European Communities and their member States, Japan, Switzerland and the United States, as
circulated in documents IP/C/W/261 and Add.1, 274, 258, 263 and 268, respectively.
_______________
CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS Agreement and
throughout) have been implemented.
The system for enforcement of all rights including intellectual property is provided through a
combination of statutes and the Common Law.  The following is a checklist of the measures either in
place or will be in place to ensure the enforcement of rights.
Civil and Administrative Procedures and Remedies:
In all the legislation on Intellectual Property, the High Court of Justice has jurisdiction over
these matters.  The persons who have the right to assert intellectual property rights are spelt out, for
instance, in the Patent Act in section 34:
"On the request of the owner of the title of protection, or of a licensee if he has requested the
owner to institute court proceedings for a specif ic relief and the owner has refused or failed to
do so, the court may grant and injunction to prevent infringement, an imminent infringement,
or an unlawful act referred to in Sections 40(2) and 41, award damages and grant any other
remedy provided for in the general law."
This provision is found in the various Bills on intellectual property. In the Copyright Bill and
the Integrated Circuit Topography Bill, additional remedies are spelt out and these include the
payment of royalties, confiscation and destruction of illegal goods.  An Attorney-at-law who is
resident and practising in Antigua and Barbuda must represent the affected parties.  Where the Bills
are silent as to procedure, the Eastern Caribbean Civil Procedure Rules and the regulations to thevarious Bills (the drafting of which is still to be completed) provides for the relevant procedures.  In
the case of urgent remedies such as an interim injunction, the Rules provide for a quick process in
Part 17, which deals with interim measures.  Upon an application without notice to the respondent or
an ex parte  application, the right holder may be granted such an injunction that will either prevent an
infringement or stop it.IP/C/W/317
Page 2
The right holders have remedies in criminal law as well, where infringement is deemed to be
an offence in all the statutes and a fine and/or imprisonment is the penalty.  For instance, in
section 34(3) of the Patents Bill an infringer is liable on summary conviction to a fine of $100,000 and
to imprisonment for a term of three years.  Under the Copyright Bill, the right holder must notify the
relevant authorities of an offence being committed under the Act.  The Director of PublicProsecutions has conduct of these matters in the High Court.  The Police will be given authority to act
accordingly by a Magistrate after the Magistrate is satisfied by information given on oath that there is
reasonable cause for to believe that an offence ha been committed under the Act.  This is provided for
in section 140 of the Bill.  Appeals from this court and the High Court are made to the Court of
Appeal and then to the Privy Council,  being the final Court of justice.
2. What protection does your copyright legislation afford to "foreign works"?
The governing legislation for this area is th e Copyright Bill.  According to section 5:
"(1) Unless otherwise specifically provided in this Act, copyright does not subsist in any
work unless it satisfies the requirements specified in this part as respects: -
(a) the category of work; and
(b) either -
(i) the qualification of the author; or
(ii) the country or place of first publication, or in the case of a broadcast
or cable programme, the country or place where it is made or fromwhich it is sent, as the case may be."
Section 8 then goes on to provide a more detailed explanation for the term "country or place":
"(1) A literary, dramatic, musical or artistic work, a sound recording or film, or the
typographical arrangement of a published edition qualifies for copyright protection if,having regard to section 3, it is first published in Antigua and Barbuda or a specified
country.
(2) A broadcast qualifies for copyright protection if it is made from a place in Antigua
and Barbuda or a specified country by a broadcasting organization in possession of a
valid license granted to it under any law in Antigua and Barbuda or a specifiedcountry regulating broadcasting.
(3) A cable programme qualifies for copyright protection if it is sent from a  place in
Antigua and Barbuda or in a specified country in accordance with the law in force
regulating transmission by cable."
Therefore, protection may be provided equally for those in the State and those out of the state
in specified countries.  This position is further defined in section 144(1)-(3):
"(1) Subject to the provisions of this section the Minister may by order provide that in
respect of any country specified in the order, any provisions of this Act so specified
shall apply: -IP/C/W/317
Page 3
(a) in relation to persons who are citizens or habitual residents of that country as
they apply to persons who are citizens or habitual residents of Antigua and
Barbuda;
(b) in relation to bodies incorporated or established under the law of that country
as they apply in relation to bodies incorporated or established under the laws
of Antigua and Barbuda;
(c) in relation to literary, dramatic, musical or artistic works, sound recordings,
films and editions first published in that country as they apply in relation to
such works, sound recordings, films and editions first published in Antigua
and Barbuda;
(d) in relation to broadcasts made from or cable programme sent from that
country as they apply in relation to broadcasts made from or cable
programmes sent from Antigua and Barbuda;
(e) in relation to performances taking place in that country or given by an
individual who is a citizen or habitual resident of that country, as they apply
in relation to performances taking place in Antigua and Barbuda or given by
an individual who is a citizen or habitual resident of Antigua and Barbuda.
(2) An order made under this section applying any provisions of this Act in relation to
any country may apply that provision: -
(a) without exception or modification or subject to such exceptions and
modifications as may be specified in the order;
(b) generally or in relation to such classes of works or other classes of case as
may be so specified.
(3) An order shall not be made under this section in relation to any country unless the
country is: -
(a) a Convention country; or
(b) a country as to which the Minister is satisfied that provision has  been or will
be made under its law in respect of the class of works or (as the case may be)
the performances, to which the order relates, giving adequate protection to
the owners of copyright under this Act or, as the case may be, to Antigua and
Barbuda works and performances as defined in section 145 (4).
(4) In this section 'Convention country' means a country which is a party to a Convention
relating to copyright or performers' rights, as may be appropriate, to which Antigua
and Barbuda is also a party."
As long as the given country falls within these criteria the protected works from there will
receive the same protection as is available under the law for those works done in Antigua and
Barbuda.
3. We understand that draft intellectual property legislation on copyright and related rights,
integrated circuits, trademarks, geographical indications and patents is being prepared.
(a) When is such legislation likely to be effectively implemented?IP/C/W/317
Page 4
The projected date for implementation is 31 December 2001.  The drafts are presently before
Parliament.
(b) What are the key improvements introduced by such draft legislation in respect of
TRIPS obligations?
Generally, the draft legislation has incorporated all the provisions that must be included in
accordance with TRIPS.  The fundamental rules on national and most-favoured-nation treatment have
been dealt with in all the draft Bills on intellectual property.  Provisions for the protection and of
public health and other public interests and the prevention of abuse of intellectual property rights that
are consistent with the provisions of the TRIPS Agreement have been included.  The Enforcement
provisions have been strengthened and where the present legislation has been silent, the new draftshave attempted to make clear the rights conferred on the right holder in terms of the use of the rights
and the remedies available in the event of an infringement.  In the Copyright Bill, provision is made
for the competent authorities to act upon notice of any infringement covered by the Bill, and this also
covers border issues.  The introduction of the Geographical Indications Bill, the Integrated Circuits
Topography Bill, and the Unfair Competition Bill further enhance the level of protection afforded tointellectual property right holders.  A sui generis  system will be created for the administration of
rights to the creation of new varieties of plant.
The legislation presently in existence are the Trade Marks Act, the Patent Act, the Copyright
Act, the Registration of United Kingdom Trade Marks, the Registration of United Kingdom Patents.
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. G
ENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health and
nutrition, and to promote the public interest in se ctors of vital importance to your socio-economic and
technological development as mentioned under Arti cle 8 of the TRIPS Agreement.  If yes, please
explain how such measures are consistent with the provisions of the TRIPS Agreement.
Section 1(3) of the Patents Bill and section 3(1)(ii) of the Trademarks Bill specify that no
registration will take place of a mark or patent that is contrary to public order.  This protection of
public order includes the protection of human, animal and plant life, health, and the avoidance of
serious prejudice to the environment, provided that such exclusion is not made merely because law
prohibits the exploitation.  This provision is repeated in the other draft legislation for Industrial
Designs, Integrated Circuits Topography, and Geographical Indications.  This is consistent with the
provisions within the TRIPS Agreement, as seen, for instance, in Article 27 where the permissible
exceptions to the basic rule on patentability are inventions contrary to public order, those that arediagnostic, therapeutic and surgical for the treatmen t of humans or animals, and those involving plants
and animals as specified in the Article.
B. C
OPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of authors
in relation to their literary and artistic works, as  specified in Article 9 of the TRIPS Agreement which
requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the
Berne Convention (1971)).
Copyright legislation in Antigua and Barbuda is governed by the Copyright Act of does
comply with the abovementioned Articles.  These Ar ticles deal predominantly with the subject matterIP/C/W/317
Page 5
eligible for protection, the terms of protection available, those on whom rights are conferred, what
rights are conferred and the limitations of those rights.  These issues are dealt with in detail in many
different sections within the Copyright Bill.
Part I of the Bill is the interpretation section of the Bill.  Section 2 contains definitions of the
terms used in the Bill.  This includes definitions of the subject matter covered in Article 2 of theBerne Convention , in particular, which deals with "Protected Works".  Sections 3 and 4, which also
fall within Part I, deal with the definitions of publication and broadcasting respectively as is required
by Article 3.
Article 3 is further encompassed by section 5 which contains the same three criteria for
protection as can be seen in the abovementioned article.  Section 5 is the first section that may be
found in Part II of the Bill.  This part encompasses subsections 5 – 13 and sets the categories of worksprotected by copyright, the qualifications for protection and the nature and duration of the rights
conferred under the Part.  Section 6 governs what subject matter may be considered qualified or
eligible for protection.  Section 7 deals with who is eligible for protection namely the "author" and
defines who may fall under the definition of this term depending on the protected work that is being
dealt with.  Section 8 considers the places from where protection may be sought.  As is seen in
Article 5, this section covers each of the items of this article completely.
Section 9 expands on the nature of the protection that copyright gives.  It deals with both the
economic and moral rights though the latter is not mandatory.  The economic rights however are
examined in full in this section describing in full the exclusive rights of the author.  Consequently, this
section covers those exclusive rights seen in Articles 8, 9, 11, 12, 13 and 14.
Subsections 10 – 13 cover the duration of copyright protection or what is referred to in
Article 7 as the term of protection.  These sections provide not only the duration afforded to the
several different types of protected works but also deals with the situations where there is more thanone author or right holder, as in Article 7 bis.
Part IV deals with the issue of ownership of the copyright.  This part is made up of
subsections 22 - 28.  Section 22 is a very important section in that it declares in subsection (1):
"The author of a protected work is the original owner of any copyright in that work unless
there is an agreement to the contrary ."
This therefore leaves room within its definition for the transferral or assignment of the rights
mentioned above, and the rest of the section gives the rules which govern just that.
Part V of the Bill includes sections 29 – 50.  Within it sections 29 –35 show how a copyright
may be infringed, the remedies and actions available to the right owners and that of the exclusive
licensee.  This Part also addresses the presumptions that are made under the law (sections 44 – 45),
the possible criminal offences resulting from infringements (sections 46 –  48) and the restrictions on
and possible actions against the importation of infringing works or articles.  Articles 15 through 17 are
covered by this Part.
Part VI (sections 51 –86) deals with the possible exceptions to infringement of copyright.
Part VI is very extensive and deals with a multitude of exceptions.  These encompass use for
educational purposes, in libraries and archives, public administration and adaptations.  These coincide
with the free uses given in Article 10.
The reservation of the right of the country to make special agreements with other countries
under Article 20 is covered by section 144, which gives the minister responsible for the Act such
power.IP/C/W/317
Page 6
It will be noted then that the Bill encompasses the salient issues of Articles 1 – 21 of the
Berne Convention and as a result complies with Article 9 of the TRIPS Agreement.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
According to the interpretation section of the Copyright Bill, section 2, the term
"literary works" is defined as follows:
"literary work" means any work, other than a dramatic or musical work, which is written,
spoken or sung, and accordingly includes: -
(a) a written table or compilation;(b) a computer program;"
Computer programs, compilations and other forms of data accordingly receive similar
protection to that of other literary works.  Section 6 of the Bill goes further which states:
"(1) Copyright is a property right which, subject to the provisions of this section, may
subsist in the following categories of work: -
(a) original literary, dramatic, musical or artistic works."
Computer programs through their status as literary works do receive protection.  Subsection 2
goes on to state that compilations of data are also protected stating:
"(2) A compilation of data or other material (database), whether in machine-readable or
other form, is eligible for protection as a literary work, but such compilation shall beregarded as original only if, by reason of the selection or arrangement of its contents,
the compilation constitutes the author's own intellectual creation; but such protection
does not extend to any data or other material forming part of the compilation and is
without prejudice to any copyright subsisting in any such data or other material."
As a result both computer programs and compilations of data are protected works.  However,
while according to section 10 the duration of protection for literary works is fifty years from the end
of the calendar year of the author's death, the term for that of computer programs is fifty years from
the end of the calendar year that the work is done.  Subsection 4 states:
"(2) Subsections (1) and (2) do not apply to computer generated work, the copyright in
which  expires at the end of the period of the fifty years from the end of the calendaryear in which the work was made."
Since this provision refers to "computer generated work" it is submitted that compilations of
data, if computer generated, will accordingly be afforded the latter duration of protection.
4. Please state whether your legislation provides for a rental right and, if so, the works to which
it applies.
Rental rights for computer programs and cinematographic works are governed by section 78
of the Copyright Bill. Subsection (1) states:IP/C/W/317
Page 7
"The Minister may by order, subject to affirmative resolution, provide that   in such cases as
may be specified in the order, the rental to the public of copies of sound recordings, films or
computer programmes shall be treated as licensed by the copyright owner subject only to the
payment of such reasonable royalty or other payment as may be agreed or determined in
default of agreement by the Copyright Tribunal."
Section 9 further states:
"(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a
work shall have the exclusive right to do or to authorize other persons to do any of the
following act in Antigua and Barbuda
(a) to copy the work;(b) to issue copies of the work to the public sale, rental, public lending or
otherwise of the original or copy of the work that has not already been
subject to a distribution authorized by the owner of the copyright;
(c) to rent or lend to the public the original or a copy of an audio visual work;"
This section therefore gives the owner of the copyright some rental rights outside of those
which may be granted by the Minister to authorize others to issue protected material for rent to the
public.  The term work in section 9(1)(b) is defined in section 2 :
"'work' means: -
 
(a) a literary, dramatic, musical or artistic work;
(b) a sound recording, film, broadcast or cable programme;
(c) the typographical arrangement of a published edition,
and accordingly 'protected work' means a work of any of such categories in which copyright
subsists by virtue of this Act;"
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Protection under copyright law for performers is found in Part IX of the Bill namely "Rights
in Performances".  This part gives extensive rights to performers and also provides for limitation of
those rights.
According to section 107(1) rights in performances are conferred on:"(a) a performer, requiring his consent to the exploitation of his performance; and
(b) a person having recording rights in relation to a performance, requiring his consent to
the making of a recording of that performance."
These rights are so conferred independent of any copyright in, or moral rights relating to, any work
used or performed in the performance, according to subsection (2)(a).
Part IX subsequently stipulates the rights po ssessed by performers and the relevant possible
infringements.  These sections run from 108 through 114.  These vest in the performer certain rightsIP/C/W/317
Page 8
and state where and to what extent consent is needed as against infringement through recordings, use
of the recordings, broadcasts of the performance, importation of illicit recordings etc.  Exceptions to
these infringements and the remedies against them are also included in Part IX.
The duration of these rights are addressed in section 128, which states the following:
"129.   The rights conferred by this Part continue to subsist in relation to a performance until
the end of the period of fifty years from the end of the calendar year in which the performance
takes place."
Phonograms or sound recordings as they are referred to in the Copyright Bill are list under
section 6(1)(b) as a category of work which ma y be protected.  Further according to section 2:
"'author' in relation to a work, means the natural person who creates it, being in relation to –(e) a sound recording or film, the person by whom the arrangements necessary for the
making of the recording or film are undertaken;"
The producer of the sound recording is therefore considered to be the author of the sound
recording for the purposes of the legislation.  Consequently the producer receives all the protection of
an author.  According to section 22(1):
"the author of a protected work is the original owner of any copyright in that work unless
there is an agreement to the contrary."
So, barring any contrary arrangement the copyright owner of the sound recording is the producer as
such he/she too will receive the benefits under section 9.
"(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a
work shall have the exclusive right to do or to authorize other persons to do any of the
following acts in Antigua and Barbuda
4. to copy the work;
5. to issue copies of the work to the public sale, rental, public lending or
otherwise of the original or copy of the work that has not already been
subject to a distribution authorized by the owner of the copyright;"
Section 31 further provides that the copyrigh t in a work is infringed by any person who,
without the licence of the copyright owner, does, in relation to that work, any of the acts which the
copyright owner has the exclusive right to do pursuant to section 9.  This infringement includes those
who have what they know or believe to be infringing copies or an article for making the same,
according to section 31(3) and (4).
"(3) Copyright in a work is infringed by a person who, without the license of the copyright
owner: -
(a) possesses in the course of a business;(b) sells or lets for hire or offers or exposes for sale or hire;(c) exhibits in public or distributes in the course of a business; or
 IP/C/W/317
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(d) distributes otherwise than in the course of a business, to such an extent as to
affect prejudicially the copyright owner, an article which is, and which he
knows or has reason to believe is an infringing copy of the work.
