Page:United States Statutes at Large Volume 107 Part 3.djvu/757

This page needs to be proofread.

Party; PROCLAMATION 6577-^TULY 2, 1993 107 STAT. 2695 the first authorized publication or, failing such authorized publication within 50 years from the making of the work, 50 years after the making. (vi) Each Party shall confine any limitations upon and exceptions to the exclusive rights provided under paragraph 2(a)(ii) of this letter (including any limitations or exceptions that restrict such rights to "public" activity) to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. (vii) Each Party shall limit resort to compulsory licensing to those works, rights and utilizations permitted under the Berne Convention; and further shall ensure that any legitimate compulsory or non-voluntary license or restriction of exclusive rights to a right of remuneration shall provide means to ensure payment and remittance of royalties at a level consistent with what would be negotiated on a voluntary basis. (viii) Each Party shall, at a minimum, extend to producers of sound recordings the exclusive rights to do or to authorize the foUovtdng: (1) to reproduce the recording by any means or process, in whole or in part; and (2) to exercise the importation and exclusive distribution and rental provided in paragraphs 2(a)(ii)(l)(2)(3) and (4) of this letter. (ix) Paragraphs 2(a)(iii], (iv) and (vi) of this letter shall apply mutatis mutandis to sound recordings. (x) Each Party shall: (1) protect sound recordings first fixed or published in the territory of the other (2) protect sound recordings for a term of at least 50 years from publication; and (3) grant the right to make the first public distribution of the original of each authorized sound recording by sale, rental, or otherwise except that the first sale of the original of such sound recording shall not exhaust the rental or importation right therein (the "rental right" shall mean the right to authorize or prohibit the disposal of the possession of the original or copies for direct or indirect commercial advantage). (xi) Parties shall not subject the acquisition and validity of intellectual property rights in sound recordings to any formalities, and protection shall arise automatically upon creation of the sound recording. (b) Trademarks (i) Protectable Subject Matter (1) Trademarks shall consist of at least any sign, words, including personal names, designs, letters, numerals, colors, or the shape of goods or of their packaging, provided that the mark is capable of distinguishing the goods or services of one undertaking from those of other undertakings. (2) The term "trademark" shall include service marks, collective and may include certification marks. (ii) Acquisition of Rights (1) Each Party shall provide a system for the registration of trademarks. Parties shall provide protection for trademarks based on registration and may provide protection on the basis of use. (2) Each Party shall publish each trademark either before it is registered or promptly after it is registered and shall afford other parties a reasonable opportunity to petition to cancel the registration. In addition, each Party may afford an opportunity for the other Party to oppose the registration of a trademark. (3) The natiure of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark. (iii) Rights Conferred (1) The owner of a registered trademark shall have exclusive rights therein. He shall be entitled to prevent all third parties not having his consent from using in conunerce