RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/MLT/1
IP/Q2/MLT/1
IP/Q3/MLT/1
IP/Q4/MLT/1
27 September 2000
(00-3917)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
MALTA1
The present document reproduces the introductory statement made by the delegation of
Malta, the questions put to it and the responses given in connection with the review of legislation
undertaken at the Council's meeting of 26-29 June 2000.2
_______________
I. INTRODUCTORY STATEMENT
A. COPYRIGHT
Malta's new Copyright Act replaces the 1967 Act and complies with Articles 1 through 21 of
the Berne Convention.  In fact it also complies with Article 6 bis since it also provides for the
protection of moral rights.
The new law is based on the EU acquis communautaire  in this area and also draws on
elements from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
In order to comply with the TRIPS Agreement, Malta had to introduce rental rights and
increase its term of protection.  It has reviewed its limitations to protection and upgraded the
protection given to phonogram producers and broadcas ting organizations.  Performers are now also
accorded protection when previously they were not.
In addition, Malta's Copyright Act also grants new sui generis  rights for semi-conductor
product topographies.  As can be seen from the following brief indication of its contents, Malta's
new Copyright Act goes further than the TRIPS Agreement requires.  The Act consists of 13 Parts:
Part I  updates definitions from the old Act and introduces new ones to reflect new or
updated rights in the Act;
Part II stipulates  the works (Including databases) and individuals eligible for copyright, the
terms of protection, the rights and the exceptions to the rights.  The general term ofprotection is increased to 70 years from the previous 25.  New rental, lending, as well as
                                                     
1 As regards laws and regulations notified by Malta under Article 63.2, reference is made to
documents IP/N/1/MLT/1, IP/N/1/MLT/C/1, IP/N/1/MLT/E/1, IP/N/1/MLT/I/1, IP/N/1/MLT/P/1,IP/N/1/MLT/T/1 and IP/N/6/MLT/1.
2 The minutes of this meeting have been circulated as document IP/C/M/27.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 2
distribution, rights are introduced in respect of all works, while the right of communication
to the public is extended to cover internet transmissions.  Caution is taken to ensure that
exceptions do not unjustly curtail the rights of the authors.  An exception (derived from
Canadian law) for the benefit of people with a disability, is introduced;
Part III deals  with the moral rights of authors, extending them to their successors;
Part IV introduces the concept of neighbouring rights for performers of audiovisual works,
producers of audiovisual works and phonograms as well as for broadcasters;
Part V introduces moral rights for performers;
Part VI deals with the transfer of copyright and neighbouring rights;
Part VII introduces a sui generis right in respect of databases where there has been a
substantial investment, irrespective of whether they are eligible for copyright protection but
subject to certain conditions;
Part VIII  introduces a sui generis is right in respect of semi-conductor product topographies;
Part IX deals with infringement;
Part X stipulates the duties of the Copyright Board;
Part XI introduces the concept of collective administration of rights and regulates the
establishment and working of collecting societies;
Part XII empowers the Minister to make regulations;  and
Part XIII includes the transitory and repeal provisions in line with Article 20 of the TRIPS
Agreement.
B. PATENTS
The new Patents Act replaces the provisions dealing with patents in the Industrial Property
(Protection) Ordinance and complies with the relevant Articles of the Paris Convention.  The new
law draws substantially from the European Patent Convention but for TRIPS purposes, Malta's new
Patents Act only needed to introduce:
1. "inventive step" as a pre-condition for granting a patent;2. provisions concerning non-voluntary licences;
3. provisions regarding reversal of the burden of proof in the case of process patents
infringement proceedings;  and
4. an extension from 14 to 20 years in the duration of the patent protection term.
The Act is divided into 17 Parts:
Part I designates the title;
Part II provides definitions;IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 3
Part III describes the Office of the Comptroller;
Part IV regulates patentability excluding from protection:
(a) methods of treatment for the human or animal body by surgery or therapy;
(b) diagnostic methods practised on the human or animal body;(c) inventions the exploitation of which would be contrary to public order or morality;(d) the human body, at the various stages of its formation and development from the
moment of conception, and the simple discovery of one of its elements;
(e) processes for cloning the human body, processes for modifying the germ line genetic
identity of the human body and the uses of the human embryo for industrial or
commercial purposes;
(f) processes and products for modifying the genetic identity of animals which are
likely to cause them suffering without any substantial medical benefits to man or
animal;  and
(g) an animal, or an essentially biological process for the production of plants or
animals other than a microbiological process or the products thereof, where an
essentially biological process consists entirely of natural phenomena such as
crossing or selection, and a microbiological process means any process involving, or
performed upon, or resulting in, microbiological material.
Part V deals with the right to a patent;Part VI concentrates on applications;
Part VII concerns examination, grant and refusal;
Part VIII extends the term of protection from 14 to 20 years, stipulates the rights conferred
by an application and a patent and lists the exemptions thereto;
Part IX deals with assignment and ownership;
Part X introduces provisions on licensing;
Part XI regulates non-voluntary licences in line with the TRIPS Agreement;Part XII concentrates on amendments, surrender and invalidation;Part XIII concerns re-establishment of rights within the twenty-year period;Part XIV provides for civil actions reversing the burden of proof in the case of process
patents;
Part XV provides for criminal actions;Part XVI provides a right of appeal;  andIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 4
Part XVII deals with miscellaneous provisions including transitory and repeal provisions as
well as other provisions giving the Minister the power to make regulations to give effect to
International and Regional patent Registration Systems.  It is made clear that patents, which
have lapsed will not be reintroduced while patents which are still currently in vigore will
have their term extended to 20 years.
C. TRADEMARKS
The New Trademark Act replaces the provisions dealing with trademarks in the Industrial
Property (Protection) Ordinance and complies with the relevant articles of the Paris Convention. The
new law is based on the EC First Council Directiv e to approximate the laws of the member States
relating to Trademarks and the UK Trademark Act (1994).
Alignment with TRIPS has meant the intr oduction of the following new elements:
1. protection for signs capable of distinguishing the services of one undertaking from
those of others;
2. protection of well-known marks;  and
3. protection of geographical indications through collective marks and certification
marks.
The Act is divided into 7 Parts:
Part I designates the title and provides definitions, in particular a new definition for a
trademark in line with the TRIPS Agreement adding that the shape of goods or theirpackaging may also be considered as trademarks;
Part II establishes a trademark as a property right and lists the absolute and relative grounds
for refusal.  This part also stipulates rights conferred by a trademark, their limitations and
how these rights may be infringed.  Provisions concerning civil proceedings in infringementcases may also be found in this Part.  Finally, this Part contains sections on procedural
matters concerning applications, examination, registration, licensing, duration (10 years),
renewal, alteration, surrender, revocation and invalidity;
Part III (International Matters) allows for provision by order to be made for the possible
giving effect in Malta of the Madrid Protocol and the Community Trademark System.  It
also implements obligations in relation to trademarks under the Paris Convention for the
Protection of Industrial Property, inter alia  requiring protection of non-registered
well-known marks, national emblems of Paris Convention and emblems of certain
international organizations;
Part IV (Administrative and other Supplementary provisions) deals with modifications,
provisions concerning the register, the powers and duties of the Comptroller, legal
proceedings, appeals and registered trademark agents;
Part V (Criminal Offences) strengthens the criminal sanctions against dealing in counterfeit
goods, and the powers of the Court to order forfeiture of such goods;IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 5
Parts VI and VII (General and Transitional Provisions) contain the usual final provisions
concerning transitional provisions, consequential amendments and repeals, extent,
commencement and short title;  and
Schedules I and II:  the Act is complemented by schedules dealing specifically with
collective and certification marks.
D. INDUSTRIAL DESIGNS
Industrial designs are protected by the relevant provisions of the Industrial Property
(Protection) Ordinance, which provides for the registration of a new design or model for two periods
of five years at the request of the owner and an additional five years at the discretion of the
Comptroller if the proprietor so wishes.  A six month priority period is allowed in respect of designsfirst registered in a WTO or Paris Convention Country.  The Ordinance also contains provisions
dealing with civil proceedings in cases of infringement and with criminal proceedings in cases where
a design is falsely designated as registered.
E. U
NDISCLOSED INFORMATION
There is no specific definition of "undisclosed information" in our law. However, the
Professional Secrecy Act, 1994 defines a "Professional Secret" or a "secret" as information which
falls under any of the following categories:
(a) information which is to be considered secret under any provision of any law;(b) information which is described as secret by the person communicating the
information to a person falling within the scope of Section 257 of the Criminal
Code;
(c) information which has reasonably to be considered as secret in view of:
(i) the circumstances in which the information has been communicated and
received;
(ii) the nature of the information;  and
(iii) the calling, profession or office of the person receiving information, and of
the person giving the information, where applicable.
The persons who by reason of their calling, profession or office fall within the scope of
Section 257 of the Criminal Code are defined in  Section 4 of the Professional Secrecy Act as
including: members of a medical profession, advocates, notaries, legal procurators, accountants,
auditors, employees and officers of financial and credit institutions, trustees, officers of nominee
companies or licensed nominees, persons licensed to provide investment services and stockbrokers.
Moreover, Section 257 of the Criminal Code states that:"If any person who by reason of his calling, profession or office, becomes the
depository of any secret in him, shall, except when compelled by law to give
information to a public authority, disclose such secret he shall on conviction be liable
to a fine (multa) not exceeding twenty thousand lira or to imprisonment for a termnot exceeding two years or to both such fine and imprisonment".IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 6
F. ENFORCEMENT
As far as enforcement is concerned, once goods have been released on the local market,
intellectual property rights are enforced by the Economic Crimes Unit of the Police which carries out
regular investigations at retail outlets and on the open markets.  The Investigations Section of the
Customs Authority is responsible for border enforcement.
The Customs Department, recognizing that Intellectual Property fraud is a criminal activity
which, not only infringes the rights of companies and individuals but also victimizes the consumer
by offering poor quality products, while presenting them as the genuine article and also conscious
that Customs is the ideal best placed organization to prevent the entry of such goods into the country,
has been effecting enforcement measures regard ing such infringements for quite some time.
The legislation being enforced however, was generic rather than specific and it was felt that
there was need for more effective measures, which would involve not only the Department but also
the Business Community, without restricting genuine trade.
The New Intellectual Property Rights (Cross Border Measures) Act 2000 which is now
being implemented by the Customs Department addresses their situation.  This legislation provides
right holders with the opportunity to submit an app lication to the Customs Authorities to take action
in cases of suspected infringement of all intellectual property rights.  This application may be
submitted in cases when the right holder has knowledge that goods falling under this description are
going to be put under one of the situations covered by this legislation.
These situations cover the entry into Malta, export or re-export, release for free circulation,
temporary importation and the placing in a free zone or free warehouse of goods found to be goods
infringing an intellectual property right.
These goods may be:
(a) counterfeit goods, including goods infringing trademarks and relative packaging
material;
(b) pirated goods, including goods infringing copyright and neighbouring rights and
design rights;
(c) goods infringing a patent under Maltese law;  and(d) materials and implements, the predominant use of which has been for the
manufacture of goods infringing an intellectual property right.
The above-mentioned application may also be submitted following ex officio  action by
Customs.  In this case the right holder, if known, will be informed of the situation and the suspected
goods will be withheld for five days in order to allow time to submit the required application.
Once the application is accepted by Customs, the applicant who may be required to provide
a security to cover any possible liability on the part of the Customs Department as well as any costs
incurred in keeping the goods under Customs control, will be given time to initiate civil judicial
proceedings leading to a substantive decision on the merits of the case.
After the goods have been found to be goods infringing an intellectual property right, the
Court shall order Customs, either to dispose of th e goods outside the channels of commerce in such a
way as to preclude injury to the holder of the right or to destroy them.  The Court shall take, or orderIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 7
Customs to take, in respect of the goods in question, any other measures having the effect of
effectively depriving the persons concerned of the economic benefits of the transaction.
This legislation also makes provisions wherein a person found guilty of importing, or
causing to be imported, goods infringing an intellectual property right, shall be taken before theCourt of Magistrates and in accordance with the provisions of the Criminal Code, shall be liable to a
fine equivalent to double the value of the goods in question.
This legislation does not cover goods imported under parallel trading and goods of a
non-commercial nature.
Follow-up question posed by the EC:
Please clarify whether or not the laws and regulations described in your presentation
to the TRIPS Council are still bills or have been enacted as laws by your Parliament, in
particular with respect to the copyright and patent bills notified in documentsIP/N/1/MLT/C/1 and IP/N/1/MLT/P/1 respectively.
Following the intervention of the distinguished delegate of the EC, I am pleased to inform
you that yesterday
3 the Parliament of Malta enacted the Patents Act 2000 and the said Act is
awaiting publication.  All the TRIPS legislation of  Malta reviewed yesterday has now been passed
through Parliament as follows:
1. the Intellectual Property Rights (Cross Border Measures) Act 2000 was published in
the Government Gazette on 29 February 2000;
2. the Copyright Act 2000 (Act XIII of 2000) was published in the Government
Gazette on 25 April 2000;
3. the Trademark Act 2000 (Act XVI of 2000) was published in the Government
Gazette on 23 June 2000;
4. the Patents Act 2000 (Act XVII of 2000) passed the third reading in Parliament on
27 June 2000 and will be published very shortly in the Government Gazette.
The delegation of Malta will, of course, duly notify the publication of the Patents Act 2000
to the Council.
                                                     
