RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/JAM/1
IP/Q2/JAM/1
IP/Q3/JAM/1
IP/Q4/JAM/1
12 December 2001
(01-6296)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
JAMAICA1
The present document reproduces the introductory statement made by the delegation of
Jamaica, the questions put to it and the responses given in connection with the review of legislation
undertaken at the Council's meeting of 18 to 22 June 2001.2
_______________
I. INTRODUCTORY STATEMENT
We attach a great deal of importance to this  review and to conformity with the TRIPS
Agreement.  The reform of Intellectual Property Laws has been occupying a position of importance in
Jamaica since the signing of the WTO TRIPS Agreement.  The measures taken have included areview and update of legislation governing Intellectual Property.  This has included the passing of a
new Copyright Act, a Layout-Designs and Topo graphies Act and a new Trademarks Act and
supporting regulations.
The Copyright Act passed in 1993 conforms with standards prescribed under the WTO
Agreement and under Jamaica's bilateral Intellectual Property Agreement.  In particular, this Act
provides for, inter alia , the protection of computer programs and compilations of data and provides
for rental rights.  The terms of protection and time periods underlined in Article XII of the TRIPS
Agreement are adhered to.
The Layout-Designs and Topographies Act was passed in 1999.
The third piece of legislation passed in our effort to ensure conformity with our multilateral
obligations was the Trademarks Act and Rules 2000.  The Trademarks Act was passed in July 1999
and the Trademarks Rules 2000 have been completed.  However, there have been suggested
amendments to the Act and Rules and these have been prepared and are to be addressed at the next
meeting of the Legislation Committee.  Essentially, the Trademarks Act implements the TRIPSAgreement in relation to protectable subject-matter in terms of protection and requirements for use
and provisions for licensing and assignment.
We have several pieces of legislation that we expect to be passed very shortly.  These include
the Patent and Designs Act and the Geographical Indications Bill.
                                                     
1 As regards laws and regulations notified by Jamaica under Article 63.2 of the Agreement, reference is
made to document IP/N/1/JAM/1 and IP/N/6/JAM/1.
2 The minutes of this meeting have been circulated as document IP/C/M/32.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
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Regarding the draft Patent and Designs Bill, the existing piece of national legislation has been
revised in order to comply with modern standards of protection as outlined in the TRIPS Agreement
and in conformity with our bilateral Intellec tual Property Agreement, which was signed in
December 1999.  The Bill in a sense adopts the provisions of the TRIPS Agreement.  For example, itexcludes the following from patentability diagnostic, therapeutic and surgical methods for the
treatment of humans or animals; plants and animals other than micro-organisms and essentially
biological processes for the production of plants  or animals other than non-biological and micro-
biological processes.  The Bill also secures a wi der range of property rights to patent owners, for
example, to assign or to transfer by succession.
Regarding the draft Geographical Indications Bill, there had been no specific national
legislation which offered comprehensive protection to geographical indications, even though this
protection is required in order to comply with m odern standards of protection as outlined in the
TRIPS Agreement.  The draft Bill is in hand and should be submitted to the Legislation Committee
and, as stated for the Patent and Designs Bill, this is the final stage in the process of passage.
Regarding the proposed Plant Varieties Bill, the Ministry of Industry, Commerce and
Technology, which has full responsibility in this area, invited WIPO, in association with UPOV, to
send a mission to Jamaica in 1999 on the protection of new plant varieties in keeping with Article 27
of the TRIPS Agreement.  The mission had meetings with representatives of the Ministry of Industry,
Commerce and Technology and with other government agencies, including the office of the ChiefParliamentary Counsel and the Attorney General's Department.  Consultations are being held with
Intellectual Property Inter-Ministry Task Force and these new instructions have been given to the
Chief Parliamentary Counsel regarding drafting.  The Chief Parliamentary Counsel has been working
on the Bill and is at present having ongoing discussions, particularly with the Ministry of Agriculture
on provisions in the Bill.
Turning to some general points on enforcement; Jamaica's legislation, both that which has
been passed and that which is shortly to be passed, in all areas of intellectual property rights has
strong provisions dealing with enforcement, for example the granting of injunctive relief, the
awarding of damages, and the ordering of the destruction of the offending materials.  In addition,
there is legislation dealing with the suspension of release by the customs authorities of offending
materials upon notification of infringement.
Jamaica's legislation has provided for criminal procedures and penalties in cases of wilful
trademark counterfeiting or copyright piracy on a commercial scale.  Shortly we will provide the same
to patent and designs infringements.  Jamaica has also recognised the need for greater specialisation
and speed in litigating intellectual property and other commercial matters.  In that regard, we havepassed new rules which provide for a commercial court and, some months ago, our first commercial
judge was appointed.  This court will deal with a wide variety of commercial cases such as intellectual
property disputes and it is anticipated that the Cour t will assist in disposing of these disputes in a
timely and efficient manner.  Jamaica's goals to this procedure is dealing with mediation and
arbitration and there is provision for judicial review of administrative decisions in the areas ofintellectual property law, as indeed in many other areas.  There are new civil procedures currently
being proposed which will provide for greater transparency and speed in the resolution in litigious
matters.  For example, the new rules will provide forms which can be filled out by lay persons in
relation to their claims and will provide for the exchange of witness statements plus providing clarity
and expedition.
Let me refer to the establishment of the Jamaica Intellectual Property Office.  This is a further
example of Jamaica's commitment to the modernisation of her intellectual property law and systems.
The office will function under the Ministry of I ndustry, Commerce and Technology and will bring
under one office all aspects of intellectual property.  The office will provide for a more efficientIP/Q/JAM/1, IP/Q2/JAM/1,
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method of administration and is yet another step in  complying with the agreements of which a more
efficient administration of Intellectual Property matters is a requirement.  The WIPO, I should add,
facilitated the establishment of this office.
II. RESPONSES TO QUESTIONS POSED BY CANADA
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS
Agreement and throughout) have been implemented.
Copyright and Related Rights
The Jamaican government has put in place necessa ry legal infrastructure to secure compliance
with the enforcement obligations of the TRIPS Agreement outlined in Articles 41-61.  The primary
statutory instruments which achieve this objective, are:
- The Copyright Act of 1993
- The Civil Procedure Code
- The Customs Act
Article 41
(1) The Copyright Act provides for expeditious remedies to prevent infringement:
(a) Civil Remedies include:
- Injunction (section 32);
- Order for delivery up (section33 and 133);- Order for destruction (section 137);- Account of profits (section 32);- Damages (section 32).
These remedies are complemented by the general provisions of the Civil Procedure
Code (CPC) which provide checks and balances in the application and award process of these
remedies to avoid abuse.  Accordingly, injunctions will not be granted unless the applicant
can show that there is a serious issue to be tried, damages alone would not suffice and that he
would stand to lose more if the order was not made.  Further, such an order will only be made
ex parte  if the applicant can show urgency, for ex ample, the high risk of the goods being
destroyed if immediate action is not taken; and the great difficulty in serving notice of theapplication on the respondent.  In addition the respondent must as soon as possible thereafter
be given notice and the order is never usually made for a period longer than seven working
days.  The Court also has a statuary discretion under the CPC to make such orders as
Discovery of Documents and Payment into Court (a security sum) to ensure that the
proceedings are carried out in a manner that is fair and equitable.IP/Q/JAM/1, IP/Q2/JAM/1,
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(b) Customs
Section 50 of the Copyright Act empower s Customs, on the authority of a Notice
provided by the copyright owner to suspend the release into free circulation of pirated goods.
Details of what Customs requires in order to accept the Notice are outlined in The JamaicaGazette Supplement Proclamations Rule and Regulations, volume CXVIII Thursday, March
9,1995, number 28c. Measures that were designed to prevent abuse include limiting the
duration of the Notice and ensuring that the Notice provides adequate details in respect of
evidence of ownership of copyright and a sufficient description of the protected work. The
copyright owner may also be requested to give security in respect of liability incurred by the
Commissioner of Customs in consequence of the Notice by reason of detention of the
article(s), or anything done to the article(s) while detained.
(2) The Copyright Act also provides for remedies, which constitute a deterrent to further
infringement.  These include authorizing the judiciary to impose monetary fines and or terms
of imprisonment, to make an order for the destruction of infringing goods or articles used
primarily for the fabrication of such goods or the commission of the offence.  To ensure that
the Court exercise its powers in a fair and equitable manner, the Act also offers guidelineswhich the court must take into consideration when making such orders.  The Court must have
regard to all the circumstances of the case and in particular, whether other remedies available
to the copyright owner would adequately protect his interests.
(3) See the notes under Trademarks.(4) The Copyright Act provides that an appeal of an order made under section 135(3) should be
made to the Court of Appeal.  Section 137 (3) provides that appeals may be made by third
parties in respect of orders made under that section, whether or not they appeared.
(5) The general laws of Jamaica do cover a lot of the requirements stipulated by article 41 and it
was not necessary to create special IP enforcement laws.  The passing of a modern Copyright
Act and minor amendments to pre-existing statutes (such as the Customs Act) was sufficient.
Article 42
See the notes under Trademarks.
Article 43
See the notes under Trademarks.
Article 44
The Court has a discretionary power to grant an injunction where an IP infringement is
alleged to have been committed, inter alia, to preven t the entry into circulation of the infringing goods
and articles after they have been cleared by customs.  However, injunctions will only be grantedwhere damages would not be an adequate remedy.
Article 45
Section 32 of the Copyright Act give the Cour t the authority to award damages, injunction,
accounts or otherwise.  Having regard to all the material circumstances and the flagrancy of the
infringement committed the Court may also award such additional damages as it deems fit.  However,
the defendant did not know and had no reason to believe that copyright subsisted in the work to whichIP/Q/JAM/1, IP/Q2/JAM/1,
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the action for infringement relates, then, the plaintiff is not entitled to damages but without prejudice,
to any other remedy.  The Court may also order the infringer to pay the copyright owners expenses,
which may include attorney's fees.
Article 46
Section 137 of the Copyright Act authorizes the Court to grant an order for the destruction of
an infringing copy, illicit recording or article.  In considering what order to make to make (if any), the
Court must have regard to all the circumstances of the case and in particular whether other remedies
available in an action for copyright infringement would be adequate to compensate the copyright
owner and protect his interest.  Further, provision is made for the notification of third parties havingan interest in the infringing copy, illicit recording or other articles as the case may be.  Such persons
are entitled to appear in proceedings for an order under the section, whether or not he was served with
notice and to appeal against any order made, whether or not he appeared.
Article 47
See the notes under Trademarks.
Article 48
See the notes under Trademarks.
Article 49
The Copyright law as it relates to administrative procedures relied on for the award of civil
remedies conforms with the regulations stipulated in Part III of the TRIPS Agreement.
Article 50
(1) The Copyright act empowers the Court to order prompt and effective provisional measures to
prevent infringement of copyright from occurring.  In particular, an injunction may be granted
to prevent the entry into the channels of commerce immediately after customs clearance; andthe delivery up of infringing copies, articles or illicit recordings with a view to preserving
evidence.
See also the note under Trademarks.
Article 51
Section 50 of the  Copyright Act give the copyright holder the right to apply for a suspension
of release of pirated good into free circulation.  This must be done by way of a Notice to the
Commissioner of Customs.  Whilst there is no corresponding provision in respect of goods for export,it may be possible to seek the intervention of the police who have the power under section 140 of the
Copyright Act to enter, search, seize, remove or detain any place, vessel or vehicle if he has
reasonable cause to believe an offence against the Copyright act is being committed.
Article 52
The Copyright Act establishes an "application" system whereby the copyright owner is
required to give notice to the Commissioner of Customs, section 140.  The Notice must include a
detailed description of the goods accompanied by a copy of the work to which the Notice relates and
the fee specified.  The Commissioner may request the copyright owner to show evidence ofIP/Q/JAM/1, IP/Q2/JAM/1,
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ownership of copyright in the work concerned, that the goods detained are infringing copies and that
the person who has signed the notice is duly authorized.  Further, the copyright owner shall keep the
Commissioner of Customs indemnified against liability or expense which he may incur as a result of
detaining any article or anything done to an article detained because of the Notice.  He may also needto provide the Commissioner with security to cover this indemnity.  The duration of the period of
Notice may not exceed five years and shall not extend beyond the period for which copyright is to
subsist.  The Commissioner must be advised within fourteen days of any change in ownership of
copyright or of any other change affecting the Notice, after which period the Notice will be deemed to
have been withdrawn.  The Notice will also be deemed to have withdrawn if the Notice fails to
comply with any of the requirements of the regulations.
Article 53
See the note under Trademarks.
Article 54
See the note under Trademarks.
Article 55
See the notes under Trademarks.
Article 56
See the note under Trademarks.
Article 57
See the note under Trademarks.
Article 58
(a) The Copyright Act authorizes the police to act ex officio  where there is reasonable cause to
believe that an offence against the Act is being committed.  The police are obligated to
contact the copyright owner to assist in the exer cise of their powers.  Obstruction of the police
in the exercise of these powers is an offence punishable on summary conviction before a
Resident magistrate Court to a fine not exceeding $10,000 or to a term of imprisonment notexceeding one year.  As a corollary to this, persons who give false or misleading information
to the police in the exercise of these powers are also liable on summary conviction to a fine
not exceeding $5,000 or to a term of impris onment not exceeding six months, section 142.
However, the section also provides protection against self-incrimination.
(b) See the notes under Trademarks.
(c) See the notes under Trademarks.Article 59
Section 137 of the Copyright Act give the Court authority to make an order that an infringing
copy, illicit recording or article be destroyed or  otherwise dealt with as the Court thinks fit.IP/Q/JAM/1, IP/Q2/JAM/1,
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Article 60
Section 50(5) of the Copyright Act provides that the importation of any article by a person for
his private and domestic use is not prohibited.
Article 61
The Copyright Act does provide for criminal procedures and penalties including delivery up,
destruction, fines and imprisonment which do provide a sufficient deterrent, sections 46, 134 and 136.
Section 140 of the Act also give the police adequate powers of entry, search, seizure, removal and
detention to facilitate the prosecution process.
Offences include:- Dealings with any article, knowingly or having reason to believe, that it is an
infringing copy.  Penalties:
- RM Court conviction, $100,000/two years imprisonment;
- Supreme Court conviction, undetermined fine/five years imprisonment.