(4) Copyright in a work is infringed by a person who, without the license of the copyright
owner: -
(a) makes;(b) imports into Antigua and Barbuda;(c) possesses in the course of a business; or
(d) sells or lets for hire or offers for sale or hire,
an article specifically designed or adapted for making copies of that work, knowing
or having reason to believe that it is to be used to make infringing copies."
These provisions therefore protect against unauthorized reproduction across the board.
It is observed that section 9(1)(b) above also gives rental rights to the producer.  These rights
are further protected in section 78(1):
"The Minister may by order, subject to affirmative resolution, provide that in such cases as
may be specified in the order, the rental to the public of copies of sound recordings, films or
computer programmes shall be treated as licensed by the copyright owner subject only to the
payment of such reasonable royalty or other payment as may be agreed or determined in
default of agreement by the Copyright Tribunal."
According to section 4(2):
"References in this Act to the person making a broadcast, broadcasting a work or including a
work in a broadcast are references: -
(a) to the person transmitting the programme to the extent that he has responsibility for
its contents; and
(b) to any person providing the programme who makes with the person transmitting it,
the arrangements necessary for its transmission, and references in this Act to a
programme, in the context of broadcasting, are to any item included in a broadcast."
The term "person" here refers to individuals, legal persons and organizations once they are
lawfully broadcasting.  Section 6 provides for a broadcast as protected works.  This being the case it
falls within the rights given under section 9(2) that states:
"A broadcast qualifies for copyright protection if it is made from a place in Antigua and
Barbuda or a specified country by a broadcasting organization in possession of a valid license
granted to it under any law in Antigua and Barbuda or a specified country regulating
broadcasting."
The protection that is afforded to all copyrigh t owners under Section 22(1) which states that
the author of a protected work is the original owner of any copyright in that work unless there is an
agreement to the contrary, is extended to such organization by Section 22(5) which provides that theIP/C/W/317
Page 10
natural person or legal entity at whose initiative and direction of whom or which the work has been
created is the original owner of the copyright.
6. Please state whether your legislation provides for any limitation or exception in relation to
each of the rights described above in accordance with the relevant provisions of the Berne and Rome
Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
These exceptions and limitations are provided for in the Copyright Bill.  The exceptions for
Copyrights, under  the Berne  Convention and Article 13 of the TRIPS Agreement are provided for in
Part VI of the Bill entitled "Exceptions to th e Infringement of Copyright".  Sound recordings'
exceptions are also covered by this Part.  This Part runs from sections 51 through 86.  The part is then
separated into categories, which are set out in groupings of sections.  The of these groupings deals
with the general exceptions, which are sections 52 – 55.  They cover exceptions  made for research and
private study, criticism, review and reporting, determining fair dealing and incidental inclusion of aprotected work.
The next are those that are exceptions where there is a use of protected works for educational
purposes.  These are sections 56-60 and they respectively cover acts done for purposes of instruction
or examination, anthologies for educational use, recording of broadcast, etc. by educationalestablishments, restriction on reprographic copying by educational establishments, subsequent
dealings with authorized copies.
The next category is the exceptions affecting libraries and archives.  Section 61 is the
interpretation section. The other sections include section 62, "Supply by librarian of copies ofpublished work", section 63, "Supply of copies to other libraries", section 64 "Replacing copies of
works", and section 65, "Copying of unpublished work".
The next category, exceptions relating to public administration, is embodied in sections 66
and 67 make exceptions where there are Parliamentary,  judicial proceedings, public inquire, or works
held in Public Records as defined by the Registrations and Records Act.
Designs are the next area where exceptions are made.  These exceptions are separated into
section 68, which allows for the making or copying of an article from design documents and models
and section 69, which allows for exceptions, where designs derived from artistic works are exploited.
Exception relating to works in electronic form as a category is covered by section 70.  This
affords exceptions to the users where there is transfer of works in electronic form in the absence of
any express terms to the contrary made by the owner of the right or the licensee.
The next category of exceptions is titled "Miscellaneous exceptions relating to literary
dramatic, musical and artistic works".  These are encompassed in sections 71 through 76 and includeanonymous and pseudonymous literary, dramatic, musical or artistic work, use of notes of recordings
of spoken word, reading or recitation in public, certain representations of artistic works on public
display, reconstruction of buildings, and subsequent work by the same artist.
There are miscellaneous exceptions relating to sound recordings, films and computer
programs as well form sections 77 – 79.  These include making or copying of recordings of musical
work previously made or imported, the rental of sound recordings, films and computer programmes,
as allowed by order of the Minister responsible, and playing of sound recording for purposes of
charitable organizations.
Further there are miscellaneous exceptions respecting broadcasts and cable programmes,
sections 80 –  84.  This includes the incidental recording for purposes of broadcast or cable
programme, recordings of broadcasts for programme control, recording for archival purposes,IP/C/W/317
Page 11
reception and retransmission of broadcast in cable programme service, recording for purpose of time
shifting.
Section 85 covers "Adaptations" and provides that certain acts not covered as infringements by
Part VI will not be considered an infringement.
Section 86 covers "Prescribed Exceptions" which basically hold that the Minister responsible
may by order, subject to a negative resolution by the House of Representatives and to certain criteria
found in subsection 2 has the power  to prescribe exceptions to infringements.
Similar exceptions can be found with regard to Performances, as is required by the Rome
Convention these are covered in Part IX in a group of section categorized as "Exceptions" to
infringement" and runs from sections 115  – 128.  Section 115 provides that acts therein shall not beconsidered infringements of copyrights.  Section 116 provides for fair dealing for criticism, review or
reporting current events.  Section 117 allows incidental inclusion in a sound recording, film, broadcast
or cable programme, of a performance or recording.  Section 118 provides for acts done to a recording
or performance for purposes of instruction.  Section 119 allows the recording of broadcast or cable
programme by educational establishments.
Section 120 includes acts done to performance or recording for Parliamentary proceedings,
judicial proceedings, statutory inquiries or other public proceedings.  Section 121 allows for the
transfer of recordings of performances in electronic form.  Sections 122 and 123 provides for the use
of recordings of spoken words and the playing of sound recordings for charitable purposesrespectively.  Section 124 covers incidental recording for purposes of broadcast or cable programme.
Sections 125 and 126 provide for the Recording fo r the purpose of supervision and control of
programmes and the recording of broadcasts etc. for archival purposes respectively.
Section 127 gives the responsible Minister similar powers as is given in section 86 and may
make an order excepting acts from infringing rights under this Article.  Finally, section 128 gives the
Copyright Tribunal the power, on the application of a user, to consent on behalf of performers behalf
to allow a recording of a performance to be used  subject to the criteria outlined in the section.
7. Please state the terms of protection of each right described above and the work or subject
matter to which it applies.
Sections 10 through 13 govern the terms of protection of protected works under copyright law
in Antigua and Barbuda.
The duration of copyright protection for literary works etc. is governed by section 10 of the
Bill, which states:
"(1) Subject to this section, copyright in any literary, dramatic, musical or artistic work
expires at the end of the period of fifty years from the end of the calendar year in
which the author dies.
(2) Where the authorship of a work referred to in subsection (1) is unknown, copyright in
that work expires at the end of the period of fifty years from the end of the calendar
year in which the work was  either made, was first made available to the public or
first published whatever date is the latest, but subsection (1) does not apply if the
identity of the author becomes known after the end of that period."
It must be mentioned, however, that although in section 2 of the Bill computer programmes
are considered to be within the meaning literary wo rks, they are not afforded the same length andIP/C/W/317
Page 12
terms of protection as they are governed by subsection (4), which is concerned with computer
generated works.  It goes as follows:
"(4) Subsections (1) and (2) do not apply to computer generated work, he copyright in
which expires at the end of the period of the fifty years from the end of the calendar
year in which the work was made."
Where a copyright is held by joint owners, according to subsection (5)(a), the reference in
subsection (1) to the date of death of the author refers, where all the authors' identities are known, to
the date at which the last of the authors died.  Where one or more of the authors' identities are
unknown this date is that of the last of the known au thors to die.  Further subsection (5)(b) states that
the reference in subsection (2) of the Act to the id entity of the author becoming known shall here be
construed as a reference to the identity of any of the authors becoming known.
The terms and length of protection for sound recordings and film are governed by section 11,
which states:
"(1) Copyright in a sound recording or film expires at the end of the period of fifty years
from the end of the calendar year in which it was made or, where it is made available
to the public before the end of the period, fifty years from the end of the calendar year
in which it is so made available.
(2) For the purposes of subsection (1) a sound recording or film is made available to the
public when: -
(a) It is first published, broadcast or included in a cable programme service;
(b) In the case of a film or film sound-track, the film is first shown in public, but
determining whether a sound recording or film has been made available to
the public, any unauthorized act shall be disregarded."
The duration of copyright protection in broadcasts and cable programmes is covered by
section 12.  It goes as follows:
"(1) Copyright is a broadcast or cable programme expires at the end of the period of fifty
years from the end of the calendar year in which the broadcast was made or the
programme included in a cable programme service.
(2) Copyright in a repeat broadcast or a repeat cable programme expires at the same time
as copyright in the original broadcast or cable programme; and accordingly, nocopyright arises in respect of a repeat broadcast or a repeat cable programme service
after the expiry of the copyright in the original broadcast or cable programme.
(3) Reference in subsection (2) to a repeat broadcast or a repeat programme means one
which is a repeat of a broadcast previously made or as the case may be, of a cableprogramme previously included in a cable programme service."
The final category dealt with in the Bill is th at of typographical arrangements.  According to
section 13 this copyright expires at the end of the period of 25 years from the end of the calendar year
in which the edition was first published.
The duration of performers rights are addressed in section 128, which states the following:IP/C/W/317
Page 13
"129.  The rights conferred by this Part continue to subsist in relation to a performance until
the end of the period of fifty years from the end of the calendar year in which the
performance takes place."
8. Please state how your legislation grants the retroactive protection provided pursuant to Article
18 of the Berne Convention (the obligation of whic h derives from Article 9 of the TRIPS Agreement)
and Article 14.6 of the TRIPS Agreement.
Provision has been made in the Antigua and Barbuda legislation for the retroactivity referred
to in the articles.  These provisions can be found in section 153, which is referred to as the
Transitional Provision.  They are as follows:
"(1) Where immediately prior to the appointed day copyright subsists in  Antigua and
Barbuda in any literary, dramatic, musical or artistic work by virtue of the CopyrightAct, 1911 of the United Kingdom, such copyright shall subsist, and the person
entitled thereto by virtue of that Act shall be the owner thereof, under and subject to
this Act, and in particular:
(a) the duration of such copyright;(b) the acts comprised within the exclusive rights  attaching to such copyright;
and
(c) the effect upon the ownership of such copyright of any event or transaction
occurring or of any contract or agreement made on or after the appointed day,
shall be governed by this Act.
(2) Where, on the appointed day copyright subsists in Antigua and Barbuda by virtue of
section 19 (1) of the Copyright Act, 1911 of the United Kingdom, in any record,perforated roll or other contrivance by virtue of which sounds may be mechanically
produced, by virtue of section 12(1) of the Copyright Act, 1956 of the United
Kingdom in any sound recording, such copyright shall continue:
(a) to subsist for the remainder of the period for which it would have subsisted if
this Act had not been passed; and
(b) in relation to any such record, perforated roll or contrivance, sound recording,
to have the meaning and effect it would have had if this Act had not been
passed.
(3) No act done before the appointed day is actionable by virtue of the conferment of the
rights specified in Part III.
(4) The right conferred by section 14 to be identified as the author or, as the case may be,
director of a work, and the right conferred by section 15 to object to derogatory
treatment of such work, shall not apply:
(a) in relation to a literary, dramatic, musical or artistic work of which the author
died before the appointed day; or
(b) in relation to a film made before the appointed day.
(5) The rights in relation to a literary, dramatic, musical or artistic work existing before
the appointed day do not apply:IP/C/W/317
Page 14
(a) where copyright first vested in the author, to anything which, by virtue of an
assignment of copyright made or license granted before the appointed day,
may be done without infringing copyright;
(b) where copyright first vested in a person other than the author, to anything
done by or with the license of the copyright owner.
(5) The right to privacy conferred by section 17 in respect of photographs and films does
not apply to photographs taken or films made, before the appointed day.
(6) Where before the appointed day any person has incurred any expenditure or liability
in connection with or in contemplation of, the doing of an act in relation to a
protected work or a performance in respect of which rights are conferred by this Act,
being an act which prior to that date would have been lawful, nothing in this Act shall
diminish or prejudice any rights or interests which, in relation to that work or
performance, are subsisting and valuable on the appointed day, unless the personwho, by virtue of this Act, is the owner of the copyright or the person having rights in
the performance agrees to pay such compensation as, in default of agreement, may be
determined by the Copyright Tribunal.
(7) Where an act done before the appointed day was then an infringement of copyright
but is not an infringement of copyright unde r this Act, then, proceedings in respect of
that Act may be taken as if this Act had not been passed.
(8) An act done before the appointed day shall not be an infringement of copyright or
rights in performances conferred by this Ac t if that Act would not, but for the passing
of this Act, have constituted an infringement.
(10) Proceedings for infringement of copyright instituted but not disposed of before the
appointed day shall be disposed of as if this Act had not been passed.
(11) Proceedings under this Act for infringement may be taken notwithstanding that the
alleged infringement occurred before the appointed day.
(12) In this section 'appointed day' means the day appointed pursuant to section 1."
C. T
RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under what
conditions it is protectable.
There is no definition for a sign in the Trademarks Bill 2001.  However, according to
section 2 of the Trademarks Bill: -
"'mark' means any visible sign capable of distinguishing the goods ('trademark') or services
('service mark') of an enterprise;"
In reference to the conditions necessary for a trademark to be protected under the Bill,
according to section 3(2):
"(a) A mark cannot be validly registered:
(i) if it is incapable of distinguishing the goods or services of one enterprise
from those of other enterprises;IP/C/W/317
Page 15
(ii) if it is contrary to public order or morality;
(iii) if it is likely to mislead the public or trade circles, in particular as regards the
geographical origin of the goods or services concerned or their nature or
characteristics;
(iv) if it is identical with, or is an imitation of or contains as an element, an
armorial bearing, flag and other emblem, a name or abbreviation or initials of
the name of, or official sign or hallmark adopted by, any State,
intergovernmental organization or organization created by an international
convention, unless authorized by the competent authority of that State or
organization;
(v) if it is identical with, or confusingly similar to, or constitutes a translation of,
a mark or trade name which is well known in Antigua and Barbuda for
identical or similar goods or services of another enterprise, or if it is well-
known and registered in Antigua and Barbuda  for goods or services which
are not identical or similar to those in respect of which registration is appliedfor, provided, in the latter case, that use of the mark in relation to those goods
or services would indicate a connection between those goods or  services and
the owner of the well-known mark and th at the interests of the owner of the
well-known mark are likely to be damaged by such use;
(vi) if it is identical with a mark belonging to a different proprietor and already on
the Register, or with an earlier filing or priority date, in respect of the same
goods or services or closely related goods or services, or if it so nearly
resembles such a mark as to be likely to deceive or cause confusion."
10. Please confirm whether or not services are a protectable subject matter in your trademark
law.  Please confirm if signs, such as trade names, are protectable.  Please describe if elements such
as sound, perfumes and containers are protectable.
Services are protected at the same level as goods as seen by the definition of a mark in
section 2 of the Bill.  Trade names are also protected under this Bill.  Section 10(2) of the Bill statesthat trade names are protected even prior and without registration, notwithstanding any laws or
provisions, from any unlawful act committed by third parties.
The Bill, however, only provides for visible signs.
11. Please explain what the requirements of use are, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a registrationin that respect.
Use is not a requirement for the registration of a trademark.  According to section 5 of the
Bill, the Registrar shall examine the trademark and determine whether it is registrable under section 3.
However, according to section 7(4): -
"Any interested person may request the Registrar to remove a mark from the Register, in
respect of any of the goods or services in respect of which it is registered, on the ground that
up to one month prior to filing the request the mark had, after its registration, not been used
by the registered owner or a licensee during a continuous period of three years or longer; but
that a mark shall not be removed if it is shown that special circumstances prevented the use ofthe mark and that there was no intention not to use or to abandon the same in respect of those
goods or services."IP/C/W/317
Page 16
12. Please confirm whether or not your legislation permits that the registration of trademarks be
indefinitely renewable.
The Act permits that the registration of tradem arks be indefinitely renewable.  This is
provided for in section 6(6) where it is stated that a trademark is renewable every ten years.
13. Please describe the special requirements, if any, prescribed by your legislation concerning
the use of a trademark.
The Bill does not directly specify any special requirements for the use of the trademark.
However, in section 7(4), it gives any person the option to make a request for the removal of the
trademark from the register:
"on the ground that up to one month prior to filing the request the mark had, after its
registration, not been used by the registered owner or a licensee during a continuous period ofthree years or longer; but that a mark shall not be removed if it is shown that special
circumstances prevented the use of the mark and that there was no intention not to use or to
abandon the same in respect of those goods or services."