3 Secretariat note:  27 June 2000.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 8
II. RESPONSES TO QUESTIONS POSED BY CANADA
1. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61?
Trademark Act 2000
Injunctions
An infringement of a registered trademark is actionable by the proprietor of the trademark
by writ of summons to be filed in the First Hall of the Civil Court.  In an action for infringement all
such relief as is available in respect of the infringement of any other property right shall be available
to the plaintiff.  (Section 14 (1) and (2)).
Any person aggrieved by groundless threats of in fringement proceedings, may by means of a
writ of summons before the Civil Court, First Hall request relief by virtue of an injunction against
the continuance of such threats.  (Section 20 (2)(b)).
Destruction or other disposal of infringing goods, materials or articles for their production
Where a person is found to have infringed a registered trademark, the Court may make an
order requiring him:
(a) to cause the offending sign to be erased, removed or obliterated from any infringing
goods, material or articles in his possession, custody or control;  or
(b) if it is not reasonably practicable for the offending sign to be erased, removed or
obliterated, to secure the destruction of the infringing goods, material or articles inquestion.  (Sections 15(1)(a) and (b)).
If an order as specified above is not complied with, or it appears likely to the Court that such
an order would not be complied with, the Court may order that the infringing goods, material or
articles be delivered to such person as the Court may direct of erasure, removal or obliteration of thesign, or for destruction, as the case may be.  (Section 15(2)).
The proprietor of a registered trademark may apply to the Court for an order for the delivery
up to him, or such other 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 a business.  (Section 16(1)).
An application shall not be made after the end of the period of six years, and no order shall
be made unless the Court also makes, or it appears to the Court that there are grounds for making, an
order.  A person to whom any infringing goods, material or articles are delivered up in pursuance of
an order shall retain them pending the decision of the Court.  (Section 16(2) and (3)).
Where infringing goods, materials or articles have been delivered up in pursuance of an
order an action by writ of summon may be brought before the Court by any party interested:
(a) for an order that they be destroyed or forfeited to such person as the Court may think
fit;  or
(b) for a decision that no such order should be made.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 9
In considering its decision, the Court shall consider whether other remedies available in an
action for infringement of the registered trademar k would be adequate to compensate the proprietor
and any licensee to protect their interests.  (Sections 19(a), (b) and (c)).
Act to make new Provisions in respect of Copyright and Neighbouring Rights and certain sui generis
Intellectual Property Rights (hereafter the "Copyright Act")
Damages, including recovery of profits, and expenses, including attorney's fees
Where any person infringes the copyright, neighbouring rights or sui generis  rights in
respect of a work, he shall be liable, at the suit of the copyright owner or right holder to be
condemned by the Civil Court, First Hall to the pa yment of damages or to the payment of a fine to
be determined in accordance with a scale of fines to be prescribed by the Minister and to the
restriction of all the profit derived from the infringement of the copyright, neighbouring rights or
sui generis  rights.
Where the defendant proves to the satisfaction of the Court that at the line of the
infringement he was not aware and could not reasonably he expected to be aware that copyright,
neighbouring rights or sui generis  rights subsisted in the work to which the action relates, the Court
shall not condemn him to the restitution of the profit.
The Civil Court, First Hall may in an action for infringement of copyright, neighbouring
rights or sui generis  rights having regard to all the circumstances and in particular to the flagrancy of
the infringement and any benefit accruing to the defendant by reason of the infringement, award
such additional damage as the justice of the case may require.  (Sections 43(1) and (2)).
Any person who is found liable for infringement of moral rights shall be liable at the suit of
the author or his heirs to be condemned by the Civi l Court, First Hall, to the payment of a fine, and
for damages to be determined in accordance with a scale of fines to be prescribed by the Minister
(Section 44(1)).
Destruction or other disposal of infringing goods and materials/implements for their production.
The Court may order that all the infringing articles still in possession of the defendant be
delivered to the plaintiff.  (Section 43(3)).
The Court shall order the destruction of all the infringing articles still in the possession of
the defendant where it is satisfied that the prejudice caused to the author is so serious as to justify
such measure.  This provision shall not apply where the infringing article is a building.(Sections 44(2) and (3)).
2. What protection does your Copyright legislation afford to foreign works?
Section 4 of the Copyright Act stipulates:
"(1) Copyright shall be conferred by this Section on every work eligible for
copyright of which the author or, in the case  of a work of joint authorship, any of the
joint authors, is, at the time when the work is made:
(a) an individual who is a citizen of, or is domiciled or permanently
resident in Malta or in a state in which copyright is protected under an
international agreement to which Malta is also a  party;IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 10
(b) a body of persons or a commercial partnership constituted,
established, registered and vested with legal personality under the laws of
Malta or of a State  in which copyright is protected under an international
agreement to which Malta is also a party.
(2) The terms of copyright protection conferred by this Section shall be
calculated according to the following table:
TABLE
Date of Expiration of
CopyrightType of Work
Seventy years after the end of the
year in which the author dies, irrespective
of the date when the work is lawfully
made available to the public.(i) Literary, musical or artistic 
works and database
Seventy years after the end of the
year in which the last of the following
persons dies: the principal director, the
author of the screenplay, the author of thedialogue and the composer of music
specifically created for use in the
audiovisual work.(ii) Audiovisual works
(3) In the case of an anonymous or pseudonymous literary, musical or artistic work, or
in the case of a collective work, the copyright in the work subsists until the end of the
expiration of 70 years from the end of the year in which it was lawfully made available to
the public or after the end of the year in which the work was made if it has not been made
available to the public:
Provided that when the pseudonym adopted by the author leaves no doubt as to his
identity or in the event of the identity of the author becoming known during the period
referred to in the preceding paragraph of this subsection or where in the case of collective
works by a body of persons the natural persons who have created the work are individually
identifiable in the versions of the work made available to the public the terms of copyright
protection shall be calculated in accordance with the provision of paragraph (i) of the last
preceding subsection.
(4) In the case of joint authorship reference in the preceding table to the death of the
author shall be deemed to refer to the joint author who dies last, whether or not he is a
qualified person in terms of subsection 1 of Section 4 of this Act.
(5) In the case of a person who for the first time lawfully publishes or lawfully
communicates to the public a previously unpublished work the copyright protection of
which has expired, he shall benefit from a protection equivalent to the economic rights
covered by copyright but limited for a period of twenty-five years from the time when the
work was first lawfully published or lawfully communicated to the public.
(6) Where a work is published in volumes, parts, instalments, issues or episodes and the
term of protection runs from the time when the work was lawfully made available to the
public, the term of protection shall run for each such item separately."IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 11
Moreover, Section 5 states:
"(1) Copyright shall be conferred by this Section on every work which is eligible
for copyright and which is made or first published in Malta or in a State in whichsuch works are protected under an international agreement to which Malta is also a
party and which has not been the subject of copyright conferred by Section 4 of this
Act.
(2) Copyright conferred on a work by this Section shall have the same duration
as is provided for in Section 4 of this Act in relation to the same type of work."
Furthermore, Section 7 states:
"(1) Copyright in an audiovisual work, a database, a literary, musical or artistic
work shall be the exclusive right to authorize or prohibit the doing in Malta in respect
of the protected material in its totality or substantial part thereof, either in its originalform or in any form recognisably derived from the original of any of the following:
(a) the direct or indirect, temporary or permanent reproduction by any means
and in any form, in whole or in part;
(b) the rental and lending;
(c) the distribution;(d) the translation in other languages including different computer languages;(e) the adaptation, the arrangement and any other alteration and the
reproduction, distribution, communication, display or performance to the public of
the results thereof;
(f) the broadcasting or rebroadcasting or the communication to the public or
cable retransmission;
(g) display or performance to the public:(2) Provided that the right to authorize or prohibit the cable retransmission of a
television broadcast shall be exercisable only through a collecting society."
Rights are accorded to performers, producers of phonograms and broadcasting organizations
through Part IV:  Neighbouring Rights of the Copyright Act
 
 Section 13 provides:
 
"Performers shall have the exclusive right to authorize or prohibit the doing in Malta
any of the following acts:
 
(a) the fixation of their performances;
(b) the direct or indirect, temporary or permanent reproduction by any means
and in any form, in whole or in part of a fixation of their performances;IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 12
(c) the rental and lending of their fixed performances;
(d) the distribution of the original performances fixed in phonograms and of
copies thereof;
(e) the making available to the public of the fixation of their performances, by
wire or wireless means, in such a way that members of the public may access
them from a place and a time individually chosen by them;
(f) the broadcasting and the communication to the public of their performances,
except where the performance is itself already a broadcast performance or is
made from a fixation."
Section 15 provides:
"Producers of sound recordings shall, in respect of their sound recordings, and
producers of the first fixations of films, in respect of the original and copies of theirfilms, have the exclusive right to authorize or prohibit:
(a) the direct or indirect, temporary or permanent reproduction by any means or
form in whole or in part;
(b) the rental and lending;
(c) the distribution;(d) the making available to the public by wire or wireless means in such a way
that members of the public may access them from a place and a time
individually chosen by them."
Section 17 provides:
"(1) Broadcasting organizations shall have the exclusive right to authorize or
prohibit the doing in Malta of any of the following acts:
(a)  the fixation of their broadcasts, or initial cable transmissions;(b) the direct or indirect, temporary or permanent reproduction by any means or
form in whole or in part of fixations of their broadcast or initial cabletransmissions as set out in paragraph (a) above;
(c) the distribution of fixation of their broadcast or initial cable transmissions as
set out in paragraph (a) above;
(d) the rebroadcasting of their broadcasts as well as the communication to the
public of their broadcasts if such communication is made in places
accessible to the public against payment of an entrance fee;
(e) the making available to the public, of fixations of their broadcast as set out in
(a) above, by wire or wireless means, in such a way that members of the
public may access them from a place and at a time individually chosen by
them.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 13
(2) A broadcasting organization shall not have the right provided in
paragraph 1(a) above when it merely retransmits by cable the broadcasts of
broadcasting organizations."
Moreover, Section 22 of the Copyright Act states:
"Neighbouring rights conferred by this part shall apply only in respect of works:(a) of which the performer, the producer or broadcaster is:
 
(i) an individual who is a citizen of, or is domiciled or permanently
resident in Malta or in a State in which such works are protected byneighbouring rights under an international agreement to which Malta
is also a party;
(ii) a body of persons or a commercial partnership constituted,
established, registered and vested with legal personality under thelaws of Malta or of a State in which such works are protected by
neighbouring rights under an international agreement to which Malta
is also a party;  or
(b) which are made, first published, broadcast or communicated to the public in
Malta or in a State in which such works are protected by neighbouring rights
under an international agreement to which Malta is also a party;  or
 
 (c) which are made by or under the direction or control of the Government of
Malta and also such governments of other States, international bodies orother inter-governmental organizations as may be prescribed."
 
 
III. RESPONSES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES
AND THEIR MEMBER STATES
A. GENERAL
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.
The only provisions in this regard may be found in the Patents Act which provides that
Minister responsible for the protection of Industrial Property, where the national security or public
safety so requires, may authorize even without the agreement of the proprietor, an agency or a
person designated in the said notice to make, use or sell an invention to which a patent or an
application for a patent relates, subject to payment of equitable remuneration to the proprietor of the
patent or the application for the patent (Article 40 (1)).
These are based on Article 31 of the TRIPS Agreement and referred to in the reply to
question 34.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 14
B. COPYRIGHT AND RELATED RIGHTS
2. 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 Articl es 1-21 of the Berne Convention and the
Appendix to the Berne Convention (1971).
The Act to make new provisions in respect of copyright and neighbouring rights and certain
sui generis  intellectual property rights (hereafter called the Copyright Act) complies with Article 9
of the TRIPS Agreement in that it complies with the Articles 1 to 21 of the Berne Convention.  In
fact, it also complies with Article 6 bis since it also provides for the protection of moral rights.  It is
more extensive than the Berne Convention and is based on the European Union acquis
communautaire  in the area.
Furthermore Section 7 provides that:
"7.(1) Copyright in an audiovisual work, a database, a literary, musical or artistic
work shall be the exclusive right to authorize or prohibit the doing in Malta in respect
of the protected material in its totality or substantial part thereof, either in its originalform or in any form recognisably derived from the original of any of the following:
(a) the direct or indirect, temporary or permanent reproduction by any means
and in any form, in whole or in part;
(b) the rental and lending;
(c) the distribution;(d) the translation in other languages including different computer languages;
(e) the adaptation, the arrangement and any other alteration and the
reproduction, distribution, communication, display or performance to the
public of the results thereof;
(f) the broadcasting or rebroadcasting or the communication to the public or
cable retransmission;
(g) display or performance to the public:(2) Provided that the right to authorize or prohibit the cable retransmission of a
television broadcast shall be exercisable only through a collecting society."
3. Please describe the protection accorded to authors of computer programmes,
databases or compilations of data.
The definition of literary work in Section 2 (1) inter alia  includes computer programmes.
Hence, the protection accorded to literary works is also accorded to computer programmes.
 "Compilations of data" are protected through Section 3 which provides that a database shall
be eligible for Copyright provided it has origin al character and has been written down, recorded,
fixed or otherwise reduced to material form.  A database shall not be eligible for copyright unless by
reason of the selection or arrangement of its contents, it constitutes the author's intellectual creation.Furthermore, Section 25 provides that "the maker of a database who can show that there has beenIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 15
qualitatively or quantitatively a substantial investment in either the obtaining, verification or
presentation of the contents of the database shall have, irrespective of the eligibility of that database
or its contents for protection by copyright or by other rights, the right to authorize or prohibit acts of
extraction or re-utilisation of its contents, in whole or in substantial part, evaluated qualitatively or
quantitatively."
 
4. Please state whether your legislation provides for a rental right and if so, the works to
which it applies.
Rental rights are provided through Section 7 in respect of audiovisual works and databases, as
well as literary, musical and artistic works.  Such a right, is also accorded to:
(a) performers in respect of rental of their fixed performances (Section 13);  and(b) producers of sound recordings, in respect of their sound recordings, and producers of
the first fixations of films, in respect of the original and copies of their films
(Section 15).
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organizations under your legislation.
 Rights are accorded to performers, producers of phonograms and broadcasting organizations
through Part IV:  Neighbouring Rights of the Copyright Act.
 
Section 13 provides:
 
"Performers shall have the exclusive right to authorize or prohibit the doing in Maltaany of the following acts:
 
(a) the fixation of their performances;
 
(b) the direct or indirect, temporary or permanent reproduction by any means,
and in any form in whole or in part of a fixation of their performances;
 
(c) the rental and lending of their fixed performances;
 
(d) the distribution of the original performances fixed in phonograms and of
copies thereof;
 
(e) the making available to the public of the fixation of their performances, by
wire or wireless means, in such a way that members of the public may accessthem from a place and a time individually chosen by them;
 
(f) the broadcasting and the communication to the public of their performances,
except where the performance is itself already a broadcast performance or is
made from a fixation."
Section 15 provides:"Producers of sound recordings shall, in respect of their sound recordings, and
producers of the first fixations of films, in respect of the original and copies of theirfilms, have the exclusive right to authorize or prohibit:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 16
(a) the direct or indirect, temporary or permanent reproduction by any means or
form in whole or in part;
(b) the rental and lending;
(c) the distribution;
(d) the making available to the public by wire or wireless means in such a way
that members of the public may access them from a place and a time
individually chosen by them."
Section 17 provides:"(1) Broadcasting organizations shall have the exclusive right to authorize or
prohibit the doing in Malta of any of the following acts:
(a) the fixation of their broadcasts, or initial cable transmissions;(b) the direct or indirect, temporary or permanent reproduction by any means or
form in whole or in part of fixations of their broadcast or initial cable
transmissions as set out in paragraph (a) above;
(c) the distribution of fixation of their broadcasts or initial cable transmissions
as set out in paragraph (a) above;
(d) the rebroadcasting of their broadcasts as well as the communication to the
public of their broadcasts if such communication is made in placesaccessible to the public against payment of an entrance fee;
(e) the making available to the public, of fixations of their broadcast as set out in
(a) above, by wire or wireless means, in such a way that members of the
public may access them from a place and at a time individually chosen bythem.
 (2) A broadcasting organization shall not have the right provided in
paragraph 1(a) above when it merely retransmits by cable the broadcasts of
broadcasting organizations."
 