- Possession of an article designed or adapted to make copies knowing that it is to be
used for making infringing copies for sale or hire or for use in the course of business.
Penalties:
- RM Court conviction, $50,000/one year imprisonment;- Supreme Court conviction, undetermined fine/three years imprisonment.
Trademarks and Designs
The enforcement obligations in Articles 41-61 of the TRIPS Agreement have been
implemented in the following manner.
(1) The courts of enforcement in general, that is, the Resident Magistrates Court, the Supreme
Court, the Court of Appeal and the Revenue Court, have jurisdiction over infringement cases in
intellectual property rights matters.
(2) Under the Intellectual Property Law, right holders, assigns and licensees have standing to
assert IPRs.  These persons may be represented by an Attorney-at-Law.
(3) Judicial authorities have the authority to order, at the request of the opposing party, a party to
a proceeding to produce evidence which lies within its control.  This authority is conferred by theConsolidated Judicature (Civil Procedure Code) Law, Chapter 177 which governs all civil
proceedings conducted before the courts.
This is supported by Section 286 which states:
"It shall be lawful for the Court or a Judge, at any time during the pendencey of any cause or
matter, to order the production by any party thereto, upon oath, of such of the documents in
his possession or power, relating to any matter in  question in such case or matter, as the Court
of Judge shall think right; and the Court may deal with such documents, whether produced, in
such manner as shall appears just.";IP/Q/JAM/1, IP/Q2/JAM/1,
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and Section 374 which states:
"The Court or a Judge may in any cause or matter, at any stage of the proceedings, or the
attendance of any person for the purpose of produ cing any writing or other document named
in the order which the Court or Judge may think fit to be produced.
Provided that no person shall be compelled to produce, under any such order, any writing or
other document which he could not be compelled to produce at the hearing or trial.
(4) Procedures are put in place in the Court system to identify and protect confidential
information brought forward as evidence.
Confidential information brought forward as evidence is usually labelled by the Judge and the
Judge usually instructs the Registrar of the Supreme Court to have custody of such matter.  In
situations where proceedings relate primarily to confidential information, the proceedings can be held"in camera" which excludes public attendance.
(5) The various legislation provide for different remedies that may be ordered by the judicial
authorities. These are as set out in  the various legislation as follows:
Trademarks
(a) In an action for infringement of a Trademark, the Court may order remedies such as
damages, injunctions, accounts or otherwise.  Section 31 (2) of the Trade Marks Act, 1999"
supports this:
"In an action for infringement all such relief by way of damages, injunction, accounts
or otherwise is available to him as is available in respect of the infringement of any
other property rights".
(b) The Court may apply other remedies such as order for erasure, order for delivery up;
and order for disposal.  These provisions are stipulated in the Trade Marks Act, 1999 (not yetenacted).  Section 35 of the Trade Marks Act, 1999 specifies the criteria where an order for
erasure can be made.  It states:
"(1) The Court may make an order requiring the person who is found to have
infringed a registered trademark -
(a) to cause the offending sign to be erased, removed or obliterated from
any infringing goods, materials or articles in his possession custody or
control; or
(b) where it is not reasonably practicable for the offending sign to be
erased, removed or obliterated, to secure the destruction of the infringing
goods, materials or articles".
Section 36 of the Trade Marks Act, 1999 specifies the criteria for issuance of an order for
delivery up by the Court.  It states:
"(1) The proprietor of a registered trademark may apply to the Court for an order
for the delivery up to him or to such pers on as the Court may direct, of any infringingIP/Q/JAM/1, IP/Q2/JAM/1,
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goods, material or articles which a person has in his possession, custody or control in
the course of business."
Section 38 of the Trade Marks Act, 1999 specifies the criteria for issuance of an order for
disposal by the Court. It states:
(1) An application may be made to the Court -
(a) for an order that infringing goods material or articles delivered up
pursuant for an order under Section 36 be destroyed or forfeited to such
person as the Court may think fit; or
(b) for a decision that no such order be made.
(2) In determining what order (if any) should be made, the Court shall consider
whether other remedies available in an action for infringement of registered trademarkwould be adequate to compensate the proprietor and any licensee and to protect their
interests."
Patents
Under the Patent Act 1857, a Court can also grant remedies in respect of an infringement
action, such as injunction, inspection or account, or other remedies.  This is evidenced by
Section 45 which states:-
"In an action for infringement of a patent, the Court or a Judge may on the application
of either party make such order for an injunction, inspection or account, and impose
such terms, and give such directions respecting the same and the proceedings thereon.
As the court or Judge may see fit".
Industrial Designs
Under the Designs Act, 1937, the court by virtue of Section 21 can grant such remedies in
infringement proceedings, such as orders for an injunction, inspection, or account, or any
other as the court sees fit.  Section 21 states:-
"In any proceedings under this Act, the Court or a Judge, as the case may be, may at
any time make such orders for an injunction, inspection, or account, impose suchterms, and give such directions as to the order in which the parties shall be heard, and
the procedure under this Act generally, as the Court or Judge shall see fit".
Draft Patent and Designs Act, 2001
In relation to a Patent, under this legislation, the owner of a patent who brings infringement
proceedings may apply to the court for an injunction, damage, account of profits, order for the
delivery up or destruction, or declaration that the patent is invalid; which in effect signifies
that the court has power to grant these remedies as it sees fit.  Section 80(1) states:
"(1) Subject to the following provision of this section and to Section 83, the
Patentee may bring proceedings in respect of any act alleged to infringe the patent
and (without prejudice to any other jurisdiction of the Court,) may apply for -
(a) an injunction restraining the defendant from any acts of infringement;IP/Q/JAM/1, IP/Q2/JAM/1,
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(b) damages in respect of the infringement;
(c) an account of profits derived from the infringement;
(d) an order for the delivery up or destruction of any patented product in relation
to which the patent is infringed or any article in which that product isinextricably comprised;
(e) a declaration that the patent is valid and has been infringed by the defendant."
In respect of an industrial design, under the draft Patent and Designs Act 2001:
"the Court can grant the same remedies to the registered owner with respect to
infringement as those applicable to a Patent under Section 80(1) of the said
legislation".
This is evidenced by Section 72 (2) which states:
"(2) The registered owner of an industrial design may, subject to the provision of
subsection (3), bring proceedings in respect of any act done without his consentwhich constitutes the exploitation of the design or which makes it likely that such
exploitation will occur, and without affecting any other jurisdiction of the Court, may
make the same claims mutatis mutandis as those applicable under Section 80 in
relation to an infringement of a patent".
(6) The Laws make provision for Judicial authorities to order the infringer to inform the right
holder of the identity of third persons involved in the production and distribution of the goods or
services found to be infringing, and of their channels of distributions.
This is supported by the fact that the Court has an inherent jurisdiction under "The
Consolidated Judicature (Civil Procedure Code) Law Chapter 177", at the application of any party to
order discovery of documents and full disclosure of information relating to any proceedings, if he
deems it appropriate.  The implication therefore is th at the Court can also order the infringer to inform
the right holder of third parties involved in any infringement act and any related documents in their
possession.
This is evidenced by Section 284 of the Code which states:
"Any party may, without filing any affidavit apply to the court or a Judge for an order,
directing any other party to any cause or matter to make discovery on oath of the documents
which are or have been in his possession or power relating to any matter in question therein.
On the hearing of such application the court or Judge may refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at that stage of the cause or
matter, or make such order either generally or limited to certain "classes of documents, as
may, in their or his discretion, be thought fit …
Provided that discovery shall not be ordered when and so far as the court or Judge shall be of
the opinion that it is not necessary either for disposing fairly of the cause or matter or for
saving costs."
(7) The Laws also make provisions relating to the indemnification of defendants wrongfully
enjoined.  The following supports this:IP/Q/JAM/1, IP/Q2/JAM/1,
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The Consolidated Judicature (Civil Procedure Code) Law, Chapter 177 makes provisions for
redress of defendants who have been wrongfully enjoin ed in a matter.  This power lies with the Court
or a Judge and the type of remedial measure granted is at the discretion of the Court of Judge.  Therelevant provision is Section 93 which states: -
"It shall not be necessary that every defendant shall be interested as to all the relief
prayed for, or as to every cause of action included in any proceeding against him; but
the court or a Judge may make such order as may appear just to prevent any
defendant from being embarrassed or put to expense by being required to attend any
proceedings in which he may have no interest."
Further, under Section 100 of the said Code, the Court Judge may order that the name of such
defendants improperly joined, be struck out upon application of such defendants.
(8) The Laws make provisions for various types of provisional measures that judicial authorities,
i.e. the Court, may order.  These are as follows
(i) Preservation of custody of subject matter of the contract
This measure is applicable where by any contract prima facie  a case of liability is
established. Section 459 of the Consolidated Judicature (Civil Procedure Code) Law
Chapter 177, speaks to this:
"When by any contract a "prima facie" case of liability is established, and there is
alleged as matter of defence a right to be relieved wholly or partially from suchliability, the Court or a Judge may make an order for the preservation or interim
custody of the subject matter of the litigation, or may order that amount in dispute be
brought into Court or otherwise secured".
(ii) Order for sale of perishable articles
Section 460 of the Civil Procedure Code speaks to this:"It shall be lawful for a Court or a Judge on the application by any party, to make any
order for the sale, by any person or persons named in such order, and in such manner
and or such terms as the Court of Judge may think desirable, of any goods, wares or
merchandise, which may be of a perishable nature, or likely to injure from keeping, orwhich for any other just and sufficient reason it may be desirable to have sold at
once".
(iii) Order for detention, preservation, or inspection, of any property the subject of the
cause.
Section 461 of the Civil Procedure Code speaks to this:"It shall be lawful for the Court or a Judge, upon the application of any party to a
cause or matter, and upon such terms as may be just, to make any order for thedetention, preservation or inspection, of any property or thing, being the subject of
such cause or matter, or as to which any question may arise therein, and for all or any
of the purpose aforesaid, to authorize any person to enter upon or into any land or
building in the possession of any party to such cause or matter, and for all or an any
of the purposes aforesaid to authorize any sample to be taken, or any observation toIP/Q/JAM/1, IP/Q2/JAM/1,
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be made, or experiment to be tried, which may be necessary or expedient to the
purpose of obtaining full information or evidence …"
(iv) Order for recovery of property subject to claim for lien on terms
Section 466 of the Civil Procedure Code speaks to this:"Where an action is brought to recover, or a defendant in his defence seeks by way of
counter-claim to recover, specific property other than land, and the party from whom
such recovery is sought does not dispute th e title of the party seeking to recover the
same, but claims to retain the property by virtue of a lien, or otherwise, as security forany sum of money, the Court or a Judge may, at any time after such last-mentioned
claim appears from the pleading, or, if there be no pleadings, by affidavit or otherwise
to the satisfaction of such Court of Judge, order that the party claiming, to recover the
property be at liberty to pay into the C ourt, to abide the event of the action, the
amount of the money in respect of which the lien or security is claimed, and suchfurther sum (if any) for interest and costs as such Court or Judge may direct, and that
upon such payment into Court being "made the property claimed to be given up to the
party claiming it."
(v) Allowance out of income of property pendente lite
Section 467 of the Civil Procedure Code speaks to this:
"Where any real or personal estate forms the subject to any proceedings in equity, and
the Judge is satisfied that the same will be more than sufficient to answer all theclaims thereon which ought to be provided for in such proceedings, the Judge may, at
any time after the commencement of the pro ceedings, allow to the parties interested
therein, or any one or more of them, the whole or part of the annual income of the real
estate, or a part of the personal estate, or the whole or part of the income thereof, up to
such time as the Judge shall direct."
(vi) Conduct of sale of trust property
Section 468 of the Civil Procedure Code speaks to this:
"Whenever in an action for the administration of the estate of a deceased person, or
execution of the trusts of a written instrument, a sale is ordered of any property vestedin any executor, administrator or trustee, the conduct of such sale be given to such
executor, administrator or trustee, unless the Court or a Judge shall otherwise direct."
(vii) Injunction (by judgement or order)
Section 469 of the Civil Procedure Code states:
"… an injunction shall be by a judgement or order, and any such judgment or order
shall have the effect which a writ of injunction previously had."
An injunction against a corporation may be enforced either by attachment against the
directors or other officers thereof as in the case of a mandamus or by a writ of
sequestration against their 'property and effects to be issued in such form and tested
and returnable in like manner as writs of venditioni exponas  and to be proceeded upon
and executed like manner as writs issuing our of the Supreme Court'."IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 13
(viii) Injunction against continuance or repetition of wrong
Section 470 of the Civil Procedure Code speaks to this:
"In any cause or matter in which an injunction has been or right have been claimed,
the plaintiff may, before or after judgment, apply for an injunction restrain the
defendant or respondent from the repetition or continuance of the wrongful act or
breach of contract complained of, or from the commission of an injury or breach or
contract of a liken kind relating to the same contract; and the Court or Judge may
grant the injunction, either upon or without terms as may be just."
(9) The Laws provide for criminal procedures and penalties in respect of various types of
infringements of intellectual property rights.  These are as follows:
Trademarks
- Under the Trade Marks Act, 1958
(a) Falsification of entries in the Register, a misdemeanour see Section 57:
Penalties: Two years imprisonment with or without hard labour.
(b) Falsely representing a trademark as registered:
Penalties: On summary conviction to a fine not exceeding ten dollars
and in default of payment to imprisonment with or without
hard labour for terms not exceeding two months (amended).
- Under the Trade Marks Act, 1999
Unauthorized use of a Trademark in the following circumstances as set out in
Section 69 of the Act.  Section 69 states as follows:
"(1) Subject to subsection (4), a person commits an offence if with intent to gain
for himself or another, or with intent to cause loss to another and without the
consent of the proprietor of the Trademark he: -
(a) applies to goods a sign identical with or likely to be mistaken for, a
registered trademark; or
(b) sells or lets for hire, offers or exposes for sale or hire or distributes
goods which bears, or the packaging of which bears, such a sign; or
(c) has in his possession, custody or control in the course of business,
any goods referred to in paragraph (b) with a view to the doing of
anything, by himself or another, which would be an offence under
paragraph (6).
