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FSMC (Code of the Federated States of Micronesia); Title 35. Copyright, Patents & Trademarks; Chapter I: Copyrights, Micronesia (Federated States of)

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Details Details Year of Version 2014 Dates Adopted: January 1, 2003 Type of Text Main IP Laws Subject Matter Copyright and Related Rights (Neighboring Rights), Enforcement of IP and Related Laws, IP Regulatory Body

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Main text(s) Main text(s) English FSMC (Code of the Federated States of Micronesia); Title 35. Copyright, Patents & Trademarks; Chapter I: Copyrights        
 FSMC (Code of the Federated States of Micronesia), Title 35. Copyright, Patents & Trademarks, Chapter I: Copyrights

FEDERATED STATES OF MICRONESIA

ANNOTATED CODE 2014

TITLE 35

COPYRIGHTS, PATENTS AND TRADEMARKS

CHAPTERS

1 Copyrights (§§ 101-126)

CHAPTER 1

Copyrights

SECTIONS

§ 101. Definitions.

§ 102. Subject matter of copyright—Generally.

§ 103. Subject matter of copyright—Compilations and

derivative works.

§ 104. Subject matter of copyright—National origin.

§ 105. Subject matter of copyright—FSM Government works.

§ 106. Exclusive rights in copyrighted works.

§ 107. Limitation on exclusive rights—Fair use.

§ 108. Limitations on exclusive rights—Reproduction by

libraries and archives.

§ 109. Other limitations on exclusive rights of specific works.

§ 110. Ownership of copyright.

§ 111. Ownership of copyright as distinct from ownership of

material object.

§ 112. Recordation of transfer.

§ 113. Duration of copyright—Works created on or after

effective date.

§ 114. Duration of copyright—Works created but not

published or copyrighted before effective date.

§ 115. Notice of copyright—Visually perceptible copies.

§ 116. Notice of copyright—Phonorecords of sound recordings.

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§ 117. Notice of copyright—Contributions to collective works.

§ 118. Deposit of copies or phonorecords for Library of the

Congress of the FSM.

§ 119. Copyright registration in general.

§ 120. Application for copyright registration.

§ 121. Registration of claim and issuance of certificate.

§ 122. Infringement—Civil remedies.

§ 123. Infringement—Criminal offense—Fraud.

§ 124. Responsibilities and duties of the Office of the Attorney

General.

§ 125. Regulations.

§ 126. Fees.

§ 101. Definitions.

As used in this chapter:

(1) "Anonymous work" means a work on the copies or

phonorecords of which no natural person is identified as the

author.

(2) "Attorney General's Office" means the Office of the Attorney

General of the National Government of the Federated States of

Micronesia.

(3) "Audiovisual works" means works that consist of a series of

related images which are intrinsically intended to be shown by the

use of machines or devices such as projectors, viewers, or

electronic equipment, together with accompanying sounds, if any,

regardless of the nature of the material objects, such as films or

tapes, in which the works are embodied.

(4) "Collective work" means a work, such as a periodical issue,

anthology, or encyclopedia, in which a number of contributions,

constituting separate and independent works in themselves, are

assembled into a collective whole.

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(5) "Compilation" means a work formed by the collection and

assembling of preexisting materials or of data that are selected,

coordinated, or arranged in such a way that the resulting work as a

whole constitutes an original work of authorship. "Compilation"

includes collective works.

(6) "Copies" means material objects, other than phonorecords, in

which a work is fixed by any method and from which can be

perceived, reproduced, or otherwise communicated, either directly

or with the aid of a device. "Copies" includes the material object,

other than a phonorecord, in which the work is first fixed.

(7) "Court" means the trial or appellate division of the Supreme

Court of the Federated States of Micronesia.

(8) "Created": A work is "created" when it is fixed in a copy or

phonorecord for the first time. Where a work is prepared over a

period of time, the portion of it that has been fixed at any particular

time constitutes the work as of that time, and where the work has

been prepared in different versions, each version constitutes a

separate work.