6. Please state whether your legislation provides for any limitation of 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 the light of Articles 13 and 14.6 of the TRIPS Agreement.
 The Copyright Act provides exceptions via Section 9 which states:
 
 "Copyright in an audiovisual work, a database, a literary, musical or artistic work
shall not include the right to authorize or prohibit:
 
(a) other than in the case of a  computer program the doing of any of the acts
mentioned in subsection (1) of Section 7 by way of fair dealing for purposes
of research, private use, criticism or review, or the reporting of currentevents, provided that, if such use is public, it is accompanied by an
acknowledgement of the title of the work and its authorship, except whereIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 17
the work is incidentally included in a broadcast or rebroadcast or
communication to the public or cable retransmission:
Provided that when in terms of this paragraph an author of a work eligible
for copyright suffers a derogation of his exclusive lending right he shall beentitled to a remuneration for such lending which can be collected
individually or through a collecting society from the establishment lending
such work or copies thereof other than State public libraries, universities and
educational establishments licensed to operate by the State which are all
excluded from such an obligation.  In the calculation of such remuneration,
in the case of literary, musical and artistic works only, account shall be taken
of national cultural promotion objectives and in case of disagreement overthe remuneration due, this shall be determined by the Board;
(b) the doing of any of the aforesaid acts by way of parody, pastiche or
caricature;
(c) the inclusion in an audiovisual work, broadcast or rebroadcast,
communication to the public or cable retransmission of any artistic work
situated in a place where it can be viewed by the public;
(d) the reproduction and distribution of copies of any artistic work permanently
situated in a place where it can be viewed by the public;
(e) the incidental inclusion of an artistic work in an audiovisual work, broadcast
or rebroadcast;
(f) the reproduction of a short part of a published work, by way of illustration,
in writings or sound or audiovisual recordings for teaching purposes:
Provided that such reproduction is compatible with fair practice and its
extent does not exceed the extent justified by the purpose and its source andthe name of the author shall as far as practicable be indicated.
(g) the reproduction, for face-to-face teaching in educational institutions whose
activities do not serve direct or indirect commercial gain, to the extent
justified by the purpose, of a published article or other short work or short
extract of a writing, with or without illustrations:
Provided that the act of reproduction is an isolated one occurring, if
repeated, on separate and unrelated occasions, and there is no collective
licence available (that is, offered by a collecting  society in a way  that the
educational institution is aware or should be aware of the availability of the
licence) under which such reproduction can be made:
Provided further that on any copy made under this subsection there shall be
indicated as far as practicable its source and the name of the author;
(h) the reading or recitation in public by a person of any reasonable extract from
a published literary work if accompanied by a sufficient acknowledgement;
(i) the making of single copies of works by public libraries, non-commercial
documentation centres and scientific institutions for the purpose of study,IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 18
scholarship or private research, provided no collective licence for such
reproduction is available and no revenue is derived therefrom and no
admission fee is charged for the communication, if any, to the public of the
work thus used;
(j) the making of single copies of works by public libraries, non-commercial
documentation centres and scientific institutions in order to preserve and, if
necessary, in the event that it is lost, destroyed or rendered unusable, to
replace a copy, or to replace, in the permanent collection of another similar
library or archive, a copy which has been lost, destroyed or rendered
unusable:
Provided that it is impossible to obtain such a copy under reasonable
conditions and the act of reproduction is an isolated case occurring, if
repeated, on separate and unrelated occasions;
(k) the doing of any of the aforesaid acts, at the request of a person with a
perceptual disability or for a non-profit organization acting for his or her
benefit:
Provided that this does not apply when the work in respect of which such an
act is to be done is commercially available in a format specially designed tomeet the needs of any person referred to in the above paragraph and may be
located within a reasonable time, for a reasonable price with reasonable
effort;
(l) temporary acts of reproduction such as transient and incidental acts of
reproduction which are an integral and essential part of a technological
process, including those which facilitate effective functioning of
transmission systems, whose sole purpose is to enable use to be made of a
work or other subject matter, and which have no independent economic
significance;
(m) the reproduction of a work by or under the direction or control of a
broadcasting organization made by means of the broadcasting organization's
own facilities and only for use in its own broadcast, where such reproduction
of any copies there of are intended exclusively for a lawful broadcast or
rebroadcast and are destroyed before the end of the period of six calendar
months immediately following the making of the reproduction or suchlonger period as may be agreed between the broadcasting organization and
the owner of the relevant copyright in the work:
Provided that any reproduction of a work made under this paragraph may, if
it is of an exceptional documentary character, be preserved in the archives ofthe broadcasting organization, but shall not be used for broadcasting,
rebroadcasting or for any other purpose without the consent of the owner of
the relevant copyright in the work;
(n) the communication to the public of a work, in a place where no admission
fee is charged in respect of such communication, by any club whose aim is
not profit-making;IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 19
(o) any use made of a work for the purpose of a judicial proceeding or of any
report of any such proceeding;
(p) in the case of a computer program, the observation, the study or testing of
the functioning of the program by the licensed user in order to determine theideas and principles which underlie any element of the program if this is
done whilst performing any of the acts of loading, displaying, running,
transmitting or storing the program which he is entitled to do;
(q) in the case of a computer program, the reproduction by the licensed user of
the code and translation of its form indispensable to obtain the information
necessary to achieve the interoperability of an independently createdcomputer program with other programs, provided that these acts are confined
to the parts of the original program which are necessary to achieve
interoperability and the information necessary to achieve interoperability has
not previously been readily available tot he licensed user:
Provided that any information obtained from the reproduction of the code
and the translation of the form of a computer program made under this
paragraph shall not:
(i) be used for purposes other than to achieve the interoperability of the
independently created computer program;
(ii) be given to other persons, except when necessary for the
interoperability of the independently created computer program;
(iii) be sued for the development, production or marketing of a computer
program substantially similar in its expression to the originalprogram, or for any other act which infringes copyright;
(r) the making of a copy or a back-up copy, the translation, adaptation,
arrangement and any other alteration of a computer program and the
reproduction of the results thereof, insofar as this is necessary for the
licensed user to make proper use of the program in accordance with itsintended purpose, including error correction ;  and the right of the licensed
user to make a back-up copy of a computer program may not be restricted or
excluded by contract insofar as it is necessary for the use of that computer
program;
(s) in the case of a database, the performance of those acts which are normally
necessary in order that the licensed user obtains access to the contents of thedatabase and normal use thereof, in respect of the whole or part of the
database which the user is licensed to use and any contractual provisions
running counter to what is prescribed in this paragraph shall be null and
void;
(t) in the case of a database, any use which is necessary for the purposes of
public security or for the purposes of an administrative procedure, to the
extent justified by the purpose."
 In addition Section 21 indicates that:
 IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 20
 "The provisions of paragraphs (a), (f), (g), (i), (j) (k) and (m) of Section 9 of this Act
shall apply to the neighbouring rights conferred by this Section in like manner as
they apply to copyright in a literary, musical or artistic or audiovisual work or
database."
 
 Follow-up question:
  
Please explain how Section 9(n) of the Copyri ght Act is compatible with Article 9 of the
TRIPS Agreement in conjunction with Articles 11 and 11 bis of the Berne Convention and
Article 13 of the TRIPS Agreement.
 
 Section 9 of Malta's new Copyright Act was retained from Malta's previous Copyright Act.
The Section in question is to be amended in order to ensure compatibility with the TRIPS
Agreement and the Berne Convention.
 
7. Please state the term of protection of each right described above and the work or
subject matter, to which it applies.
Section 4(2) stipulates that "the terms of copyright protection conferred by this Section shall
be calculated according to the following table:
Date of Expiration of Copyright Type of Work
Seventy years after the end of the
year in which the author dies, irrespective
of the date when the work is lawfully
made available to the public.(i) Literary, musical or artistic works
and database
Seventy years after the end of the
year in which the last of the following
persons dies: the principal director, the
author of the screenplay, the author of thedialogue and the composer of music
specifically created for use in the
audiovisual work.(ii) Audiovisual works
This is complemented by the following:
"Section 4(3):  In the case of an anonymous or pseudonymous literary, musical or
artistic work, or in the case of a collective work, the copyright in the work subsists
until the end of the expiration of 70 years from the end of the year in which it was
lawfully made available to the public or after the end of the year in which the work
was made if it has not been made available to the public:
Provided that when the pseudonym adopted by the author leaves no doubt as to his
identity or in the event of the identity of the author becoming known during the
period referred to in the preceding paragraph of this subsection or where in the case
of collective works by a body of  persons the natural persons who have created the
work are individually identifiable in the versions of the work made available to thepublic the terms of copyright protection shall be calculated in accordance with the
provision of paragraph (i) of the last preceding subsection."IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 21
"Section 4(5):  In the case of a person who for the first time lawfully publishes or
lawfully communicates to the public a previously unpublished work the copyright
protection of which has expired, he shall benefit from a protection equivalent to the
economic rights covered by copyright but limited for a period of 25 years from the
time when the work was first lawfully published or lawfully communicated to thepublic."
"Section 4(6):  Where a work is published in volumes, parts, instalments, issues or
episodes and the term of protection runs from the time when the work was lawfully
made available to the public, the term of protection shall run for each such item
separately."
 Regarding performers' rights Section 14 states:
 
 "The rights conferred by this Section shall have the duration of 50 years from the end
of the year in which the fixation of the performance was first lawfully published or
first lawfully communicated to the public, wh ichever is the earlier or in the absence
of such publication or communication to the public from the end of the year in which
it was first performed."
 
 Regarding producers' rights Section 16 states:
 
 The rights conferred by this Section on sound recordings and audiovisual works shall
have the duration of 50 years from the end of the year in which the sound recording
or the first fixation of the audiovisual work was first lawfully published or lawfully
communicated to the public, whichever is the earlier or in the absence of such
publication or communication to the public from the end of the year in which the firstfixation was made.
Regarding broadcasters, Section 18 states:The rights conferred by this Section on broadcasts shall have the duration of 50 years
from the end of the year in which the broadcast was first transmitted whether by wire
or over the air, be it by cable or satellite.
 
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (which obligation derives from Article 9) and Article 14.6
of the TRIPS Agreement).
Retroactive protection is addressed through Section 60 which states:
"(1) This Act shall apply:(a) in relation to works made after the coming into force of this Act;  and
(b) saving the provisions of subsection (2) of this Section, to works made before
the coming into force of this Act where the term of protection has not, upon
the coming into force of this Act, ex pired under the Copyright Act (Cap 196)
repealed by Section 61 of this Act.
(2)(a)  The rights of performers in respect of a fixation of their performance on a
phonogram to prevent the fixation of their unfixed performance which took
place prior to the commencement of this Act and the reproduction of suchIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 22
fixation when undertaken without their authorization and the rights of
performers to prevent the broadcasting by wireless means and the
communication to the public of their live performance when undertaken
without their authorization shall be protected under this Act until the end of a
period of fifty years computed from the end of the calendar year in which theperformance took place.
Provided that these rights are exercised through a collecting society.
(b) The right of producers of sound recordings made prior to the commencement
of this Act to authorize or prohibit the rental of the said sound recordings
shall be protected under this Act for a term of 50 years computed from theend of the calendar year in which the sound recording was made.
Provided that these rights are exercised through a collecting society.
(c) The right of the holder of copyright in respect of a literary work consisting
of a computer programme to authorize or prohibit the rental of the said
programme shall be protected until the end of a period of 50 years computed
from the end of the calendar year in which the author of the said computer
programme dies.
(3) No action may be taken under this Act in respect of an action which took
place prior to the commencement of this Act in respect of rights recognized by this
Act but which were not recognized by the Copyright Act (Cap 196) repealed by
Section 61 of this Act."
Follow-up question:
Please explain the duration of the term of protection granted to right holders under the
repealed Cap. 196 of the Copyright Act.
Section 4(2), (3) and (4) of the repealed Act Cap. 196 states the following:
"(2) The terms of copyright conferred by this section shall be calculated
according to the following table:
TABLE
Type of Work
Date of Expiration of Copyright
(i) Literary, musical or artistic works
other than photographsTwenty-five years after end of the
year in which the author dies
(ii) Cinematograph films and
photographsTwenty-five years after the end of the
year in which the work was first made
accessible to the public by the owner
of the copyright therein.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 23
(iii) Sound recordings
(iv) BroadcastsTwenty-five years after the end of the
year in which the recording was made.
Twenty-five years after the end of the
year in which the broadcast tookplace.
(3) In the case of an anonymous or pseudonymous literary, musical or artistic
work whose term of copyright in established under paragraph (I) of the last
preceding subsection the copyright therein shall subsist until the end of the
expiration of the twenty-five years from the end of the year in which it was firstpublished.
Provided that in the event of the identity of the author becoming known the terms of
copyright shall be calculated in accordance with the provisions of paragraph (I) of
the last preceding subsection.
(4) In the case of a work of joint authorship, reference in the preceding table to
the death of the author shall be deemed to refer to the joint author who dies last,
whether or not he is a qualified person."
C. T
RADEMARKS
9. Please give the definition of a sign under your national legislation and explain under
which conditions it is protectable.
 Section 2 of the Trademark Act defines a trademark as:
 
 "any sign capable of being represented graphically which is capable of distinguishing
goods or services of one undertaking from those of other undertakings.  A trademark
may, in particular, consist of words (including personal names), figurative elements,
letters, numerals or the shape of goods or their packaging.
 
 For the purpose of this Act 'any sign capable of being represented graphically'
includes any sign capable of being put down in words."
 