(2) Subject to subsection (4), a person commits an offence if, with a view to gain
for himself or another, or with intent to cause loss to another, and without the
consent of the proprietor he: -IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 14
(a) applies a sign identical to or likely to be mistaken for a registered
trade mark to material intended to be used for labelling or packaging
goods or as business paper in relation to goods or for advertising
goods; or
(b) uses in the course of a business material bearing such a sign for
labelling or packaging goods as a business paper in relation to goods,
or for advertising goods; or
(c) has in his possession, custody or control in the course of a business
any such material with a view to the doing of anything, by himself oranother, which would be an offence under paragraph (b).
(3) Subject to subsection (4) a person commits an offence who with a view to
gain for himself or another or with intent to cause loss to another, and without
the consent of the proprietor he: -
(a) makes an article specifically designed or adapted for making copies
of a sign identical to or likely to be mistaken for a registered trade
mark; or
(b) has such an article in his possession, custody or control in the course
of a business, knowing or having reason to believe that it has been or
is to be, used to reproduce goods or material for labelling or
packaging goods, as a business paper in relation to goods or for
advertising goods."
- Penalties
Section 69(6) states:
"A person who commits an offence under this Section is liable -
(a) on summary conviction before a Resident Magistrate to a fine not exceeding one
million dollars or to a term of imprisonment not exceeding twelve months or to both
such fine and imprisonment;
(b) on conviction before the Circuit Court to fine or to imprisonment not exceeding five
years or to both such fine and imprisonment."
Patents and Industrial Designs
- Under the Draft Patent and Design Act, 2001:
(a) Falsification of the Register see Section 110 Penalty liable on conviction
before a Resident Magistrate to a fine (… dollars) or to imprisonment, or on
conviction on indictment to imprisonment for a term not exceeding (… years);
(b) False claim as to patent rights and/or Industrial designs rights, see
Section 111.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 15
- Penalties
See Section 111:
(a) Where a person falsely represents that he or another is the patentee of an
invention or has applied for such or is the owner of a registered industrial
design or has applied for such commits an offence and shall be liable on
summary conviction to a fine not exceeding (… dollars);
(b) where a person falsely represents that an article sold by him is patented or
incorporates an industrial designs registered in Jamaica, or is the subject of anapplication for a patent or the registration of an industrial design commits an
offence and shall be liable on summary conviction to a fine not exceeding
(… dollars).
2. What protection does your Copyright legislation afford to "foreign works"?
Section 144 of the Copyright Act makes for provis ion for the reciprocity of national treatment
to be given to foreigners who are citizens of countries listed in the schedule of "specified countries",
that is, a convention country or a country in respect of which the Minister (of Industry Commerce and
technology) is satisfied, has or will be making provisions under its law giving adequate protection tothe owners of copyright, or as the cas e may be to Jamaican copyright owners.
3. We understand that efforts are underway to revise and enact legislation on patent and
industrial designs, geographical indications, and plant varieties.
(a) When is such legislation likely to be effectively implemented?
(b) What are the key improvements introduced by such legislation in respect of
TRIPS obligations?
The Trade Marks Act 1999 came into force 3rd September 2001.  The pending legislation in
respect of Patents & Designs Act, Geographical Indi cations Act should be tabled in Parliament during
this present session.  The Bill related to Plant Varieties is being prepared for consideration.
Our obligations under the TRIPS Agreement were token into consideration in the drafting of
our new Intellectual Property Legislation.  These include:
- Term of protection;
- Requirement re-use;- Requirements related to border measures;
- Patentable subject-matter;
- Term of protection.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 16
III. RESPONSES TO QUESTIONS POSED BY THE 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 sectors of vital importance to your socio-
economic and technological development as mentioned under Article 8 of the TRIPS
Agreement.  If yes, please explain how such measures are consistent with the provisions of the
TRIPS Agreement.
Our legislation includes measures necessary to protect public health and nutrition, and to
promote the public interest and our legislation promotes the public interest in socio-economic andtechnological development as mentioned under Article 8 of the TRIPS Agreement.  This legislation is
consistent with the TRIPS Agreement in numerous ways in that it contributes to the promotion of
technical innovation in the fields of medicine, pharmacology, nutrition, and related fields and is
conducive to social and economic welfare.
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 B erne Convention (1971).
The Copyright Amendment Act of 1999 expands the definition of "literary work" provided
for in the principal Act of 1993 to mean: "... 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, and for the purpose of paragraph (a) of this definition, "compilation" means "a
collection of works, data or other material, whether in machine-readable form or any other form,
which constitutes an intellectual creation by reason of the selection or arrangement of the works, dataor other material comprised in it".
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
Section 9 of the Copyright Act states that by virt ue of and subject to the provisions of the Act,
the owner of the copyright in a work  (which includes computer programs, databases or compilations
of data) has the exclusive right to do or authorize other persons to do any of the following acts in
Jamaica:
(a) to copy the work;(b) to issue copies of the work to the public;
(c) to perform the work in public or, in the case of a sound recording, film, broadcast or
cable programme, to play or show the work in public;
(d) to broadcast the work or include it in a cable programme service; or
(e) to make an adaptation of the work and, in relation to such adaptation, to do any or all
of the foregoing acts.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 17
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
Pursuant to section 78 of the Copyright Act the Minister may order, subject to negative
resolution, provide that in such case as may be satisfied in the order, the rental to the public of copies
of sound recordings, films or computer programs 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, copyright in a computer
program is not infringed by the rental of copies to the public after the end of the period of fifty years
from the end of the calendar year in which copies of it were first issued to the public in electronic
form.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Section 107 of the Act confers rights on performers, namely:
- his consent is required to exploit his performa nce.  Any person who makes, otherwise than for
his private and domestic use, a recording of the whole or any substantial part of a qualifying
performance infringes the performers rights.
Section 108
- a person having recording rights in relation to a performance, must get the performer's
consent to make the recording of that perfo rmance.  Any person who shows or plays in
public, broadcasts live, or includes live in a cable programme service, the whole or any
substantial part of a qualifying performance by means of a recording which was made withoutthe performer's consent, knowingly or having reason to believe that it was so made, infringes
the rights of the performer.
Section 110
- A performer's rights are infringed by a person who, without his consent and payment of
royalty at the prescribed rate, uses an original recording of a qualified performance (whetherauthorized or not) for the purpose of making an adaptation of the recording.
Section 111
- A performer's rights are infringed by a person who, without his consent imports into Jamaica
otherwise than for his private and domestic use or, in the course of a business possesses, sells
or lets for hire or distributes, a recording of a qualifying performance which is, and which that
person knows or has reason to believe, is an illicit recording.
These rights are conferred independently of any copyright in or moral rights relating to any
work used or performed in that performance, and any other right or obligation otherwise arising.
6. Please state whether your legislation provides for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Sections 115-128 of the Copyright Act provide for limitations or exceptions to infringement .IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 18
7. Please state the terms of protection of ea ch right described above and the work or
subject matter to which it applies.
The rights in relation to a performance and in relation to phonograms subsist until the end of
the period of 50 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 obligatio n of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
See Section 146(2) of the Copyright Act which provides for copyright to continue to subsist
whence an original literacy, dramatic, musical or artistic work is first published by or under the
direction or control of an international organization in such circumstances that copyright would not,
except by virtue of this subsection, subsist in the work immediately for the first publication thereof.
C. T RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under
what conditions it is protectable.
Under the Trade Marks Act, 1999, the subject matter that can comprise a trademark under the
trademark law, is set out in section 2 (1) in the interpretation of the word "sign".
A "sign" includes "a word (including a pers onal name), design, letter, numeral, colour,
combination of colours or a combination of the foregoing or the shape of goods or their packaging".
A Trademark under this Act, is defined in Section 2(1) as "any sign that is capable of
distinguishing the goods or services of one  undertaking from those of another undertaking".
Under the Trade Marks Act, 1999, the owner of a registered trademark has property right in
the mark and is entitled to the rights and remedies under the Act.  See section 4(1):
(i) the owner of a registered trademark has property in the mark and is entitled to the
rights and remedies under the Act.  See section 4(1);
(ii) The proprietor also has exclusive rights in the registered trademark, and any use of
the mark in Jamaica, without the proprietor consent constitutes an infringement of
such rights (specified in Section 9).  See section 5(1);
(iii) The proprietor has a right to either civil remedies for infringement under
sections 31(2), 35, 36, 38 of the Act.
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.
Under the Trade Marks Act, 1999 well known service marks are given the same protection as well
known trademarks.
This is evidenced by the following:
(i) The definition of a trademark under Section 2(1) of the Act includes services.  "Trade
mark" means "any sign that is capable of being graphically represented and capableIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 19
of distinguishing the goods or service of one undertaking from those of another
undertaking".
(ii) Section 49 of the Act provides for protection of well known marks under the Paris
Convention, which in essence extends to well known service marks.
Section 49 states:
"(1) The proprietor of a well-known mark which is entitled to protection under the Paris
Convention, as mentioned in subsection (2), is  entitled to restrain by injunction the
use in Jamaica of a trademark which, or the essential part of which, is identical with
or similar to his mark in relation to identical or similar goods or services where the
mark is likely to cause confusion."
We shall revert to you on the question of whether sound, perfumes and containers are
protectable.
11. Please explain what the requirements of use a re, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a
registration in that respect.
Section 2(2) of the Trade Marks Act states that:
"References in this Act to use (or any particular description of use) of a Trademark or of a
sign identical with or similar to or likely to  be mistaken for a Trademark include use or that
description of use otherwise than by means of a graphic representation."
See also Section 43(1)(a) which states that a Trademark may be revoked on the ground
inter alia:
"that within the period of 3 years following the date of completion of the registration
procedure and up to one month before the date of application for revocation, the Trademark
has not been put to bona fide use in Jamaica by the proprietor or with his consent, in relation
to the goods or services for which it is registered, and there are no proper reasons for
non-use."
Section 43(2) states that for the purposes of subsection (1) use of a Trademark includes use in
a form differing in elements which do not alter the distinctive character of the mark in the form in
which it was registered, and use in Jamaica includes affixing the Trademark to goods or to their
packaging in Jamaica solely for export purposes.
NB: There is no requirement as a condition for renewal of mark that it is being used.
Follow-up question:
Please confirm that there is no legal defini tion of use for the purposes of trademark
registration.  Please provide such definition if existing via case-law.
 
Section 16(2) provides that an application for registration of a trademark shall state that the
trademark is being used by the applicant or with his consent in relation to the goods or services or that
he has a bona fide  intention that it should be so used.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 20
See also section 11(2) which states that evidence of use must relate to use before the date of
filing.  In practice continuous use over a period of at least three years within Jamaica together with
turnover and nature of advertising is usually requested.
See section 2(2) of the Trade Marks Act which also states that references in this Act to use (or
any particular description of use) of a trademark or of  a sign identical with or similar to or likely to be
mistaken for a trademark, include use of that description of use, otherwise than by means of a graphic
representation.
12. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
Under Section 8 of the Act, the initial period of registration of a trademark is for 10 years, and
tinder section 40, the registration may be renewed for periods of 10 years.  There are no limitations on
the number of renewals and therefore the registration is indefinitely renewable.
13. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
See Section 2(2) of the Trade Marks Act.
Section 16(2) provides that an application for registration of a Trademark shall state that the
Trademark is being used by the applicant or with his consent in relation to the goods or services or
that he has a bona fide intention that it should be so used.
See also Section 11(2) which states that evidence of use must relate to use before the date of
filing of the application.  In practice continuous use over a period of at least 3 years within Jamaica
together with turnover and the nature of advertising is usually required.
D. G EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a
trademark application if it contains a geographical indication.
Our trademark registration authority (the Registrar of Companies) may refuse a trademark
application if it contains a geographical indication.
Under Clause 11( 4)(b) a trademark is not registrable if it is of such as to deceive the public as
to the nature, quality or geographical origin of the goods or services or otherwise.
15. Please give the definition of a geographical indication in your legislation.
"Geographical indication" means an indication which identifies a product 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 product is essentially attributable to its geographical origin.
See the proposed Protection of Geographical Locations Act - Definition Clause 2.
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.
See Clause 3(1) (a) of the proposed Act.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 21
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.
See Clauses 3(1) (c), 18 and 19(1) of the proposed Act.
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
names considered as generic in your jurisdiction.
See Clause 19 of the proposed Act.  As the Bill has not yet become law we are unable at this
time to provide examples of the use of the exceptions by courts or lists of names considered as generic
in our jurisdiction.
E. I NDUSTRIAL DESIGNS
19. Please explain whether or not your legislat ion extends to the protection of designs
dictated essentially by technical or functional considerations.  Please explain how textile designs
are protected.
Under the Draft Patents and Designs Act, 2001, provision is made for the protection of textile
designs in the definition of an "industrial design".
Clause 60 of the Act states:"For the purposes of this Act, an industrial de sign is any composition of lines and colours or
any three dimensional form, whether or not associated with lines or colours, which: -
(a) give a special appearance to a product of industry or handicraft and can serve as a
pattern for a product;
(b) does not serve solely to obtain a technical or functional result and leaves no freedom
as regards arbitrary features of appearance."
Thus, based on the definition, everything which gives rise in the appearance of a product, to
an aesthetic impression (i.e. an impression received by the sense of sight) can be an industrial design.
This definition would also apply to so-called "textile designs".The proposed procedure to register or to obtain protection of textile designs is also set out in
the draft legislation.  It states:
(1) An industrial design is registrable if it is original and not contrary to public order or
morality; and originality in this context means that it should not be commonplace in
the design filed in question at the [time of its creation] - [filing date] -[whereapplicable] or the priority date of application for registration] see Clause 61.
(2) An application for the registration of an industrial design may be made by any person
claiming to be the creator of it, or any person who is an assignee of the creator of the
design who also has the option to apply alon e or jointly with any other person; or by
the personal representative or the assignee of the personal representative of any
deceased person who, immediately before his death, was entitled to make an
application - see Clause 62.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 22
(3) The application for registration of an industrial design shall be filed with the Registrar
and every application shall contain:  -
(a) a request for the registration of the design;
(b) drawings, photographs or other adequate graphic representation of the article
or articles embodying the design;
(c) an indication of the kind of products for which the industrial design is to be
used;
(d) where the design is two (2) dimens ional or three (3) -dimensional, the
application may be accompanied by a specimen of the article embodying the
industrial design;
(e) an application may also contain a request that upon registration, the
publication of the industrial design be deferred for a period not exceeding
twelve (12) months from the date of filing, or, where priority is claimed, from
the date of priority;
(f) Two or more industrial designs which relate to the same class of the
international classification, or to the same set or composition of articles maybe the subject of the same application - see Clause 63.