(9) "Derivative work" means a work based upon one or more

preexisting works, such as a translation, musical arrangement,

dramatization, fictionalization, motion picture version, sound

recording, art reproduction, abridgement, condensation, or any

other form in which a work may be recasted, transformed, or

adapted. A work consisting of editorial revisions, annotations,

elaborations, or other modifications which, as a whole, represent

an original work of authorship, is a "derivative work."

(10) "Display": To "display" a work means to show a copy of it,

either directly or by means of a film, slide, television image, or any

other device.

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(11) "Fixed": A work is "fixed" in a tangible medium of

expression when its embodiment in a copy or phonorecord, by or

under the authority of the author, is sufficiently permanent or

stable to permit it to be perceived, reproduced, or otherwise

communicated for a period of more than transitory duration.

(12) "Literary works" means works, other than audiovisual works,

expressed in words, numbers, or other verbal or numerical symbols

or indicia, regardless of the nature of the material objects, such as

books, periodicals, manuscripts, phonorecords, film, tapes, or

cards, in which they are embodied.

(13) "Perform": To "perform" a work means to recite, render,

play, dance, or act, either directly or by means of any device or, in

the case of a motion picture or other audiovisual work, to show its

images in any sequence or to make the sounds accompanying it

audible.

(14) "Pictorial, graphic, and sculptural works" includes two-

dimensional and three-dimensional works of fine, graphic, and

applied art, photographs, prints and art reproductions, maps,

globes, charts, technical drawings, diagrams, and models.

(15) "Publication" means the distribution of copies or

phonorecords of a work to the public by sale or other transfer of

ownership or by rental, lease, or lending. The offering to distribute

copies or phonorecords to a group of persons, for purposes of

further distribution, public performance, or public display

constitutes publication.

Source: PL 2-29 § 101.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

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code.

§ 102. Subject matter of copyright—Generally.

(1) Copyright protection subsists, in accordance with this chapter,

in original works of authorship fixed in any tangible medium of

expression from which they can be perceived, reproduced, or

otherwise communicated, either directly or with the aid of a

device. Works of authorship include the following categories:

(a) literary works;

(b) musical works, including any accompanying words;

(c) dramatic works, including any accompanying music;

(d) pantomimes and choreographic works;

(e) pictorial, graphic, and sculptural works;

(f) motion pictures and other audiovisual works; and

(g) sound recordings.

(2) In no case does copyright protection for an original work of

authorship extend to any idea, procedure, process, system, method

of operation, concept, principle, or discovery, regardless of the

form in which it is described, explained, illustrated, or embodied in

such work.

Source: PL 2-29 § 102.

§ 103. Subject matter of copyright—Compilations and

derivative works.

(1) The subject matter of copyright as specified by section 102 of

this chapter includes compilations and derivative works, but

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protection for a work employing preexisting material in which

copyright subsists does not extend to any part of the work in which

such material has been used unlawfully.

(2) The copyright in a compilation or derivative work extends

only to the material contributed by the author of such work, as

distinguished from the preexisting material employed in the work,

and does not imply any exclusive right in the preexisting material.

The copyright in such work is independent of, and does not affect

or enlarge the scope, duration, ownership, or subsistence of any

copyright protection in the preexisting material.

Source: PL 2-29 § 103, modified.

§ 104. Subject matter of copyright—National origin.

(1) Unpublished works. The works specified by sections 102 and

103 of this chapter, while unpublished, are subject to protection

under this chapter without regard to the nationality or citizenship

of the author.