D. G
EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a trademark
application if it contains a geographical indication.
The Registrar has the power to refuse or invalidate a trademark registration under section 17
of the Geographical Indications Bill if the trademark contains or consists of a geographical indication
with respect to goods not originating from in the terr itory indicated.  The reason for this is that the use
of such indication in the trademark for such goods in Antigua and Barbuda could mislead the public
as to their  true place of origin.  Section 18 applies this principle specifically trademarks for wines or
spirits, which contains or consists of a geographical indication identifying such wines or spirits not
having the particular place of origin.  Section 19 highlights the exceptions to this rule:
"(1) Nothing in this Act shall prevent continued and similar use in Antigua and Barbuda
of a particular geographical indication of another country identifying wines or spirits in
connection with goods or services by any national or domiciliary of Antigua and Barbuda
who has used that geographical indication in a continuous manner with regard to the same or
related goods or services in Antigua and Barbuda either: -
(a) for at least ten years preceding April 15, 1994; or
(b) in good faith preceding that date.
(2) Where a trademark has been applied for or registered in good faith, or where rights to
a trademark have been acquired through use in good faith either: -
(a) before the date of entry into force of this Act; or
(b) before the geographical indication is protected in its country of origin,
this Act shall not prejudice the registrability of or the validity of the registration of a
trademark, or the right to use a trademark, on th e basis that such a trademark is identical with,
or similar to, a geographical indication.
(3) Nothing in this Act shall apply in respect of:IP/C/W/317
Page 17
(a) a geographical indication of any country with respect to goods or services for
which the relevant indication is identical with the term customary in common
language as the common name for such goods or services in Antigua and
Barbuda; or
(b) a geographical indication of any other country with respect to products of the
vine for which the relevant indication is identical with the customary name of
a grape variety existing in Antigua and Barbuda as of January 1, 1995."
15. Please give the definition of a geographical indication in your legislation.
A geographical indication is defined in the Bill under section 2 as: -
"… an indication which identifies a good as originating in the territory of a country, 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;"
"'good' means any natural or agricultural product or any product of handicraft or industry."
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
Under section 9 of the Bill, the Registrar in examining the application in accordance with the
conditions spelt out in sections 6 and 8 must ensure that the application specifies, among other things,
"(a) the geographical areas to which the geographical indication applies;
(b) the goods for which the geographical indication applies;(c) the quality, reputation or other characteristic of the goods for which the geographical
indication is used,"
17. Please describe how additional protection is granted by your legislation to wines and spirits.
Please mention other types of products, if any, covered by this additional protection.
Geographical indications identifying wines and spirits are given additional protection under
the Bill in accordance with Article 23 of the TRIPS Agreement.  This is seen in section 12(1)(c)
where civil proceedings may be instituted to prevent the use of a geographical indication which can
mislead the public as to its place of origin.  Section 13, however, gives this protection to geographical
indications as defined in section 2 whether they are registered or not.
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your
jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of namesconsidered as generic in your jurisdiction.
There has been no application and no litigation under this Bill.  There is no list of names
considered as generic in our jurisdiction.
E. I
NDUSTRIAL DESIGNS
19. Please explain whether or not your legislation extends to the protection of designs dictated
essentially by technical or functional considerations.  Please explain how textile designs are
protected.IP/C/W/317
Page 18
According to the Industrial Designs Bill 2001 section 3(2), the legislation does not extend
protection to those types of designs:
"(2) The protection under this Act does not extend to anything in an industrial design
which serves solely to obtain a technical result and to the extent that it leaves no
freedom as regards arbitrary features of appearance."
Under the Bill, protection is provided for textil e designs that fall within the definition of an
industrial design as given in section 3(1). The procedure for obtaining such protection is outlined in
section 6, which deals with the necessary docum ents that must be filed with application.
"(1) Where the Registrar finds that the conditions referred to in sections 3 and 4 (4) are
fulfilled, he shall register the industrial design, publish a reference to the registration
and issue to the applicant a certificate of registration of the industrial design;otherwise, he shall refuse the application."
Section 4(4) deems a design registrable once it is not contrary to public order and morality.
20. Please explain how your legislation protects right holders of a design against importing of
articles bearing embodied or copied design.
Under section 9 of the Bill, the rights conferred on the owner of the registered design include
the protection from exploitation as defined in the Act under subsection (2):
"For the purposes of this Act, 'exploitation' of a registered industrial design means the
making, selling or importation of articles incorporating the industrial design."
Unless consent has been given by the right holder for the goods to be imported into Antigua
and Barbuda and be placed on the market, the right holder has remedies available to him in
accordance with subsection (4).
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
The Act does not speak to the right to issue co mpulsory licences.  A person has the right to
issue a licence as long as it is registered in accordance with section 14 of the Bill in order to make iteffective.
22. Please indicate for what period of time your  legislation grants protection for industrial
designs.
The term of protection for a registered industrial design is for a period of five years and it can
only be renewed for two consecutive periods of five years.  This is spelt out in section 10(1) and (2).
F. P
ATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
Under section 3 of the Patents Bill 2001, the terms novelty or new, inventiveness and
industrial application are defined as follows:
"(2) An invention is new if it is not anticipated by prior Article.IP/C/W/317
Page 19
(3) Prior art shall consist of everything disclosed to the public, anywhere in the world, by
publication in tangible form or by oral disclosure, by use or in any other way, prior to
the filing or, where appropriate, the priority date, of the application claiming the
invention.
(5) An invention shall be considered as involv ing an inventive step if, having regard to
the prior art relevant to the application claiming the invention and as defined insubsection (2)(b), it would not have been obvious to a person having ordinary skill in
the Article.
(6) An invention shall be considered industrially applicable if it can be made or used in
any kind of industry.  'Industry' shall be understood in its broadest sense; it shall
cover, in particular, handicraft, agriculture, fishery and services."
24. Please explain whether or not in your legislation, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions are provided for, please describe in detail how theseexclusions are applied in legal as well as practical terms.
The Bill does provide for exclusions in terms of the rights enjoyed by the owner of a patent.
This is dealt with in section 11(4), which states as follows:
"The rights under the patent shall not extend:
(a) to acts in respect of articles which have been put on the market in Antigua and
Barbuda by the owner of the patent or with his consent; or
(b) to the use of articles on aircraft, land vehicles or vessels of other countries which
temporarily or accidentally enter the airspace, territory or waters of Antigua and
Barbuda; or
(c) to acts done only for experimental purposes relating to a patented invention;  or
(d) to acts performed by any person who in good faith, before the filing or, where priority
is claimed, the priority date of the application on which the patent is granted and in
Antigua and Barbuda, was using the invention or was making effective and serious
preparations for such use."
25. Please explain whether your legislation provides for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Questions 25-28 are dealt with in section 2 where it lists the inventions that are excluded from
protection under this Act in subsection 2.  This is in accordance with Article 27(3)(b) of the TRIPS
Agreement, which allows for the exclusion of plants and animals other than micro-organisms and
essentially biological processes for the production of  plants or animals other than non-biological and
microbiological processes.  In accordance with Article 27(2), the inventions, the prevention of the
commercial exploitation of which is necessary to protect public order or morality are excluded
provided that such exclusion is not made merely because law prohibits the exploitation.  The rationale
behind these exceptions is to ensure that inventions  that are dangerous to human, animal or plant life
or health or would be seriously prejudicial to the environment are not protected, and inventions or insome cases discoveries that are essential to the protection and preservation life are not to be patented.IP/C/W/317
Page 20
26. Please explain whether or not diagnostic, therapeutic and surgical methods are excluded
from patentability in your legislation. If so, please explain the relevant section of your legislation and
explain its formulation.
Please see the answer to question 25.
27. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation. If so, please explain the relevant section of your
legislation and explain its formulation.
Please see the answer to question 25.
28. Please describe how micro-organisms, non-essent ially biological processes, microbiological
processes and plant varieties are protected in your legislation. Please explain, in this respect, the
relevant sections of your legislation.
Please see the answer to question 25.
29. Please explain how your legislation protects patent right holders against the importing and
against the offering for sale of a patented invention.
The owner of a patent has rights conferred on him as a result of the grant and these rights are
listed in section 11 of the Bill.  Included in these rights is the right to bring an action before the High
Court for any infringement as defined in the Bill.  According to section 11(2)(a)(i), the making,
importing, offering for sale, and the use of the patented product without the patent owner's permission
is an infringement.
30. Please state if your legislation provides for patent product protection of pharmaceutical and
agricultural chemical products.  In the affirmative, please indicate the legal reference.
Section 11(2)(a) provides protection for patent products.  It recognizes that exploitation of the
patent product by selling, making, importing, offering for sale the patent product without the patent
owner's consent is a violation of his rights and this is actionable in Court.  This right is subject to
sections 13 and 14, which deal with non-voluntary licences and permitted exploitation.
31. Please clarify if the patent protection of a process, as provided for in your legislation, covers
the product obtained directly by that process.
Section 11(2)(b)(ii) gives that protection to the product obtained directly by the patented
process.
32. Please explain the additional conditions, if any, in your legislation other than the sufficient
disclosure of the invention in Article 29 of the TRIPS Agreement (e.g. submission of justification for
access to genetic material or prior inform consent to its use).  If such additional conditions exist,
please point out the relevant legislations and describe the additional conditions in detail.
In addition to the requirement for sufficient disclosure, the Bill does provide for other
additional conditions that must be satisfied before the application is processed. In accordance with
Article 29.2 of the TRIPS Agreement, section 8 of the Act gives the Registrar the right to request the
date and number of any application for a patent filed by the applicant abroad relating to the same oressentially the same invention as that claimed in  the application flied with the Office.  Also, at the
request of the Registrar, the applicant shall furn ish the relevant documents relating to one of the
foreign applications referred to in section 8(1) as listed in section 8(2).  International applications for
patents designating Antigua and Barbuda once it has acceded to the Patent Cooperation Treaty (PCT)IP/C/W/317
Page 21
would not be considered foreign applications in the meaning of subsection 2.  The documents, which
include a copy of the patent granted on the basis of the foreign application, would prove very helpful
to the Registrar if examination is carried out in accordance with section 9(4) and(5) of the Bill.
33. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
There are limits imposed on the rights conferred on the right holder.  The limits are dealt with
in section 11(4) of the Patent Bill:
"(1) The rights under the patent shall not extend:
(a) to acts in respect of articles which have been put on the market in Antigua
and Barbuda by the owner of the patent or with his consent; or
(b) to the use of articles on aircraft, land vehicles or vessels of other countries
which temporarily or accidentally enter the airspace, territory or waters of
Antigua and Barbuda;  or
(c) to acts done only for experimental purposes relating to a patented invention;
or
(d) to acts performed by any person who in good faith, before the filing  or,
where priority is claimed, the priority date of the application on which the
patent is granted and in Antigua and Barbuda, was using the invention or wasmaking effective and serious preparations for such use."
34. Please explain whether or not your legislation provides for compulsory licensing. If so, please
explain in detail the conditions under which a compulsory licence may be granted.  In particular,
please explain how your national le gislation considers individual merits in the authorization of such
use.
The Bill does provide for compulsory licences.  Section 14 provides for non-voluntary
licences and the conditions under which they may be granted:
"(1) On request, made to the Registrar after the expiration of a period of four years from
the date of filing of the patent application or three years from the date of the grant of
the patent, whichever period expires last, the Registrar may issue a non-voluntary
licence if he is satisfied that the patented invention is not exploited or is insufficiently
exploited, by working the invention locally or by importation, in Antigua  and
Barbuda."
However, according to subsection 2, if the pa tent owner can satisfy the Registrar that
circumstances exist that justify the non-exploitation or insufficient exploitation of the patentedinvention in Antigua and Barbuda, such a licence will not be issued.  Section 14(9) provides that
subsections 2-10 of section 13 shall apply mutatis mutandis.  This means that references to the
Minister's authorization would have to read as references to the non-voluntary licence issued or
requested to be issued by the Registrar.  For instance, section 12(3) states that authorization can only
be given if efforts have been made to obtain a contractual licence and have failed.  This requirement iswaived in cases of emergency or other circumstances of extreme urgency.  In such cases, the owner of
the patent is, however, to be informed as soon as reasonably possible.  Subsections 2-10 of section 13
point out the various  circumstances that would perhaps justify the issuance of a compulsory licence
and the conditions attached to each licence.  Therefore, before the authorization is given, the
individual merits must be considered.IP/C/W/317
Page 22
35. Please explain how your legislation explicitly ensures that a proposed user has made efforts
to obtain authorization from the right holder on reasonable commercial terms and conditions and that
such efforts have not been successful within a reasonable period of time. In this context, how do you
define "reasonable period of time".  Please also explain how your legislation ensures that the use of a
compulsory licence shall be authorised predominantly for the supply to the domestic market of theMember authorizing such use.
Section 13(3) states that proof of the attempt to obtain a licence on reasonable commercial
terms and conditions and within a reasonable time from the owner of the patent must be given with
the request for a non-voluntary licence.  Reasonable time can perhaps be viewed in reference to
section 14(1) which gives the Registrar the right to issue a non-voluntary licence after three or four
years during which time the patent has not been exploited or has not been sufficiently exploited.  The
Bill gives the Registrar, or any other person so appointed, that discretion.
According to section 14(4) of the Bill, the bene ficiary of the licence has the right to exploit
the patent only in the domestic market in accordance with the terms and conditions as stated in the
licence.
36. Please state if your legislation grants additional protection for innovations after the 20 years
of patent protection has lapsed.
The Bill does not grant additional protection for innovations after the 20 year term of
protection has expired.
37. Please explain how your legislation provides for the enhanced patent protection of patents or
patent applications pending on 1 January 1995.
There is no specific provision that at present provides for the enhanced patent protection of
patent application pending on 1 January 1995.  The Minister, however, has the right under
section 37(6) to make any further transitional or saving provisions that appear to him to be necessary
or desirable.  This section provides for the continued protection of patents already registered in theIntellectual Property Office for the unexpired portion of the protection.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
According to section 34(4) of the Bill:
"(3) For the purposes of proceedings, other than criminal proceedings, in respect of the
violation of the rights of the owner of the patent referred to in subsections (1) and (2),
where the subject matter of the patent is a  process for obtaining a product, the burden
of establishing that an identical product was not made by the process shall be on the
alleged infringer if:
(a) the product was new; or
(b) a substantial likelihood exists that the product was made by the process and
the owner of the patent has been unable through the reasonable efforts to
determine the process actually used."
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects Topographies.IP/C/W/317
Page 23
Topographies are protected from infringement through registration under the Integrated
Circuit Topography Bill, once they comply with  the following conditions within section 4:
"(1) Subject to subsection (4), a topography is registrable under this Act only if the
following conditions are met:
(a) the topography is original;
(b) an application for registration of the topography, containing the information
and material required by subsection 16(2) and accompanied by the fee
required by subsection 16(3), is filed with  the Registrar before thetopography is first commercially exploited or within two years thereafter; and
(c) the creator of the topography is, at the time of its creation or on the filing date
of the application:
(i) a national of Antigua or an individual or legal entity that has in
Antigua a real and effective establishment for the creation of
topographies or the manufacture of integrated circuit products,
(ii) a national of a country that, either directly or through its membership
in an intergovernmental organization, affords protection fortopographies in accordance with a convention or treaty to which that
country or intergovernmental organization and Antigua and Barbuda
are contracting parties, or an individual or legal entity that has in
such a country or in the territory of a member state of such an
intergovernmental organization an establishment of the kind referredto in subparagraph (i),
(iii) a national of a country or of a member state of an intergovernmental
organization that the Minister has certified by notice published in the
Gazette   to be a country or intergovernmental organization that
confers protection on nationals of Antigua and Barbuda or legal
entities that have an establishment of the kind referred to in
subparagraph (i) that is substantially equal to the protection conferred
by this Act, or an individual or legal entity that has in such a country
or in the territory of a member state of such an intergovernmentalorganization an establishment of that kind, or
(3) Where a topography consists of a combination of elements or interconnections that
are commonplace among creators of topographies or manufacturers of integratedcircuit products, the topography shall be considered to be original only if the
combination, considered as a whole, meets the conditions referred to in
subsection (2).
(4) A topography that is not registrable by reason that the condition set out in paragraph
(1)(c) cannot be met is registrable if the topography is first commercially exploited in
Antigua and Barbuda."
40. Please explain what protection your national legislation grants to right holders against the
unlawful importation, sale or distribution for commercial purposes of topographies includingintegrated circuits or other articles in which a topography is incorporated in accordance with
Article 36 of the TRIPS Agreement.IP/C/W/317
Page 24
According to section 6(1) of the Bill:
"The exclusive right in a registered topography is infringed by any person who does any act
referred to in section 3(2) without the consent of the owner of the registered topography."