(4) The filing date of an application for the registration of an industrial design shall be
the [earliest] date on which an application is submitted to the Registrar containing the
requirements set out in Section 63; with the relevant filing fee - see Clause 66.
(5) The Registrar shall then assign a filing date and examine whether the application
satisfies the requirements of Clauses 60, 67 and 63 and any related regulations.
(6) If the Registrar is satisfied that the necessary requirements have been met then he
shall publish the application in the prescribed manner - see Clause 67.
(7) Upon this publication, any party may oppose the registration within the prescribed
period and prescribed manner - see Clause 68.
(8) If the registration is not opposed then the Registrar shall register the industrial design
and publish a reference to the registration and issue to the applicant a Certificate of
Registration of the industrial design - see Clause 68(5).
(9) An industrial design shall be valid for a period of five (5) years upon initial
registration (i.e. from the filing date); and may be renewed upon payment of the
prescribed fee and within the prescribed time, for two (2) consecutive occasions.  See
Clause 69.
Follow-up question:
Please explain whether the requirement of "c ommonplace" is determined in relation to
the world or simply to the territory of Jamaica.
"Commonplace" will be determined in relation to the world and not simply to the territory of
Jamaica.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 23
20. Please explain how your legislation protects right holders of a design against importing
of articles bearing embodied or copied design.
Clause 72 may be relevant in that regard.
Follow-up question:
Please clarify how your legislation protects right holders of a design against importing
or articles bearing embodied or special design.
Section 72 of the Patents and Designs Act confers on a registered owner of an industrial
design the same rights as a patentee to bring proceedings in respect of an act which constitutes the
exploitation of a design.  Exploitation includes importation of articles incorporating the design.
Section 80 contains the power to institute infringement proceedings.  The owner of a design
may apply for:
(a) an injunction;(b) damages;(c) an account of profits;
(d) an order for delivery up or destruction of the article the subject of infringement; and
(e) a declaration that the design has been infringed.In addition to civil remedies, provision is also made for criminal offences in section 111.
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
It does not appear that the proposed legislation in its existing form provides for the right to
issue a compulsory licence for industrial designs.
22. Please indicate for what period of time your legislation grants protection for industrial
designs.
Protection is proposed for industrial designs for an initial period of 5 years, renewable up to
15 years - Section 69.
F. P
ATENTS
23. Please describe how your legislation defines the notions of:  novelty, inventiveness and
industrial application.
Novelty, invention and industrial application are defined in clauses 5, 6 and 7 of the proposed
Act.
24. Please explain whether or not in your legislatio n, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions a re provided for, please describe in detail how
these exclusions are applied in legal as well as practical terms.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 24
Clause 4 of the proposed Act provides for exclusions.  We would not be able to describe in
legal or practical terms how these exclusions are applied until the Bill becomes Law.
25. Please explain whether your legislation prov ides 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.
Clause 4(2) (a) provides for the exclusion of inventions from patentability based on public
order or morality or where the invention would cause serious prejudice to the environment.
26. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
Clause 4(2)(b) excludes diagnostic, therapeutical and surgical methods from patentability.
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.
Clause 4(1)(b) excludes plants, animals and essentially biological processes from
patentability.
28. Please describe how micro-organisms, non-essentially biological processes,
microbiological processes and plant varieties are prot ected in your legislation.  Please explain, in
this respect, the relevant sections of your legislation.
Clause 4(1)(b) saves non-biological and micr o-biological processes from exclusion from
patentability.
29. Please explain how your legislation protects  patent right holders against the importing
and against the offering for sale of a patented invention.
Clause 30 gives the patentee the exclusive rights to exploit the Invention.  Clause 2 defines
"to exploit" as including offering for sale and importation.  Clause 78(1)(a) constitutes the
unauthorized importation or disposal of a patented product as an infringing act against the patent.
30. Please state if your legislation provides for patent product protection of pharmaceutical
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference.
In so far as pharmaceutical and agricultural chemical products are not excluded from
patentability under clause 4, then they can be protected.
31. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
Yes.  See clause 2 and paragraph (b) of the definition of the right of the patentee "to exploit".
Also clause 78 (1) (c) (ii).
32. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prio r inform consent to its use).  If such additionalIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 25
conditions exist, please point out the relevant legislations and describe the additional conditions
in detail.
We are not able to respond fully.  See clauses 9 to 11.  It is also the case that rules are to be
developed.
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.
Clause 30, which grants exclusive patent rights, provides that the grant is subject to the
provisions of the Act.  Accordingly, see clauses 52 and following, relating to use of a patented
invention in the service of the Crown.
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.  Inparticular, please explain how your national le gislation considers individual merits in the
authorization of such use.
Yes.  See in particular clauses 44 to 47.
35. Please explain how your legislation explicitly ensures that a proposed user has made
efforts to obtain authorization from the righ t 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 author ized predominantly for
the supply to the domestic market of the Member authorizing such use.
See clause 44(d) and clause 45(1).
36. Please state if your legislation grants additi onal protection for innovations after the 20
years of patent protection has lapsed.
No.  See clause 26.
37. Please explain how your legislation provide s for the enhanced patent protection of
patents or patent applications pending on 1 January 1995.
This is not clear and we will revert to you on this point if necessary.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
No such provisions appear to be made.  Article 34 of the TRIPS Agreement refers.  However,
clause 81 may be of some relevance to that issue.
39. Please describe how your legislation protects Topographies.
The relevant statue is the Layout-Designs (Topographies) Act of 1999.  Original layout-
design embodied in the integrated circuits are eligible for protection under this Act.  Section 4
provides that a layout-design shall be regarded as or iginal only if it is the result of the intellectual
efforts of its creator: and is not at the time of its creation, commonplace among creators or layout-
designs or manufacturers of integrated circuits.  Where a layout-design consists of a combination of
elements and interconnections that are commonplace, it shall be eligible for protection only if theIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 26
combination taken, as a whole is original as already described.  It must be noted that protection under
the Act does not extend to an idea, concept, process, principle, system or discovery.
40. Please explain what protection your national legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographiesincluding integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
The owner of the right in the layout-design by virtue of Section 6 of the Act has the exclusive
right to do or authorize another person to do any or all of the following:
- to reproduce the whole or part of the layout-design by any means, whether by its
embodiment in an integrated circuit or othe rwise, except to the extent that the layout
design is not regarded as original;
- to import, distribute or otherwise commercially exploit the layout-design or the
integrated circuit in which it is embodied.
It must be noted that the permitted acts established by the Copyright Act are mirrored in this
Act, that is, reproduction solely for private purpose, research teaching, analysing or evaluating
concepts, Section 12.  Likewise, the remedies provided for are similar, that is, damage, injunction,
profits, royalties, delivery up, disposal or otherwise as the Court shall see fit,  Sections 14, 15 and 16.
41. Please explain how your legislation provide s for the derogation from Article 36 as
specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable
grounds to know when acquiring an integrated circuit or an article incorporating such an
integrated circuit that it contains an unlawful topography.
In an action brought under this section, a person who shows that he was an innocent: -
(a) shall incur no liability under this Act with respect to the acquisition, importation,
distribution or other commercial exploitation of units of the infringing integrated
circuit that occurred before the time when he knew or ought reasonably to have
known of the rights with respect to the layout-design embodied in the integrated
circuit; and
(b) shall: -
(i) have the right to dispose of any inventory of the items of which the layout-
design forms a part, that was acquired or imported by him before he had that
knowledge;
(ii) pay a reasonable royalty in respect of that 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.
Section 7 of the Act limits the enjoyment of the layout-design right to ten years commencing
on the date on which the layout-design is first commercially exploited and runs to the end of the
calendar year in which the right expires.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 27
H. P ROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information.  If so, please give the time span.
It does not appear that our legislation deals with this question.  However, see Clause 102(3)
proposed Patents and Designs Act and the 18 month confidentiality period there mentioned.
44. Please explain how your legislation defines undisclosed information.
It is not clear that our legislation defines undisclosed information.
45. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
We are not in a position to answer this question at this time.
Follow-up question:
Please explain whether Jamaican authorities h ave any specific legislative project/draft
aimed to implement those provisions of the TRIPS Agreement and, if so, in what manner.
There is no specific legislation governing undisclosed information.  Reliance is placed on
common law principles and contractual arrangements.
I. E NFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
See answers to questions 49, 50, 51, 52, 54, 55, 57, 59.
47. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.
Our legislation provides mechanisms to appeal to judicial bodies in respect of final
administrative decisions in the area of intellectual property.
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.
Judicial authorities are empowered to order at the request of the opposing party, a party to a
proceeding to produce evidence which lies within its control.
"The Consolidated Judicature (Civil Procedure Code) Law, Chapter 177 which governs all
civil proceedings to be conducted before the Courts of Jamaica, confers this authority."
This is supported by Section 286 which states:"It shall be lawful for the Court or a Judge, at any time during the pendency of any cause or
matter, to order the production by any party thereto, upon oath, of such of the documents inhis possession or power, relating to any matter in  question in such case or matter, as the CourtIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 28
or Judge shall think right; and the Court may deal with such documents, whether produced, in
such manner as shall appear just;"
and Section 374 which states:"The court or a Judge may in any cause or matter, at any stage of the proceedings, order the
attendance of any person for the purpose of producing any writing or other documents named
in the order which the court or Judge may think fit to be produced.
Provided that no person shall be compelled to produce, under any such order, any writing or
other document which he could not be compelled to produce at the hearing or trial."
Our Courts possess wide powers for ordering discovery and inspection.  In addition, there are
new rules being proposed which provide for the exchange of witness statements.
As regards confidential information, such information can be labelled and kept by the Court
in a secured area or vault.  See also section 55 of the Trade Marks Act where some measure of control
over publication of information relating to an application for registration of a trademark before the
publication of the application is exerted.
49. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement
Section 31 (2) of the Trademarks Act provides for relief by way of injunctions inter alia.
Section 80 of the proposed Patents and Designs Act.  In proceedings by a patentee, in respect
of any act alleged to infringe a patent an injunction restraining the defendant from any acts ofinfringement inter alia is available.
This remedy is also available to the registered owner of a design.  See Section 72.
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.
The Jamaican government has put in place necessa ry legal infrastructure to secure compliance
of the enforcement obligations of the TRIPS Agreement outlined in Articles 41-61.  The primarystatutory instruments which achieve this objective, are:
- the Civil Procedure Code;- the Copyright Act of 1993;- the Customs Act;- the Trade Marks Act 1999.
See also clause 80 of the proposed Patents and Designs Act.
Copyright
The Copyright Act provides for expeditious remedies to prevent infringement.  Civil remedies
include:IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 29
- Injunction (section 32);
- Order for delivery up (section 33 and 133);
- Order for destruction (section 137);
- Account of profits (section 32);- Damages (section 32).
Trademarks
(a) In an action for infringement of a Trademark, the Court may order remedies such as damages,
injunctions, accounts or otherwise.
Section 31(2) of the Trade Marks Act, 1999 supports this:
"In an action for infringement all such relief by way of damages injunction, accounts or
otherwise is available to him as is available in respect of the infringement of any other
property rights."
(b) The Court may apply other remedies such as order for erasure, order for delivery up and order
for disposal,  Trade Marks Act, 1999.
Section 35 of the Trade Marks Act, 1999 specifies the criteria where an order for erasure can
be made.  It states:
"(1) The Court may make an order requiring the person who is found to have infringed a
registered trademark: -
(a) to cause the offending sign to be erased, removed or obliterated from any
Infringing goods, materials or articles in his possession custody or control; or
(b) where it is not reasonably practicable for the offending sign to be erased,
removed or obliterated, to secure the destruction of the infringing goods,materials or articles."
Section 36 of the Trade Marks Act, 1999, specifies the criteria for issuance of an order for
delivery up by the Court.  It states:-
"(1) The proprietor of a registered trademark may apply to the Court for an order for the
delivery up to him or to such persons as the Court may direct, of any infringing
goods, material or articles which a person has in his possession, custody or control in
the course of business."
Section 38 of the Trade Marks Act 1999 specifies the criteria for issuance of an order for
disposal by the Court.  It states:
"(1) An application may be made to the Court: -
(a) for an order that infringing good material or articles be delivered up pursuant
for an order under Section 36 be destroyed or forfeited to such person as the
Court think  fit;  orIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 30
(b) for a decision that no such order be made.
"(2) In determining what order (if any) should be made the Court shall consider whether
other remedies available in an action for infringement of the registered trademark
would be adequate to compensate the proprietor and any licensee and to protect theirinterest."
Patents
Under the Patent Act 1857, a Court can also grant remedies in respect of an infringement
action, such as injunction, inspection or account, or other remedies.
This is evidenced by Section 45 which states: -
"In an action for infringement of a patent, the Court or a Judge may on the application of
either party make such order for an injunction, inspection or account, and impose such terms,
and give such directions respecting the same and the proceedings thereon.  As the court or
Judge may see fit."
Industrial Designs
Under the Designs Act, 1937, the court by virtue of Section 21 can grant such remedies in
infringement proceedings, such as orders for an injunction, inspection, or account, or any other as thecourt sees fit.
Section 21 states: -
"In any proceedings under this Act. the Court or a Judge, as the case may be, may at any time
make such orders for an injunction, inspection, or account, impose such terms, and give such
directions as to the order in which the parties shall be heard, and the procedure under this Act
generally, as the Court or Judge shall see fit."
Draft Patent and Designs Act, 2001
In relation to a Patent, under this legislation, the owner of a patent who brings infringement
proceedings may apply to the court for an injunction, damage, account of profits, order for the
delivery up or destruction, or declaration that the patent is invalid; which in effect signifies that the
court has power to grant these remedies as it sees fit.
