DATE: August 30, 1996
prepared by the Chairman of the Committees of Experts
on a Possible Protocol to the Berne Convention
and on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms
16.01 Two alternatives on enforcement are presented in Article 16. The choice between them has been left to the Diplomatic Conference. This is because the issue of enforcement is a horizontal one that must be considered in connection with the two other proposed Treaties published simultaneously with the present proposed Treaty. Each of the two alternatives is based on the enforcement provisions of Part III, Articles 41 to 61, of the TRIPS Agreement.
16.02 Alternative A consists of the text of Article 16 and an Annex. Paragraph (1) introduces the Annex which contains the substantive provisions on enforcement. Paragraph (2) states that the Annex forms an integral part of the proposed Treaty. The provisions of the Annex have the same status as the provisions of the proposed Treaty.
16.03 Alternative B incorporates the enforcement provisions in the TRIPS Agreement by reference. The provisions of Alternative B obligate Contracting Parties to ensure that proper enforcement procedures, as specified in Part III, are available. To this end, Contracting Parties shall apply the relevant provisions of the TRIPS Agreement mutatis mutandis.
[End of Notes on Article 16]
Special Provisions on Enforcement of Rights
(1) Special provisions regarding the enforcement of rights are included in the Annex to the Treaty.
(2) The Annex forms an integral part of this Treaty.
Contracting Parties shall ensure that the enforcement procedures specified in Part III, Articles 41 to 61, of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, Annex 1C, of the Marrakesh Agreement Establishing the World Trade Organization, concluded on April 15, 1994 (the "TRIPS Agreement"), are available under their national laws so as to permit effective action against any act of infringement of the rights provided under this Treaty, including expeditious remedies to prevent infringements, and remedies that constitute a deterrent to further infringements. To this end, Contracting Parties shall apply mutatis mutandis the provisions of Articles 41 to 61 of the TRIPS Agreement.
[End of Article 16]