RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/118
13 November 1998
(98-4516)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
Replies from Panama to Questions Posed by Japan1
The following communication, dated 6 November 1998, has been received from the
Permanent Mission of the Republic of Panama.
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1. Please explain which article of the Copyright Law of Panama provides for the protection
of works, phonograms and performances of other WTO Members and which article provides
for the exceptions or exemptions from national  treatment and most-favoured-nation treatment
as permitted in Articles 3 and 4 of the TRIPS Agreement.
In accordance with Article 127 of Law No. 15 of 1994, for a work to be protected under
Panamanian copyright law it must fulfil the following conditions:  (a) the author or at least one of the
co-authors must be Panamanian or resident in the Republic;  or (b) the work must have been first
published in Panama or published in Panama within 30 days of its first publication elsewhere.
However, Article 128 broadens the scope of the protection by providing that:  "Intellectual works not
covered by the foregoing Article shall be protecte d in accordance with the international conventions
to which the Republic is party or may become party in the future".  These provisions apply to
neighbouring rights.
Consequently, Law No. 15 of 1994 provides protection for both Panamanian citizens and
foreigners with regard to copyright and neighbouring rights.
2. Please explain whether "computer programs" under Chapter II of Title IV of the
Copyright Law of Panama, which provides for the protection of computer programs, include
programs in both source code and object code.
Panamanian legislation protects computer programs in the same way as literary works.  This
protection includes programs in both source code and object code.  This is implicitly establishedthroughout Law No. 15 of 1994, since it does not distinguish between kinds of programmes and
understands the term "computer programs" in a broad sense.
In Decree No. 261 of 1995 establishing regulations under Law No. 15 of 1994 it is explicitly
stated that the protection of computer programs cove rs programs in both source code and object code.
Article 8 of Decree No. 261 of 1995 provides that the protection of computer programs "… shall
cover both operating programs and application programs, whether in source code or object code".
3. Please explain whether the producer of phonograms has the rental right of the
phonograms under the Copyright Law of Panama.
                                                     
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The producer of phonograms does indeed have the rental right under Panamanian legislation.
Under the Law on Copyright and Neighbouring Rights the rental right is regarded as part of the right
of public distribution.  The right of "distribution to the public" is defined as "the making available to
the public of the original or a copy of the work by sale, rental, lending or any other means.
Article 86 of Law No. 15 of 1994 stipulates that  the provisions relating to the economic rights
of authors and their works shall apply mutatis mutandis to neighbouring rights, including the rights of
the producers of phonograms.  The right of distribution is assigned to authors under Article 36 of Law
No. 15 of 1994 and, consequently, is applicable to the neighbouring rights.
4. Please explain whether the following subject matters are patentable:  (1) plants and
animals, and (2) plant and animal varieties.
1. They are not patentable.  Under Article 15, paragraph 2 of Law No. 35 of 1996 the
patentability of plants and animals is expressly prohibited:  "The following inventions
relating to live material are excluded from patentability:  2. plant species and animalspecies and breeds".
2. They are not patentable.  The same legal provision cited above stipulates in
paragraph 5 that "plant varieties" are excluded from patentability.  As for animal
varieties, it is clear from paragraph 1 of Article 15 that their patentability isprohibited.
5. Please explain how the obligation under Article 34.1 and 34.2 of the TRIPS Agreement
regarding the shift of the burden of proof in ci vil proceedings for patent infringement relating
to a process patent is implemented.
Law No. 35 of 1996 on Industrial Property foll ows the TRIPS Agreement as regards the
obligations concerning the burden of proof for a process patent.  Thus, Article 21 of Law No. 35 of
1996 states that:
"In the event of unauthorized exploitation of process patents, the burden of proof shall be on
the defendant where either or both of the following situations obtain:
1. the product is new;2. it is sufficiently probable that the product has been made by means of the process,
and the owner of the patent, in spite of having taken the appropriate action, has beenunable to determine what process actually was used.
In the gathering and analysis of evidence to the contrary, due regard shall be had to the lawful
interests of the defendant regarding the protection of his industrial or trade secrets."
6. Please explain the remedies which the judicial authorities order regarding the
infringement of copyright and related rights, patents, industrial designs, trademarks and layout
designs (topographies) of integrated circuits, including injunctions, damages, destruction or
disposal of infringing goods, materials or implements for their production.
Please refer to the notification on enforcement communicated by the Republic of Panama and
distributed by the Council for Trade-Related Aspects of Intellectual Property Rights as document
No. IP/N/6/PAN/1.IP/C/W/118
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7. Please explain whether the amount of da mages which judicial authorities order the
person who has infringed intellectual property  rights to pay the right holder is adequate
compensation for the injury the right holder ha s suffered, and what criteria and the way for
calculation are adopted in order to decide the amount for compensation.
Article 170 of Law No. 35 of 1996 establishes the criterion to be followed by the Panamanian
judicial authorities for calculating compensation for injuries caused by the improper use of intellectual
property rights.
"Article 170.  The following criteria may be used, at the discretion of the plaintiff, for the
calculation of indemnification for damages:
1. the profits that the owner of the rights would presumably have earned if the
infringement had not occurred;
2. the profits actually earned by the infringer as the result of the infringing acts;
3. the price or royalty that the infringer would have paid to the owner of the rights if a
contractual licence had been agreed upon, due regard being had to the commercial
value of the subject matter of the rights in fringed and the contractual licences already
granted."
8. Please explain whether the amount of da mages which judicial authorities order the
person who has infringed intellectual proper ty rights to pay the right holder includes
investigation expenses and appropriate attorney's fees.
Please refer to the notification on enforcement communicated by the Republic of Panama and
distributed by the Council for Trade-Related Aspects of Intellectual Property Rights as document
No. IP/N/6/PAN/1.
9. Please describe to what extent the amount of damages has been estimated by court since
1 January 1996.  Please also explain whether the amount of damages was adequate
compensation for the in jury the right holder had suffered, and how such civil procedures were
consistent with Article 45 of the TRIPS Agreement.
Owing to the recent entry of the Republic of Panama into the WTO and, consequently, the
recent application of our obligations under the TRIPS Agreement, we do not possess the information
requested.  However, since this is a question of enforcement, please refer to the notification on
enforcement communicated by the Republic of Panama and distributed by the Council for Trade-Related Aspects of Intellectual Property Rights as document No. IP/N/6/PAN/1.
10. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal
cases.  Please also explain whether these penalties are consistent with Article 61 of the TRIPS
Agreement which requires provisions for a sufficient deterrent, consistently with the level ofpenalties applied for crimes of a corresponding gravity.
Please refer to the notification on enforcement communicated by the Republic of Panama and
distributed by the Council for Trade-Related Aspects of Intellectual Property Rights as document
No. IP/N/6/PAN/1.
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