Section 80(1) states:"(1) Subject to the following provision of this section and to Section 83, the Patentee may
bring proceedings in respect of any act alleged to infringe the patent and (without
prejudice to any other jurisdiction of the Court,) may apply for: -
(a) an injunction restraining the defendant from any acts of infringement;(b) damages in respect of the infringement;
(c) an account of profits derived from the infringement;IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 31
(d) an order for the delivery up or destruction of any patented product in relation
to which the patent is infringed or any article in which that product is
inextricably comprised;
(e) a declaration that the patent is valid and has been infringed by the defendant."
In respect of an Industrial Design, under the Draft Patent and Designs Act 2001, the Court can
grant the same remedies to the registered owner with  respect to infringement as those applicable to a
Patent under Section 80(1) of the said legislation.
These remedies are complimented by the general provisions of the Civil Procedure Code
(CPC) which provide checks and balances in the application and award process of these remedies to
avoid abuse.  Accordingly, injunctions will not be granted unless the applicant can show that there is aserious issue to be tried, damages alone would not suffice and that he would stand to lose more if the
order was not made.
51. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
There are general provisions and Rules of Court which allow for orders for costs to be made.
See also clause 88 of the proposed Patents and Designs Act which provides for an award of costs on
an attorney-and-client basis (as opposed to party-and-party basis).
52. Please explain if and how judges have the au thority to order that infringing goods are
placed outside channels of commerce or destroyed.
See Trade Marks Act - Sections 35, 38.
Copyright Act - Sections 33 and 133.Proposed Patents and Designs Act - Clause 80.
53. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
Under the Court's inherent jurisdiction, there is power to indemnify the Defendant in the event
of abuse by the Plaintiff and to award damages to the Defendant in the event that it proves at trial that
an interlocutory injunction was wrongly granted against him and he establishes his losses arising
therefrom.
54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
Provisional Measures.
See the sections of the above Acts referred to above.  The Court has power in cases of
emergency to grant interim orders and to make orders ex parte in cases of emergency.  In the case of
ex parte  orders, these are usually granted for short periods 7 - 10 days, and interlocutory orders are
made up until trial of the substantive issues.
55. Please identify the competent authorities in  your jurisdiction who receive requests from
right holders for an application to suspend th e release of counterfeit goods by the customs
authorities.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 32
Customs
Section 50 of the Copyright Act empowers the Commissioner of Customs, on the authority of
a Notice provided by the copyright owner, to suspend the release into free circulation of piratedgoods.  Details of what Customs requires in order to accept the Notice are outlined in the Jamaica
Gazette Supplement, Proclamations Rule and Regulations, Volume CXVIII Thursday, 9 March, 1995,
number 28c.  Measures that were designed to prevent abuse include limiting the duration of the Notice
and ensuring that the Notice provides adequate details in respect of evidence of ownership of
copyright and a sufficient description of the protected work.  The copyright owner may also be
requested to give security in respect of liability incurred by the Commissioner of Customs in
consequence of the Notice by reason of detention of  the article(s) or anything done in the article(s)
while detained.
Similar powers are set out in Sections 66 - 68 in the Trade Marks Act in relation to
trademarks.
56. Please indicate whether or not procedures  are available to suspend the exporting of
counterfeit goods.
It is not clear whether the procedures apply to exportation.
57. Please quote what provisions of your legisl ation authorize the competent authorities to
order the destruction or disposal of infringing goods.
Answer at 52 above.
58. Please indicate whether or not your legislation provides for a de minimis imports
exception.
Our legislation does not provide for a de minimis imports exception.
59. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
The Laws provide for criminal procedures and penalties in respect of various types of
infringements of intellectual property rights.  These are as follows:
Trademarks
- Under the Trade Marks Act, 1999
Unauthorized use of a Trademark in the following circumstances as set out in Section 69 of
the Act.
Section 69 states as follows:-
"(1) Subject to subsection (4), a person commits an offence if with intent to gain for
himself or another, or with intent to cause loss to another and without the consent of
the proprietor of the Trademark he: -
(a) applies to goods a sign identical with or likely to be mistaken for a registered
trademark; orIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 33
(b) sells or lets for hire, offers or exposes for sale or hire or distributes goods
which bears, or the packaging or which bears, such a sign; or
(c) has in his possession, custody or control in the course of business, any goods
referred to in paragraph (b) with a view to the doing of anything, by himselfor another, which would be an offence under paragraph (6).
(2) Subject to subsection (4), a person commits an offence if, with a view to gain for
himself or another, or with intent to cause loss to another, and without the consent of
the proprietor he: -
(a) applies a sign identical to or likely to be mistaken for a registered trade mark
to material intended to be used for labelling or packaging goods or as
business paper in relation to goods or for advertising goods; or
(b) uses in the course of a business material bearing such a sign for labelling or
packaging goods as a business paper in relation to goods, or for advertising
goods; or
(c) has in his possession, custody or control in the course of a business any such
material with a view to the doing of anything, by himself or another, whichwould be an offence under paragraph (b).
(3) Subject to subsection (4) a person commits an offence who with a view to gain for
himself or another or with intent to cause loss to another and without the consent of
the proprietor he: -
(c) makes an article specifically designed or adapted for making copies of a sign
identical to or likely to be mistaken for a registered trademark; or
(d) has such an article in his possession, custody or control in the course of a
business, knowing or having reason to believe that is has been or is to be,
used  to reproduce goods or material for labelling or packaging goods, as a
business paper in relation to goods or for advertising goods."
- Penalties
Section 69(6) states:
"A person who commits an offence under this Section is liable: -
(c) on summary conviction before a Resident Magistrate to a fine not exceeding
one million dollars or to a term of imprisonment not exceeding twelve
months or to both such fine and imprisonment;
(d) on conviction before the Circuit Court to fine or to imprisonment not
exceeding five years or to both such fine and imprisonment."
Copyright
The Copyright Act provides for criminal procedures and penalties including sections 46, 134
and 136.  Section 140 of the Act also give the Police adequate powers of entry, search, seizure,
removal and detention to facilitate the prosecution process.  Offences include:IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 34
- Dealings with any article, knowingly or having reason to believe, that it is an
infringing copy.  Penalties:
- RM Court conviction, $100,000/two years imprisonment;
- Supreme Court conviction, undetermined fine/five years imprisonment.
- Possession of an article designed or adapted to make copies knowing that it is to be
used for making infringing copies for sale or hire or for use in the course of business.
Penalties:
- RM Court conviction, S50,000/one year imprisonment;- Supreme Court conviction, undetermined fine/three years imprisonment.
Draft Patents and Designs Act 2001
Under the proposed Patent and Designs Act, 2001, falsification of the Register and falsely
representing oneself to be a patentee of an invention are also to be made criminal offences with
sanctions of fine and imprisonment.
IV. RESPONSE TO QUESTION POSED BY JAPAN
A. C OPYRIGHT AND RELATED RIGHTS
Please explain exceptions or exemptions of  the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted inArticles 3 and 4 of the TRIPS Agreement.
The Copyright Act of 1993 ("the Act") outlines in sections 5, 6, 7 and 8 the requirements for
protection, the category of eligible works and the qualification for protection in respect of the author
and the place of publication.  A copy of same is attached for your consideration.
3  It is important to
note that the term "specified country" is defined in the Copyright (Specified Countries) Order 1994
which is also attached for your perusal.4
Section 144 of the Act entrenches the requirements of national treatment and most-favoured-
nation treatment provided for in Articles 3 and 4, respectively, of the TRIPS Agreement.  The
Minister (of Industry, Commerce and Technology) is empowered by section 145 of the Act to make
provision for exceptions and exemptions to the aforesaid requirements.  A copy of both sections isattached.
5
In particular, a country will be denied copyright protection and the protection of rights in
performances if it appears to the Minister that the laws of a country fail to give adequate protection to
Jamaican works or performances or fail to give adequate protection in the case of one or more classesof such works or performances.  However, when  making provisions under section 145, the Minister
must have regard to the nature and extent of the lack of protection for Jamaican works or
performances in consequence of which the order is being made.
                                                     
3 See Annex 1.
4 See Annex 2.
5 See Annex 3.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 35
V. RESPONSES TO QUESTIONS POSED BY SWITZERLAND
A. GEOGRAPHICAL INDICATIONS
1. Please explain in detail how your legislation provides protection for geographical
indications.
At present no legislation exists but a bill has been prepared along the guidelines and main
provision of the draft prepared by the World Inte llectual Property Organization (WIPO) for Jamaica.
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.
No. See clauses 4 (1) (a) and (2)(a) which relate to Article 27.2 and 27.3(b) of the TRIPS
Agreement.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of
the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude
compulsory licensing, if a product is being imported)?
Yes.  Clause 2 defines "to work" a patent as including, its importation.  Clauses 44 and 51
provide for non-voluntary (compulsory) licensing.  However the latter clause excepts from non-
voluntary licensing the importation of the patented product from specified countries (described as
relevant countries).
Follow-up question:
You mention that Article 51 excepts from non-voluntary licensing the importation of the
patented product from specified countries.  Please specify these countries and explain how such
regulation complies with Article 4 of the TRIPS Agreement.
The specified countries have not yet been named.  These will appear in the Regulations under
the Act.  In keeping with Article 4 of the TRIPS Agreement these will include:
(a) States parties to the Paris Convention and the TRIPS Agreement;(b) countries with which Jamaica had signed Agreements prior to the entry into force of
the WTO Agreement.
4. Does your legislation make the granting of a compulsory license subject to all the
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant
provisions of law.
No, but provision is made in relation to the following sub-paragraphs of Article 31:
(b) Clause 45 (1) (b);
(d) Clause 52 (5) (a);IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 36
(e) Clause 52 (5) (b);
(f) Clause 52 (5) (c);
(g) Clause 46;
(h) Clause 45 (1) (b);(l) Clauses 49 and 112;(k) Clause 48;
(1) Clause 44 (d) (ii).
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.
It does not appear so, but see Clause 81.
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
authorization of a pharmaceutical or of an agricultural chemical product is protected against
disclosure and against unfair 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 authorization for his own product.  Does yourlegislation 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?
There is no legislation governing undisclosed information.
Follow-up question:
You mention that there is no legislation governing undisclosed information in your
country.  Does this mean that the obligations contained in Article 39 of the TRIPS Agreement
are directly applicable in your legislation?
Although at present there is no specific legislation governing undisclosed information, trade
secrets are protected by common law principles and through contractual arrangements.
D. ENFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective
deterrents to infringements of intellectual property rights.
Copyright and Related Rights
The Copyright Act of 1993 provides for a suit of offences punishable by fines and or
imprisonment which pose an effective deterrent to the infringement of IPRs.  The Resident
Magistrates Court (lower court) may impose a maximum fine of $100,000 and or a maximum term of
imprisonment of five years.  Note that although the Act puts a ceiling on the fine that may be imposedIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 37
by the Resident Magistrate Court, the Court has discretion to augment the amount payable by a
defendant by making an award of damages.  However, the total amount awarded must not exceed
$250,000.  The Act gives the Supreme Court/Circuit Court discretion to determine the quantum of
damages that would adequately compensate the defendant.  However the Court's power to imposeimprisonment is limited to a term not exceeding five years.  In all the circumstances, fines and terms
of imprisonment may be awarded separately or in conjunction.
Industrial Property – Civil remedies
In respect of civil remedies the following are provided in relation to the different IPR rights:
Trademarks
(a) In an action for infringement of a Trademark, the court may order remedies such as
damages, injunctions, accounts or otherwise.
Section 31(2) of the Trade Marks Act, 1999 supports this:"In an action for infringement all such relief by way of damages, injunction, accounts or
otherwise is available to him as is available in respect of the infringement of any other
property rights."
(b) The Court may apply other remedies such as order for erasure, order for delivery up;
and order for disposal.  These provisions are stipulated in the Trade Marks Act, 1999
(not yet enacted).
Section 35 of the Trade Marks Act, 1999 specifies the criteria where an order for erasure can
be made.  It states:
"(1) The Court may make an order requiring the person who is found to have infringed a
registered trademark:
(a) to cause the offending sign to be erased, removed or obliterated from any
infringing goods, materials or articles in his possession custody or control; or
(b) where it is not reasonably practicable for the offending sign to be erased,
removed or obliterated, to secure the destruction of the infringing goods,
materials or articles."
Section 36 of the Trade Marks Act, 1999 specifies the criteria for issuance of an order for
delivery up by the Court.  It states: -
"The proprietor of a registered trademark may apply to the Court for an order for the delivery
up to him or to such person as the Court may direct, of any infringing goods, material or
articles which a person has in his possession, custody or control in the course of business."
Section 38 of the Trade Marks Act 1999 specifies the criteria for issuance of an order for
disposal by the Court.  It states:
An application may be made to the Court -IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 38
"(1) (a) for an order that infringing goods material or articles delivered up pursuant
for an order under Section 36 be destroyed or forfeited to such person as the
Court may think fit; or
(b) for a decision that no such order be made.
In determining what order (if any) should be made, the Court shall consider whether other
remedies available in an action for infringement of the registered trademark would be
adequate to compensate the proprietor and any licensee and to protect their interests."
Patents
Under the Patent Act 1857, a Court can also grant remedies in respect of an infringement
action, such as injunction, inspection or account, or ot her remedies.  This is evidenced by Section 45
which states:
"In an action for infringement of a patent, the Court or a Judge may on the application of
either party make such order for an injunction, inspection or account, and impose such terms,
and give such directions respecting the same and the proceedings thereon.  As the court or
Judge may see fit."
Industrial Designs
Under the Designs Act, 1937, the court by virtue of Section 21 can grant such remedies in
infringement proceedings, such as orders for an injunction, inspection, or account or any other as the
court sees fit.
Section 21 states:
"In any proceedings under this Act, the Court or a Judge, as the case may be, may at any time
make such orders for an injunction, inspection, or account, impose such terms, and give such
directions as to the order in which the parties shall be heard, and the procedure under this Act
generally, as the Court or Judge shall see fit".
Draft Patent and Designs Act, 2001
In relation to a Patent, under this legislation, the owner of a patent who brings infringement
proceedings may apply to the court for an injunction, damage, account of profits, order for thedelivery up or destruction, or declaration that the patent is invalid; which in effect signifies that the
court has power to grant these remedies as it sees fit.