(2) Published works. The works specified by sections 102 and 103

of this chapter, when published, are subject to protection under this

chapter if:

(a) on the date of first publication, one or more of the

authors is a national or domiciliary of the Federated States

of Micronesia or is a national or a domiciliary of a country

that is a party to a copyright treaty to which the Federated

States of Micronesia is also a party; or

(b) the work comes within the scope of a Presidential

proclamation. Whenever the President of the Federated

States of Micronesia finds that a particular foreign nation

extends to works by authors who are nationals or

domiciliaries of the Federated States of Micronesia or to

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works that are first published in the Federated States of

Micronesia, copyright protection on substantially the same

basis as that on which the foreign nation extends protection

to works of its own nationals and domiciliaries and works

first published in that nation, the President may by

proclamation extend protection under this chapter to works

of which one or more of the authors are, on the date of first

publication, a national or domiciliary of that nation. The

President may revise, suspend, or revoke any such

proclamation, or impose any conditions or limitations on

protection under a proclamation.

Source: PL 2-29 § 104.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

code.

The statutory provisions on the President and the Executive

are found in title 2 of this code.

§ 105. Subject matter of copyright—FSM Government works.

Copyright protection under this chapter is not available for any

work of the Federated States of Micronesia Government, but the

Federated States of Micronesia is not precluded from receiving and

holding copyrights transferred to it by assignment, or otherwise.

Source: PL 2-29 § 105.

§ 106. Exclusive rights in copyrighted works.

Subject to sections 107, 108, and 109 of this chapter, the owner of

copyright under this chapter has the exclusive rights to do and to

authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

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(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to

the public by sale or other transfer of ownership, or by rental,

lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic

works, pantomimes, and motion pictures and other audiovisual

works, to perform the copyrighted work publicly; and

(5) in the case of literary, musical, dramatic, and choreographic

works, pantomimes, and pictorial, graphic, or sculptural works,

including the individual images of a motion picture or other

audiovisual work, to display the copyrighted work publicly.

Source: PL 2-29 § 106.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

code.

§ 107. Limitation on exclusive rights—Fair use.

Notwithstanding the provisions of section 106 of this chapter, the

fair use of a copyrighted work, including such use by reproduction

in copies or phonorecords or by any other means specified by that

section, for purposes such as criticism, comment, news reporting,

teaching (including multiple copies for classroom use),

scholarship, or research, is not an infringement of copyright. In

determining whether the use made of a work in any particular case

is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such

use is of a commercial nature or is for nonprofit educational

purposes;

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(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to

the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of

the copyrighted work.

Source: PL 2-29 § 107.

§ 108. Limitations on exclusive rights—Reproduction by

libraries and archives.

Notwithstanding the provisions of section 106 of this chapter, it is

not an infringement of copyright for a library or archives to

reproduce no more than one copy or phonorecord, under the

conditions specified by this section, if:

(1) the reproduction or distribution is made without any purpose

of direct or indirect commercial advantage;

(2) the collections of the library or archives are open to the public;

and

(3) the reproduction or distribution of the work includes a notice

of copyright.

Source: PL 2-29 § 108.

Cross-reference: The statutory provisions on the Library

of the Congress of the FSM are found in chapter 5 of title

40 (Education).

§ 109. Other limitations on exclusive rights of specific works.

Other limitations on exclusive rights of specific works or

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exemptions of certain performances and displays may be

prescribed by the Attorney General in rules and regulations

consistent with sections 107 and 108 of this chapter.

Source: PL 2-29 § 109.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code.

§ 110. Ownership of copyright.

(1) Initial ownership. Copyright in a work protected under this

chapter vests initially in the author or authors of the work. The

authors of a joint work are co-owners of copyright in the work.

(2) Works made for hire. In the case of a work made for hire, the

employer is considered the author for purposes of this chapter and,

unless the parties have expressly agreed otherwise in a written

instrument signed by them, owns all of the rights comprised in the

copyright.

(3) Contributions to collective works. Copyright in each separate

contribution to a collective work is distinct from copyright in the

collective work as a whole, and vests initially in the author of the

contribution. In the absence of an express transfer of the copyright

or of any rights under it, the owner of copyright in the collective

work is presumed to have acquired only the privilege of

reproducing and distributing the contribution as part of that

particular collective work, any revision of that collective work, and

any later collective work in the same series.

(4) Transfer of ownership.