These acts include the unlawful importation, sale or distribution for commercial purposes of
topographies, or any substantial part of it, or an integrated circuit product that incorporates the
topography, or any substantial part of it.  The remedies for such infringements are found in section 8,
where action may be brought before the Court.  Under section 9, the Court has the right to make
orders as deemed necessary, according to the circumstances:
"… including orders providing for relief by way of injunction, the payment of royalties and
the recovery of damages or profits, for punitive damages, and for the disposal of anyinfringing integrated circuit product or any article of which an infringing integrated circuit
product forms a part."
41. Please explain how your legislation provides for the derogation from Article 36 as specified
in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable grounds toknow when acquiring an integrated circuit or an article incorporating such an integrated circuit that
it contains an unlawful topography.
Section 10 provides for innocent infringement where once the defendant can prove that, at the
time he acquired the integrated circuit product, he did not know and had no reasonable grounds to
believe that the integrated circuit product was manufactured and sold for the first time without theconsent of the owner of the registered topography, he will not be liable for royalties, damages, profits
or punitive damages in respect of any dealings with  the integrated circuit product prior to the time
when he had actual knowledge that the product wa s manufactured and sold for the first time without
the consent of the owner.  However, according to section 10(b), the defendant does have the right to
dispose of any inventory of the integrated circuit product or of the article of which the integratedcircuit product forms a part that was acquired before he had that knowledge, subject to the condition
that he pays a reasonable royalty in respect of th at inventory in such amount and at such time as the
court may determine.
42. Please state the term of protection granted by your legislation to topographies.
The term of protection as stated in section 5 is as follows:
"(a) The exclusive right in a registered topography shall subsist for a period commencing
on the filing date of the application for registration of the topography; and
(b) terminating at the end of the tenth calendar year after the earlier of the calendar year
in which the topography is first commercially exploited and the calendar year of thefiling date of the application."
H. P
ROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislation grants a defined period of time for the
protection of undisclosed information. If so, please give the time span.
Section 8(5) of the Unfair Competition Bill stat es the previous section precludes anyone other
than the person who submitted the undisclosed information from relying on such information in
support of an application for product approval for a reasonable period of time after the submission of
the undisclosed information and the period of time shall be determined by the Court, taking account ofIP/C/W/317
Page 25
the nature of the information and the person's efforts and expenditure in producing them, and shall
normally not be less than five years.
44. Please explain how your legislation defines undisclosed information.
According to section 8(3) of the Bill:
"For the purposes of this section, information shall be considered secret information if: -
(a) it is not, as a body or in the precise configuration and assembly of its components,
generally known among or readily accessible to persons within the circles that
normally deal with the kind of information in question;
(b) it has commercial value because it is secret; and(c) it has been subject to reasonable steps under the circumstances by the rightful holder
to keep it secret."
45. Please explain how your legislation defines da ta submitted to governments or governmental
agencies.
There is no special treatment of the term "data" in the Bill as it pertains to governments or
government agencies.  However, data given to such agencies may fall within the scope of
section 8(4)(b) where it states that disclosure of such data necessary for the protection of the public
and where steps are taken to ensure that the data are protected against unfair commercial use shall notbe considered an act of unfair competition.
I. E
NFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Each Bill has provisions that deal with the various remedies available to the right holder when
his or her rights are violated or infringed.  The remedies available in civil include injunctions as an
interim measure necessary to prevent the infringeme nt from taking place, payment of royalties and/or
damages to the right holder, and the confiscation of the illicit goods and the mechanism used to create
the infringed goods.
In terms of an action in criminal, the infringer will be made to either pay a fine and/or serve a
prison term.  The Court has the jurisdiction to grant any remedy it deems appropriate to ensure that
the injured party is properly compensated and that the offender is deterred from committing such acts.
47. Please explain whether or not your legislation provides for a mechanism to appeal to judicial
bodies of final administrative decisions.
Any interested party has the right to appeal any decisions made by the Registrar in the
exercise of his/her duties.  Section 22 of the Trademarks Bill points out that appeals are to be made to
the High Court where the Registrar and the affected party will be given a chance to be heard.  The
appeal must be made within two months of the date of the decision.  This provision is repeated in
section 33 of the Patent Bill, section 20 of the Industrial Designs Bill, and section 16 of theGeographical Indications Bill. Decisions from this C ourt may also be appealed in the Court of Appeal,
and then the Privy Council, the final Court of Justice for Antigua and Barbuda.IP/C/W/317
Page 26
48. Please describe how your legislation authorizes judges to order production of evidence by the
opposing party.  Please give precise information on what measures are taken to ensure the protection
of confidential information.
The Court usually assumes that the applicant for re lief is the true right holder in the absence
of any challenge thereto, or denial by a responden t.  According to the Rules of Court, the onus is
placed on the respondent to produce the evidence in this case to disprove the applicant's case.  Forinstance, Section 34(4) of the Patent Bill gives the Court the right to the order the production of
evidence by the opposing party;
"… the burden of establishing that an identical product was not made by the process shall be
on the alleged infringer if:
(a) the product was new; or(b) a substantial likelihood exists that the product was made by the process and the owner
of the patent has been unable through the reasonable efforts to determine the process
actually used."
This is no specific statutory provision giving the Court directives regarding confidential
information except as provided for in section 34(5) of the Patent Act where the Court has to take into
account the legitimate interests of the alleged infringer in not disclosing his manufacturing and
business secrets when the information is used as evidence.  It is entirely within the Court's discretion
to determine how best to protect confidential info rmation brought forward as evidence.  Generally, the
onus lies on the person claiming confidentiality of th e information to apply to the Court for directions
as to confidentiality.
The High Court of Antigua and Barbuda usually holds the substantive trial of litigation in
open court.  However, some of the preliminary proceedings may be held "in Chambers" or closedcourt.  The Court may also sit in camera where it is satisfied that it is necessary to do so to protect
legitimate confidential information.
49. Please quote provisions of your legislati on that authorize judges to order a defendant to
desist from an infringement.
Under section 23(2), the Court has the right upon the application of the right holder to:
"grant an injunction to prevent infringement, an imminent infringement, or an unlawful act
referred to in section 6(2),"
This provision is repeated in the other pieces of legislation governing intellectual property.
This power is within the general powers of the Court to order any respondent, upon application by theapplicant, to desist from an infringement.
50. Please quote what provisions of your legislation authorize judges to order the payment to the
right holder of adequate damages to compensate the injury he suffered.
Under its general jurisdiction and under the provisions of the various intellectual property
Bills, the Court has wide powers to order the payment to the right holder of adequate damages to
compensate the loss suffered.  Section 9 of the Integrated Circuit Topography Bill states:
"In an action for infringement of the exclusive right in a registered topography, a court of
competent jurisdiction may make such orders as the circumstances require, including ordersIP/C/W/317
Page 27
providing for relief by way of injunction, the payment of royalties and the recovery of
damages or profits, for punitive damages…."
Under the Copyright Bill, section 32, the Court may grant to the injured party such relief by
way of damages.  Section 32(2) states:
"Where in an action under this section an infringement of copyright is proved or admitted the
court, having regard the to the benefit accruing to the defendant by reason of the
infringement, to the flagrancy of the infringeme nt and to all other material considerations,
shall have the power to award such additional damages as the court may consider appropriate
in the circumstances."
51. Please quote what provisions of your legislation authorize judges to order the payment of the
right holder's expenses by the infringer.
Damages usually include the recovery of commercial losses associated with the infringement
and an award in damages would normally be accomp anied by an order for payment of legal costs
incurred by the successful party in the case.  As seen in the provisions quote above, once the Court is
satisfied that the right holder has suffered loss, the Court has the power to order damages accordingly.The Civil Procedure Rules of the Supreme Court of the Eastern Caribbean govern all civil action
within the High Court.
52. Please explain if and how judges have the authority to order that infringing goods are placed
outside channels of commerce or destroyed.
Section 137 describes the procedure and the circumstances for bringing such infringement
issues to the Court under the Copyright Bill:
"(1) An application may be made to the High Court for: -
(a) an order that an infringing copy or article delivered up in pursuance of an
order under sections 33 and 48 shall be: -
(i) forfeited to the copyright owner; or
(ii) destroyed or otherwise dealt with as the court may direct;
(b) an order that an illicit recording of a performance delivered up in pursuance
of an order under section 133 or 135 shall be: -
(i) forfeited to such person having performer's rights or recording rights
in relation to the performance as the court may direct; or
(ii) destroyed or otherwise dealt with as the court thinks fit; or
(c) a decision that no order under paragraph (a) or (b) should be made."
53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in
the event of abuse by the plaintiff.
Within the inherent jurisdiction of the Court, provisions are usually made for the
compensation of the respondent in the event he suffers loss during any wrongful action on
infringement.  For instance, in the case of an in terim injunction or any other interim measure imposed
by the Court, the applicant is usually required to give an undertaking and also pay into Court a sum ofIP/C/W/317
Page 28
money that would cover any loss suffered by the respondent as a result of the applicant's action that
has proven to be unjustified.
54. Please explain how your legislation impl ements Article 50 of the TRIPS Agreement.
Under the draft legislation, the Court has the power to grant injunctions or any other relief it
sees fit to order.  In the cases of extreme urgency, an application for an interim injunction or any otherinterim measure may be made in accordance with Rule 17 of the Eastern Supreme Court Civil
Procedure Rules, where the application can be made without notice or ex parte .  The Court may order
an interim remedy on such an application without notice if it appears to the Court that there  are good
reasons for not giving notice.  The application in this instance must state the reasons for not giving
notice (R. 17.3(3)).  In general, three days notice must be given to the respondent.  The Court will
hear this matter immediately the application is filed, and it may grant an interim order on an
application made without notice for a period of not more than 28 days (unless any of the rules permitsa longer period) if it is satisfied that-
"17.4(4):
(a) in a case of urgency no notice is possible; or(b) that to give notice would defeat the purpose of the application."
On granting an order under paragraph (4) the Court must fix a date for further consideration
of the application form, and fix a date on which the injunction, for instance, will terminate unless a
further order is made on the further consideration of the application (5).  Paragraph (6) of this rule
gives a time period of 7 days within which the applicant must serve the respondent before the date
fixed for further consideration of the application.
55. Please identify the competent authorities in your jurisdiction who receive requests from right
holders for an application to suspend the release of counterfeit goods by the customs authorities.
The Copyright Bill makes provision for an application to be made by the right holder to the
Comptroller of Customs in section 50 to suspend the release of counterfeit goods.  It states that an
application must be made to the Comptroller of Customs for him to treat the goods as prohibited
goods under the Customs Control and Management Act, No. 7 of 1993, which are defined in section 2as:
"goods of a class or description of which the importation, exportation or carriage coastwise is
for the time being prohibited or restricted  under or by virtue of any enactment;"
According to section 84 of the said Act, no goods as prescribed in Part 1 of the Third
Schedule may be imported into Antigua.  These goods include goods, the importation of which is
prohibited by law.  All illicit or infringed goods may be brought within the scope of this provision.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
As pointed out previously, the relief available to the right holder includes the granting of
injunctions whether interim or long term, either to prevent the infringement from taking place or to
stop it from continuing.  Such a remedy can stop the exportation of goods.
57. Please quote what provisions of your legislation authorize the competent authorities to order
the destruction or disposal of infringing goods.IP/C/W/317
Page 29
Under the Copyright Bill, the Court can order th e destruction or disposal of infringing goods
upon an application made by a right holder under sect ion 137 of the Bill. Section 137(1) states that:
"An application may be made to the High Court for:
(a) an order that an infringing copy or article delivered pursuance of an order under
sections 33 and 48 shall be: -
(i) forfeited to the copyright owner; or
(ii) destroyed or otherwise dealt with as the court may direct;"
Under the Integrated Circuit Topography Bill, section 9 points out that the Court may make
an order for the  disposal of any infringing integrated circuit product or any article of which an
infringing integrated circuit product forms a part.
58. Please indicate whether or not your legislation provides for a de minimis imports exception.
[No response received]
59. Please explain how your legislation impl ements Article 61 of the TRIPS Agreement.
Section 23 of the Trademarks Bill states that:
"(4) Any person who knowingly performs an act which constitutes an infringement as
defined in subsection (1) or an unlawful act as defined in section 6(2) is guilty of an
offence and is liable on summary conviction to a fine of $100,000 and to
imprisonment for a term of five years.
The following is a list of criminal penalties and procedure as set out in the Copyright Bill in
section 46:
(4) Any person who is guilty of an offence under subsection (1) is liable: -
(a) on summary conviction to a fine not exceeding five thousand dollars or to
imprisonment for a term not exceeding two years or to both such fine andimprisonment;
(b) on conviction on indictment to a fine not exceeding five thousand dollars or
to imprisonment for a term not exceeding three years or to both such fine and
imprisonment.
(5) Any person who is guilty of an offence under subsection (2) or (3) is liable: -
(a) on summary conviction to a fine not exceeding two thousand dollars or to
imprisonment for a term not exceeding two years or to both such fine and
imprisonment;
(b) on conviction on indictment to a fine not exceeding five thousand dollars or
to imprisonment for a term not exceeding two years or to both such fine and
imprisonment.
(6) Any person who manufactures or imports into Antigua and Barbuda for sale or
rental: -IP/C/W/317
Page 30
(a) any device or means specifically designed or adopted to circumvent any
device or means intended to prevent or restrict reproduction of a work, a
phonogram or a broadcast or to impair the quality of copies made;
(b) any device or means that is susceptible to enable or assist the reception of an
encrypted program, which is broadcast or otherwise communicated to the
public including by satellite, by those who are not entitled to receive the
programme;
commits an offence and is liable on conviction to a fine not exceeding ten thousand
dollars or to a term of imprisonment not exceeding two years.
(7) Any person who: -
(a) removes or alters any electronic rights management information without
authority; or
(b) distributes or imports for distribution, broadcasting, communication to the
public or making available to the public, without authority, of works
performances, phonograms or broadcasts, knowing or having reason to know
that electronic rights management information has been removed or altered
without authority commits an offence and is liable on conviction to a fine notexceeding ten thousand dollars or to a term of imprisonment not exceeding
two years."
These are enforced in accordance with the Criminal Procedure Act (Cap. 117) of Antigua and
Barbuda.
JAPAN
A.
COPYRIGHT AND RELATED RIGHTS
Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbou ring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
The governing legislation for this area is th e Copyright Bill.  According to section 5,
"(1) Unless otherwise specifically provided in this Act, copyright does not subsist in any
work unless it satisfies the requirements specified in this part as respects: -
(a) the category of work; and
(b) either: -
(i) the qualification of the author; or
(ii) the country or place of first publication, or in the case of a broadcast
or cable programme, the country or place where it is made or from
which it is sent, as the case may be."
Section 8 goes on to provide a more detailed explanation for the term "country or place":IP/C/W/317
Page 31
"(1) A literary, dramatic, musical or artistic work, a sound recording or film, or the
typographical arrangement of a published edition qualifies for copyright protection if,
having regard to section 3, it is first published in Antigua and Barbuda or a specified
country.
(2) A broadcast qualifies for copyright protection if it is made from a place in Antigua
and Barbuda or a specified country by a broadcasting organization in possession of a
valid licence granted to it under any law in Antigua and Barbuda or a specified
country regulating broadcasting.
(3) A cable programme qualifies for copyright protection if it is sent from a place in
Antigua and Barbuda or in a specified country in accordance with the law in force
regulating transmission by cable."
Therefore protection may be provided equally for those in the local right holders as well as
those right holders from the Member States.  This position is further defined in section 144(1-3):
"(1) Subject to the provisions of this section the Minister may by order provide that in
respect of any country specified in the order, any provisions of this Act so specified
shall apply: -
(a) in relation to persons who are citizens or habitual residents of that country as
they apply to persons who are citizens or habitual residents of Antigua andBarbuda;
(b) in relation to bodies incorporated or established under the law of that country
as they apply in relation to bodies incorporated or established under the laws
of Antigua and Barbuda;
(c) in relation to literary, dramatic, musical or artistic works, sound recordings,
films and editions first published in that country as they apply in relation to
such works, sound recordings, films and editions first published in Antigua
and Barbuda;
(d) in relation to broadcasts made from or cable programmes sent from that
country as they apply in relation to broadcasts made  from or cable
programmes sent from Antigua and Barbuda;
(e) in relation to performances taking place in that country or given by an
individual who is a citizen or habitual resident of that country, as they apply
in relation to performances taking place in Antigua and Barbuda or given by
an individual who is a citizen or habitual resident of Antigua and Barbuda.
(2) An order made under this section applying any provisions of this Act in relation to
any country may apply that provision: -
 (a) without exception or modification or subject to such exceptions and
modifications as may be specified in the order;
(b) generally or in relation to such classes of works or other classes of case as
may be so specified.
(3) An order shall not be made under this section in relation to any country unless the
country is: -IP/C/W/317
Page 32
(a) a Convention country; or
(b) a country as to which the Minister is satisfied that provision has been or will
be made under its law in respect of the class of works or (as the case may be)
the performances, to which the order relates, giving adequate protection tothe owners of copyright under this Act or, as the case may be, to Antigua and
Barbuda works and performances as defined in section 145(4).
(6) In this section "Convention country" means a country which is a party to a
Convention relating to copyright or performers' rights, as may be appropriate, to
which Antigua and Barbuda is also a party.