Section 80(1) states:
"(1) Subject to the following provision of this section and to Section 83, the Patentee may
bring proceedings in respect of any act alleged to infringe the patent and (without
prejudice to any other jurisdiction of the Court,) may apply for: -
(a) an injunction restraining the defendant from any acts of infringement;(b) damages in respect of the infringement;(c) an account of profits derived from the infringement;IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 39
(d) an order for the delivery up or destruction of any patented product in relation
to which the patent is infringed or any article in which that product is
inextricably comprised;
(e) a declaration that the patent is valid and has been infringed by the defendant."
In respect of an Industrial Design, under the Draft Patent and Designs Act 2001, the Court can
grant the same remedies to the registered owner with  respect to infringement as those applicable to a
Patent under Section 80(1) of the said legislation.  This is evidence by section 72 (2) which states:
"(2) The registered owner of an industrial design may, subject to the provision of
subsection (3), bring proceedings in respect of any act done without his consent
which constitutes the exploitation of the design or which makes it likely that such
exploitation will occur, and without affecting any other jurisdiction of the Court, may
make the same claims mutatis mutandis  as those applicable under Section 80 in
relation to an infringement of a patent."
Industrial property – criminal sanctions and penalties
In respect of criminal sanctions and penalties, the following are provided in relation to the
different IPR rights:
The Trade Marks Act, 1958
Under the Trade Marks Act, 1958 the following ac ts of infringements of trademarks attracts
criminal procedures and penalties:
(a) Falsification of entries in the Trademarks Register is a misdemeanor.  This is set out
in Section 57 which states:
"If any person makes or cause to be made a false entry in the Register, or a writing
falsely purporting to be a copy of an entry in the Register, or produces or tenders or
causes to be produced or tendered in evidence any such writing, knowing the entry orwriting to be false, he shall be guilty of a misdemeanor, and on conviction shall be
liable to be imprisoned for a term not exceeding two years with or without hard
labour."
(b) Falsely representing a trademark as registered, attracts a fine.  This is set out in
section 55 (1) which states:
"(1) any person who makes a representation: -
(a) with respect to a mark not being a registered trademark, to the effect
it is a registered trademark, or
(b) with respect to a part of a registered trademark not being a part
separately registered as a trademark, to the effect that it is so
registered, or
(c) to the effect that the registration of a trademark gives an exclusive
right to the use thereof in any circumstances in which, having regards
to limitations entered on the Register, the registration does not give
that right,IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 40
shall be liable on summary conviction to a fine not exceeding ten dollars and in
default of payment to imprisonment with or without hard labour for a term not
exceeding two months."
NB:  (Fine and length of imprisonment have been amended to longer term.)
The Trade Marks Act, 1999
Under the Trade Marks Act, 1999, the following acts of infringement of a Trademark which
attracts criminal penalties are as follows:
Unauthorized use of a Trademark under different circumstances as stipulated in Section 69.
Section 69 states as follows:
"(1) Subject to subsection (4), a person commits an offence if with intent to gain for
himself or another, or with intent to cause loss to another and without the consent ofthe proprietor of the Trademark he: -
(a) applies to goods a sign identical with or likely to be mistaken for, a registered
trademark; or
(b) sells or lets for hire, offers or exposes for sale or hire or distributes goods
which bears, or the packaging of which bears, such a sign; or
(c) has in his possession, custody or control in the course of business, any goods
referred to in paragraph (b) with a view to the doing of anything, by himself
or another, which would be an offence under paragraph (6).
"(2) Subject to subsection (4), a person commits an offence if, with a view to gain for
himself or another, or with intent to cause loss to another, and without the consent of
the proprietor he: -
(a) applies a sign identical to or likely to be mistaken for a registered trade mark
to material intended to be used for labelling or packaging goods or as
business paper in relation to goods or for advertising goods; or
(b) uses in the course of a business material bearing such a sign for labelling or
packaging goods as a business paper in relation to goods, or for advertisinggoods; or
(c) has in his possession, custody or control in the course of a business any such
material with a view to the doing of anything, by himself or another, which
would be an offence under paragraph (b).
"(3) Subject to subsection (4) a person commits an offence who with a view to gain for
himself or another or with intent to cause loss to another, and without the consent of
the proprietor he: -
(a) makes an article specifically designed or adapted for making copies of a sign
identical to or likely to be mistaken for a registered trade mark; or
(b) has such an article in his possession, custody or control in the course of a
business,IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 41
knowing or having reason to believe that it has been or is to be, used to reproduce
goods or material for labelling or packaging goods, as a business paper in relation to
goods or for advertising goods."
- Penalties
Section 69 (6) states:
"A person who commits an offence under this Section is liable: -
(a) on summary conviction before a Resident Magistrate to a fine not exceeding
one million dollars or to a term of imprisonment not exceeding twelve
months or to both such fine and imprisonment.
(b) on conviction before the Circuit Court to fine or to imprisonment not
exceeding five years or too both such fine imprisonment."
Falsification of Entry in the Register, which is stipulated in Section 70.  Section 70 states:"(1) A person commits an offence if he makes or cause to be made a false entry in the
Register or makes or cause any writing or document purporting to be a copy of an
entry in the register, or produce d or tendered in evidence any such writing knowing
or having reason to believe that the entry or writing to be false.
(2) A person guilty of an offence under section (1) is liable-
(a) on summary conviction before a Resident Magistrate to a fine not exceeding
two hundred and fifty thousand dollars, or imprisonment for a term not
exceeding six months;
(b) on conviction before a Circuit Court to a fine or to imprisonment not six
years or to both such fine and imprisonment.
Falsely representing a trademark as a registered mark which is stipulated in section  77.
Section 77 states:
"(1) A person commits an offence if he: -
(a) represents that a mark is registered trademark; or(b) makes a representation as to the good or service for which a trademark is
registered, knowing or having reason to believe that the representation is
false.
(2) The use in Jamaica in relation to a trademarks of the word "registered" or of any other
word or symbol importing a reference (expressed or implied) to registration, shall be
deemed to be a representation as to regist ration under this Act, unless it is shown that
the reference is to registration in another country and that the trademark is intact, so
registered for the goods or service in question.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 42
(3) A person guilty of an offence under this section is liable on summary conviction
before a Resident Magistrate to a fine not exceeding two hundred and fifty thousand
dollars or to imprisonment for a term not exceeding six months."
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 Jamaican Government is presently receiving assistance from the World Intellectual
Property Organisation in its efforts to put in pla ce an anti-piracy system.  Jamaica is considering
implementing the banderole system, possibly in conjunction with a hologram.  The banderole wouldbe made a mandatory attachments to all sound recordings being sold in the country.  WIPO
consultant, Mrs. Funkazi Koroye-Crooks, has greatly contributed to this process by way of several
successful missions to Jamaica to meet with the stakeholders of the music industry and top
government officials.  A national working group was founded to garner the feedback of the
stakeholders, to invite dialogue and to explore the feasibility of the proposal.  It is expected thatJamaica will forge ahead with preparatory steps for the implementation of the programme in the
shortest possible delay.
Trademarks and designs
The impending automation of the Jamaica Intellectual Property Office (JIPO) with the
assistance of the World Intellectual Property Organisation (WIPO) and the proposed database link
with the Customs department will facilitate the search procedure and thus expedite the enforcement
process.
VI. RESPONSES TO QUESTIONS POSED BY THE UNITED STATES
A. GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which nation treatment and most
favoured nation treatment are provided to nationals of other WTO Members.
Copyright - Section 144 of the Copyright Act ma kes provision for the reciprocity of national
treatment to be given to foreigners who are citizens of countries listed in the schedule of "specifiedcountries", that is, a convention country or a country in respect of which the Minister (of Industry
Commerce and Technology) is satisfied, has or will be making provisions under its law giving
adequate protection to the owners of copyright, or as the case may be to Jamaican copyright owners.
B. COPYRIGHT AND RELATED RIGHTS
2. Please explain how the copyright law of Jamaica  protects computer programs as
literary works and complications of data as required by Article 10 of the TRIPS Agreement.
Copyright and Related Rights
The Copyright Amendment Act of 1999 expands the definition of "literary work" provided
for in the principal Act of 1993 to mean:
"... any work, other than a dramatic or musical work, which is written, spoken or sung, and
accordingly includes: -IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 43
(a) a written table or compilation;
(b) a computer program,
and for the purpose of paragraph (a) of this definition, 'compilation' means a collection of
works, data or other material, whether in machine-readable form or any other form, whichconstitutes an intellectual creation by reason of the selection or arrangement of the works,
data or other material comprised in it."
3. 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 Jamaica.
Copyright and Related Rights
Pursuant to section 78 of the Copyright Act the Minister may order, subject to negative
resolution, provide that in such case as may be satisfied in the order, the rental to the public of copies
of sound recordings, films or computer programs 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 ordetermined in default of agreement by the Copyright Tribunal.  Further, copyright in a computer
program is not infringed by the rental of copies to the public after the end of the period of fifty years
from the end of the calendar year in which copies of it were first issued to the public in electronic
form.
4. Please describe the protection the copyright law of Jamaica provides for performers,
and the term of the protection.
.
Copyright and Related Rights
Section 107 of the Act confers rights on performers, namely:
- his consent is required to exploit his pe rformance. Any person who makes, otherwise
than for his private and domestic use, a recording of the whole or any substantial part
of a qualifying performance infringes the performers rights - Section 108;
- a person having recording rights in relation to a performance, must get the performers
consent to make the recording of that perf ormance. Any person who shows or plays in
public, broadcasts live, or includes live in a cable programme service, the whole or
any substantial part of a qualifying performance by means of a recording which was
made without the performers consent, knowingly or having reason to believe that it
was so made, infringes the rights of the performer - Section 108;
- a performer's rights are infringed by a person who, without his consent and payment
of royalty at the prescribed rate, uses an original recording of a qualified performance
(whether authorized or not) for the purpose of making an adaptation of the recording -
Section 110;
- a performer's rights are infringed by a person who, without his consent imports into
Jamaica otherwise than for his private and domestic use; or in the course of a business
possess, sells or lets for hire or distributes, a recording of a qualifying performance
which is, and which that person knows or has reason to believe, is an illicit recording- Section 111.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 44
These rights are conferred independently of any copyright in or moral rights relating to any
work used or performed in that performance; and any other right or obligation otherwise arising.
The aforesaid rights 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 - Section 129.
5. 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 Jamaica implements these obligations and indicate the termof protection.
Copyright and Related Rights
Section 112 of the Copyright Act stipulates that the rights of a person having recording rights
in relation to a performance are infringed where a re cording of the whole or substantial part of the
performance is made without his consent for a non-private and domestic use.  Section 114 also
provides that the said rights are infringed where a person imports into Jamaica otherwise than for his
private use; or in the course of business, possess, sells or lets for hire, offers or exposes for sale or
hire, or distributes, a recording of the performance which is, and which that person knows or hasreason to believes is, an illicit recording.  The duration stipulated in section above likewise applies.
C. TRADEMARKS
6. Please describe the subject matter that can comprise a trademark under the trademarklaw of Jamaica.
Trademarks and Designs
(a) Under the Trade Marks Act, 1958 the subject matter that can comprise a trademark, is
set out in section 21 (1) in the interpretation of the word "mark".
A "Mark" includes a devices brand, heading, label, ticket, name, signature, word,
letter, numerical or any combination thereof.
A Trademark as under this Act is defined in Section 2 (1) as "a mark used or
proposed to be used in relation to goods for the purpose of indicating, or so as to
indicate, a connection in the course of trade between the goods, and some person
having the right either as proprietor or as registered user to use the mark … ".
(b) Under the Trade Marks Act, 1999, the subject matter that can comprise a trademark
under the trademark law, is set out in section 2(1) in the interpretation of the word
"sign".
A "sign" includes a word (including a personal name), design, letter, numeral, colour,
combination of colours or a combination of the foregoing or the shape of goods or
their packaging.
A Trademark under this Act, is defined in Section 2(1) as "any sign that is capable of
distinguishing the goods or services of one undertaking from those of anotherundertaking".IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 45
7. Please describe the procedure that must be followed to register a trademark in Jamaica,
citing the relevant provisions of the law, and de scribe the rights that the owner of a registered
mark can exercise.
Procedure to Register a Trademark under the Trade Marks Act, 1958 and Trade Marks Rules, 1958
(i) An application may be made to register a mark in Part A or Part B of the Register.
See Section 3(2).
A mark is registrable in part A, if it distinguishes the goods of the trader from goods
of another trader (i.e. the mark is strongly distinctive of the goods).  A mark is
registrable in Part B if it is capable of distinguishing the goods in the course of trade(The remedies for infringement of a ma rk vary according to whether the mark is
registered in Part A or B of the Register.  See sections 6 and 7.)
(ii) Applications are made in duplicate on a standard form (Form No. 2).  The
specification of goods must be stated on the form.  See section 21 (1).
(iii) An application to register the mark may be made by:
(a) the proprietor of the mark;
(b) his duly authorized agent.  See Rule 21(1).
(iv) An application form must be completed for each class of goods for which the mark
will be registered.  There are 34 classes of goods and 8 classes for service.  (Only
trademarks or marks for goods are registrable under the Trade Marks Act, 1958).
(v) Six copies of representation of the mark should accompany each application form.
See Rule 24.
(vi) The total fee to register a trademark is payable over different stages of the registration
process.  Fees are charged for each class in which the mark is to be registered.
Jamaican dollars
Application $3,500
Advertisement $1,320
Registration $2,500Amendments $1,250 (for each amendment, if any)
The fees are due and payable at the different stages in the process.  See 1999
Amended Schedule 1 of the Trade Marks Rules, 1958.
(vii) On receipt of an application, a letter of acknowledgement is sent to the applicant.
(vi) The applicant will be advised in writing of the acceptance or now acceptance of the
mark for registration.  See Rules 32-34.
(vii) If the mark is accepted, the registration fees and fee for advertisement become
payable.
(viii) The mark is then advertised in the Jamaican Gazette.  See Rule 42(1).IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 46
(ix) If no objection is taken within one month of the advertisement, the mark is registered.
See Rule 42 (1).
(x) A Certificate of registration of the mark is then issued.  The mark is then protected in
the class and in relation to the goods for which the application was made with effectfrom the date of application.  See Rule 63.
Procedure Under the Trade Marks Act, 1999 and Trade Marks Rules, 2000
Under this new legislation the following changes will take place in the procedure to register a
trademark.