(a) The ownership of a copyright may be transferred in

whole or in part by any means of conveyance or by

operation of law or may be bequeathed by will; provided,

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that in the absence of the aforesaid means of transfer,

ownership of a copyright shall pass as personal property by

the customs of the State where the owner is domiciled.

(b) Any of the exclusive rights comprised in a copyright,

including any subdivision of any of the rights specified by

section 106 of this chapter, may be transferred as provided

by paragraph (a) of this subsection and owned separately.

The owner of any particular exclusive right is entitled, to

the extent of that right, to all of the protection and remedies

accorded to the copyright owner by this chapter.

Source: PL 2-29 § 201.

§ 111. Ownership of copyright as distinct from ownership of

material object.

Ownership of a copyright, or of any of the exclusive rights under a

copyright, is distinct from ownership of any material object in

which the work is embodied. Transfer of ownership of any

material object, including the copy or phonorecord in which the

work is first fixed, does not of itself convey any rights in the

copyrighted work embodied in the object; nor, in the absence of an

agreement, does transfer of ownership of a copyright or of any

exclusive rights under a copyright convey property rights in any

material object.

Source: PL 2-29 § 202.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

code.

§ 112. Recordation of transfer.

(1) Any transfer of copyright ownership or other document

pertaining to a copyright may be recorded in the Office of the

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Attorney General if the document filed for recordation bears the

actual signature of the person who executed it, or if it is

accompanied by a sworn or official certification that it is a true

copy of the original, signed document.

(2) Recordation of a document in the Office of the Attorney

General gives all persons constructive notice of the facts stated in

the recorded document, but only if:

(a) the document, or material attached to it, specifically

identifies the work to which it pertains so that, after the

document is indexed by the Office of the Attorney General,

it would be revealed by a reasonable search under the title

or registration number of the work; and

(b) registration has been made for the work.

Source: PL 2-29 § 203.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code.

§ 113. Duration of copyright—Works created on or after

effective date.

(1) Copyright in a work created on or after the effective date of the

Act codified in this chapter subsists from its creation and, except as

provided by the following subsections, endures for a term

consisting of the life of the author and 50 years after the author's

death.

(2) In the case of a joint work prepared by two or more authors

who did not work for hire, the copyright endures for a term

consisting of the life of the last surviving author and 50 years after

such last surviving author's death.

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(3) In the case of an anonymous work, a pseudonymous work, or a

work made for hire, the copyright endures for a term of 75 years

from the year of its first publication, or a term of 100 years from

the year of its creation, whichever expires first. If, before the end

of such term, the identity of one or more of the authors of an

anonymous or pseudonymous work is revealed in the records of a

registration made for that work, the copyright in the work endures

for the term specified by subsections (1) and (2) of this section.

Source: PL 2-29 § 301.

§ 114. Duration of copyright—Works created but not

published or copyrighted before effective date.

Copyright in a work created before the effective date of the Act

codified in this chapter, but not theretofore in the public domain or

copyrighted, subsists beginning on the effective date of the Act

codified in this chapter and endures for the term provided by

section 113 of this chapter.

Source: PL 2-29 § 302.

§ 115. Notice of copyright—Visually perceptible copies.

(1) Whenever a work protected under this chapter is published in

the Federated States of Micronesia or elsewhere by authority of the

copyright owner, a notice of copyright as provided by this section

shall be placed on all publicly distributed copies from which the

work can be visually perceived.

(2) The notice appearing on the copies shall consist of the

following three elements:

(a) the symbol © (the letter C in a circle), or the word

"Copyright," or the abbreviation "Copr.";

(b) the year of first publication of the work; in the case of

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compilations or derivative works incorporating previously

published material, the year date of first publication of the

compilations or derivative work is sufficient. The year date

may be omitted where a pictorial, graphic, or sculptural

work, with accompanying text matter, if any, is reproduced

in or on greeting cards, postcards, or any useful articles;

and

(c) the name of the owner of copyright in the work, or an

abbreviation by which the name can be recognized, or a

generally known alternative designation of the owner.