 Furthermore Section 4 states :
 
"(1) The following shall not be registered as trademarks:
 
(a) signs which do not fall within the definition of trademarks in Section 2;
 
(b) trademarks which are devoid of any distinctive character;
 
(c) trademarks which consist exclusively of signs or indications which may
serve, in trade, to designate the kind, quality, intended purpose, value,
geographical origin, the time of production of goods or of rendering of
services, or other characteristics of goods or services;
 
(d) trademarks which consist exclusively of signs or indications which have
become customary in the current language or in the bona fide and
established practices of the trade:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 24
Provided that a trademark shall not be refused registration by virtue of paragraphs
(b), (c) or (d) above if, before the date of application for registration, it has in fact
acquired a distinctive character as a result of the use made of it.
(2) A sign shall not be registered as a trademark if it consists exclusively of:
(a) the shape which results from the nature of the goods themselves;(b) the shape of goods which is necessary to obtain a technical result;  or(c)  the shape which gives substantial value to the goods.(3) A trademark shall not be registered if it is:(a) contrary to public policy or to accepted principles of morality;  or
(b) of such a nature as to deceive the public or likely to deceive the public as to
the nature, quality or geographical origin of the goods or service or in any
other manner.
(4) A trademark shall not be registered if or to the extent that its use, is
prohibited in Malta by any enactment or rule of law.
(5) A trademark shall not be registered in the cases specified, or referred to, in
Section 5.
(6) A trademark shall not be registered if, or to the extent that, the application is
made in bad faith."
 
 Moreover Section 6 states:
 
"(1) A trademark shall not be registered if it is identical with an earlier trademark
and the goods or services for which the trademark is applied for are identical with the
goods or services for which the earlier trademark is protected.
 
(2) A trademark shall not be registered if because it is either identical with an
earlier trademark and is to be registered for goods or services similar to those for
which the earlier trademark is protected, or it is similar to an earlier trademark and isto be registered for goods or services identical with or similar to those for which the
earlier trademark is protected, there exists a likelihood of confusion on the part of the
public, including the likelihood of association by the public with the earlier
trademark:
 
Provided that the mere association without the likelihood of confusion shall notprevent a mark from being registered.
 
(3) A trademark which:
 
(a) is identical with or similar to an earlier trademark;  and
 
(b) is to be registered for goods or services which are not similar to those for
which the earlier trademark is protected, shall not be registered if, or to theIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 25
extent that, the earlier trademark has reputation in Malta and the use of the
later mark without due cause would take unfair advantage of, or be
detrimental to, the distinctive character or the repute of the earlier trademark.
 
(4) A trademark shall not be registered if, or to the extent that, its use in Malta isliable to be prevented:
 
(a)  by virtue of any rule of law protecting an unregistered trademark or other
sign used in the course of trade;  or
(b) by virtue of an earlier right other than those referred to in paragraph (a)
hereof or in subsections (1) to (3), in particular by virtue of the law ofcopyright, or registered designs."
 
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.
 All signs which fulfil the definition of a trademark referred to in question 9 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.
 No conditions of use are imposed for registration purposes.  However according to
Section 42:
 
"(1) The registration of a trademark may be revoked on any of the following
grounds:
 
(a) that within the period of five years following the date of completion of the
registration procedure it has not been put to genuine use in Malta, by the
proprietor of with his consent, in relation to the goods or services for which
it is registered, and there are no proper reasons for such non-use;
(b) that such use has been suspended for an uninterrupted period of five years,
and there are no proper reasons for such non-use;
(c) that, in consequence of acts or inactivity of the proprietor, it has become the
common name in the trade for a product or service for which it is registered;
(d) that in consequence of the use made of it by the proprietor or with his
consent, it is liable to mislead the public in relation to the goods or services
for which it is registered, particularly as to the nature, quality or
geographical origin of those goods or services.
(2) For the purposes of subsection (1) use of a trademark includes use in a form
differing in such elements which do not alter the distinctive character of the mark in
the form in which it was registered, and use in Malta includes affixing the trademark
to goods or to the packaging of goods in Malta solely for export purposes.
(3) The registration of a trademark shall not be revoked on the ground
mentioned in paragraphs (a) or (b) of subsection (1) if such use as is referred to inIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 26
that paragraph is commenced or resumed after the expiry of the five-year period and
before the application for revocation is made:
Provided that, any such commencement or re sumption of use after the expiry of the
five-year period but within the period of three months before the making of theapplication shall be disregarded unless preparations for the commencement or
resumption began before the proprietor became aware that the application is likely to
be made.
(4) An application for revocation may be made by writ of summons before the
First Hall, Civil Court by any person.
(5) Where grounds for revocation exist in respect of only some of the goods or
services for which the trademark is registered, revocation shall be limited to those
goods or services.
(6) Where the registration of a trademark is revoked to any extent, the rights of
the proprietor shall be deemed to have ceased to that extent as from:
(a) the date of the application for revocation;  or(b) if grounds for revocation existed at an earlier date, such earlier date."
 
12. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
The registration of a trademark is indefinitely renewable for a period of ten years from the
date of registration.
13. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
Please see answer to question 11.
D. GEOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a
trademark application if it contains a geographical indication.
Section 4(1) states that trademarks shall not be registered if they consist exclusively of signs
or indications which may serve in trade to designate the geographical indication of goods or of
rendering of services or other characteristics of goods or services.  This does not apply for
certification and collective marks (Schedules 1 and 2).
Furthermore, Section 4(3)(b) precludes a trademark from registration if it is:"of such a nature as to deceive the public or likely to deceive the public as to the nature,
quality or geographical origin of the goods or service or in any other manner."
 
15. Please give the definition of a geographical indication in your legislation.
No such definition exists.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 27
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics if an in dication and its geographical origin.
No provisions exist.
 
17. Please describe whether or not additional protection is granted by your legislation to
wines and spirits.  Please mention other types of products, if any, covered by this additional
protection.
This obligation is met by the Sections referred to in the reply to question 14.
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.
There has to date, been no need to use such exceptions and no list exists in this regard.
E. INDUSTRIAL DESIGNS
19. Please explain whether or not your legisl ation extends the protection to designs
dictated essentially by technical or functional considerations.  Please, explain how textiledesigns are protected.
Section 68 of the Industrial Property (Protection) Ordinance states:
"In this Ordinance, design or model of manufacture means any design or model
which, by whatever means or process, is applicable to any article of manufacture orto any other substance, natural or artificial, or partly natural and partly artificial,
whether the design or model is applicable for the pattern, or for the shape or
configuration, or for the ornament thereof."
If a design fulfils this criteria it shall be accepted for registration (on the premise that it is
new) irrespective of whether it is dictated by technical or functional consideration.
The owner of a textile design may obtain protection through a request for registration at the
Industrial Property Office, provided it fulfils the criteria referred to in Section 68 of the Industrial
Property (Protection) Ordinance mentioned above.  Furthermore, artistic works are protected via theCopyright Act for up to 70 years following the death of the author.
20. Please explain how your legislation protects right holders of a design against importing
of articles bearing embodied or copied design.
Section 67 of the Industrial Property (Protection) Ordinance states :
"Such registration gives to the proprietor copyright in the design or model, that is, the
exclusive right to reproduce the design or model and to apply such design or model
to any of the articles or substances mentioned in the next following section."
In addition Section 42(2) of the Copyright Act states that:
"Copyright, neighbouring rights and sui generis rights are also infringed by any
person who, without the licence of the copyright owner or right holder, imports into
Malta otherwise than for private and domestic use, or distributes therein by way ofIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 28
trade, hire or otherwise, or by way of trade exhibits in public or is in possession or
manufactures in the course of business or offers or exposes for sale or hire an article
in respect of which copyright, neighbouring rights or sui generis rights are infringed
under the last preceding Section."
Furthermore, Section 42(3) of the Copyright Act states:
"Copyright, neighbouring rights or sui generis rights are also infringed by any person
who without the licence of the copyright owner or right holder makes, imports into
Malta, possesses in the course of trade or sells or lets for hire, or offers or exposes for
sale or hire an article the sole intended purpose of which is to facilitate the
unauthorized removal or circumvention of any technical device which may havebeen applied to protect a work or other subject matter eligible for copyright,
neighbouring rights or sui generis rights under this Act against being copied, seen,
viewed, heard or otherwise perceived."
 
21. Please mention whether or not your legislation provides for the right to issue a
compulsory license for industrial designs.
 Malta's legislation does not provide for such a right.
 
22. Please indicate for which period of time your legislation grants protection for
industrial designs.
Designs protected through registration under the Industrial Property (Protection) Ordinance
are protected for a five years term from the date of registration which may be extended by a further
term of five years following a request from the proprietor at the end of the first term.  The
Comptroller may in addition, at his discretion, extend protection by yet another five years if he
should be so requested by the proprietor.
The term of protection for designs protected under the Copyright Act are protected as
indicated in the answer to question 7.
F. PATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
Section 5(1) of the Patents Act defines novelty as follows:
"An invention shall be considered novel if it does not form part of the prior art".Section 6 defines inventive step as follows:"An invention shall be considered to involve an inventive step if, having regard to the
prior art as defined in subsection (2) of section 5, it is not obvious to a person skilled
in the art.
Provided that if the prior art also includes any of the documents referred to in
subsection (3) of section 5 of this Act, these documents are not to be considered in
deciding whether there has been an inventive step."
Section 7 defines industrial applicability as follows:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 29
"An invention shall be considered industrially applicable if it can be made or used in
any kind of industry.  For the purposes of this section the term "Industry" shall be
understood in its broadest sense and shall without prejudice to the foregoing include
handicraft, agriculture  and fishery."
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.
Patent rights may be enjoyed by any natural or legal entity (Section 9).
 
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.
Section 4(5)(a) states:
"A patent shall not be granted in respect of:
an invention the exploitation of which would be contrary to public order or morality:Provided that exploitation shall not be deemed  to be so contrary merely because it is
prohibited by law or regulation."
This has not been applied in practice.
26. Please explain whether or not diagnostic, therapeutic and surgical methods are
excluded from patentability in your legislation.  If so, please, explain the relevant section of
your legislation and explain its formulation.
Section 4(4) states:
"A method for the treatment of the human or animal body by surgery or therapy and a
diagnostic method practised on the human or animal body shall not be regarded as an
invention capable of industrial application."
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.
Section 4(5) states:
"A patent shall not be granted in respect of:an animal variety or an essentially biological process for the production of plants or
animals other than a microbiological process or the products thereof."
28. Please describe bow micro-organisms non-essentially biological processes,
microbiological processes and plant varieties are pr otected in your legislation.  Please explain
in this respect, the relevant sections of your legislation.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 30
These are protected through normal patent procedure since they are not excluded from
patentability.
29. Please explain how your legislation protects  patent right holders against importing and
against offering for sale of a patented invention.
Section 27(1) states:
"Where the patent concerns a product, the proprietor of the patent shall have the right
to prevent third parties from performing, without his authorization, the following
acts:
(b) the offering or the putting on the market of a product incorporating the
subject-matter of the patent, the use of such product, or the importation or
stocking of such product for such offering or putting on the market or for
such use."
Persons infringing such rights will be subject to infringement proceedings under Sections 47
and 48 of the Act.
30. Please inform if your legislation provides for patent product protection of
pharmaceutical and agricultural chemical products .  In the affirmative, please indicate the
legal reference.
The Patent Act provides for patent product protection of pharmaceutical and agricultural
chemical products since they are not excluded from patentability in Section 4.
31. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
The answer is yes.  In fact Section 27(2) states:
"Where a patent concerns a process, the proprietor of the patent shall have the right
to prevent third parties from performing w ithout his authorisation, the following acts:
(a) the use of a process which is the subject matter of the patent;
(b) in respect if any product directly obtained by the use of the process, any of
the acts referred to in subsection (1)(b), even where a patent cannot be
obtained for the said product;
(c) the including of third parties to perform any of the above acts."
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 prior inform consent to its use).  If such
additional conditions exist, please point out the relevant legislation and describe the additional
conditions in detail.
There are no additional conditions to the normal details required when submitting an
application.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 31
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.
Section 27(3) stipulates the following:
"Notwithstanding subsections (1) and (2), the proprietor of a patent shall have no
right to prevent third parties from performing, without his authorisation, the acts
referred to in subsections (1) and (2) in the following circumstances:
(a) where the act concerns a product which has been put on the market by the
proprietor of the patent, or with his express consent, insofar as such an act is
performed after that product has been so put on the market in Malta or in anyterritory as may be specified in the regulations;
 
(b) where the act is done privately and for non-commercial purposes, provided
that it does not significantly prejudice the economic interests of the
proprietor of the patent;
 
(c) where the act consists of making or using such product for purely
experimental purposes or for scientific research;
 
(d) where the act consists of the extemporaneous preparation for individual
cases, in a pharmacy or by a medical or veterinary doctor, of a medicine in
accordance with a medical prescription or of acts concerning the medicine so
prepared;
(e) where the act is done solely for uses reasonably related to the development
and submission of information required under any law of Malta or a country
other than Malta that regulates the manufacture, construction, use or sale of
any product;
(f) when the use is on board vessels of the countries of the Union of Paris for the
protection of Industrial Property of the patented invention, in the body of the
vessel, in the machinery, tackle, gear and other accessories, when suchvessels temporarily or accidentally enter the waters of Malta, provided that
the invention is used there exclusively for the needs of the vessel;
 
(g) when the use of the patented invention is in the construction or operation of
aircraft or land vehicles of countries of the Union of Paris for the Protectionof Industrial Property or of accessories to such aircraft or land vehicles when
such aircraft or vehicles  temporarily or accidentally enter the territory of
Malta."
Further to the above, Section 27(4) states:"(a) Subject to paragraph (b) hereof, a patent shall also confer on its proprietor
the right to prevent third parties from supplying or offering to supply a
person, other than a party entitled to exploit the patented invention, with
means, relating to an element of that invention, essential for carrying out theinvention, when the third party knows, or ought to know in the
circumstances, that those means are suitable and intended for carrying outIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 32
that invention.  The provision of this paragraph shall not apply where such
means are staple commercial products and the circumstances of the supply of
such products do not constitute inducement to infringe the patent.
(b) Persons performing any acts referred to in  subsections (3)(b), (c), (d), (e), (f)
and (g) shall not be considered to be parties entitled to exploit the invention
within the meaning of paragraph (a)".
Since this is a new law these provisions have not as yet been applied in practice.
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.
Compulsory licences are granted in our law as follows:
"39.(1) The Civil Court, First Hall, may, on a writ of summons filed by  any person
who proves his ability to work the patented invention in Malta, made after the
expiration of a period of four years from the date of filing the application for the
patent or three years from the grant of the patent, whichever is later, direct the
Comptroller to grant a non-exclusive, non-voluntary licence if the patented invention
is not worked or is insufficiently worked in Malta.
(2)  The grant of the non-voluntary licence shall be subject to the payment of
such equitable remuneration to the proprietor of the patent as may be determined bythe Civil Court, First Hall, and may be permitted if, prior to such use, the proposed
user has made efforts to obtain authorization from the right holder on reasonable
commercial terms and conditions and if such efforts have not been successful within
a reasonable period of time.
 