(i) An application to register a trademark may only be made in one Part of the Register
i.e. Part A.  See Section 2 (1) of the Third Schedule to the Act.
(ii) Applications are to be made in duplicat e on a standard form TM 1 (which will make
provision for such features as rights of priority, and address for service etc.).
(iii) An application may be made for registration of a mark in more than one class of
goods at one instances on form TM 1.  This is the provision called multi-classapplication.  See Rule 8(1).
(iv) The fee payment will be collected in two parts as existing, but the fee structure will
differ see First Schedule (Regulation 3) of Trade Marks Rules, 2000.
The structure will be as follows:
Application for registration of a Trademark or a service of mark in one class:
Jamaican Dollars
Upon application $3,500
Upon acceptance of registration $3,500
Class fee for each class over one $1,000
Certificate re Claim to priority $1,000
Address for service $1,000
(v) The period of opposition applicable for the registration of a trademark has been
extended to two months.  See Rule 12(1).
Rights that can be exercised under the Trade Marks Act, 1958
The owner of a registered trademark can under the 1958 Act exercise the following rights:(i) It gives him exclusive right to the use of the nominated good(s) subject to the Act and
any conditions imposed by the office.
(ii) The proprietor is able to sue in the Courts or bring other civil action for infringement
of his mark if some other trader uses a substantially or deceptively similar mark.  See
sections 6 and 7.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 47
Rights that can be exercised under the Trade Marks Act, 1999
Under the Trade Marks Act, 1999, the owner of a registered trademark has property right in
the mark and is entitled to the rights and remedies under the Act.  See section 4(1).
(i) the owner of a registered trademark has property in the mark and is entitled to the
rights and remedies under the Act.  See section 4(1).
(ii) The proprietor also has exclusive rights in the registered trademark, and any use of
the mark in Jamaica, without the proprietor consent constitutes an infringement of
such rights (specified in Section 9).  See section 5(1).
(iii) The proprietor has a right to either civil remedies for infringement under
section 31 (2), 35, 36, 38 of the Act.
Infringement of the proprietor's right can also attract criminal sanctions and penalties by
virtue of section 69 of the Act, in respect to unauthorized use of the Trademark.
8. Please provide the length and terms of protection the trademark law of Jamaica
provides for a trademark.
(i) Under the 1958 Act, a Trademark is protected for a period of 7 years upon
registration in the first instance, and thereafter subject to renewal every 14 years after
the expiration of the previous registration.  See Section 22.
(ii) Under the 1999 Act, a trademark is protected for a period of 10 years upon
registration, and thereafter subject to renewal, every 10 years after the expiration ofthe previous registration.  See Sections 8 and 40.
9. Please explain whether well-known service marks are given the same protection as well-
known trademarks under Article 6 bis of the Paris Convention, as required by Article 16.2 of the
TRIPS Agreement.
Under the Trade Marks Act, 1999 well known service marks are given the same protection as
well known trademarks.
This is evidenced by the following:
(i) The definition of a trademark under Section 2(1) of the Act includes services:
"trademark means any sign that is capable of being graphically represented and
capable of distinguishing the goods or service of one undertaking from those of
another undertaking."
(ii) Section 49 of the Act provides for protection of well-known marks under the Paris
Convention, which in essence extends to well-known service marks.  Section 49
states:
"(1) The proprietor of a well-known mark which is entitled to protection under the
Paris Convention, as mentioned in subsection (2), is entitled to restrain by
injunction the use in Jamaica of a trademark which, or the essential part of
which, is identical with or similar to his mark in relation to identical or similargoods or services, where the mark is likely to cause confusion."IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 48
D. GEOGRAPHICAL INDICATIONS
Note: The Legislation relating to Geographical Indications is still in Bill form and not yet passed by
Parliament.
10. Please describe in detail how the laws of Jamaica provide for the recognition and
protection of geographical indications 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.
See Section 3 of Geographical Indications Bill which provides that any person, producers or
group of producers or consumers having an interest in a geographical indication or a product may
apply to the court to prevent in respect of that geographical indication or that product's geographical
indication section 3(1)(a) - (c):
(a) the use of any means in the designation or presentation of the product that indicates or
suggests that the product originates in a geographical area other than the true place of
origin, in a manner which misleads the public as to the geographical origin of the
product; or
(b) any use which constitutes an act of unfair competition within the meaning of
Article 10 bis of the Convention; or
(c) any use which identifies wines or spirits, as the case may be, that do not originate in
the place indicated by the geographical indication as wines or spirits of that origin,
even where.
The Court may grant an injunction, award damages and grant such other remedy as it
considers appropriate.
Criminal sanctions are also provided for in section 7.
11. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the
relevant provisions of law or regulation, and provide examples of geographical indications for
such products.
Section 18 provides that where a trademark cont ains or consists of a geographical indication
which identifies wines or spirits as originating from a territory, region or locality indicated by a
geographical indication which is not the true place of origin of such wines and spirits, the Registrar on
his own initiative or at the request of a person interested in a trademark may refuse to register that
trademark or may revoke its registration.  Exceptions to this provision are set out in Section 19.
12. Are preexisting trademarks protected, under Jamaican law, against usurpation by
geographical indications?
See Section 19 which provides protection for a geographical indication identifying wines and
spirits in continuous use in Jamaica for at least 10 years prior to 1994 or used in good faith at any timeprior to 1994.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 49
E. INDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for textiledesigns and cite to the relevant provisions of law or regulation.
The Draft Patents and Designs Act, 2001, provis ion is made for the protection of textile
designs in the definition of an "industrial design".  Section 60 of the Act states:
"For the purposes of this Act, an industrial de sign is any composition of lines and colours or
any three - dimensional form, whether or not associated with lines or colours, which: -
(a) give a special appearance to a product of industry or handicraft and can serve as a
pattern for a product;
(b) does not serve solely to obtain a technical or functional result and leaves no freedom
as regards arbitrary features of appearance."
Thus, based on the definition, everything which gives rise in the appearance of a product, to
an aesthetic impression (i.e. an impression received by the sense of sight) can be an industrial design.
This definition would also apply to a so-called "textile design".
The proposed procedure to register or to obtain protection of textile designs is also set out in
the draft legislation.  It states:
(1) An industrial design is registrable if it is original and not contrary to public order or
morality; and originality in this context means that it should not be commonplace in
the design filed in question at the [time of its creation] - [filing date] - [where
applicable] or the priority date of application for registration] - see Section 61.
(2) An application for the registration of an industrial design may be made by any person
claiming to be the creator of it, or any person who is an assignee of the creator of the
design who also has the option to apply alon e or jointly with any other person; or by
the personal representative or the assignee of the personal representative of any
deceased person who, immediately before his death, was entitled to make an
application - see Section 62.
(3) The application for registration of an industrial design shall be filed with the Registrar
and every application shall contain:
(a) a request for the registration of the design;
(b) drawings, photographs or other adequate graphic representation of the article
or articles embodying the design;
(c) an indication of the kind of products for which the industrial design is to be
used;
(d) where the design is two (2) dimens ional or three (3) dimensional, the
application may be accompanied by a specimen of the article embodying the
industrial design;
(e) an application may also contain a request that upon registration, the
publication of the industrial design be deferred for a period not exceedingIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 50
twelve (12) months form the date of filing, or, where priority is claimed, form
the date of priority;
(f) Two or more industrial designs which relate to the same class of the
international classification, or to the same set or composition or articles maybe the subject of the same application - see Section 63.
(4) The filing date of an application for the registration of an industrial design shall be the
[earliest] date on which an application is submitted to the Registrar containing the
requirements set out in Section 63; with the relevant filing fee - see Section 66.
(5) The Registrar shall then assign a filing date and examine whether the application
satisfies the requirements of Section 60,67 and 63 and any related regulations.
(6) If the Registrar is satisfied that the necessary requirements have been met then he
shall publish the application in the prescribed manner - see Section 67.
(7) Upon this publication, any party may oppose the registration within the prescribed
period and prescribe manner - see Section 68.
(8) If the registration is not opposed then the Registrar shall register the industrial design
and publish a reference to the registration and issue to the applicant a Certificate ofRegistration of the industrial design. - see Section 68(5).
(9) An industrial design shall be valid for a period of five (5) years upon initial
registration (i.e. from the filing date); and may be renewed upon payment of the
prescribed fee and within the prescribed time, for two (2) consecutive occasions - see
Section 69.
14. Please describe in detail the way in which the patent law of Jamaica implements
Article 27 of the TRIPS Agreement, indicating  any exceptions 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 the law.
See clause 4 of the draft Patents and Designs Act 2001.
15. Please describe in detail the rights provided patent holders under the patent law of
Jamaica and cite to the relevant provisions of law.
See clauses 29 and 30.
16. Please describe in detail any provisions in  the laws of Jamaica 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.
Provision is made for non-voluntary licences an d for Crown (Government) use.  See clause 44
and following and clause 52 and following.
17. What term of protection does the patent law of Jamaica provide for patents?  Please
describe any provisions for extension of the term of protection and cite to the relevant
provisions of the law.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 51
The term is 20 years.  See clause 26.  No provision appears relating to extension of term of
protection.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
18. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Jamaica, including the term of protection, and cite to the relevant provisions
of law.
The relevant statute is the Layout-Designs (Topographies) Act of 1999. Original layout-
designs embodied in integrated circuits are eligible for protection under this Act.  Section 4 provides
that a layout-design shall be regarded as original only if it is the result of the intellectual efforts of its
creator; and is not at the time of its creation, commonplace among creators or layout-designs ormanufacturers of integrated circuits.  Where a layout-design consists of a combination of elements
and interconnections that are commonplace, it shall be eligible for protection only if the combination
taken, as a whole is original as already described.  It must be noted that protection under the Act does
not extend to an idea, concept, process, principle, procedure, system or discovery.
The owner of the right in the layout-design by virtue of section 6 of the Act has the exclusive
right to do or authorize another person to do any or all of the following: -
- to reproduce the whole or part of the layout-design by any means, whether by its
embodiment in an integrated circuit or othe rwise, except to the extent that the layout
design is not regarded as original;
- to import , distribute or otherwise commercially exploit the layout-design or the
integrated circuit in which it is embodied.
Section seven of the Act limits the enjoyment of the layout-design right to ten years
commencing on the date on which the layout-design is first commercially exploited and runs to the
end of the calendar year in which the right expires.
It must be noted that the permitted acts established by the Copyright Act are mirrored in
this Act, that is, reproduction solely for private purposes, research teaching, analysing or evaluating
concepts, section 12.  Likewise, the remedies provided for are similar, that is, damages, injunction,profits, royalties, delivery up, disposal or otherwise as the Court shall see fit.  Sections 14, 15 and 16.
H. PROTECTION OF UNDISCLOSED INFORMATION
19. Please describe in detail how the laws of Jamaica provide for the protection ofundisclosed information as required by Article 39.2 of the TRIPS Agreement and providecitations to the relevant provisions of law.
There is no legislation governing undisclosed information at this time.  However, see
clause 102(3) in the draft Patents and Designs Act 2001 which provides for an 18 month
confidentiality period.
20. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical prod ucts submitted to the government in order to
obtain marketing approval in Jamaica and cite to the relevant provisions of law.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 52
There is no legislation governing undisclosed information at this time.  However, see
clause 102(3) in the draft Patents and Designs Act 2001 which provides for an 18 month
confidentiality period.
21. Are other applicants for ma rketing approval for their own versions of a previously
approved pharmaceutical or agricultural chemical products permitted 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.
There is no legislation governing undisclosed information at this time.  However, see
clause 102(3) in the draft Patents and Designs Act 2001 which provides for an 18 monthconfidentiality period.
I. ENFORCEMENT
22. Please describe in detail the manner in which the laws of Jamaica provide for effectiveaction against infringement of intellectual prop erty rights as required by Article 41.1 of the
TRIPS Agreement.
Article 41
(1) The Copyright Act provides for expeditious remedies to prevent infringement:
(a) Civil Remedies include:
- Injunction (section 32);
- Order for delivery up (sections 33 and 133);
- Order for destruction (section 137);- Account of profits (section 32);- Damages (section 32).
These remedies are complemented by the general provisions of the Civil Procedure Code
(CPC) which provide checks and balances in the application and award process of these
remedies to avoid abuse.  Accordingly, injunctions will not be granted unless the applicant
can show that there is a serious issue to be tried, damages alone would not suffice and that hewould stand to lose more if the order was not made.  Further, such an order will only be made
ex parte if the applicant can show urgency, for example, the high risk of the goods being
destroyed if immediate action is not taken; and the great difficulty in serving notice of the
application on the respondent.  In addition the respondent must as soon as possible thereafter
be given notice and the order is never usually made for a period longer than seven workingdays.  The Court also has a statuary discretion under the CPC to make such orders as
Discovery of Documents and Payment into Court (a security sum) to ensure that the
proceedings are carried out in a manner that is fair and equitable.
(b) CustomsSection 50 of the Copyright Act empowers Cust oms, on the authority of a Notice provided by
the copyright owner to suspend the release into free circulation of pirated goods.  Details of
what Customs requires in order to accept the Notice are outlined in The Jamaica GazetteIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 53
Supplement Proclamations Rule and Regulations, volume CXVIII Thursday, March 9,1995,
number 28c. Measures that were designed to prevent abuse include limiting the duration of
the Notice and ensuring that the Notice provides  adequate details in respect of evidence of
ownership of copyright and a sufficient description of the protected work.  The copyrightowner may also be requested to give security in respect of liability incurred by the
Commissioner of Customs in consequence of the Notice by reason of detention of the
article(s), or anything done to the article(s) while detained.
(2) The Copyright Act also provides for remedies, which constitute a deterrent to further
infringement.  These include authorizing the judiciary to impose monetary fines and or terms of
imprisonment, to make an order for the destruction of infringing goods or articles used primarily forthe fabrication of such goods or the commission of the offence.  To ensure that the Court exercise its
powers in a fair and equitable manner, the Act also offers guidelines which the court must take into
consideration when making such orders.  The Court must have regard to all the circumstances of the
case and in particular, whether other remedies available to the copyright owner would adequately
protect his interests.
The Court has a discretionary power to grant an injunction where an IP infringement is
alleged to have been committed, inter alia, to preven t the entry into circulation of the infringing goods
and articles after they have been cleared by customs.  However, injunctions will only be granted
where damages would not be an adequate remedy.