In general, the owner of a copyright from any other country will receive the same protection
under the law given to those in Antigua and Barbuda as long as it falls within the categories or satisfy
the conditions spelt in the Bill.  Any special protection for a particular copyright or related right will
apply to all.
SWITZERLAND
A. 
GEOGRAPHICAL INDICATIONS
1. Please explain in detail how your legislation provides protection for geographical
indications.
The Geographical Indication Bill 2001 provides for the protection of geographical indications
in accordance with Article 22 of the TRIPS Agreem ent.  Protection is provided for those geographical
indications regardless of registration that fall within the definition of geographical indications
contained in section 2 of the Act.  Registration shall raise a presumption that such indication is ageographical indication within the meaning of section 2 (See section 13 of the Bill).  Examples of
such indications are indications that identify goods such as any natural or agricultural product or any
product of handicraft or industry as originating in the territory or country, or a region or locality in
this territory.
Section 4 of the Bill gives protection to geographical indications registered or un-registered,
and protection against a geographical indication which, although literally true as to the territory,
region or locality in which the goods originate, falsely represents to the public that the goods originate
in another territory.
Section 5 provides protection for homonymous geographical indications for wines.
Section 6 points out the goods that will not be protected as geographical indications.  These
include indications which do not correspond to the definition in section 2; indications which are
contrary to public order or morality; geographical indications which are not or cease to be protected in
their country of origin, or which have fallen into disuse in that country.
According to section 11, only producers carrying on their activity in the geographical area
specified in the Register shall have the right to use a  registered geographical indication, in the course
of trade, with respect to the products specified in the Register, provided that such products possess the
quality, reputation or other characteristic specified in the Register.
Section 12(1)(c) of the Bill establishes that any interested person and any interested group of
producers or consumers may institute proceedings in the Court to prevent, in respect of geographical
indication, the: -IP/C/W/317
Page 33
"(c) use of a geographical indication identifying wines for wines not originating in the
place indicated by the geographical indication in question or identifying spirits for
spirits not originating in the place indicated by the geographical indication in
question, even where the true origin of the goods is indicated or the geographical
indication is used in translation or accompanied by expressions such as 'kind', 'type','style', 'imitation' or the like."
and in proceedings under this section, the Court may, in addition to issuing an injunction, award
damages and grant any other remedy or relief as it may deem fit. (See section 12(2) of the Bill).
B. 
PATENTS
2. Does your legislation grant patent protection to all categories of products or are there any
exceptions?  If so, please explain in detail what kind of exceptions exist and how they comply with
Article 27 of the TRIPS Agreement.
The TRIPS Agreement under Article 27 provides for three permissible exceptions to the basic
rule on patentability.  One for inventions contrary to public order or morality, the second is for theexclusion of diagnostic, therapeutic and surgical me thods for the treatment of humans or animals, and
the third is that Members may exclude plants and animals other than those categorized in the Article.
The Patent Bill 2001 defines what is a patent and defines what is an invention for the
purposes of this Bill, mentioning the two existing  categories of inventions, namely product inventions
and process inventions.  Product inventions exist in tangible form, e.g., machines, equipment, devices,
etc., and process inventions generally consist of a series of steps for producing a product or a desired
result, e.g., artificially colouring citrus fruits.
Subsection 2 lists subject matter that is excluded from patent protection.  The basic difference
between a discovery, mentioned in item (i), and an  invention is that a person who makes an invention
"creates" something that has not existed before whereas the person who makes a discovery does not
create but reveals the existence of something which was unknown up to then.  Item (ii) concerns
instructions to the human mind that cannot be patented.  The exclusion of methods of treatment and
diagnostic methods is in item (iii), clearly states that products for applying such methods (e.g.,medical equipment) are not excluded.
 
"(2) The following, even if they are inventions  within the meaning of subsection (1), shall
be excluded from patent protection:
(i) discoveries, scientific theories and mathematical methods;
(ii) schemes, rules or methods for doing business, performing purely mental acts
or playing games;
(iii) methods for treatment of the human or animal body by surgery or therapy, as
well as diagnostic methods practiced on the human or animal body; thisprovision shall not apply to products for use in any of those methods;
(iv) plants and animals other than micro organisms;(v) essentially biological processes for the production of plants or animals other
than non-biological and microbiological processes;
(vi) plant varieties;IP/C/W/317
Page 34
(vii) inventions, the prevention within Antigua and Barbuda of the commercial
exploitation of which is necessary to protect ordre public  or morality,
including to protect human, animal or plant life or health or to avoid serious
prejudice to the environment, provided that such exclusion is not made
merely because the exploitation is prohibited by law."
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
The draft Patent Bill does consider the importation of patent as "working" a patent.  This is
seen in section 14 of the Bill:
"(1) On request, made to the Registrar after the expiration of a period of four years from
the date of filing of the patent application or three years from the date of the grant of
the patent, whichever period expires last, the Registrar may issue a non-voluntary
license if he is satisfied that the patented invention is not exploited or is insufficientlyexploited, by working the invention locally or by importation, in Antigua and
Barbuda."
4. Does your legislation make the granting of a compulsory licence subject to all the conditions
enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant provisions of law.
The Act does provide for compulsory licences.  Section 14 provides for non-voluntary
licences and the conditions under which they may be granted:
"the Registrar may issue a non-voluntary license if he is satisfied that the patented invention
is not exploited or is insufficiently exploited, by working the invention locally or by
importation, in Antigua and Barbuda."
However, according to subsection 2, if the patent owner can satisfy the Registrar that
circumstances exist that justify the non-exploitation or insufficient exploitation of the patentedinvention in Antigua and Barbuda, such a licence will not be issued. Section 14(9) provides that
subsections 2-10 of section 13 shall apply mutatis mutandis .  This means that references to the
Minister's authorization would have to read as references to the non-voluntary licence issued or
requested to be issued by the Registrar.  For inst ance, section 12(3) states that authorization can only
be given if efforts have been made to obtain a contractual licence and have failed.  This requirement is
waived in cases of emergency or other circumstances of extreme urgency.  In such cases, the owner of
the patent is, however, to be informed as soon as reasonably possible.  Subsections 2-10 of section 13point out the various circumstances that would perhaps justify the issuance of a compulsory licence
and the conditions attached to each licence.  Therefore, before the authorization is given, the
individual merits must be considered.
5. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
The Bill does provide for the principle of reversal of burden of proof in a process patent
litigation.  According to section 34(4) of the Bill:
"For the purposes of proceedings, other than crim inal proceedings, in respect of the violation
of the rights of the owner of the patent referred to in subsections (1) and (2), where the subject
matter of the patent is a process for obtaining a product, the burden of establishing that an
identical product was not made by the process shall be on the alleged infringer if:IP/C/W/317
Page 35
(a) the product was new; or
(b) a substantial likelihood exists that the product was made by the process and the owner
of the patent has been unable through the reasonable efforts to determine the process
actually used."
C. PROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market authorisation of
a pharmaceutical or of an agricultural chemical product is protected against disclosure and againstunfair commercial use by a competitor, for example by prohibiting a second applicant from relying
on, or from referring to the original data of the first applicant, when applying subsequently for market
authorisation for his own product.  Does your legisl ation provide for exceptions to this? If yes, under
what conditions would such exceptions apply?  Does your legislation set a specific term of protection
for undisclosed test or other data of the first applicant?
The Unfair Competition Bill does provide for the exception in section 8(4):"(a) an unfair commercial use of secret test or other data, the origination of which
involves considerable effort and which have been submitted to a competent authorityfor the purposes of obtaining approval of the marketing of pharmaceutical or
agricultural chemical products which utilise new chemical entities; or
(b) the disclosure of such data, except: -
(i) where necessary to protect the public; and
(ii) where steps are taken to ensure that the data are protected against unfair
commercial use."
The time period and conditions are spelt out in subsection 5 of the Bill:
"(5) Subsection (4) shall be construed as precluding, in particular, any person other than
the person who submitted undisclosed tests or other data, the origination of which
involves a considerable effort, from relying on such data in support of an application
for product approval for a reasonable period of time after the submission of those
tests or data and the period of time shall be determined by the Court, taking accountof the nature of the data and the person's efforts and expenditure in producing them,
and shall normally not be less than five years."
D. 
ENFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective deterrents to
infringements of intellectual property rights.
The Bills as drafted contain provisions that deal specifically with the procedure and remedies
available to right holders in the instance of an infringement, where there is a battle over the who is
entitled to the registration of the particular intellectual property, or any other instances where the rightholder feels that his rights are being violated.  The High Court of Justice has the jurisdiction to hear
matters on infringement as seen in section 2 of the various draft Bills where the "court" is defined as
the High Court.IP/C/W/317
Page 36
In the Integrated Circuit Topography Bill, according to section 8 of the Bill, an action for
infringement of the exclusive right in a registered topography may be brought in any court of
competent jurisdiction by the owner of the registered topography or by a licensee of any right therein,
subject to any agreement between the licensee and the owner; section 9 spells out the remedies
available in the case of an infringement where the Court may make specific orders for: -
"relief by way of injunction, the payment of royalties and the recovery of damages or profits,
for punitive damages, and for the disposal of any infringing integrated circuit product or any
article of which an infringing integrated circuit product forms a part."
Under the Geographical Indications Bill, any interested person and any interested group of
producers or consumers may institute proceedings in the Court to prevent, in respect of geographicalindication, any illegal use of the geographical indication within the scope of section 3 of the Bill.  In
proceedings under this section, the Court may, in  addition to issuing an injunction, award damages
and grant any other remedy or relief as it may deem fit.  In all the provisions the persons who have
access to the remedies available must come within the scope of the legislation.  For instance, under
the Patent Bill, only the person who is granted a patent in accordance with sections 4 (deals with theright to a patent), 9 and 10, or who has a licence to use the patent has the right to bring an action in
Court under section 34(2).
The provisions tend to be generally the same in all the Bills as pointed out above; however in
the Copyright Bill, the provisions examine the available remedies, which include confiscation anddestruction of illicit products, and the order for delivery up of the goods (see sections 33, 46 and 137),
payment of damages and damages, injunctions, and accounts of profits made from the sale of the
infringed product (see section 32), payment of fine s and imprisonment in the criminal cases where it
becomes an offence (section 134).  The fines range from $50,000.00 to $100,000.00 Eastern
Caribbean dollars (EC), and the terms of imprisonment range from three years to five years.
8. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.
The Government of Antigua and Barbuda is examining the practicality of establishing an
Enforcement Unit that will be able to monitor all enforcement procedures and ensure that all
investigations are properly carried out by the unit, and raids are effected where and when necessary.
This unit will have several Police Officers and a prosecutor from the Director of Public Prosecutions
Office attached to it, plus an Officer who will li aise with the Customs Department.  The Copyright
Bill provides for the establishment of a Copy right Tribunal, and the best approach to the
establishment of this entity is being explored presently.
Programs are also being designed to ensure that the competent authorities that will be
involved in enforcement of intellectual property rights as well as the public are educated in the field of
intellectual property and the need to protect the various rights through an efficient regime.IP/C/W/317
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UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the
TRIPS Agreement, including plant variety protec tion, the manner in which national treatment and
most favoured nation treatment are provided to nationals of other WTO Members.
Articles 3 and 4 of the general provisions of the TRIPS Agreement give the scope of
protection that must be accorded to Member States.  While the national treatment clause forbids
discrimination between a Member's own nationals and the nationals of other Members, the most-
favoured-nation treatment clause forbids discrimination between nationals of other Members.  In
respect of the national treatment obligation, the exceptions allowed under the pre-existing intellectual
property conventions of WIPO are also allowed unde r TRIPS.  The relevant provisions have been
included in the draft legislation of Antigua and Barbuda.  In section 5 of the Industrial Designs Billthe right to registration is given to anyone who co mes within the scope of the section.  The level of
protection is the same for all right holders from the Member States.
Another example is where the date of priority is considered in the determination of a filing
date; the Registrar is required under the relevant provisions to accept the date of priority afterreceiving proof of a prior registration whether international or otherwise.  This is seen, for example, in
section 4(2) of the Trademarks Bill.  This requirement is applied to applications from all Member
States.
Provisions within the Trademarks Bill and the Patent Bill that cater solely for Members of the
Patent Cooperation Treaty and the Protocol to the Madrid Agreement are allowed under Article 4 as
the exception.  Under the Geographical Indications Bill, protection is given to geographical
indications even before they are registered in accordance with the conditions spelt out in section 4 of
the draft bill.  In the Integrated Circuits Topography Bill, the definition of "national" refers to a citizen
or a resident of any country that is a Member State.  Under section 4, which deals with conditions forregistration, the creators eligible to file an application include nationals from Member States or
intergovernmental organizations who are parties to a convention as specified within the Bill.
A sui generis  system will be designed for the registration of plant varieties since the Patent
Bill prohibits the patenting of plant life.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain in detail how the copyright law of Antigua and Barbuda complies with
Article 9 of the TRIPS Agreement requiring that Members comply with all Articles 1 through 21 of the
Berne Convention (1971), except Article 6bis, since Members do not have rights or obligations relating
to the latter Article under the TRIPS Agreement.
Copyright legislation in Antigua and Barbuda is governed by the Copyright Act of … does
comply with the abovementioned Articles.  These Ar ticles deal predominantly with the subject matter
eligible for protection, the terms of protection available, those on whom rights are conferred, what
rights are conferred and the limitations of those rights.  These issues are dealt with in detail in many
different sections within the Copyright Bill.
Part I of the Bill is the interpretation section of the Bill.  Section 2 contains definitions of the
terms used in the Bill.  This includes definitions of the subject matter covered in Article 2 of the
Berne Convention,  in particular, which deals with "Protected Works".  Sections 3 and 4 which also
fall within Part I deal with the definitions of publication and broadcasting respectively as is requiredby Article 3.IP/C/W/317
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Article 3 is further encompassed by section 5 which contains the same three criteria for
protection as can be seen in the abovementioned article.  Section 5 is the first section that may be
found in Part II of the Bill.  This part encompasses sections 5 – 13 and sets the categories of works
protected by copyright, the qualifications for protection and the nature and duration of the rights
conferred under the Article.  Section 6 governs what subject matter may be considered qualified oreligible for protection.  Section 7 deals with who is eligible for protection, namely the "author", and
defines who may fall under the definition of this term depending on the protected work that is being
dealt with.  Section 8 considers the places from where protection may be sought.  As is seen in
Article 5, this section covers each of the items of this article completely.
Section 9 expands on the nature of the protection that copyright gives.  It deals with both the
economic and moral rights though the latter is not mandatory.  The economic rights however areexamined in full in this section describing in full the exclusive rights of the author.  Consequently, this
section covers those exclusive rights seen in Articles 8, 9, 11, 12, 13 and 14.
Sections 10 – 13 cover the duration of copyright protection or what is referred to in Article 7
as the term of protection.  These sections provide not only the duration afforded to the severaldifferent types of protected works but also deals with the situations where there is more than one
author or right holder, as in Article 7 bis.
Part IV deals with the issue of ownership of the copyright.  This part is made up of
sections 22 – 28.  Section 22 is a very important section it declares in subsection (1):
"The author of a protected work is the original owner of any copyright in that work unless
there is an agreement to the contrary."
This therefore leaves room within its definition for the transferral or assignment of the rights
mentioned above, and the rest of the section gives the rules, which govern just that.
Part V of the Bill includes sections 29 – 50.  Within it sections 29 –35 show how a copyright
may be infringed, the remedies and actions available to the right owners and that of the exclusive
licensee.  This Part also addresses the presumptions that are made under the law (sections 44 – 45),the possible criminal offences resulting from infringements (sections 46 – 48) and the restrictions on
and possible actions against the importation of infringing works or articles.  Articles 15 through 17 are
covered by this part.
Part VI (sections 51 –86) deals with the possible exceptions to infringement of copyright.
Part VI is very extensive and deals with a multitude of exceptions.  These encompass use for
educational purposes, in libraries and archives, public administration and adaptations.  These coincidewith the free uses given in Article 10.
The reservation of the right of the country to make special agreements with other countries
under Article 20 is covered by s. 144, which gives the minister responsible for the Act such power.
It will be noted then that the Bill encompasses the salient issues of Articles 1 – 21 of the
Berne Convention and as a result complies with Article 9 of the TRIPS Agreement.
3. Please explain how the copyright law of Antigua and Barbuda  protects computer programs
as literary works  and complications of data as required by Article 10 of the TRIPS Agreement.
According to the interpretation section of the Copyright Bill, section 2, the term "literary
works" is defined as follows:IP/C/W/317
Page 39
"'literary work' means any work, other than a dramatic or musical work, which is written,
spoken or sung, and accordingly includes: -
a written table or compilation;a computer program ;"
Computer programs and compilations accordingly  receive similar protection to that of other
literary works.  Section 6 of the Bill further states:
"(1) Copyright is a property right which, subject to the provisions of this section, may
subsist in the following categories of work: -
(a) original literary, dramatic, musical or artistic works;"
Computer programs through their status as literary works do receive protection.  Subsection 2
goes on to state that compilations of data are also protected stating:
"(2) A compilation of data or other material (database), whether in machine-readable or
other form, is eligible for protection as a literary work, but such compilation shall be
regarded as original only if, by reason of the selection or arrangement of its contents,the compilation constitutes the author's own intellectual creation; but such protection
does not extend to any data or other material forming part of the compilation and is
without prejudice to any copyright subsisting in any such data or other material."