(3)  Notwithstanding subsection (1), a non-voluntary licence shall not be granted
if the Court is convinced that circumstances exist which justify the non-working or
insufficient working of the patented invention in Malta.
 
(4)  In deciding whether to grant a non-voluntary licence, the Court shall give
both the proprietor of the patent and the person requesting the non-voluntary licencean adequate opportunity to present arguments.
 
(5)  Any non-voluntary licence shall be revoked when the circumstances which
led to its granting cease to exist, taking into account the legitimate interests of the
proprietor of the patent and of the licensee.  The continued existence of these
circumstances shall be reviewed upon the request of the proprietor of the patent by
writ of summons before the Civil Court, First Hall.
 
(6)  Paragraph (a) of subsection 3 of section 27 of this Act shall be interpreted in
the sense that if the patented product is put on the market by a licensee pursuant to a
non-voluntary licence, it will not be deemed to have been put on the market with the
express consent of the proprietor of the patent.
 
(7)  The scope and duration of a non voluntary licence shall be limited to the
purpose for which it was authorized and shall be:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 33
(a) non-exclusive;
(b) non-assignable, except with that part of the enterprise or goodwill
which enjoys such authorization;
(c) terminated if and when the circumstances which led to it cease to
exist;  and
(d) predominantly for the supply of the domestic market.
(8) Where a non-voluntary licence is issued to permit the exploitation of a patent
("the second patent") which cannot be exploited without infringing another patent
("the first patent"), the following additional conditions shall apply:
(i) the invention claimed in the second patent shall involve an important
technical advance of considerable economic significance in relationto the invention claimed in the first patent;
(ii) the owner of the first patent shall be entitled to a cross-licence on
reasonable terms to use the invention claimed in the second patent;
and
(iii) the use authorized in respect of the first patent shall be non-
assignable except with the assignment of the second patent."
"40.(1) Where the national security or public safety so requires, the Minister
responsible for the Industrial Property Office may authorize, even without the
agreement of the proprietor of the patent or the patent application, by notice
published in the prescribed form, a Government agency or a person designated in the
said notice to make, use or sell an invention to which a patent or an application for a
patent relates, subject to payment of equitable remuneration to the proprietor of thepatent or the application for the patent.
(2) The conditions set out in subsections (7) and (8) of section 39 shall also
apply in respect of an authorization issued by the Minister under this section.
(3) Any decision taken by the Minister under this section may be the subject of
an appeal in an action by writ of summons before the Civil Court, First Hall."
The individual merits of each case are objectively assessed by the Courts.
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 of the domestic market of the Member authorizing such use.
This requirement is stipulated in Section 39(2) referred to in the reply to question 35.  It is up
to the Court to decide what a reasonable period of time is depending in the merits of each case.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 34
36. Please mention if your legislation grants additional protection for innovations after the
20 years of patent protection has lapsed.
Our legislation does not grant additional protection for innovation after the 20 years of
patent protection has lapsed.
37. Please explain how your legislation provide s for the enhanced patent protection of
patents or patent applications pending on 1 January 1995.
Section 62(3) states:
"Where an application for the registration of a patent has been filed before the coming into
force of the Act, the provisions of the Industrial Property (Protection) Ordinance shall,
notwithstanding the repeal of the same by this Act, continue to apply thereto.  Provided thatupon the granting of any such patent the provisions of this Act shall apply thereto."
Furthermore, Section 62(5) states:"Any patent registered under the Industrial Property (Protection) Ordinance before the
coming into force of this Act, the term of which has not upon the coming into force of this
Act, lapsed, shall enjoy the term of protection of the duration stipulated under this Act and
shall benefit from any rights granted in respect of patents under this Act."
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Section 48(2) states:
"Where the subject-matter of the patent is a process for obtaining a new product, the same
product when produced by any other party shall in the absence of proof to the contrary be
deemed to have been obtained by the patented process.  In the assessment of any proof to thecontrary by the defendant, the legitimate interests of the defendant in protecting his
manufacturing and business secrets shall be taken into account by the Court."
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects topographies.
Topographies are protected by virtue of:
- Part VIII - Sui Generis  Right in respect of semi conductor Product Topographies of
Malta Copyright Act No. XIII 2000, Sections 32-41; and
- Part IX - Infringement Sections 42 - 44 of the same Act.
40. Please explain what protection your national legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies
including integrated circuits or other articles in which a topography is incorporated inaccordance with Article 36 of the TRIPS Agreement.
Section 32 stipulates that:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 35
"Creators of semi-conductor product topographies and their successors in title shall
have the exclusive right to authorize or prevent in Malta the reproduction of the
topography and the commercial exploitation or the importation for the purpose of
commercial exploitation of the topography or of a semi-conductor productmanufactured by using the topography."
Section 33 provides that:"the right conferred by Section 32 shall not prevent:
(a) reproduction of a topography privately for non-commercial aims;(b) reproduction for the purpose of analysing, evaluating or teaching the
concepts, processes, systems or techniques bodied in the topography or the
topography itself;"
Section 35 maintains that:
"the right conferred by Section 32 of this Act shall apply only in respect of semi-
conductor product topographies which are the result of the creator's own intellectual
effort and are not commonplace in the semi-conductor industry but shall not extendto any concept, process, system, technique or encoded information embodied in the
topography:
Provided that where the semi-conductor product topography consists of elements that
are commonplace in the semi-conductor industry, it shall be protected only to theextent that the combination of such elements, taken as a whole, fulfils the above-
mentioned conditions."
41. Please explain how your legislation provide s for the derogation from Article 36 as
specified in Article 37 of the TRIPS Agr eement 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.
Section 41 clarifies that:
"a person or his successor in title who acquires a semi-conductor product shall not be
prevented from commercially exploiting that product if at the time of acquisition he
was not aware and could not reasonably be expected to be aware that a sui generis
right as is conferred by Section 32 subsisted in that work:
Provided that, at the suit of the right holder or his successors in title, the Civil Court,
First Hall, shall order that person to pay adequate compensation to the plaintiff in
respect of the acts committed by him after he became aware or had reasonablegrounds to believe that the semi-conductor product is protected by such a sui generis
right."IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 36
42. Please state the term of protection granted by your legislation to topographies.
Section 40 states that:
"The right conferred by Section 32 shall subsist for ten years from the end of the year
in which the semi-conductor product topography was first commercially exploitedanywhere in the world or for fifteen years from the first fixation or encoding of the
semi-conductor product topography if it has not been commercially exploited."
H. U
NDISCLOSED 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.
There is no time limit imposed by law upon the protection of secret or undisclosed
information.  However, Section 4(1)(c) of the National Archives Act, 1990 states that:
"administrative and departmental documents of the Government of Malta, including
all documents of Ministries, Government Commissions, Authorities or Boards" are to
be put in the national Archives “after the lapse of thirty years from their being putaway".
The National Archives are accessible to the public in terms of Section 2 of the National
Archives Act but under Section 8 of the Act the Minister responsible for Education may limit access
by the public to documents where in his discretion "they contain information which has beenobtained by a public authority under an obligation of secrecy or confidentiality".
44. Please explain how your legislation defines "undisclosed information".
There is no specific definition of "undisclosed information".  However, the Professional
Secrecy Act, 1994 defines a "Professional Secret" or a "secret" as information which falls under anyof the following categories:
(a) information which is to be considered secret under any provision of any law;
(b) information which is described as secret by the person communicating the
information to a person falling within the scope of Section 257 of the Criminal
Code;
(c) information which has reasonably to be considered as secret in view of:
(i) the circumstances in which the information has been communicated and
received;  and
(ii) the nature of the information;  and(iii) the calling, profession or office of the person receiving the information, and
of the person giving the information, where applicable.
The persons who by reason of their calling, profession or office fall within the scope of
Section 257 of the Criminal Code are defined in Section 4 of the Professional Secrecy Act as
including:  members of a medical profession, advo cates, notaries, legal procurators, accountants,IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 37
auditors, employees and officers of financial and credit institutions, trustees, officers of nominee
companies or licensed nominees, persons licensed to provide investment services and stockbrokers.
Moreover, Section 257 of the Criminal Code states that:
"If any person who by reason of his calling, profession or office, becomes the
depositary of any secret in him, shall, except when compelled by law to give
information to a public authority, disclose such secret he shall on conviction be liable
to a fine (multa) not exceeding twenty thousand liri or to imprisonment for a term not
exceeding two years or to both such fine and imprisonment."
45. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
There is no legal definition of what constitutes the submission of data to governments or
governmental agencies.  This is a matter of fact to be determined on a case by case basis if such a
fact were to be contested.
I. ENFORCEMENT
46. See the Checklist of Issues on Enforcement (document IP/C/5).
See Malta's responses to the Checklist of Issues on Enforcement (document IP/N/6/MLT/1).
IV. RESPONSES TO QUESTIONS POSED BY JAPAN
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain how the protection is pr ovided for works, phonograms, performances
and broadcasts from other WTO Members under the Law on Copyright and Neighbouring
Rights of Malta (hereinafter referred to as  "Copyright and Neighbouring Rights Law").
Please describe the provisions of the Copy right and Neighbouring Rights Law which provide
for the National Treatment and Most-Favoured-Na tion Treatment as required by Articles 3
and 4 of the TRIPS Agreement as well as Article 9.1 of the Agreement which incorporates
Article 5(1) of the Berne Convention.
Copyright protection is vested automatically i.e. there is no requirement, indeed no
possibility for registration.
Malta's Copyright Act which includes neighbouring rights protection for performers,
producers and broadcasters and also sui generis right protection for databases and semi-conductor
product topographies includes the following:
"4(1) Copyright shall be conferred by this Section on every work eligible for
copyright of which the author or, in the case  of a work of joint authorship, any of the
joint authors, is, at the time when the work is made:
an individual who is a citizen of, or is domiciled or permanently resident in
Malta or in a State in which copyright is protected under an internationalagreement to which Malta is also a  party;
a body of persons or a commercial partnership constituted, established,
registered and vested with legal personality under the laws of Malta or of aIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 38
State  in which copyright is protected under an international agreement to
which Malta is also a party.
"5(1) Copyright shall be conferred by this Section on every work which is eligible
for copyright and which is made or first published in Malta or in a State in whichsuch works are protected under an international agreement to which Malta is also a
party and which has not been the subject of copyright conferred by Section 4 of this
Act."
22. "Neighbouring rights conferred by this Part shall apply only in respect of
works:
(a) of which the performer, the producer or broadcaster is:
(i) an individual who is a citizen of, or is domiciled or permanently
resident in Malta or in a State in which such works are protected by
neighbouring rights under an international agreement to which Malta
is also a party;
(ii) a body of persons or a commercial partnership constituted,
established, registered and vested with legal personality under the
laws of Malta or of a State in which such works are protected by
neighbouring rights under an international agreement to which Maltais also a party;  or
(b) communicated to the public in Malta or in a State in which such works are
protected by neighbouring rights under an international agreement to which
Malta is also a party".
"29. The right conferred by this Section shall only apply to a database
(a) whose maker or right holder is at the time when the database is made:
(i) an individual who is a citizen of, or is domiciled or permanently
resident in Malta or in a State in which such a sui generis  right in
respect of databases is protected under an international agreement towhich Malta is also a party;
(ii) a body of persons or a commercial partnership constituted,
established, registered and vested with legal personality under the
laws of Malta or of a State in which such a sui generis  right in
respect of databases is protected under an international agreement to
which Malta is also a party;  or
(b) which is made or first made available to the public in Malta or in a State in
which such a  sui generis  right in respect of databases is protected under an
international agreement to which Malta is also a party".
"36. The right conferred by Section 32 shall apply in favour of a creator or his
successor in title who is an individual who is a citizen of, or is domiciled or
permanently resident in Malta or in a State in which such a sui generis  right as is
conferred by Section 32 on semi-conductor product topographies is protected under
an international agreement to which Malta is also a party."IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 39
2. 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 in Articles 3 and 4 of the TRIPS Agreement.
Malta accords protection to non-nationals as, a result of international agreements, as
explained above.
3. Please explain whether and how Malta pr ovides retroactive protection to works,
phonograms, performances from other WTO Members, as required by Articles 9.1, 14.6 and
70.2 of the TRIPS Agreement which apply, mutatis mutandis  Article 18 of the Berne
Convention.  Please indicate the date to whic h such protection extends back with respect to
each category of subject matter.
Malta complies with Article 70.2 of the TRIPS Agreement by virtue of Section 60(2)(a) and
60(2)(b):
"(2)(a) The rights of performers in respect of a fixation of their performance on a
phonogram to prevent the fixation of their unfixed performance which took place
prior to the commencement of this Act and the reproduction of such fixation when
undertaken without their authorization and the rights of performers to prevent the
broadcasting by wireless means and the communication to the public of their liveperformance when undertaken without their authorization shall be protected under
this Act until the end of a period of fifty years computed from the end of the calendar
year in which the performance took place.  Provided that these rights are exercised
through a collecting society.
(b) The right of producers of sound recordings made prior to the commencement
of this Act to authorize or prohibit the rental of the said sound recordings shall be
protected under this Act for a term of fifty years computed from the end of the
calendar year in which the sound recording was made.  Provided that these rights are
exercised through a collecting society."
4. Please explain whether protection of "computer programs" under the Copyright and
Neighbouring Rights Law covers computer programs in both source and object code, as
required by Article 10.1 of the TRIPS Agreement.  Are those computer programs protected as
literary works in accordance with Ar ticle 2(1) of the Berne Convention?
Malta's law covers computer programs in both source and object code since the term
includes computer programs whatever may be the mode or form of their expression.  These are
protected as literary works as indicated in the definition of "literary work" in Section 2(1).
5. Please clarify whether "database" under the Copyright and Neighbouring Rights Law
includes compilation of data in machine-readab le form.  Please explain how the Law complies
with Article 10.2 of the TRIPS Agreement in this respect.
The definition of database under Malta's law extends to compilation of data in machine-
readable form since the database may be accessed electronically or by other means.
B. E
NFORCEMENT
6. Please indicate the remedies which the judi cial authorities order regarding intellectual
property rights, including injunctions, damages, expenses, destruction or disposal of infringingIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 40
goods, materials or implements for their produc tion.  Please explain the criteria for and the
way of calculation to decide the amount of the damages which judicial authorities order to the
person who infringes intell ectual property rights to pay to the right holder.
Injunctions:
The Courts may issue a precautionary warrant against a present or future defendant to a
court case and an executive warrant against a losing party after a definitive judgement.
Precautionary warrants include:
(i) the warrant of prohibitory injunction which may be used to stop a person from doing
anything which prejudices the right of the plaintiff;
(ii) a garnishee order freezing the defendants property in the hands of third parties;
(iii) a warrant of seizure seizing the defendants property;  and