(3) The notice shall be affixed to the copies in such manner and

location as to give reasonable notice of the claim of copyright.

Source: PL 2-29 § 401.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

code.

§ 116. Notice of copyright---Phonorecords of sound

recordings.

(1) Whenever a sound recording protected under this chapter is

published in the Federated States of Micronesia or elsewhere by

authority of the copyright owner, a notice of copyright as provided

by this section shall be placed on all publicly distributed

phonorecords of the sound recording.

(2) The notice appearing on the phonorecords shall consist of the

following three elements:

(a) the symbol (the letter P in a circle);

(b) the year of first publication of the sound recording; and

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(c) the name of the owner of copyright in the sound

recording.

(3) The notice shall be placed on the surface of the phonorecord,

or on the phonorecord label or container, in such manner and

location as to give reasonable notice of the claim of copyright.

Source: PL 2-29 § 402.

§ 117. Notice of copyright—Contributions to collective works.

A single notice applicable to the collective work as a whole is

sufficient to satisfy the requirements of sections 115 and 116 of

this chapter, regardless of the ownership of copyright in the

contributions and whether or not they have been previously

published; provided, that the copyright of the owner in a separate

contribution that does not bear its own notice is not affected.

Source: PL 2-29 § 403.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

code.

§ 118. Deposit of copies or phonorecords for Library of the

Congress of the FSM.

(1) Subject to exception under this section, the owner of copyright

or of the exclusive right of publication in a work published with

notice of copyright in the Federated States of Micronesia shall

deposit, within four months after the date of such publication:

(a) two complete copies of the best edition; or

(b) if the work is a sound recording, two complete

phonorecords of the best edition.

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(2) The required copies or phonorecords shall be deposited in the

Attorney General's Office for the use or disposition of the Library

of the Congress of the Federated States of Micronesia.

(3) The Attorney General may by regulation exempt any

categories of material from the deposit requirements of this section

or require deposit of only one copy or phonorecord with respect to

any categories.

Source: PL 2-29 § 404.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code. The

statutory provisions on the Library of the Congress of FSM

are found in chapter 5 of title 40 (Education).

§ 119. Copyright registration in general.

At any time during the subsistence of copyright in any published

or unpublished work, the owner of copyright or of any exclusive

right in the work may obtain registration of the copyright claim by

delivering to the Attorney General's Office the deposit required

and upon payment of fee as prescribed in regulations. The

Attorney General shall by rules and regulations prescribe the

material deposited for registration.

Source: PL 2-29 § 405.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code.

§ 120. Application for copyright registration.

The application for copyright registration shall be made on a form

prescribed by the Attorney General and shall include all

information as prescribed by rules and regulations.

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Source: PL 2-29 § 406.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

code.

The statutory provisions on the President and the Executive

are found in title 2 of this code. The statutory provisions on

Administrative Procedure are found in title 17 of this code.

§ 121. Registration of claim and issuance of certificate.

(1) When, after examination, the Attorney General determines

that, in accordance with the provisions of this chapter, the material

deposited constitutes copyrightable subject matter and that the

legal requirements of this chapter have been met, he shall register

the claim and issue to the applicant a certificate of registration

under the seal of the Attorney General's Office. The certificate

shall contain the information given in the application, together with

the number and effective date of the registration.

(2) In any case in which the Attorney General determines that, in

accordance with the provisions of this chapter, the material

deposited does not constitute copyrightable subject matter or that

the claim is invalid for any other reason, he shall refuse registration

and notify the applicant in writing of the reasons for such refusal.

Source: PL 2-29 § 407.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code.

§ 122. Infringement—Civil remedies.

Anyone who violates any of the exclusive rights of the copyright

as provided under this chapter is an infringer of copyright and shall

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be liable:

(1) to an injunction restraining such infringement;

(2) to pay the copyright owner the actual damages suffered by the

owner and any profits of the infringer that are attributable to the

infringement and are not taken into account in computing the

actual damages; and

(3) to pay the copyright owner punitive damages, if imposed by

the court.