As a result both computer programs and compilations of data are protected works.  However,
while according to section 10 the duration of protection for literary works is fifty years from the end
of the calendar year of the author's death the term for that of computer programs is fifty years form the
end of the calendar year that the work is done. Subsection 4 states:
"(3) Subsections (1) and (2) do not apply to computer generated work, the copyright in
which expires at the end of the period of the fifty years from the end of the calendaryear in which the work was made."
Since this provision refers to "computer generated work" it is submitted that compilations of
data if computer generated will accordingly be afforded the latter duration of protection.
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and
cinematographic works be available.  Please cite to the corresponding provision of the copyright law
of Antigua and Barbuda.
Rental rights for computer programs and cinematographic works are governed by section 78
of the Copyright Bill.  Subsection (1) states:
"The Minister may by order, subject to affirmative resolution, provide that  in such cases as
may be specified in the order, the rental to the public of copies of sound recordings, films or
computer programmes shall be treated as licensed by the copyright owner subject only to the
payment of such reasonable royalty or other payment as may be agreed or determined in
default of agreement by the Copyright Tribunal."
Further, section 9 states:"(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a
work shall have the exclusive right to do or to authorize other persons to do any of thefollowing acts in Antigua and Barbuda:IP/C/W/317
Page 40
(a) to copy the work;
(b) to issue copies of the work to the public sale, rental, public lending or
otherwise of the original or copy of the work that has not already been
subject to a distribution authorized by the owner of the copyright;
(c) to rent or lend to the public the original or a copy of an audio visual work."
This section therefore gives the owner of the copyrigh t some rental rights outside of those, which may
be granted by the Minister.
5. Please state the length and terms of protection the copyright law of Antigua and Barbuda
provides for a work other than a photographic work or a work of applied art and cite to the relevantprovision of law.
Sections 10 through 13 govern the length and terms of protection of protected works under
copyright law in Antigua and Barbuda.
The duration of copyright protection for literary works etc. is governed by section 10 of the
Bill, which states:
"(1) Subject to this section, copyright in any literary, dramatic, musical or artistic work
expires at the end of the period of fifty years from the end of the calendar year inwhich the author dies.
(2) Where the authorship of a work referred to in subsection (1) is unknown, copyright in
that work expires at the end of the period of fifty years from the end of the calendar
year in which the work was either made, was first made available to the public or firstpublished whatever date is the latest, but subsection (1) does not apply if the identity
of the author becomes known after the end of that period."
It must be mentioned however, that although in section 2 of the Bill computer programmes
are considered to be within the meaning literary wo rks, they are not afforded the same length and
terms of protection as they are governed by subsection (4), which is concerned with computer
generated works.  It goes as follows:
"(4) Subsections (1) and (2) do not apply to computer generated work, he copyright in
which expires at the end of the period of the fifty years from the end of the calendar
year in which the work was made."
Where a copyright is held by joint owners, according to subsection (5)(a), the reference in
subsection (1) to the date of death of the author refers, where all the authors' identities are known, to
the date at which the last of the authors died.  Where one or more of the authors' identities are
unknown this date is that of the last of the known au thors to die.  Further subsection (5)(b) states that
the reference is subsection (2) of the act to the id entity of the author becoming know shall here be
construed as a reference to the identity of any of the authors becoming known.
The terms and length of protection for sound recordings and film is governed by section 11,
which states:
"(1) Copyright in a sound recording or film expires at the end of the period of fifty years
from the end of the calendar year in which it was made or, where it is made availableIP/C/W/317
Page 41
to the public before the end of the period, fifty years from the end of the calendar year
in which it is so made available.
(2) For the purposes of subsection (1) a sound recording or film is made available to the
public when: -
(a) It is first published, broadcast or included in a cable programme service;
(b) In the case of a film or film sound-track, the film is first shown in public;but determining whether a sound recording or film has been made available to the
public, any unauthorized act shall be disregarded."
The duration of copyright protection in broadcasts and cable programmes is covered by
section 12.  It goes as follows:
"(1) Copyright is a broadcast or cable programme expires at the end of the period of fifty
years from the end of the calendar year in which the broadcast was made or the
programme included in a cable programme service.
(2) Copyright in a repeat broadcast or a repeat cable programme expires at the same time
as copyright in the original broadcast or cable programme; and accordingly, no
copyright arises in respect of a repeat broadcast or a repeat cable programme service
after the expiry of the copyright in the original broadcast or cable programme.
(3) Reference in subsection (2) to a repeat broadcast or a repeat programme means one
which is a repeat of a broadcast previously made or as the case may be, of a cable
programme previously included in a cable programme service."
The final category dealt with in the Bill is th at of typographical arrangements.  According to
section 13 this copyright expires at the end of the period of 25 years from the end of the calendar year
in which the edition was first published.
6. Please describe the protection the copyright law of Antigua and Barbuda provides for
performers, and the term of the protection.
Protection under copyright law for performers is found in Part IX of the Bill namely "Rights
in Performances".  This part gives extensive rights to performers and also provides for limitation of
those rights.
According to section 107(1) rights in performances are conferred on:
"(a) a  performer, requiring his consent to the exploitation of his performance; and
(b) a person having recording rights in relation to a performance, requiring his consent to
the making of a recording of that performance.  These rights are so conferred
independent of any copyright in or moral rights relating to any work used orperformed in the performance, according to subsection (2)(a)."
Part IX subsequently stipulates the rights po ssessed by performers and the relevant possible
infringements.  These sections run from 108 through 114.  These vest in the performer certain rights
and state where and to what extent consent is needed as against infringement through recordings, useof the recordings, broadcasts of the performance, importation of illicit recordings etc.  Exceptions to
these infringements and the remedies against them are also included in Part IX.IP/C/W/317
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The duration of these rights are addressed in section 129, which states the following:
"129.  The rights conferred by this Part continue to subsist in relation to a performance until
the end of the period of fifty years from the end of the calendar year in which the
performance takes place."
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to enjoy the
right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2
requires that producers of phonograms are to have the right to authorize or prohibit the commercial
rental to the public of originals or copies of their phonograms.  Please describe how the copyright
law of Antigua and Barbuda implements these obli gations and indicate the term of protection.
Phonograms or sound recordings as they are referred to in the Copyright Bill are listed under
section 6(1)(b) as a category of work which ma y be protected.  Further according to section 2:
"'author' in relation to a work, means the natural person who creates it, being in relation to –
(e) a sound recording or film, the person by whom the arrangements necessary for the
making of the recording or film are undertaken;"
The producer of the sound recording is therefore, considered to be the author of the sound
recording for the purposes of the legislation.  Consequently the producer receives all the protection ofthat of an author.  According to section 22(1) the author of a protected work is the original owner of
any copyright in that work unless there is an agr eement to the contrary.   So barring any contrary
arrangement the copyright owner of the sound reco rding is the producer as such he/she too will
receive the benefits under section 9.
"(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a
work shall have the exclusive right to do or to authorize other persons to do any of the
following acts in Antigua and Barbuda
(a) to copy the work;(b) to issue copies of the work to the public sale, rental, public lending or
otherwise of the original or copy of the work that has not already been
subject to a distribution authorized by the owner of the copyright;"
Section 31 further provides that the copyrigh t in a work is infringed by any person who,
without the licence of the copyright owner, does, in relation to that work, any of the acts which thecopyright owner has the exclusive right to do pursuant to section 9.  This infringement includes those
who have what they know or believe to be infringing copies or an article for making the same,
according to section 31(3) and (4).
"(3) Copyright in a work is infringed by a person who, without the license of the copyright
owner -
(a) possesses in the course of a business;(b) sells or lets for hire or offers or exposes for sale or hire;(c) exhibits in public or distributes in the course of a business; or
 IP/C/W/317
Page 43
(d) distributes otherwise than in the course of a business, to such an extent as to
affect prejudicially the copyright owner,
an article which is, and which be knows or has reason to believe is an infringing copy of the
work.
(4) Copyright in a work is infringed by a person who, without the license of the copyright
owner –
(a) makes;(b) imports into Antigua and Barbuda;
(c) possesses in the course of a business; or
(d) sells or lets for hire or offers for sale or hire,
an article specifically designed or adapted for making copies of that work, knowing or having
reason to believe that it is to be used to make infringing copies."
These provisions therefore protect against unauthorized reproduction across the board.In answering the second part of the question it must be noted that section 9(1)(b) above also
gives rental rights to producer.  These rights are further protect in section 78 (1):   
"The Minister may by order, subject to affirmative resolution, provide that in such cases as
may be specified in the order, the rental to the public of copies of sound recordings, films or
computer programmes shall be treated as licensed by the copyright owner subject only to thepayment of such reasonable royalty or other payment as may be agreed or determined in
default of agreement by the Copyright Tribunal."
C. TRADEMARKS
8. Please confirm that, under the trademark law of Antigua and Barbuda, any sign or
combination of signs, capable of distinguishing the goods or services of one undertaking from those of
other undertakings is capable of constituting a trademark, as required by Article 15.1 of the TRIPS
Agreement and cite the relevant provisions of law or regulations.
There is no definition of a sign but the definition of "mark" is provided for under the
Trademark Bill of 2001.  Section 2 of the Bill provides as follows:
"'mark' means any visible sign capable of distinguishing the goods ('trademark') or services
('service mark') of an enterprise."
9. Please describe the procedure followed to register a trademark in Antigua and Barbuda,
citing the relevant provisions of law, and describe th e rights that the owner of a registered mark can
exercise.
Section 5(1)(b) of the Bill requires the Registra r to examine the applications as to compliance
with the requirements of section 1(i) and 2(2)(i) to (vi).  In accordance with section 4(1), the
application shall contain a request, a reproduction of the mark and a list of goods and services forwhich registration of the mark is requested.IP/C/W/317
Page 44
The examination procedure set out in this subsection requires the Intellectual Property
Registry to carry out a search amongst its records of registered marks as objections to the registration
of the mark sought to be registered.
Under subsection 2, the Registrar having been satisfied that the requirements are fulfilled in
the application shall forthwith cause it to be publi shed in the Gazette for the purpose of opposition
proceedings.  Subsection 2(b)-(d) sets out the procedure for processing oppositions.  After the
application has been published and until the mark is registered, the applicant has the same rights and
privileges he would have had the mark been registered (subsection 2, paragraph e).  Once there is no
opposition or the opposition has failed, the Registrar will proceed to register the application, issue a
certificate of registration, and publish a reference to the registration.  Otherwise, he has to refuse the
application. (See section 4).
The rights conferred to the registered owner of a mark are contained in section 6(1)-(4) of the
Bill:
"(1) The use of a registered mark, in relation to any goods or services for which it has
been registered, by any person other than the registered owner shall require theagreement of the latter.
(2) The registered owner of a mark shall, in addition to any other rights, remedies or
actions available to him, have the right to institute court proceedings against any
person who infringes the mark by using, w ithout his agreement, the mark as aforesaid
or who performs acts which make it likely that infringement will occur.  The right
shall extend to the use of a sign similar to the registered mark and use in relation to
goods and services similar to those for which the mark has been registered, where
confusion may arise in the public.
(3) The rights conferred by registration of a mark shall not extend to acts in respect of
articles which have been put on the market in Antigua and Barbuda by the registered
owner or with his consent."
10. Please provide the length and terms of protection that the trademark law of Antigua and
Barbuda provides for a trademark.
Trademark protection is for a period of ten years, renewable indefinitely.  This provision is
found in section 6, which also states the terms of registration:
"(1) The use of a registered mark, in relation to any goods or services for which it has
been registered, by any person other than the registered owner shall require the
agreement of the latter.
(2) The registered owner of a mark shall, in addition to any other rights, remedies or
actions available to him, have the right to institute court proceedings against any
person who infringes the mark by using the mark, without his agreement, or who
performs acts which make it likely that infringement will occur; and the right shall
extend to the use of a sign similar to the registered mark and use in relation to goodsand services similar to those for which the mark has been registered, where confusion
may arise in the public.
(3) The rights conferred by registration of a mark shall not extend to acts in respect of
articles which have been put on the market in Antigua and Barbuda by the registeredowner or with his consent.IP/C/W/317
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(4) The provisions of Section 3(2)(v) shall apply, mutatis mutandis , in any action
instituted by the owner of a well-known ma rk against any person in respect of the
unlawful use of the well-known mark.
(5)  The registration of a mark shall be for a period of ten years from the filing date of the
application for registration.
(6)  The registration of a mark may, upon request, be renewed for consecutive periods of
ten years, provided that the registered owner pays the prescribed renewal fee.
(7)  A period of grace of six months shall be allowed for the late payment of the renewal
fee on payment of the prescribed surcharge."
11. Please explain whether a well-known service mark is granted the same level of protection as
well-known trademark under Article 6bis of the Paris Convention, as required under Article 16.2 of the
TRIPS Agreement.  Please cite any relevant  laws, regulations or judicial decisions.
Subsection 4 of section 6 fulfils the obligations contained in Article 6bis of the Paris
Convention, as it would give an express right of action against the use of well-known trademarks or
service marks, as opposed to their registration.  This provision in section 3(2)(v) applies to well-
known marks and services in accordance with section 6(4):
"(v)  if it is identical with, or confusingly similar to, or constitutes a translation of, a mark
or trade name which is well known in Antigua and Barbuda for identical or similar
goods or services of another enterprise, or if it is well-known and registered in
Antigua and Barbuda for goods or services which are not identical or similar to those
in respect of which registration is applied fo r, provided, in the latter case, that use of
the mark in relation to those goods or se rvices would indicate a connection between
those goods or services and the owner of the well-known mark and that the interests
of the owner of the well-known mark are likely to be damaged by such use;"
D. GEOGRAPHICAL INDICATIONS
12. Please describe in detail how the laws of Antigua and Barbuda provide for the recognition
and protection of geographical indications as required by Article 22.2 of the TRIPS Agreement, citing
to the relevant provisions of law or regulation, and provide examples of geographical indications so
protected.
The Geographical Indication Bill 2001 provides for the protection for geographical
indications in accordance with Article 22 of the TRIPS Agreement.  Protection is provided for those
geographical indications regardless of registration that fall within the definition of geographicalindications contained in section 2 of the Act.  Registration shall raise a presumption that such
indication is a geographical indication within the m eaning of section 2. (See section 13 of the Bill).
Examples of such indications are indications that identify goods such as any natural or agricultural
product or any product of handicraft or industry as originating in the territory or country, or a region
or locality in this territory.
13. Please describe in detail the manner in which the additional protection required for wines
and spirits under Article 23.1 of the TRIPS Agre ement is implemented, citing to the relevant
provisions of law or regulation, and provide examples of geographical indications for such products.
Section 12(1)(c) of the Bill establishes that any interested person and any interested group of
producers or consumers may institute proceedings in the Court to prevent, in respect of geographical
indication, the: -IP/C/W/317
Page 46
"(c) use of a geographical indication identifying wines for wines not originating in the
place indicated by the geographical indication in question or identifying spirits for
spirits not originating in the place indicated by the geographical indication in
question, even where the true origin of the goods is indicated or the geographical
indication is used in translation or accompanied by expressions such as 'kind', 'type','style', 'imitation' or the like,
and in proceedings under this section, the Court may, in addition to issuing an injunction,
award damages and grant any other remedy or relief as it may deem fit. (See section 12(2) of
the Bill)."
14. Please explain whether preexisting trademarks are protected against usurpation by
geographical indications, as required under Article 24.5 of the TRIPS Agreement.  Please cite any
relevant laws or regulations.
Pre-existing trademarks are protected against usurpation by geographical indication under
section 19(2), which states: -
"(2) Where a trademark has been applied for or registered in good faith, or where rights to
a trademark have been acquired through use in good faith either: -
(a) before the date of entry into force of this Act; or(b) before the geographical indication is protected in its country of origin,
this Act shall not prejudice the registrability of or the validity of the registration of a
trademark, or the right to use a trademark, on th e basis that such a trademark is identical with,
or similar to, a geographical indication."
E. INDUSTRIAL DESIGNS
15. Please describe the procedure that must be followed to obtain protection for industrialdesigns, citing to the provisions of the law of Antigua and Barbuda, and describe the nature of theprotection provided.
The Industrial Design Bill 2001 provides protection for industrial design that are new and that
fall within the definition of industrial de signs contained in section 3, which states-
"(1) An industrial design is registrable if it is new.
(2) An industrial design shall be new if it has not been disclosed to the public, anywhere
in the world, by publication in tangible form or by use or in any other way, prior to
the filing date or, where applicable, the priority date of the application for
registration.  Section 2(2)(c) shall apply mutatis mutandis .
(3) Industrial designs that are contrary to public order or morality shall not be
registrable."