(iv) a warrant of description to draw up an inventory of property in the hands of the
defendant.
The warrant of seizure and the garnishee order may also be issued as executive warrants
which also include the warrant of ejection or expulsion from innovable property, and the warrant
in factum  ordering the imprisonment of a person until the performance of an act ordered by a
judgement if there are no other means of execution.
The Court has the power to issue precautionary warrants inaudita altera parte.
Before issuing such injunctions the Courts also  have the authority to require the applicant to
provide evidence in order to satisfy them prima facie  that the applicant is the right holder and that
the applicant's right is being infringed or that such infringement is imminent.  In the case of warrants
of prohibitory injunction the provisional issue of which is demanded inaudita altera parte  it is stated
expressly in the law that the Court may impose any conditions which it deems appropriate in the
issue of such warrant (Section 873(7) of the C ode of Organization and Civil Procedure - COCP).
A party against whom a precautionary act has been issued , upon showing good cause, may
demand that the Court order the party suing out the warrant to provide security for the payment ofdamages, interest and any penalty which the Court may impose if the proceedings are found to be
abusive.  (Section 838A COCP).
Moreover, a person against whom a precautionary warrant has been issued may demand the
revocation of such warrant by means of an application to the Court if it is shown that in the
circumstances it would be unreasonable, unnecessary or unjustifiable to maintain the warrant in
force in whole or in part or if the warrant was unduly obtained .  (Sections 836 and 837 COCP).  A
person against whom a warrant is issued has to be given notice of the warrant
The Courts may require the applicant to supply other information necessary for the
identification of the goods before ordering the execution of precautionary warrants.
The person suing out a precautionary warrant is bound to bring the action in respect of the
claim stated in the warrant within four working da ys from the delivery to him or to an advocate or
legal procurator who represented him on the application of notice of execution of the warrant or
within twelve days after the issue of the warrant,  whichever is the earlier date, and in default the
effects of the warrant shall cease.  (Sections 843, 847, 850, and 875 COCP).IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 41
In cases where the applicant does not bring the action in respect of the claim stated in the
warrant or where upon the demand of the defendant for the rescission of the precautionary warrant
the person suing out the warrant fails to show that the precautionary warrant was founded or if it is
shown that the applicant's claim was frivolous, malicious or vexatious, the person suing out thewarrant may be condemned, upon the request of the defendant to pay such damages as may have
been caused by the issue of the warrant.  The Court may in addition condemn the applicant to pay a
penalty to the person against whom a precautionary warrant was abusively issued (Section 836
COCP).
Damages and Expenses:
Under Maltese Law damages include both loss of profit and loss of earnings.  Expenses
incurred due to the fault of other parties and lawyers fees and also recoverable in accordance with
the Court judgement.
Under the proposed Patents Act 2000 any person who exploits an invention which is the
subject matter of a patent or patent application shall be liable in damages towards the proprietor of
the patent or of a patent application or the licensee.  The right to sue for damages shall be without
prejudice to the right of such person to apply for the issue of any precautionary warrant as provided
in the Code of Organization and Civil Procedure to protect his rights.  (Section 47(1) and (2)).
Under the Copyright Act 2000 where any person infringes the copyright, neighbouring
rights or sui generis  rights in respect of a work, he shall be liable, at the suit of the copyright owner
or right holder to be condemned by the Civil Court, First Hall to the payment of damages or to the
payment of a fine to be determined in accordance with a scale of fines to be prescribed by the
Minister and to the restitution of all the profit  derived from the infringement of the copyright,
neighbouring rights or sui generis  rights.
Where the defendant proves to the satisfaction of the Court that at the time of the
infringement he was not aware and could not reasonably be expected to be aware that copyright,
neighbouring rights or sui generis  rights subsisted in the work to which the action relates, the Court
shall not condemn him to the restitution of the profit.
The Civil Court, First Hall may in an action for infringement of copyright, neighbouring
rights or sui generis  rights having regard to all the circumstances and in particular to the flagrancy of
the infringement and any benefit accruing to the defendant by reason of the infringement, award
such additional damage as the justice of the case may require.  (Section 43(1) and (2)).
Any person who is found liable for infringement of moral rights shall be liable at the suit of
the author or his heirs to be condemned by the Civi l Court, First Hall, to the payment of a fine, and
for damages to be determined in accordance with a scale of fines to be prescribed by the Minister.
Under the proposed Trademark Act 2000 an infringement of a registered trademark is
actionable by the proprietor of the trademark by writ of summons to be filed in the First Hall of the
Civil Court.  In an action for infringement all such relief as is available in respect of the infringement
of any other property right shall be available to the plaintiff.  (Section 14(1) and (2)).
Under the proposed Trademark Act 2000:
Where a person is found to have infringed a registered trademark, the Court may make an
order requiring him:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 42
(a) to cause the offending sign to be erased, removed or obliterated from any infringing
goods, material or articles in his possession, custody or control;  or
(b) if it is not reasonably practicable for the offending sign to be erased, removed or
obliterated, to secure the destruction of the infringing goods, material or articles in
question.  (Sections 15(1)(a) and (b)).
If an order as specified above is not complied with, or it appears likely to the Court that such
an order would not be complied with, the Court may order that the infringing goods, material or
articles be delivered to such person as the Court may direct for erasure, removal or obliteration of the
sign, or for destruction, as the case may be.  (Section 15(2)).
The proprietor of a registered trademark may apply to the Court for an order for the delivery
up to him, or such other person as the Court may direct, of any infringing goods, material or articleswhich a person has in his possession, custody or control in the course of a business.  (Section 16(1)).
An application shall not be made after the end of the period of six years, and no order shall
be made unless the Court also makes, or it appears to the Court that there are grounds for making, an
order.  A person to whom any infringing goods, material or articles are delivered up in pursuance ofan order shall retain them pending the decision of the Court. (Section 16(2) and (3)).
Where infringing goods, materials or articles have been delivered up in pursuance of an
order an action by writ of summons may be brought before the Court by any party interested:
(a) for an order that they be destroyed or forfeited to such person as the Court may think
fit;  or
(b) for a decision that no such order should be made.
In considering its decision, the Court shall consider whether other remedies available in an
action for infringement of the registered trademar k would be adequate to compensate the proprietor
and any licensee to protect their interests.  (Section 19(a), (b) and (c)).
Under the proposed Patents Act 2000:
The Court may on the demand of the plaintiff, order that the machinery or other industrial
means or contrivances used in contravention of the patent, the infringing articles, and the apparatus
destined for their production, be forfeited, wholly or partially, and delivered up to the proprietor of
the patent.  (Section 47(3)).
Under the Copyright Act 2000:
The Court may order that all the infringing articles still in possession of the defendant be
delivered to the plaintiff.
The Court shall order the destruction of all the infringing articles still in the possession of
the defendant where it is satisfied that the prejudice caused to the author is so serious as to justify
such measure.  This provision shall not apply where the infringing article is a building.  (Section44(2) and (3)).IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 43
Calculation of damages:
As stated above, under Maltese law the term 'damages' covers damnum emergens  and
lucrum cessans  as liquidated by the Court in each particular case.
7. Please indicate titles of laws and regulations and their provisions in which the
suspension of the release of counterfeit tradem ark of pirated copyright goods is prescribed, as
stipulated in Article 51 of the TRIPS Agreement.   Please explain types of intellectual property
rights about which the suspension can be ma de upon an application by a right holder.
The title of the law which provides for the suspension of the release of counterfeit goods,
including goods infringing trademarks and pirated goods, including goods infringing copyrights, is
the "Intellectual Property Rights (Cross-Border Measures) Act, 2000".
This legislation provides both for the measures and provisions for the suspension of the
release (or detention) of goods suspected of infringing an intellectual property right where anapplication for action by the Customs Authorities has been received.  Provision has also been made
for Customs to take ex officio  action and suspend the release of such goods in cases where the goods
are detected by Customs prior to the receipt of the application already referred to, in order to afford
the holder of the right with the opportunity to submit the required application.
After the application has been received and accepted by Customs, the goods will be
suspended for a stipulated time so that the right holder may initiate legal proceedings against the
person responsible for the infringement of this legislation.
The Intellectual Property Rights protected by this legislation are Counterfeit goods,
including goods infringing trademarks and relative packaging, Pirated goods, including goods
infringing Copyright and neighbouring rights and Design rights, goods infringing a Patent under
Maltese law and Materials and Implements, the predominant use of which is for the manufacture of
goods infringing intellectual property rights.
8. Please explain the kind and amounts of criminal penalties including imprisonment and
fines regarding property rights.  In particular, are the crimes persecuted only when the
injured party has made a formal accusation?  Please also explain whether penalties are
consistent with Article 61 of the TRIPS Agreement which requires the penalties to be sufficient
to provide a deterrent, consistently with the level of penalties applied for crimes of a
corresponding gravity.
Violation of copyrights is punished by imprisonment of up to one year and/or a fine
equivalent to approximately US$13,000.  The abov e sanction is equivalent to common criminal
fraud, commercial fraud and misappropriation.  In order to decrease the demand for fake items, a
social marketing campaign is earmarked in the ne ar future to increase public awareness of this
deviancy.  In view of the fact that forfeiture of the  corpus delicti  in Malta is consequent to the
punishment for a crime, the above penalties appear to be consistent with Article 61 of the TRIPS
Agreement.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 44
V. 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 national treatment and
most favoured nation treatment are provided to nationals of other WTO Members.
Malta's Copyright Act which includes neighbouring rights protection for performers,
producers and broadcasters and also sui generis right protection for databases and semi-conductor
product topographies includes the following:
"4.(1) Copyright shall be conferred by this Section on every work eligible for
copyright of which the author or, in the case  of a work of joint authorship, any of the
joint authors, is, at the time when the work is made
(a) an individual who is a citizen of, or is domiciled or permanently resident in
Malta or in a State in which copyright is protected under an internationalagreement to which Malta is also a  party;
(b) a body of persons or a commercial partnership constituted, established,
registered and vested with legal personality under the laws of Malta or of a
State  in which copyright is protected under an international agreement to
which Malta is also a party".
"5.(1) Copyright shall be conferred by this Section on every work which is eligible
for copyright and which is made or first published in Malta or in a State in which
such works are protected under an international agreement to which Malta is also a
party and which has not been the subject of copyright conferred by Section 4 of this
Act."
"22. Neighbouring rights conferred by this Part shall apply only in respect of
works:
(a) of which the performer, the producer or broadcaster is:
(i) an individual who is a citizen of, or is domiciled or permanently
resident in Malta or in a State in which such works are protected by
neighbouring rights under an international agreement to which Malta
is also a party;
(ii) a body of persons or a commercial partnership constituted,
established, registered and vested with legal personality under the
laws of Malta or of a State in which such works are protected byneighbouring rights under an international agreement to which Malta
is also a party;  or
(b) which are made, first published, broadcast or communicated to the public in
Malta or in a State in which such works are protected by neighbouring rights
under an international agreement to which Malta is also a party."IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 45
"29. The right conferred by this Section shall only apply to a database:
(a) whose maker or right holder is at the time when the database is made:
(i) an individual who is a citizen of, or is domiciled or permanently
resident in Malta or in a State in which such a sui generis  right in
respect of databases is protected under an international agreement to
which Malta is also a party;
(ii) a body of persons or a commercial partnership constituted,
established, registered and vested with legal personality under the
laws of Malta or of a State in which such a sui generis  right in
respect of databases is protected under an international agreement to
which Malta is also a party;  or
(b) which is made or first made available to the public in Malta or in a State in
which such a  sui generis  right in respect of databases is protected under an
international agreement to which Malta is also a party."
"36. The right conferred by Section 32 shall apply in favour of a creator or his
successor in title who is an individual who is a citizen of, or is domiciled orpermanently resident in Malta or in a State in which such a sui generis  right as is
conferred by Section 32 on semi-conductor product topographies is protected under
an international agreement to which Malta is also a party."
Malta's Trademark Act which also protects geographical indications has no provisions which
discriminate against nationals or between nationals of other countries.  Furthermore, Section 33(1)
states that "a person who has duly filed an application for protection of a trademark in a country
which is a member of the World Trade Organization or a party to the Paris Convention, hereinafter
in this Act referred to as a Convention application , or his successor in title, has a right to priority, for
the purposes of registering the same trademark under this Act for any or all of the same goods orservices for which such an application has been filed, for a period of six months from the date of
filing of the first such application".
Malta's Patent Act which also protects plant varieties has no provisions which discriminate
against national or between nationals of other count ries.  Furthermore, Section 22(1) states that "the
application may contain a declaration claiming priority pursuant to the Paris Convention for the
Protection of Industrial Property, of one or more earlier national, regional or international
applications filed by the applicant or his predecessor in title in or for any State party to the said
Convention of the World Trade Organization or for any State with which Malta has made an
international arrangement for mutual protection of inventions".
B. C
OPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how Malta's copyright law complies with Article 9 of the
TRIPS Agreement requiring that Members comply with all Articles 1 through 21 of the Berne
Convention (1971) except Article 6 bis, since Members do not have rights or obligations in
relations to the latter Article under the TRIPS Agreement.
Malta's New Copyright Act complies with Article 9 of the TRIPS Agreement in that it
complies with the Articles 1 to 21 of the Berne C onvention.  In fact, it also complies with Article
6bis since it also provides for the protection of moral rights.  It is more extensive than the Berne
Convention and is based on the European Union acquis communautaire  in the area.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 46
3. Please explain how Malta's copyright law protects computer programs as literary
works and compilations of data as required by Article 10 of the TRIPS Agreement.
The definition of literary work in Section 2(1) inter alia  includes computer programs.
Hence, the protection accorded to literary works is also accorded to computer programs.
"Compilations of data" are protected through Section 3 which provides that a database shall
be eligible for Copyright provided it has origin al character and has been written down, recorded,
fixed or otherwise reduced to material form.  A database shall not be eligible for copyright unless by
reason of the selection or arrangement of its contents, it constitutes the author's intellectual creation.
Furthermore, Section 25 provides that "the maker of a database who can show that there has been
qualitatively or quantitatively a substantial investment in either the obtaining, verification or
presentation of the contents of the database shall have, irrespective of the eligibility of that database
or its contents for protection by copyright or by other rights, the right to authorize or prohibit acts of
extraction or re-utilization of its contents, in whole or in substantial part, evaluated qualitatively or
quantitatively".
4. Article 11 of the TRIPS Agreement protects rental rights for computer programs and
cinematographic works.  Please cite to the corresponding provision of Malta's Copyright Law.
Rental rights in respect of inter alia  audiovisual works and literary works (which include
computer programs) are provided in Section 7(b) of the Copyright Act.
5. Please state the length and terms of protection provided by Malta's Copyright Law for
a work other than a photographic work or a work of applied art and cite to the relevant
provision of law.
Section 4(2) stipulates that:
"the terms of copyright protection conferred by this Section shall be calculated