Source: PL 2-29 § 501.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code. The

statutory provisions on the FSM Supreme Court are found

in title 4 of this code.

§ 123. Infringement—Criminal offense—Fraud.

(1) Any person who infringes a copyright willfully and for

purpose of commercial advantage or private gain shall be fined

$10,000 or imprisoned for not more than one year, or both.

(2) When any person is convicted of any violation under

subsection (1) of this section, the court in its judgment of

conviction, in addition to the penalty therein prescribed, may order

the forfeiture and destruction or other disposition of all infringing

copies or phonorecords and devices used in the manufacture of

such infringing copies or phonorecords.

(3) Any person who, with fraudulent intent, places on any article a

notice of copyright or words of the same purpose that such person

knows to be false, or who, with fraudulent intent, publicly

distributes or imports for public distribution any article bearing

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such notice or works that such person knows to be false, shall be

fined not more than $2,500.

(4) Any person who, with fraudulent intent, removes or alters any

notice of copyright appearing on a copy of a copyrighted work

shall be fined not more than $2,500.

(5) Any person who knowingly makes a false representation of a

material fact in the application for copyright registration or in any

written statement filed in connection with the application shall be

fined not more than $2,500.

Source: PL 2-29 § 502.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code. The

statutory provisions on the FSM Supreme Court are found

in title 4 of this code.

The statutory provisions on Crimes are found in title 11 of

this code. The statutory provisions on Criminal Procedure

are found in title 12 of this code.

Case annotations: The term "counterfeit" has a specific

legal meaning: to forge; to copy or imitate, without

authority or right, and with a view to deceive or defraud, by

passing the copy or thing forged for that which is original

or genuine. Yang v. Western Sales Trading Co., 11 FSM R.

607, 616 (Pon. 2003).

Goods received through unauthorized distribution networks

often are referred to as "gray market" goods, or parallel

products. Gray market goods are genuine products

possessing a brand name protected by trademark or

copyright, which are typically manufactured abroad and

TITLE 35 – COPYRIGHTS, PATENTS, AND TRADEMARKS

T35-20

then purchased and imported by third parties, bypassing

authorized distribution channels. Yang v. Western Sales

Trading Co., 11 FSM R. 607, 617 (Pon. 2003).

§ 124. Responsibilities and duties of the Office of the Attorney

General.

(1) Until the President of the Federated States of Micronesia,

through administrative directives, establishes a separate Copyright

Office, within or without the Attorney General's Office, the Office

of the Attorney General shall exercise all administrative functions

and duties under this chapter.

(2) The Office of the Attorney General shall adopt a seal to be

used to authenticate all certified documents issued by it.

(3) The Office of the Attorney General shall provide and keep

records of all deposits, registration, recordation, and other

activities as required by this chapter or rules and regulations later

issued.

(4) The Office of the Attorney General shall compile and publish

annually catalogs of all copyright registration.

Source: PL 2-29 § 601.

Cross-reference: The statutory provisions on the President

and the Executive are found in title 2 of this code.

§ 125. Regulations.

The Attorney General is authorized to establish regulations not

inconsistent with this chapter.

Source: PL 2-29 § 602.

Cross-reference: The statutory provisions on the President

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T35-21

and the Executive are found in title 2 of this code. The

statutory provisions on Administrative Procedure are found

in title 17 of this code.

§ 126. Fees.

(1) Fees for registration, recordation, issuance of certificate, and

other services shall be prescribed in regulations issued by the

Attorney General.

(2) The Attorney General shall deposit all fees in the General

Fund of the Federated States of Micronesia.

Source: PL 2-29 § 603.

Cross-reference: FSM Const., art. IX, § 2(g). The

provisions of the Constitution are found in Part I of this

coded.

The statutory provisions on the President and the Executive

are found in title 2 of this code. The statutory provisions on

Administrative Procedure are found in title 17 of this code.


Legislation Supersedes (1 text(s)) Supersedes (1 text(s))
No data available.

WIPO Lex No. FM008