This is consistent with Articles 2 and 26 of the TRIPS Agreement.  Section 6 deals with the
requirements of an application for registration of an industrial design and is to be supplemented by theImplementing Regulations.IP/C/W/317
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"(1)  The application for registration of an industrial design shall be filed with the
Registrar and shall contain a request, drawings, photographs or other adequate
graphic representations of the article embodying the industrial design and an
indication of the kind of products for which the industrial design is to be used.
(2) The application may be accompanied by a specimen of the article embodying the
industrial design, where the industrial design is two-dimensional.
(3) Where the applicant is not the creator, the request shall be accompanied by a
statement justifying the applicant's right to the registration of the industrial design.
(4) Two or more industrial designs may be the subject of the same application, provided
they relate to the same class of the International Classification or to the same set orcomposition of articles.
(5) The application, at the time of filing, may contain a request that the publication of the
industrial design, upon registration, be deferred for a period not exceeding 12 months
from the date of filing or, if priority is claimed, from the date of priority, of theapplication.
(6) The applicant may withdraw the application at any time during its pendency.(7) The application shall be subject to the payment of the prescribed application fee."
The effect of the grant of an industrial design is to prevent the industrial design from being
exploited in the country by persons other than th e owner of the registered design, unless the owner
agrees to such exploitation.  This is spelt out in section 9(1) of the Bill.  Subsection 2 lists those acts,
the performance of which, require the agreement of the owner, and subsections 3 and 4 give the extent
of the of the rights conferred under the section:
"(2) For the purposes of this Act, 'exploitation' of a registered industrial design means the
making, selling, importing or otherwise distributing, for commercial purposes,
articles bearing or embodying a design, which is a copy, or substantially a copy, ofthe industrial design.
(3) The rights conferred by registration shall not extend to acts in respect of articles,
which have been put on the market in Antigua and Barbuda by the registered owner
or with his consent.
(4) The owner of a registered industrial design shall, in addition to any other rights,
remedies or actions available to him, have the right to institute court proceedings
against any person who infringes the registration of the industrial design by
performing, without his agreement, any of the acts referred to in subsection (2) or
who performs acts which make it likely that infringement will occur."
16. Please describe the procedure that must be followed to obtain protection for textile designs
and cite to the relevant provisions of law or regulation.
Under the Industrial Designs Bill 2001, protection is provided for textile designs that fall
within the definition of an industrial design as gi ven in section 3.  The procedure for obtaining such
protection is therefore outlined in sections 6, which deals with the necessary documents that must be
filed with application.IP/C/W/317
Page 48
F. PATENTS
17. Please describe in detail the way in which the patent law of Antigua and Barbuda implementsArticle 27 of the TRIPS Agreement, indicating any exceptions to patentability provided for, and
including details regarding the protection for micro-organisms and non-biological and
microbiological processes and plant varieties.  Please cite to the relevant provisions of law.
The TRIPS Agreement under Article 27 provides for three permissible exceptions to the basic
rule on patentability. One for inventions contrary to public order or morality, the second is for the
exclusion of diagnostic, therapeutic and surgical me thods for the treatment of humans or animals, and
the third is that Members may exclude plants and animals other than those categorized in the Article.
Section 1(1) of the Patents Bill 2001 defines what  is a patent and defines what is an invention
for the purposes of this Bill, mentioning the two existing categories of inventions, namely productinventions and process inventions.  Product inventions exist in tangible form, e.g., machines,
equipment, devices, etc., and process inventions generally consist of a series of steps for producing a
product or a desired result, e.g., artificially colouring citrus fruits.
Subsection 2 also lists subject matter that is excluded from patent protection in accordance
with Article 27.  The basic difference between a discov ery, mentioned in item (i), and an invention is
that a person who makes an invention "creates" something that has not existed before whereas the
person who makes a discovery does not create but reveals the existence of something which was
unknown up to then.  Item (ii) concerns instructions to the human mind that cannot be patented.  The
exclusion of methods of treatment and diagnostic methods is in item (iii), clearly states that productsfor applying such methods (e.g., medical equipm ent) are not excluded.  Section 3 deals with
patentable inventions.
 
"(2) The following, even if they are inventions  within the meaning of subsection (1), shall
be excluded from patent protection:
(i) discoveries, scientific theories and mathematical methods;(ii) schemes, rules or methods for doing business, performing purely mental acts
or playing games;
(iii) methods for treatment of the human or animal body by surgery or therapy, as
well as diagnostic methods practiced on the human or animal body;  this
provision shall not apply to products for use in any of those methods;
(iv) plants and animals other than micro organisms;
(v) essentially biological processes for the production of plants or animals other
than non-biological and microbiological processes;
(vi) plant varieties;
(vii) inventions, the prevention within Antigua and Barbuda of the commercial
exploitation of which is necessary to protect ordre public  or morality,
including to protect human, animal or plant life or health or to avoid serious
prejudice to the environment, provided that such exclusion is not made
merely because the exploitation is prohibited by law.
3(1) An invention is patentable if it is new, involves an inventive step and is industrially
applicable.IP/C/W/317
Page 49
(2) An invention is new if it is not anticipated by prior art.
(3) Prior art shall consist of everything disclosed to the public, anywhere in the world, by
publication in tangible form or by oral disclosure, by use or in any other way, prior to
the filing or, where appropriate, the priority date, of the application claiming theinvention.
(4) For the purposes of paragraph (3), disclosure to the public of the invention shall not
be taken into consideration if it occurred within twelve months preceding the filing
date or, where applicable, the priority date of the application, and if it was by reason
or in consequence of acts committed by the applicant or his predecessor in title or of
an abuse committed by a third party with regard to the applicant or his predecessor intitle.
(5) An invention shall be considered as involving an inventive step if, having regard to
the prior art relevant to the application claiming the invention and as defined in
subsection (2)(b), it would not have been obvious to a person having ordinary skill inthe Article.
(6) An invention shall be considered industrially applicable if it can be made or used in
any kind of industry.  'Industry' shall be understood in its broadest sense; it shall
cover, in particular, handicraft, agriculture, fishery and services.
(7) Inventions the commercial exploitation of which would be contrary to public order or
morality shall not be patentable."
18. Please describe in detail the rights provided patent holders under the patent law of Antigua
and Barbuda and cite to the relevant provisions of law.
According to section 11(1), the effect of the grant of a patent is that persons other than the
owner of the patent may not exploit the patented in vention in the country, unless the owner agrees to
such exploitation.
Section 11(2) lists those acts the performance of which requires the agreement of the owner.
Subsection 3 deals with the right to institute proceedings against any person exploiting the
patented invention in the country without the owner's agreement is the owner's most important right,
since it permits him to derive the material benefits to which he is entitled as a reward for his
intellectual effort and work, and as compensation for the expenses which his research and
experimentation leading to the invention have entailed.  The performance of any act of exploitationfalling within the scope of protection of the patent by a person, without the agreement of the owner,
constitutes an infringement of the patent under subsection (3), subject to the exceptions provided in
subsection 4 and Section 12.
Subsection (4):  The first limitation contained in this subsection is usually called the
"exhaustion" of patent rights.  Under that principle, once a patent protected article (a patented product
or a product made by a patented process) has been lawfully put on the market, the patent owner's
rights in respect of that product are exhausted.  This limitation assures free circulation of products in
the country.  The  second limitation is aimed at avoiding a situation in which the exercise of the
exclusive right might be prejudicial to the public in terest in maintaining free movement of aircraft,
etc.  The paragraph itself is limited in four ways.  First, it is only the "use" of the article that cannot be
affected by the patent rights (i.e., manufacture or sale would be affected).  Secondly, only that use
which is exclusively for the needs of the aircraft, land vehicle or vessel is concerned.  Thirdly, onlyIP/C/W/317
Page 50
aircraft, etc., of other countries are concerned and, fourthly, only those aircraft, land vehicles or
vessels which temporarily or accidentally enter the airspace, territory or waters of the country are
concerned.  The third limitation concerns acts done only for experimental purposes, which implies
that such acts must be for non-commercial purposes.  The fourth limitation recognizes the so-called
"prior user's" right.  This right is established by "good faith" prior use or serious preparations for such
use, within the territory of Antigua and Barbuda.  The right does not extend to use which is differentin nature (e.g. making a patented product as opposed to importing the product) or purpose (e.g.,
making the patented product on contract for another enterprise or for sale in general as opposed to
making it for the internal use of the enterprise ) from the actual prior use or, in the case of
preparations, envisaged prior use.  The right is further limited by  paragraph (b).  Paragraph (b )
restricts the transferability of the right of the prior user to those circumstances in which a transferee
(assignee, heir, etc.) acquires also the enterprise or business, or that part of the enterprise or business,
in which the prior use or preparations for use occurred.
19. Please describe in detail any provisions in the laws of Antigua and Barbuda permitting
unauthorized use of a patent, citing to the relevant provisions of law, and describe in detail the
conditions under which such use can occur.
Section 13 introduces a measure that allows th e exploitation of a patented invention, without
the agreement of the owner of the patent, by the Go vernment or by third persons authorized by the
Government, in the public interest or to remedy an anti-competitive practice.  The provisions may be
merged with the provisions contained in Section 14 and re-drafted accordingly if it is preferred that
the Law should only provide for the grant of non-voluntary licences including on the grounds referredto in Section 13(1)(i) and (ii).
Under the exception contained in subsection 1, the Government may, in the public interest,
exploit a patented invention, or the Minister ma y designate a third person to do so, without the
agreement of the owner of the patent .  The said exploitation may be authorized if the public interest so
requires (subparagraph (i) of  subsection (1) or, should the laws of Antigua and Barbuda provide for
such procedure, if the competent judicial or administrative body has determined that the manner of
exploitation, by the owner of the patent or his licensee, is anti-competitive and the Minister is satisfied
that the authorization would remedy such practice (subparagraph (ii)).
In view of the importance of decisions of this nature, subsection (1) requires the decision to
be made by the Minister under whose supervision the Office of the Registrar is placed and it is
required that, in addition to the owner of the patent, all other interested persons should be given an
opportunity of being heard before the decision is taken.
Subsection 2 requires, in accordance with Article 31(h) of the TRIPS Agreement, that an
adequate remuneration be paid to the right holder .  The amount of an "adequate remuneration" will
have to be determined in each case, taking into account, in particular, the economic value of the
authorization.  The economic value will often be calculated on the basis of the sum which would be
payable under a freely negotiated licence in respect of the invention.  However, the need to correct
anti-competitive practices may result in a reduction of the amount.
According to subsection 3, an authorization may be obtained only if efforts have been made
to obtain a contractual licence and have failed:  a contractual licence is preferable for all concerned to
that of a non-voluntary licence.  The said requirement is waived in cases of a national emergency or
other circumstances of extreme urgency.  In such  cases, the owner of the patent is, however, to be
informed as soon as reasonably practicable.  It may also be waived, in accordance with Article 31(b)and (k) of the TRIPS Agreement, in cases of public non-commercial use and anti-competitive
practices where the competent judicial or administ rative body has taken a decision to this effect.IP/C/W/317
Page 51
To discharge his obligation to provide proof of having sought in vain to obtain an
authorization, the requesting party may, for instance, submit a copy of the letter he sent to the owner
of the patent by registered mail or in any other legally recognized manner according to the practices of
the country and a copy of the reply he received, if any.
20. What term of protection does the patent law of Antigua and Barbuda provide for patents?
Please describe any provisions for extension of the term of protection and cite to the relevant
provisions of the law.
According to section 12 of the Bill, protection is given to the patent for 20 years. The duration
is computed from the filing date of the application.  This does not mean that the protection
commences from the filing date.  It only means that the starting point for calculating the duration is
the filing date.  The protection commences from the date of grant.
Subsection 2 provides for the payment of annual fees to maintain the application or patent,
starting from the first anniversary of the filing date of the application and states the consequences of
failure to pay annual fees.  If an annual fee were not paid before the due date or before the expiration
of the six-month period of grace, the patent application would be deemed to have been withdrawn.  Inthe case of a patent, its lapse means that any person may now freely exploit the invention hitherto
protected.  It is therefore important that the public be informed as early as possible by publishing the
lapse of a patent for failure to pay an annual fee.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
21. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Antigua and Barbuda, including the term of protection, and cite to the relevant
provisions of law.
According to section 3(2) of the Integrated Circuit Topography Bill 2001:
"(2) The exclusive right in a registered topography consists of the exclusive right to:
(a) reproduce the topography or any substantial part thereof;
(b) manufacture an integrated circuit product incorporating the topography or
any substantial part thereof; and
(c) import or commercially exploit the topography or any substantial part thereof
or an integrated circuit product that incorporates the topography or any
substantial part thereof.
(3) Nothing in this section confers any rights  in relation to any idea, concept, process,
system, technique or information that may be embodied in a topography or an
integrated circuit product."
These rights are protected from any infringement as spelt out in section 6. Section 5 states the
term of protection:
"The exclusive right in a registered topography shall subsist for a period
(a) commencing on the filing date of the application for registration of the topography;
and
(b) terminating at the end of the tenth calendar year after the earlier of the calendar year
in which the topography is first commercially exploited and the calendar year of the
filing date of the application."IP/C/W/317
Page 52
H. PROTECTION OF UNDISCLOSED INFORMATION
22. Please describe in detail how the laws of Antigua and Barbuda provide for the protection of
undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide citations to
the relevant provisions of law.
The Protection Against Unfair Competition Bill 2001 provides protection not only for
undisclosed information consistent with Article 39 of the TRIPS Agreement, but also provides such
protection for any act and/or practice in the course of industrial or commercial activity that is contrary
to honest practices.
The specific section that deals with undisclosed information is section 8 of the Act.
23. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical products submitted to the government in order to obtain
marketing approval in Antigua and Barbuda and cite to the relevant provisions of law.
According to section 8, subsection 4 -
"Any act or practice, in the course of industrial or commercial activities, shall be considered
an act of unfair competition if it consists or results in-
(a) an unfair commercial use of secret test or other data, the origination of which involves
considerable effort and which have been submitted to a competent authority for the
purposes of obtaining approval of the marketing of pharmaceutical or agricultural
chemical products which utilise new chemical entities; or
(b) the disclosure of such data, except -
(i) where necessary to protect the public; and(ii) where steps are taken to ensure that the data are protected against unfair
commercial use."
24. Are other applicants for marketing approval for their own versions of a previously approved
pharmaceutical or agricultural chemical products pe rmitted to rely on data submitted by the earlier
applicant?  If so, how long a period of exclusivity is given the earlier applicant before such reliance
becomes possible.
According to section 8 subsection 5-"Subsection (4) shall be construed as precluding, in particular, any person other than the
person who submitted undisclosed tests or other data, the origination of which involves a
considerable effort, from relying on such data in support of an application for product
approval for a reasonable period of time after the submission of those tests or data and theperiod of time shall be determined by the Court, taking account of the nature of the data and
the person's efforts and expenditure in producing them, and shall normally not be less than
five years."IP/C/W/317
Page 53
I. ENFORCEMENT
25. Please describe in detail the manner in which the laws of Antigua and Barbuda provide foreffective action against infringement of intellectual property rights as required by Article 41.1 of the
TRIPS Agreement.
The system for enforcement of all rights including intellectual property is provided through a
combination of statutes and the Common Law.
The following is a checklist of all the measures either in place or will be in place to ensure the
enforcement of rights.
Civil and Administrative Procedures and Remedies:
In all the legislation on Intellectual Property, the High Court of Justice has jurisdiction over
these matters.  The persons who have the right to assert intellectual property rights are spelt out, for
instance, in the Patent Act in section 34:
"On the request of the owner of the title of protection, or of a licensee if he has requested the
owner to institute court proceedings for a specif ic relief and the owner has refused or failed to
do so, the court may grant an injunction to prevent infringement, an imminent infringement,
or an unlawful act referred to in Sections 40(2) and 41, award damages and grant any other
remedy provided for in the general law."
This provision is found in the various Bills on intellectual property.  In the Copyright Bill and
the Integrated Circuit Topography Bill, additional remedies are spelt out and these include the
payment of royalties, confiscation and destruction of illegal goods.  An Attorney-at-law who is
resident and practising in Antigua and Barbuda must represent the affected parties.
The right holders have remedies in criminal as well, where infringement is deemed to be an
offence in all the statutes and a fine and/or impris onment is the penalty.  For instance, in section 34(3)
of the Patents Bill an infringer is liable on summary conviction to a fine of $100,000 and to
imprisonment for a term of three years.  Under th e Copyright Bill, the right holder must notify the
relevant authorities of an offence being committed under the Act.  The Director of PublicProsecutions has conduct of these matters in the High Court.  The Police will be given authority to act
accordingly by a Magistrate after the Magistrate is satisfied by information given on oath that there is
reasonable cause for to believe that an offence ha been committed under the Act.  This provided for in
section 140 of the Bill. Appeals from this court a nd the High Court are made to the Court of Appeal
and then to the Privy Council, being the final Court of justice.
26. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production
of evidence necessary to substantiate a party's claims where that party has been unable to obtain such
evidence from the opposing party.  Please describe how the laws or regulations of Antigua and
Barbuda provide this authorization, citing to the relevant provisions of law or regulation.