according to the following table:
TABLE
Date of Expiration of
CopyrightType of Work
Seventy years after the end of
the year in which the author dies,
irrespective of the date when the
work is lawfully made available to
the public.(i) Literary, musical or
artistic works and database
Seventy years after the end of
the year in which the last of the
following persons dies: the
principal director, the author of the
screenplay, the author of thedialogue and the composer of
music specifically created for use
in the audio-visual work.(ii) Audio-visual worksIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 47
This is complemented by the following:-
Section 4(3):"In the case of an anonymous or pseudonymous literary, musical or artistic work, or in
the case of a collective work, the copyright in the work subsists until the end of the
expiration of 70 years from the end of the year in which it was lawfully made
available to the public or after the end of the year in which the work was made if it has
not been made available to the public:
Provided that when the pseudonym adopted by the author leaves no doubt as to his
identity or in the event of the identity of the author becoming known during the periodreferred to in the preceding paragraph of this sub-section or where in the case of
collective works by a body of persons the natural persons who have created the work
are individually identifiable in the versions of the work made available to the public
the terms of copyright protection shall be calculated in accordance with the provision
of paragraph (i) of the last preceding sub-section."
Section 4(5):"In the case of a person who for the first time lawfully publishes or lawfully
communicates to the public a previously unpublished work the copyright protection ofwhich has expired, he shall benefit from a protection equivalent to the economic rights
covered by copyright but limited for a period of 25 years from the time when the work
was first lawfully published or lawfully communicated to the public."
Section 4(6):"Where a work is published in volumes, parts, instalments, issues or episodes and the
term of protection runs from the time when the work was lawfully made available to
the public, the term of protection shall run for each such item separately."
6. Please explain what protection Malta's Copyright Law provides for performers, and
provide the length and terms of the protection.
Malta provides protection for performers through Part IV:  Neighbouring Rights of its
Copyright Law.
According to Section 13:"Performers shall have the exclusive right to authorize or prohibit the doing in Malta
any of the following acts:
(a) the fixation of their performances;
(b) the direct or indirect, temporary or permanent reproduction by any means and
in any form, in whole or in part of a fixation of their performances;
(c) the rental and lending of their fixed performances;
(d) the distribution of the original performances fixed in phonograms and of
copies thereof;IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 48
(e) the making available to the public of the fixation of their performances, by
wire or wireless means, in such a way that members of the public may access
them from a place and a time individually chosen by them;
(f) the broadcasting and the communication to the public of their performances,
except where the performance is itself already a broadcast performance or ismade from a fixation."
Furthermore, Section 14 stipulates that:
"the rights conferred by this section shall have the duration of 50 years from the end of
the year in which the fixation of the performance was first lawfully published or first
lawfully communicated to the public, whichever is the earlier or in the absence of such
publication or communication to the public from the end of the year in which it wasfirst performed."
Finally, Section 23 also provides performers with moral rights.
7. Article 14.2 of the TRIPS Agreement requires the producers of phonograms enjoy the
right to authorize or prohibit the direct or indirect reproduction of their phonograms.
Article 14.2 requires that producers of phonograms have the right to authorize or prohibit the
commercial rental to the public of originals or copies of their phonograms.  Please describe in
detail how Malta's Copyright Law implements these obligations.
Malta's Copyright Law fulfils these obligations through Section 15 which states that:
"Producers of sound recordings shall, in respect of their sound recordings, and
producers of the first fixations of audio-visual works, in respect of the original and
copies of their audio-visual works, have the exclusive right to authorize or prohibit:
(a) the direct or indirect, temporary or permanent reproduction by any means or
form in whole or in part;
(b) the rental and lending;
(c) the distribution;(d) the making available to the public by wire or wireless means in such a way
that members of the public may access them from a place and a time
individually chosen by them."
C. T
RADEMARKS
8. Section 4(2)(c) of Malta's Trademark Law precludes registration of a mark consisting
exclusively of a shape which gives substantial va lue to the goods.  Please explain the meaning of
this section and give examples to clarify its intent and scope.
A shape will be of substantial value if it adds to the product it should be distinguishing, in
such a way that the product becomes incidental and purchase is effected solely for the shape, e.g.:
an elaborate perhaps even expensive container for a token amount of tea.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 49
It may be noted that Section 4(2) precludes a trademark from registration if it consists
"exclusively" of shape which gives substantial value to the goods.  If the shape contains distinctive
features it will prima facie be registerable.
9. Section 4(4) precludes registration of a trademark if or to the extent its use is
prohibited in Malta.  Please provide examples to  clarify the intent and scope of this section.
Such examples could be obscene marks, violent images or marks which might be restricted
by labelling regulations.
10. Please explain how the provision of se ction 6(4) of Malta's Trademark Law is
interpreted and provide examples that would clarify the scope and intent of the section.
Section 6(4)(a) in particular refers to Section 32 of Malta's Commercial Code which
prohibits the use of a trademark which would cause confusion with another trademark which is
already in use, irrespective of whether it is registered or not.
Section 6(4)(b) refers to the case where a trademark though not registered as a trademark
receives protection by virtue of copyright or registered design.
11. Section 11 of Malta's Trademark Law states that a registered trademark is not
infringed by the use of another registered trademar k in relation to goods or services for which
the latter is registered.  Please explain how it would be possible for two identical or similar
trademarks to be registered for similar goods or services in light of the provisions of section 6
of the Law.
There are two main instances when such a situation can occur:
(i) Section 6(5) provides that "nothing in this section prevents the registration of a
trademark where the proprietor of the earlier trademark or the proprietor of an earlier right
consents to the registration".  Once this right is registered it cannot be held to be infringing;
(ii) Section 8 provides that the Industrial Property Office may change its practice and
refrain from refusing on relative grounds.  This could result in identical or similar
trademarks being registered for identical or similar goods or services. Obviously this would
be subject to invalidity proceedings as per Sections 43(3) and 43(4).
12. Please explain whether Malta's Trademark Law presumes a likelihood of confusion
where an identical mark for identical goods and services is used without authorization of the
owner of the registered trademark.
Section 10(1) stipulates that "a person infringes a registered trademark if he uses in the
course of trade a sign which is identical with the trademark in relation to goods or services which are
identical with those for which it is registered".  There is no need to prove a likelihood of confusionin such cases.
13. Please explain how Malta's law, in additi on to section 6(4) of the Trademark Law,
provides for the protection of well-known trademarks and service marks, citing to the relevant
provisions of law.
In addition to Section 6(4), Section 50(2) provides that:IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 50
"the proprietor of a trademark which is entitled to protection under the Paris
Convention as a well-known trademark is enti tled to restrain by injunction the use in
Malta of a trademark which, or the essential part of which, is identical or similar to his
mark, in relation to identical or similar goods or services, where the use is likely to
cause confusion".
14. Please explain how Malta's Trademark Law comports with the use provision of
Article 19 of the TRIPS Agreement.
Section 42(1) stipulates that:
"the registration of a trademark may be revoked on any of the following grounds:(a) that within the period of five years following the date of completion of the
registration procedure it has not been put to genuine use in Malta, by the
proprietor of with his consent, in relation to the goods or services for which it
is registered, and there are no proper reasons for such non-use;  and
(b) that such use has been suspended for an uninterrupted period of five years,
and there are no proper reasons for such non-use."
Section 42(2) states that:
"the use of a trademark includes the use in a form differing in such elements which do
not alter the distinctive character of the mark  in the form in which it was registered,
and use in Malta includes affixing the trademark to goods or to the packaging of goods
in Malta solely for export purposes".
Furthermore, Section 42(3) maintains that:
"the registration of a trademark shall not be revoked on the ground mentioned in
paragraphs (a) or (b) of sub-section (1) if such use as is referred to in those paragraphs
is commenced or resumed after the expiry of the five-year period and before theapplication for revocation is made:
Provided that, any such commencement or re sumption of use after the expiry of the
five-year period but within the period of three months before the making of the
application shall be disregarded unless preparations for the commencement or
resumption began before the proprietor became aware that the application is likely to
be made".
D. G
EOGRAPHICAL INDICATIONS
15. If, in addition to the provisions of Schedule 1 of Malta's Trademark Law dealing with
collective and certification marks, other laws or regulations also provide for the recognition
and protection of geographical indications, please describe the provisions of those laws orregulations and provide citations as appropriate.
Not applicable.
16. In determining whether recognition should be given a geographical indication, what
criteria are considered?IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 51
Since protection of a geographical indication may be effected through the registration of a
collective or certificate mark the Office will base its decision on the absolute grounds and relative
grounds for refusal set out in Sections 4 and 6 respectively of the Trademark Act.  Obviously
Section 4(c), which precludes from registration trademarks which consist exclusively of signs or
indications which may serve to designate geographical origin, is not taken into account.
Moreover, the applicant must indicate in what manner is a given quality, reputation or any
other characteristic attributable to the origin of the geographical indication.
17. Please describe the manner in which the higher level of protection required for wines
and spirits under Article 23.2 of the TRIPS Agreement is provided and give examples of such
products and the law under which they are protected.
Section 4(1)(c) in the Trademark Act 2000 precludes from registration: "trademarks which
consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality,
intended purpose, value, geographical origin, the time of production of goods or of rendering of
services, or other characteristics of goods or services".
Furthermore, Section 4(3)(b) precludes a trademark from registration if it is "of such a
nature as to deceive the public or likely to deceive the public as to the nature, quality or geographical
origin of the goods or service or in any other manner".
Finally, Section 43 provides that any person may request by writ of summons before the
First Hall of the Civil Court that a trademark which was registered in breach of the above mentioned
Sections be invalidated.
18. Please describe the legal means available under the law of Malta, other than its
trademark law, that enable interested parties to ensure the protection required by Articles 22
and 23, and cite to the relevant provisions of law?
The Trade Descriptions Act 1986 includes the following:
Section 3(1):  "any person who, in the course of a trade or business:
(a) applies a false trade description to any goods;  or
(b) supplies or offers to supply any goods to which a false trade description is
applied, shall, subject to the provisions of this Act, be guilty of an offence".
Section 4(1):  "A trade description is an indication, direct or indirect, and by whatever
means given, of any of the following matters with respect to any goods or parts ofgoods, that is to say:
(h) place or date of manufacture, pro duction, processing or reconditioning".
Section 17:  "Where a false trade description is applied to any goods outside Malta and the
false indication, or one of the false indications, given, or likely to be taken as given, therebyis an indication of the place of manufacture, production, processing or reconditioning of the
goods or any part thereof, the goods shall not be imported into Malta".IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
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E. INDUSTRIAL DESIGNS
19. Please describe the procedure that must be followed to obtain protection for industrial
designs, citing to the provisions of Malta's law, and describe the nature of the protection
provided and any limitation thereon.
Protection for designs is provided by virtue of Sections 65 to 79 of the Industrial Property
(Protection) Ordinance, 1899.
Section 71 states that:  "an application for the registration of a new design or model of
manufacture shall be made to the Comptroller.  It shall be signed by the inventor or by
his special attorney, and shall contain:
(a) the name, surname, place of birth and residence of the applicant or of his
attorney, if any;
(b) a description of the design or model, showing shortly, but with precision, its
main characteristics;  and
(c) an indication of the class of articles or substances to which the applicant
intends to apply the new design or model".
Section 72 requires that "every application shall be accompanied by:
(a) the drawing, besides the models which the applicant considers useful for the
proper comprehension of his invention;
(b) the fee due according to the Schedule annexed hereto on the registration of a
new design or model;
(c) if there be an attorney, the power of attorney in any of the forms as provided
in paragraph (d) of section 10;
(d) a list of papers and documents produced".
Section 73 stipulates that "the applicant shall furnish to the Comptroller a number of
tracings and drawings sufficient, in the opi nion of the Comptroller, for enabling him to
identify the new design".
Registration of a design or model of manufacture gives the proprietor the exclusive right to
reproduce the design or model and to apply such design or model by whatever means or process to
any article of manufacture or to any other substance material or artificial or partly natural and partly
artificial whether the design or model is applicable  for the pattern or for the shape or configuration
or for the ornament thereof.  (Sections 67 to 68).
To be registered a design must be new and shall be protected for five years from the date of
registration which can be extended for a further five years at the proprietor's request.  TheComptroller may, in addition, at the request of the proprietor extend protection by yet another five
years.
20. Please describe the procedure that must be followed to obtain protection for textile
designs and cite to the provisions of the law under which such protection is provided.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 53
Design registration is straightforward and relatively cheap in Malta.
There are no special provisions for textile designs, therefore the reply to question 19 applies.
F. PATENTS
21. Section 4(6) of Malta's Patent Law authorizes the Minister to make regulations to
modify the provisions of paragraph 4(5), except that dealing with inventions that would be
contrary to the public order or morality, which prohibit the grant of patents under certain
circumstances have such regulations been issu ed and, if so, please explain in detail what
modifications the regulations make.
No Regulations have as yet been issued.
22. Section 27 of Malta's Patent Law gives the patent owners the rights required by
Article 28 of the TRIPS Agreement.  The section also gives patent owners the ability to stop
parties who are inducing others to commit infringing acts.  Please describe the criteria that
would be considered by a judge in determining whether such inducement had occurred or was
likely to occur.
This is a new right and no case law exists.
23. Section 39(1) authorizes the Civil Court, Firs t Hall, to direct the Comptroller to grant a
compulsory licence if the patented invention is not "worked" or is insufficiently "worked".
Paragraph (3) expressly states that importation would not constitute justification for non-
working in Malta. Please explain how Malta othe rwise ensures that there is no discrimination
in the enjoyment of patent rights based upon where the product was made, as required by
Article 27.1 of the TRIPS Agreement.
The sentence "Importation shall not constitute such a circumstance" has been removed from
the Patents Act.
24. Please explain how, in granting any compulsory licences under Malta's Patent Law,
each requirement of Article 31 is met and cite to the relevant provision of law or regulation
ensuring this compliance.
The requirements of Section 31 are met by Sections 39 to 40 of the Patents Act which has
been amended as follows:
"39.(1) The Civil Court, First Hall, may, on a writ of summons filed by any person
who proves his ability to work the patented invention in Malta, made after the
expiration of a period of four years from the date of filing the application for the
patent or three years from the grant of the patent, whichever is later, direct the
Comptroller to grant a non-exclusive, non-voluntary licence if the patented invention
is not worked or is insufficiently worked in Malta.
(2) The grant of the non-voluntary licence shall be subject to the payment of such
equitable remuneration to the proprietor of the patent as may be determined by the
Civil Court, First Hall, and may be permitted if, prior to such use, the proposed user
has made efforts to obtain authorization from the right holder on reasonablecommercial terms and conditions and if such efforts have not been successful within a
reasonable period of time.
 IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 54
(3) Notwithstanding sub-section (1), a non-voluntary licence shall not be granted
if the Court is convinced that circumstances exist which justify the non-working or
insufficient working of the patented invention in Malta.
 