Section 32 of the Copyright Act give the Cour t the authority to award damages, injunction,
accounts or otherwise.  Having regard to all the material circumstances and the flagrancy of the
infringement committed the Court may also award such additional damages as it deems fit.  However,
the defendant did not know and had no reason to believe that copyright subsisted in the work to whichthe action for infringement relates, then, the plaintiff is not entitled to damages but without prejudice,
to any other remedy.  The Court may also order the infringer to pay the copyright owners expenses,
which may include attorney's fees.
Section 137 of the Copyright Act authorizes the Court to grant an order for the destruction of
an infringing copy, illicit recording or article.  In considering what order to make to make (if any), the
Court must have regard to all the circumstances of the case and in particular whether other remediesavailable in an action for copyright infringement would be adequate to compensate the copyright
owner and protect his interest.  Further, provision is made for the notification of third parties having
an interest in the infringing copy, illicit recording or other articles as the case may be.  Such persons
are entitled to appear in proceedings for an order under the section, whether or not he was served with
notice and to appeal against any order made, whether or not he appeared.
23. 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 opposi ng party.  Please describe how the laws or
regulations of Jamaica provide this authorization, citing to the relevant provisions of law orregulation.
See responses to Canada.
24. Please describe in detail all of the civil remedies that are available to right holders under
the laws of Jamaica, citing to the relevant provisions of law or regulation.
Section 32 of the Copyright Act provides th at a Court may award damages, injunction, and
accounts or otherwise to a copyright owner whose rights have been infringed.  He can also get
delivery up under section 33 and disposal of an infringing copy, article or illicit recording underIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 54
section 137.  A performer can also get delivery up of an illicit recording under section 133 and
destruction under section 137.
25. Please describe in detail the provisional procedures and remedies available to right
holders under the laws of Jamaica, 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.
See Section 31-38 of Trade Marks Act 1994.  Relief by way of damages, injunction, account
or otherwise, is available to a proprietor in respect of an infringement of a trademark.  The court may
also order that the offending sign be removed from infringing goods or such goods be delivered to theproprietor or be destroyed or forfeited.
Sections 66-69 give the Commissioner of Customs power to treat goods as prohibited goods
on notice being given to him of the expected  arrival in Jamaica of infringing goods.
See Section 80 of the Patent and Designs Bill which deals with proceedings for infringement.
Relief as in the case of trademarks applies to both patents and designs.
Section 50 of the Copyright Act gives the Co mmissioner of Customs similar power to those
given to him under the Trademarks Act.  Provision is made for a notice to be given to him by theowner of a copyright in a work, of expected arriva l in Jamaica of infringement copies and for him to
treat such goods as prohibited goods under the Customs Act.
Section 134-135 of the Copyright Act deal with criminal liability for making, dealing with or
using illicit recordings.
Section 137 provides that the Court may order that the infringing copy or article delivered up
be forfeited to the copyright owner or destroyed or otherwise dealt with as the court directs.
See also the Copyright (Customs) Regulations, 1993.
J. SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
26. Please describe in detail the procedures under the laws of Jamaica that provide for
border enforcement at least for trademark counte rfeiting and copyright piracy, identifying the
competent authority and citing to the re levant provisions of law or regulation.
Please see the response to question 25.
27. Please indicate if border enforcement is available 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.
Please see the response to question 25.
28. Article 58 of the TRIPS Agreement specifies procedures to be followed where the
competent authorities can act ex officio.  Plea se explain whether the competent authorities in
Jamaica are empowered to act ex officio and, if s o, please identify the intellectual property areas
subject to ex officio action.
Please see the response to question 25.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 55
K. CRIMINAL PROCEDURES
29. Please describe in detail how the laws of Jamaica implement Article 61 of the TRIPSAgreement 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 wilfultrademark counterfeiting and copyright infringement  on a commercial scale.  Please cite to the
relevant provisions of law and regulation.
Please see the response to question 25.
30. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use ofwhich has been the commission of the offence.  Please describe the provisions in the laws of
Jamaica that provide for such remedies, and describe the circumstances in which those
remedies would be imposed, citing to the relevant provisions of law or regulation.
See responses to Canada.
31. 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 of the laws of Jamaica that prov ide for such procedures and remedies, citing to
the relevant provisions of law or regulation.
See responses to Canada.
L. STATISTICAL QUESTIONS
32. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout-design, and trade secret
enforcement for 2000, including the number of ca ses filed;  injunctions issued;  infringing
products seized;  infringing equipment seized;  cases resolved (including settlement); and the
amount of damages awarded.
Approximately four cases involving copyright issues were initiated in the Supreme Court in
2000 and about two cases related to trademark infr ingements were initiated in the Supreme Court.
33. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringeme nt for 2000, including the number of raids,
prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid and whether the jail term was actually served or was suspended) and any otherinformation establishing that the criminal syst em operates effectively to deter copyright piracy
and trademark counterfeiting.
Statistics relating to criminal enforcement are not readily available at this time.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 56
ANNEX 1
(Copyright Act of 1993)
PART II
COPYRIGHT
Protected Works
5.-(1) Unless otherwise specifically provided in  this Act, copyright shall 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.
(2) If the requirements of this Part or of section 146 are once satisfied in respect of a
work, copyright does not cease to subsist by reason of any subsequent event.
6.-(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;
(b) sound recordings, films, broadcasts or cable programmes;
(c) typographical arrangements of published editions, and copyright may subsist in a
work irrespective of its quality or the purpose for which it was created.
(2) A literary, dramatic or musical work shall not be eligible for copyright protection
unless it is recorded in writing or otherwise; and any reference in this Act to the time at which a work
is made is a reference to the time at which it is so recorded.
(3) For the purposes of subsection (2), it is immaterial whether the work is recorded by or
with the permission of the author; and where it is not recorded by the author, nothing in thatsubsection shall affect the question whether copyright subsists in the record of the work as distinct
from the work recorded.
(4) Copyright shall not subsist in a sound recording or film which is, or the extent that it
is, a copy taken from a previous sound recording or film.
(5) Copyright shall not subsist in a broadcast which infringes, or to the extent that it
infringes, the copyright in another broadcast or in a cable programme.
(6) Copyright shall not subsist in a cable programme.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 57
(a) if it is included in a cable programme service by reception and immediate re-
transmission of a broadcast; or
(b) if it infringes, or to the extent that it  infringes, the copyright in another cable
programme or in a broadcast.
(7) Copyright shall not subsist in the typographical arrangement of a published edition if,
or to the extent that it reproduces the typographical arrangement of a previous edition.
(8) Copyright protection does not extend to an idea, concept, process, principle,
procedure, system or discovery or things of a similar nature.
7.- (1) A work qualifies for copyright protection if the author was a qualified person at the
material time.
(2) A work of joint authorship qualifies for copyright protection if any of the authors
satisfies the requirement of subsection (1), so however, that, where a work qualifies for copyright
protection only under this section, only those authors who satisfy such requirement shall be taken into
account for the purposes of sections 9 and 22.
(3) In this section "the material time" means in relation to –
(a) an unpublished literary, dramatic, musical or artistic work, when the work was made
or, if the work extended over a period, a substantial part of that period;
(b) a published literary, dramatic, musical or artistic work when the work was first
published or, if the author had died before that time, immediately before his death;
(c) a sound recording or film, when it was made;
(d) a broadcast, when the broadcast was made;(e) a cable programme, when the programme was included in a cable programme service;
(f) the typographical arrangement of a published edition, when the edition was first
published.
8.-(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 regardto section 3, it is first published in Jamaica or a specified country.
(2) A broadcast qualifies for copyright protection if it is made from a place in Jamaica or
a specified country by a broadcasting organization in possession of a valid licence granted to it under
any law in Jamaica or a specified country regulating broadcasting.
(3) A cable programme qualifies for copyright protection if it is sent from a place in
Jamaica or in a specified country in accordance wi th the law in force regulating transmission by cable.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 58
ANNEX 2
THE COPYRIGHT ACT
ORDERS
(under section 144)
THE COPYRIGHT (SPECIFIED COUNTRIES) ORDER, 1994
(Made by the Minister on the 31st day of December, 1993) 
L.N. 1194
[1st January, 1994]
1. This Order may be cited as the Copyright (Specified Countries) Order, 1994.
2. In relation to literary, dramatic, musical and artistic works, films and the
typographical arrangement of published editions, sections 5, 7 and 8 of the Act shall apply in relation
to -
(a) persons who are citizens or habitual residents of a country specified in the Schedule
as they apply in relation to persons  who are citizens or habitual residents of Jamaica;
(b) bodies incorporated or established under the laws of a country so specified as they
apply in relation to bodies incorporated or established under the laws of Jamaica, and
(c) works first published in such a country as they apply in relation to works first
published in Jamaica.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 59
SCHEDULE
(Paragraph 2)
Countries enjoying protection in respect of literary, dramatic, musical and artistic works,
films and the typographical arrangements of published editions
(The countries specified in this Schedule are either parties to the Berne Copyright Convention
or otherwise give adequate protection under their law.)
Argentina Malawi
Australia MalaysiaAustria Mali
Bahamas Malta
Barbados Mauritania
Belgium Mauritius
Benin MexicoBolivia Monaco
Brazil Morocco
Bulgaria Netherlands
Burkina Faso New Zealand
Cameroon NigerCanada Nigeria
Central African Republic Norway
Chad Pakistan
Chile Paraguay
China PeruColombia Philippines
Congo, People's Republic of Poland
Costa Rica Portugal
Côte d'Ivoire Republic of Macedonia (the former Yugoslav Republic)
Croatia Romania
Cyprus Rwanda
Czech Republic St. LuciaDenmark Senegal
Ecuador Slovakia
Egypt Slovenia
Fiji South Africa
Finland SpainFrance Sri.Lanka
Gabon Surinam
Gambia Sweden
Germany Switzerland
Ghana Thailand
Greece Togo
Guina, Republic of Trinidad and Tobago
Guinea-Bissau Tunisia
Holy See Turkey
Honduras United KingdomHungary United States of Amcrica
Iceland Uruguay
India Venezuela
Ireland YugoslaviaIP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 60
Israel Zaire
Italy Zambia
Japan Zimbabwe
KenyaLebanon
Lesotho
Liberia
Libya
Liechtenstein
Luxembourg
Madagascar
_______________IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 61
THE COPYRIGHT ACT
ORDERS
(under section 144)
THE COPYRIGHT (SPECIFIED COUNTRIES) (No. 2) ORDER, 1994
(Made by the Minister on the 26th day of January, 1994) 
L.N. 11194
[27th January, 1994]
1. This Order may be cited as the Copyright (Specified Countries) (No. 2) Order, 1994.
2. In relation to sound recordings and broadcasts, sections 5, 7 and 8 of the Act shall
apply in relation to-
(a) persons who are citizens or habitual residents of a country specified in the Schedule
as they apply in relation to persons Schedule who are citizens or habitual residents ofJamaica;
(b) bodies incorporated or established under the laws of a country so specified as they
apply in relation to bodies incorporated or established under the laws of Jamaica., and
(c) sound recordings made in and broadcasts made from such a country as they apply in
relation to sound recordings made in and broadcasts made from Jamaica.
3. The countries mentioned in the Schedule are specified countries for the purpose of the
definition of "qualifying performance" appearing in section 2 of the Act.IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 62
SCHEDULE
(Paragraphs 2 and 3)
Countries enjoying protection for sound recordings and broadcasts
(The countries specified in this Schedule either are parties to the Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organizations or otherwise give adequate
protection under their law).
Argentina Italy
Australia JapanAustria Lesotho
Barbados Luxembourg
Brazil Mexico
Burkina Faso Monaco
Chile NetherlandsColombia Niger
Congo, People's Republic of Nigeria
Costa Rica Norway
Denmark Panama
Dominican Republic ParaguayEcuador Peru
El Salvador Philippines
Fiji Slovakia
Finland Spain
France SwedenGermany Switzerland
Greece United Kingdom
Guatemala Uruguay
Honduras
Ireland
_______________IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 63
ANNEX 3
(Copyright Act of 1993)
144.- (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 Jamaica;
(b) in relation to bodies incorporated or established under the laws of that country as they
apply in relation to bodies incorporated or established under the laws of Jamaica;
(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 Jamaica;
(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 Jamaica;
(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 Jamaica or given by an individual who is a citizen or habitual resident ofJamaica.
(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 -(a) the country is 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, towhich the order relates, giving adequate protection to the owners of copyright under this Act
or, as the case may be, to Jamaican 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 Jamaica isalso a party.
145.-(1) If it appears to the Minister that the laws of a country fail to give adequate protection
to Jamaican works to which this section applies or to.lamaican performances, or fail to give adequate
protection in the case of classes of such works or pe rformances, (whether the lack of protection relates
to the nature of the work or performance or the nationality, citizenship or country of its author or
performer or all of those matters) the Minister by order, make provision in relation to that country in
accordance with subsection (2).IP/Q/JAM/1, IP/Q2/JAM/1,
IP/Q3/JAM/1, IP/Q4/JAM/1
Page 64
(2) An order made for the purposes of this section shall designate the country concerned
and may provide either generally or in relation to such classes of' case as are specified in the order,
that copyriglit shall not subsist in works first published, or, as the case may be, that rights inperformances shall not subsist in performances firs t given, after a date specified in the order (which
may be a date before the 1st September, 1993) if, at the time of the first publication of those works or
the giving of the performance, as the case may be, the authors of the works or the performers were or
are -
(a) citizens or nationals of that country, not being at that tirne persons whose habiltual
residence is in Jarriaica or a specified country (excluding the country concerned); or
(b) in the case of works, bodies incorporated or established under the laws of that
country.
(3) The Minister shall, in making an older un der this section, have regard to the nature
and extent ef the lack of protection for Jamaican works or Jamaican performances in consequence of
which the order is being made.
(4) This section applies to literary, dramatic, musical and artistic works, sound recordings
and films, and for the purposes of this section-
"Jamaican performances" means—
(a) performances given by individuals who are citizens or habitual residents of Jamaica;
or
(b) performances that take place in Jamaica;
"Jamaican works" means works of which the author was a qualified person at the material
time within the meaning of section 7 (3).
__________