According to section 34(4) of the Patents Bill:
"(4) For the purposes of proceedings, other than criminal proceedings, in respect of the
violation of the rights of the owner of the patent referred to in subsections (1) and (2),
where the subject matter of the patent is a process for obtaining a product, the burden
of establishing that an identical product was not made by the process shall be on thealleged infringer if:
(a) the product was new; orIP/C/W/317
Page 54
(b) a substantial likelihood exists that the product was made by the process and
the owner of the patent has been unable through the reasonable efforts to
determine the process actually used."
Here the infringer has to present to the Court the evidence to disprove the applicant's case in
those specific circumstances.  The Court also has the responsibility, when making an order for the
production of such evidence, to ensure that the invention remains undisclosed.
"(5) In requiring the production of evidence, the Court before which proceedings referred
to in subsection 4 take place shall take into account the legitimate interests of the
alleged infringer in not disclosing his manufacturing and business secrets."
27. Please describe in detail all of the civil remedies that are available to right holders under the
laws of Antigua and Barbuda, citing to the relevant provisions of law or regulation.
In the various pieces of legislation governing intellectual property, the remedies available to
the rights holders are spelt out in the infringement provisions.  In the Trademarks Bill, the right holderhas the following remedies under section 23(2):
"(2) On the request of the owner of the title of protection, or of a licensee if he has
requested the owner to institute court proceedings for a specific relief and the owner
has refused or failed to do so, the court may grant an injunction to preventinfringement, an imminent infringement, or an unlawful act referred to in
section 6(2), award damages and grant any other remedy provided for in the general
law."
This provision is also included in the Patents Bill (section 34(2)), the Industrial Designs Bill
(section 21(2)), and the Geographical Indications Bill (section 3(2)).  In the Integrated Circuit
Topography Bill under section 9:
"In an action for infringement of the exclusive right in a registered topography, a court of
competent jurisdiction may make such orders as the circumstances require, including ordersproviding for relief by way of injunction, the payment of royalties and the recovery of
damages or profits, for punitive damages, and for the disposal of any infringing integrated
circuit product or any article of which an infringing integrated circuit product forms a part."
Section 10 of this Act deals with the case of innocent infringement, where although the
remedies are the same, the Court has to take into consideration the special circumstances when
making its decision.
The Copyright Act gives the right holder the similar remedies as provided for in the other
pieces of legislation as seen in sections 32, 33, 35, 43, 46, 48, 133, 137, where the additional remedies
available such as the order for the destruction of the illicit products.
28. Please describe in detail the provisional procedures and remedies available to right holders
under the laws of Antigua and Barbuda, citing to the relevant provisions of law and regulation, and
indicate any condition under which a right holder may avail itself of those procedures and remedies.
The Bills as drafted contain provisions that deal specifically with the procedure and remedies
available to them in the instance of an infringement, where there is a battle over the who is entitled to
the registration of the particular intellectual property, or any other instances where the right holder
feels that his rights are being violated.  The High Court of Justice has the jurisdiction to hear mattersIP/C/W/317
Page 55
on infringement as seen in section 2 of the various draft Bills where the "court" is defined as the High
Court.
In the Integrated Circuit Topography Bill, according to section 8 of the Bill, an action for
infringement of the exclusive right in a registered topography may be brought in any court of
competent jurisdiction by the owner of the registered topography or by a licensee of any right therein,subject to any agreement between the licensee and the owner; section 9 spells out the remedies
available in the case of an infringement where the Court may make specific orders for-
"relief by way of injunction, the payment of royalties and the recovery of damages or profits,
for punitive damages, and for the disposal of any infringing integrated circuit product or any
article of which an infringing integrated circuit product forms a part."
Section 10 goes on to deal with the remedies in the case of innocent infringement where the
infringer will not be-
"… not liable for royalties, damages, profits or punitive damages in respect of any dealings
with the integrated circuit product prior to the time when the defendant had actual knowledgethat the product was manufactured and sold for the first time without the consent of the
owner; and
(c) shall have the right to dispose of any inventory of the integrated circuit product or of
the article of which the integrated circuit product forms a part that was acquired before thedefendant had that knowledge, subject to the condition that the defendant pay a reasonable
royalty in respect of that inventory in su ch amount and at such time as the court may
determine."
Under the Geographical Indications Bill, any interested person and any interested group of
producers or consumers may institute proceedings in the Court to prevent, in respect of geographical
indication, any illegal use of the geographical indication within the scope of section 3 of the Bill. In
proceedings under this section, the Court may, in  addition to issuing an injunction, award damages
and grant any other remedy or relief as it may deem fit. In all the provisions the persons who have
access to the remedies available must come within the scope of the legislation. For instance, under thePatent Bill, only the person who is granted a patent in accordance with sections 4 (deals with the right
to a patent), 9 and 10, or who has a licence to use th e patent has the right to bring an action in Court
under section 34(2).
The provisions tend to be generally the same in all the Bills as pointed out above; however in
the Copyright Bill, the provisions examine the available remedies, which include confiscation and
destruction of illicit products, and the order for delivery up of the goods (see sections 33, 46 and 137),payment of damages and damages, injunctions, and accounts (see section 32), payment of fines and
imprisonment in the criminal cases where it becomes an offence (section 134).
The Eastern Caribbean Supreme Court Rules 2000 governs procedure to initiate an action in
Court under the relevant statutes in conjunction with the any provisions governing such procedure
under the relevant Regulations, which are in the process of being drafted.  The person, who isapplying for an interim remedy such as an injunction, has to apply in accordance with Rule 17.4. The
application must be supported by evidence on affidavit unless the Court otherwise orders.  The Court
may order an interim remedy on such an application without notice if it appears to the Court that there
are good reasons for not giving notice.  The application in this instance must state the reasons for not
giving notice (R. 17.3(3)).  In general, three days notice must be given to the respondent.  The Courtwill hear this matter immediately the application is filed, and it may grant an interim order on an
application made without notice for a period of not more than 28 days (unless any of the rules permits
a longer period) if it is satisfied that: -IP/C/W/317
Page 56
"17.4(4):
(a) in a case of urgency no notice is possible; or
(b) that to give notice would defeat the purpose of the application."
On granting an order under paragraph (4) the Court must fix a date for further consideration
of the application form, and fix a date on which the injunction, for instance, will terminate unless a
further order is made on the further consideration of the application (5).  Paragraph (6) of this rule
gives a time period of 7 days within which the applicant must serve the respondent before the date
fixed for further consideration of the application.
Other remedies include equitable remedies su ch as Anton Piller, where the respondent is
required to admit to its premises, as named in the order, persons named in the order and supervised byan independent attorney to search for and take into custody any document and things of the type
specified in the order in order to preserve such as evidence for a trial.  The respondent is usually
enjoined from activity likely to be an infringeme nt of the stated intellectual property right and is
required to make an affidavit disclosing the source of the articles that have already left the premises.
The Criminal Procedure Act (Cap. 117 of the Revised Laws of Antigua and Barbuda 1992)
governs any procedure for criminal action initiated under the relevant statutes on intellectual property.
J. SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
29. Please describe in detail the procedures under the laws of Antigua and Barbuda that providefor border enforcement at least for trademark counterfeiting and copyright piracy, identifying the
competent authority and citing to the relevant provisions of law or regulation.
The provisions within the legislation governing intellectual property all provide for any type
of relief that the Court has the right to grant is available to the right holder upon application to the
Court.  This includes an order for the Customs authorities to suspend the release into free circulationthe goods that are the subject of the infringement.
Section 50 of the Copyright Bill gives the right holder the option to notify the Customs
authorities that goods deemed to be prohibited under the Customs Control and Management Act are
expected to arrive at a particular time or that they have arrived.  The Customs authorities will thenprevent the goods from entering the jurisdiction by seizure.
It must be noted that the rights conferred by registration of an intellectual property such as a
mark, a patent, or an industrial design, shall not extend to acts in respect of articles that have been put
on the market in Antigua and Barbuda by the registered owner or with his consent.
30. Please indicate if border enforcement is avai lable to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each form of
intellectual property, citing the relevant provisions of law.
Under the inherent jurisdiction of the High C ourt, under Common Law, procedures exist that
enable a right holder who has valid grounds for suspecting that the importation of goods infringe anyintellectual property right to apply to the Court for an order for the suspension by the Customs
authorities of the release into free circulation of such goods.  The existing judicial procedures cover
the evidence required to be furnished, security or  equivalent assurance, notice to all interested
persons, duration of suspension, indemnification of the importer and of the owner of the goods and
the right of inspection and information.  An application may also be made to the Court to have thegoods brought under section 84 of the Customs (Control and Management) Act, 1993, which statesIP/C/W/317
Page 57
that no goods, class or description of goods, prescribed in Part 1 of the Third Schedule may be
imported into Antigua and Barbuda. Part 1 of the Third Schedule, number 3, deems goods, the
importation of which is prohibited by any other law of the State, as prohibited goods.
31. Article 58 of the TRIPS Agreement specifies pr ocedures to be followed where the competent
authorities can act ex officio.  Please explain whether the competent authorities in Antigua andBarbuda are empowered to act ex officio and, if so, please identify the intellectual property areas
subject to ex officio action.
There is no provision enabling the competent authorities to act ex officio.  All actions must be
initiated by the copyright owner or exclusive licen see or by the owner or authorized user of the
industrial property.  Under the Copyright Bill, copies may only be seized if the
copyright/neighbouring rights owner or exclusive licensee gives notice of objection to the importationof the copies.  This provided for in section 50 of the Bill.
K. CRIMINAL PROCEDURES
32. Please describe in detail how the laws of Antigua and Barbuda implement Article 61 of theTRIPS Agreement that requires Members to have criminal procedures and penalties, including
imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful
trademark counterfeiting and copyright infringement on a commercial scale.  Please cite to the
relevant provisions of law and regulation.
According to section 23 of the Trademarks Bill states that:
"(3) Any person who knowingly performs an act which constitutes an infringement as
defined in subsection (1) or an unlawful act as defined in section 6(2) is guilty of an
offence and is liable on summary conviction to a fine of $100,000 and to
imprisonment for a term of five years."
The following is a list of criminal penalties and procedure as set out in the Copyright Bill in
section 46:
"(4) Any person who is guilty of an offence under subsection (1) is liable: -
(a) on summary conviction to a fine not exceeding five thousand dollars or to
imprisonment for a term not exceeding two years or to both such fine and
imprisonment;
(b) on conviction on indictment to a fine not exceeding five thousand dollars or
to imprisonment for a term not exceeding three years or to both such fine and
imprisonment.
(5) Any person who is guilty of an offence under subsection (2) or (3) is liable: -
(a) on summary conviction to a fine not exceeding two thousand dollars or to
imprisonment for a term not exceeding two years or to both such fine and
imprisonment;
(b) on conviction on indictment  to a fine not exceeding five thousand dollars or
to imprisonment for a term not exceedin g two years or to both such fine and
imprisonment.
(6) Any person who manufactures or imports into Antigua and Barbuda for sale or rental-IP/C/W/317
Page 58
(a) any device or means specifically designed or adopted to circumvent any
device or means intended to prevent or restrict reproduction of a work, a
phonogram or a broadcast or to impair the quality of copies made;
(b) any device or means that is susceptible to enable or assist the reception of an
encrypted program, which is broadcast or otherwise communicated to the
public including by satellite, by those who are not entitled to receive the
programme;
commits an offence and is liable on conviction to a fine not exceeding ten thousand
dollars or to a term of imprisonment not exceeding two years.
(7) Any person who-
(a) removes or alters any electronic rights management information without
authority; or
(b) distributes or imports for distribution, broadcasting, communication to the
public or making available to the public, without authority, of works
performances, phonograms or broadcasts, knowing or having reason to know
that electronic rights management information has been removed or altered
without authority commits an offence and is liable on conviction to a fine notexceeding ten thousand dollars or to a term of imprisonment not exceeding
two years."
These are enforced in accordance with the Criminal Procedure Act (Cap. 117) of Antigua and
Barbuda.
33. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and
destruction of infringing goods and any materials and implements the predominant use of which has
been the commission of the offence.  Please describe the provisions in the laws of Antigua and
Barbuda that provide for such remedies, and describe the circumstances in which those remedieswould be imposed, citing to the relevant provisions of law or regulation.
These remedies are provided for in our draft bills.  Under section 48 of the Copyright Bill,
once the Court is satisfied is satisfied that the at the time of his arrest, the offender had in his
possession, custody and control in the course of his business an infringed copy a protected work, the
apparatus used to make the copies, it may order that the infringing copy or article be delivered up to
the copyright owner or to such other person as it may direct.  According to subsection 2:
"(2) An order maybe made by the court of its own motion or on the application of the
prosecution and may be made whether or not the person is convicted of the offence,
so, however, that the court shall not make an order: -
(a) after the time specified in section 138, or
(b) if it appears to the court unlikely that any order will be made under
section 137.
(3) An appeal lies to the Court of Appeal from an order made under this section by a
Magistrate's Court.IP/C/W/317
Page 59
(4) A person to whom an infringing copy or other article is delivered up in pursuance of
an order under this section shall retain it pending the making of an order or the
decision not to make an order under section 137."
Section 137 describes the procedure and the circumstances for bringing such infringement
issues to the Court:
"(1) An application may be made to the High Court for: -
(a) an order that an infringing copy or article delivered up in pursuance of an
order under sections 33 and 48 shall be-
(i) forfeited to the copyright owner; or
(ii) destroyed or otherwise dealt with as the court may direct;
(b) an order that an illicit recording of a performance delivered up in pursuance
of an order under section 133 or 135 shall be: -
(i) forfeited to such person having performer's rights or recording rights
in relation to the performance as the court may direct; or
(ii) destroyed or otherwise dealt with as the court thinks fit; or
(c) a decision that no order under paragraph (a) or (b) should be made.
(2) In considering what order (if any) should be made, the court shall have regard to all
the circumstances of the case and, in particular: -
(a) where the infringement relates to copyright in a work, whether other
remedies available in an action for infringement of copyright would be
adequate to compensate the copyright owner and to protect his interest;
(b) where the infringement relates to rights conferred under Part IX, whether
other remedies available in an action for infringement of those rights wouldbe adequate to compensate the person or persons entitled to the rights and to
protect their interests.
(3) Provision shall be made by regulations as to the service of notice on persons having
an interest in the infringing copy or other articles or the illicit recording, as the case
may be, and any such person is entitled: -
(a) to appear in proceedings for an order under this section whether or not he was
served with notice; and
(b) to appeal against any order made, whether or not he appeared, and an order
shall not take effect until the end of the period within which notice of anappeal may be given or, if before the end of that period notice of appeal is
duly given, until the final determination or abandonment of the proceedings
on the appeal.
(4) Where there is more than one person interested in an infringing copy or other article,
or as the case may be, an illicit recording, the court shall make such order as it thinksIP/C/W/317
Page 60
just and may, in particular, direct that such copy, article or recording be sold, or
otherwise dealt with, and the proceeds divided.
(5) If the court decides that no order should be made under this section, the person in
whose possession, custody or control the copy or article or, as the case may be, the
recording was before being delivered up or seized is entitled to its return.
(6) References in this section to a person having an interest in a copy or other article or a
recording include any person in whose favour an order could be made in respect of
the copy, article or, as the case may be, recording under this section."
34. Article 61 also indicates that Members may provide for criminal procedures and penalties in
cases of wilful infringement of other forms of intellectual property.  Please describe any provisions ofthe laws of Antigua and Barbuda that provide for such procedures and remedies, citing to the relevant
provisions of law or regulation.
All the draft bills governing intellectual property have provisions for criminal procedures and
penalties in cases of wilful infringement as seen for instance in section 34 of the Patent Bill,section 23 of the Trademarks Bill, section 9 of the Integrated Circuits Topography Bill (this gives the
Court to make any order necessary in consideration of the circumstances), section 21 of the Industrial
Designs Bill, and various sections including section 46  of the Copyright Bill.   These sections provide
for a fine and/or imprisonment, the confiscation and or the destruction of the illicit product and any
other remedy the Court is inclined to grant within its power.  The provisions which list the rightsconferred on the right holder after registration also describe the infringements under the Bill as seen in
section 11(2) and (3) of the Patent Bill.
L. STATISTICAL QUESTIONS
35. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement
for 2000, including the number of cases filed;  injunctions issued;  infringing products seized;
infringing equipment seized;  cases resolved (i ncluding settlement); and the amount of damages
awarded.
We are unable to provide any statistics at this time pertaining to such cases arising from the
new legislation.  The new legislation is about to be implemented in Antigua and Barbuda.  In terms of
the present system, no such cases have been filed in the year 2000 in the High Court of Justice.
36. Please provide statistical information related to  criminal enforcement in the area of copyright
piracy and trademark infringement for 2000, including the number of raids, prosecutions,
convictions, and the amount of fines and/or jail terms (including whether the fines were paid andwhether the jail term was actually served or was suspended) and any other information establishing
that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Please see the response to question 35.
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