(4) In deciding whether to grant a non-voluntary licence, the Court shall give boththe proprietor of the patent and the person requesting the non-voluntary licence an
adequate opportunity to present arguments.
 
(5) Any non-voluntary licence shall be revoked when the circumstances which
led to its granting cease to exist, taking into account the legitimate interests of the
proprietor of the patent and of the licensee.  The continued existence of these
circumstances shall be reviewed upon the request of the proprietor of the patent bywrit of summons before the Civil Court, First Hall.
 
(6) Paragraph (a) of sub-section 3 of section 27 of this Act shall be interpreted in
the sense that if the patented product is put on the market by a licensee pursuant to a
non-voluntary licence, it will not be deemed to have been put on the market with the
express consent of the proprietor of the patent.
 
(7) The scope and duration of a non voluntary licence shall be limited to the
purpose for which it was authorized and shall be:
(a) non-exclusive;
(b) non-assignable, except with that part of the enterprise or goodwill which
enjoys such authorization;
(c) terminated if and when the circumstances which led to it cease to exist;  and
(d) predominantly for the supply of the domestic market.
(8) Where a non-voluntary licence is issued to permit the exploitation of a patent
("the second patent") which cannot be exploited without infringing another patent
("the first patent"), the following additional conditions shall apply:
(i)  the invention claimed in the second patent shall involve an important
technical advance of considerable economic significance in relation to
the invention claimed in the first patent;
(ii)  the owner of the first patent shall be entitled to a cross-licence on
reasonable terms to use the invention claimed in the second patent;
and
(iii)  the use authorized in respect of the first patent shall be non-assignable
except with the assignment of the second patent.
40.(1) Where the national security or public safety so requires, the Minister
responsible for the protection of industrial property may authorize, even without theagreement of the proprietor of the patent or the patent application, by notice published
in the prescribed form, a Government agency or a person designated in the said notice
to make, use or sell an invention to which a patent or an application for a patentIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 55
relates, subject to payment of equitable remuneration to the proprietor of the patent or
the application for the patent.
(2) The conditions set out in Section 39, sub-sections 7 and 8 also apply in respect
of an authorisation issued by the Minister under this Section.
(3) Any decision taken by the Minister under this section may be the subject of an
appeal in an action by writ of summons before the Civil Court, First Hall."
25. Section 44(1) of the Patent Law establishes conditions under which the Comptroller
may invalidate a patent, but the section additional ly authorizes the Comptroller to invalidate a
patent "on any other ground".  Please explain the intent of this latter authority and giveexamples in order to clarify the scope of the provision.
Section 44(1) states that the Comptroller may at the request of a third party or save in the
case referred to in paragraph (c) hereof of his own accord, invalidate a patent in whole or in part, on
any of the following and may not do so on any other ground.
26. Please explain whether there is any means under the laws of Malta for the extension ofthe term of a patent, and, if so, provide information on such extensions and the conditions that
give rise to them.
There are no means under the new Patent Law for the extension of the term of a patent.  This
is fixed at 20 years.
27. Section 49 of the Patent Law enables an interested party to request, by bringing
proceedings against the patentee, that the Civil Court, First Hall declare that the performance
of a specific act does not constitute an infringement of the patent.  Please explain whether it is
necessary for the requestor to demonstrate th at there is a likelihood to believe that the
patentee may bring suit for infringement be fore the Civil Court, First Hall will agree to
consider the request for declaratory judgement.
It is not necessary to demonstrate that there is such a likelihood.
G. L
AYOUT -DESIGNS OF INTEGRATED CIRCUITS
28. What provisions of Malta's law provide for the protection for layout-designs of
integrated circuits (referred to in the TRIP S Agreement as "layout-designs") that are
registered or have been commercially exploited an ywhere in the world, as outlined in Article
35 of the TRIPS Agreement.  Please  provide citations to those laws.
Protection for layout-designs of integrated circuits is provided by virtue of:
- Part VIII - Sui Generis Right in respect of semi conductor Product Topographies of
Malta Copyright Act No. XIII 2000, Sections 32 to 41; and
- Part IX - Infringement Sections 42 to 44.
29. Please describe in detail the scope of protection provided layout-designs under those
laws.
Section 32 stipulates that:  "Creators of semi-conductor product topographies and their
successors in title shall have the exclusive right to authorize or prevent in Malta the reproduction ofIP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 56
the topography and the commercial exploitation or the importation for the purpose of commercial
exploitation of the topography or of a semi-conductor product manufactured by using the
topography".
Section 33 provides that: "the right conferred by Section 32 shall not prevent:(a) reproduction of a topography privately for non-commercial aims;
(b) reproduction for the purpose of analyzing, evaluating or teaching the processes,
systems or techniques bodied in the topography or the topography itself."
Section 35 maintains that:  "the right conferred by Section 32 of this Act shall apply
only in respect of semi-conductor product topographies which are the result of the
creator's own intellectual effort and are not commonplace in the semi-conductorindustry but shall not extend to any concept, process, system, technique or encoded
information embodied in the topography:
Provided that where the semi-conductor product topography consists of elements that
are commonplace in the semi-conductor industry, it shall be protected only to theextent that the combination of such elements, taken as a whole, fulfils the above-
mentioned conditions".
Section 41 clarifies that:  "a person or his successor in title who acquires a semi-
conductor product shall not be prevented from commercially exploiting that product ifat the time of acquisition he was not aware and could not reasonably be expected to be
aware that a sui generis  right as is conferred by Section 32 subsisted in that work:
Provided that, at the suit of the right holder or his successors in title, the Civil Court,
First Hall, shall order that person to pay adequate compensation to the plaintiff inrespect of the acts committed by him after he became aware or had reasonable
grounds to believe that the semi-conductor product is protected by such a sui generis
right".
30. For what term is protection provided for layout-designs?
Section 40 states that:  "The right conferred by Section 32 shall subsist for ten years from the
end of the year in which the semi-conductor product topography was first commercially
exploited anywhere in the world or for fifteen years from the first fixation or encoding of the
semi-conductor product topography if it has not been commercially exploited".
H. P
ROTECTION OF UNDISCLOSED INFORMATION
31. Please describe in detail how Malta's law provides for the protection of undisclosed
information that is secret as defined in Article 39.2 of the TRIPS Agreement and provide
citations to the relevant provisions of law.
The unauthorized disclosure of secret information is a criminal offence under Section 257 of
the Criminal Code and under the Professional Secrecy Act 1994.
Section 35 of the Commercial Code also prohibits the suborning of persons employed in the
trade or business of a competitor for the object of knowing or exploiting his customers and copies of
the relevant provisions of the law are attached.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 57
Section 37 of the same Code makes such conduct subject to a civil penalty and other
sanctions.
Under the proposed Trademark Act 2000 registered trademarks agents enjoy professional
secrecy on the same level as a lawyer (Section 70).
32. Please describe in detail the manner of pr otection against disclosure is provided test
data regarding pharmaceutical and agricultural ch emical products that is submitted in order
to obtain marketing approval in Malta a nd cite to the relevant provisions of law.4
Data submitted in order to obtain marketing approval is protected against disclosure under
the Professional Secrecy Act and under Section 257 of the Criminal Code.
Civil service regulations including its code of ethics prohibit Government employees from
revealing information received by virtue of their office.
The disclosure of such information by a Government Department or by a body established
by law would also constitute a violation of the general principle that the Administration should act
impartially and that it should not abuse its powers.  These principles are reflected in section 469A of
the Code of Organization and Civil Procedure on the right to judicial review.
The deprivation of property without compensation is also prohibited under Article 37 of the
Constitution.
The European Convention Act, 1987 incorporates the European Convention on Human
Rights into Maltese law thereby including the right to privacy and the right to the peaceful
enjoyment of possessions as protected by that Convention in Maltese law.
33. 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.
Each product is examined in its own right and reliance on data submitted by earlier
applicants is not permitted.
I. ENFORCEMENT – GENERAL OBLIGATIONS
34. Please explain whether the laws of Malta provide for effective action against
infringement of intellectual property rights as required by Article 41.1 of the TRIPSAgreement.
Malta's laws do provide for effective actions against infringement of intellectual property
rights as can be deduced by the answers to questions 35-58 posed by the United States.
J. E
NFORCEMENT - CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
35. Article 42.4 of the TRIPS Agreement provides for appeals to judicial bodies of final
administrative decisions and of at least the legal aspects of initial judicial decisions on the
                                                     
4 The response to this question was amended as shown by means of a communication from the
Permanent Delegation of Malta dated 23 June 2000.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
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merits of any act of infringement of intellectu al property rights.  Please explain whether the
laws of Malta provide for such a mechanism.
Under the Maltese legal system all decisions of administrative authorities (including
Ministries and Departments of Government, local authorities and any body corporate established by
law) are subject to judicial review in accordance with section 469A of the Code of Organization and
Civil Procedure.  Where a law provides for a specific mode of contestation or of obtaining redress
before a Court or tribunal in respect of a particular type of administrative act it is the specific law
which applies.
In the field of intellectual property the position is as follows:
Copyright
The action in respect of infringement of copyright is a civil action to be filed before the First
Hall of the Civil Court by the copyright owner.
A Copyright Board which has to be presided by a retired Judge or Magistrate or by a person
who has practised in Malta as an Advocate for a period of seven years, may decide upon cases where
it is alleged that there was unreasonable refusal to grant a licence in respect of cable re transmission
on re broadcasting or where it is alleged that unreasonable terms are being imposed.  The decisions
of the Copyright Board are subject to appeal to th e Court of Appeal.  (Section 49 of the Copyright
Act 2000).
Patents
Under the proposed new Patents Act 2000 decisions of the Comptroller refusing the grant of
a patent or refusing an application for re-established of rights or any other request of the applicant
for, or proprietor of, a patent are appealable to the Court of Appeal.  (Section 58 of the proposed
Patents Act 2000).
Under the proposed new Patents Act 2000 decisions of the Comptroller refusing the grant of
a patent or refusing an application for re-establishments of rights or any other request of the
applicant for, or proprietor of, a patent are appealable to the Court of Appeal.  (Section 58 of the
proposed Patents Act 20000.
Decisions of the Minister in respect of explor ation of a patent without the consent of its
owner in the interests of national security or public safety, subject to equitable remuneration are
appealable to the Civil Court First Hall a nd to the Court of Appeal.  (Section 39).
The grant of a patent to a person not entitled to it is subject to being impugned before the
First Hall of the Civil Court where judicial assignment of a patent to the person entitled to it may be
ordered.  (Section 32).
Appeals take cognisance both of points of law and of points of fact.
Trademarks
In the proposed Trademark Act 2000, any decisions of the Comptroller may be appealed to
the Court of Appeal. (Section 64)  The Minister ha s the power to exempt certain classes of acts of
the Comptroller from being subject to appeal under this section written pleading commencing.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 59
36. Please elaborate on the procedures for fi ling and appealing intellectual property.
Court cases filed in the Court Registry where the plaintiff is obliged to pay Court Registry
for which are rather moderate.  Written pleadings have to be signed by a lawyer.
The defendant is then served with the pleading and notified of the date of the first hearing of
the case.  The defendant is also given a time to file his statement of defence which in most
proceedings (i.e. those filed by writ of summons) is a period of 20 days.
An appeal to the Court of Appeal is granted from decisions of the Civil Court, First Hall.
An appeal is entered by the filing of an application in the Court Registry.
The defendant is then served with the applicat ion and is given twenty days to reply.  The
reply, or the lapse of the period allowed for it, closes the stage of written pleadings.  The appeal is
then appointed for oral hearing which is followed by judgement.  The periods for filing pleadings
can be reduced in urgent cases.
37. Please describe the procedures for protecting confidential information in intellectual
property infringement cases.
Please describe the procedures for protecting confidential information in intellectual
property infringement cases.
The Court has discretion to determine when a witness may not be compelled to give
evidence as to facts or documents the disclosure of which would be prejudicial to the public interest.
(Article 590 of the Code of Or ganization and Civil Procedure).
The disclosure of documents which prejudice the international relations of Malta or which
would divulge any information communicated in confidence, inter alia , by an authority of a Foreign
Government Organization to the Governme nt of Malta is also not admissible.
The same rule applies to facts or documents the disclosure of which would prejudice the
enforcement or the proper administration of the law in a particular instance.  (Section 637 of the
Code of Organization and Civil Procedure)
It rests with the Court to decide upon the relevance of a document or of evidence to the
procedures (Section 558 COCP) and to decide upon the interest of the partly demanding the
production of a document, regard being had to the nature of the case and to the nature of the
document the production of which is demanded.  (Section 638 COCP).
Where according to a particular law information of a kind contained in a document in the
possession of Government control be revealed by persons to whom such law applies.
(e.g. Section 257 of the Criminal Code and the Pr ofessional Secrecy Act) such document may not be
demanded in evidence and witnesses may not be asked questions that reveal its contents.  (Sections590 and 637 COCP)
Persons who commit a criminal offence if they reveal secret information (under Section 257
of the Criminal Code and under the Professional Secrecy Act) cannot be compelled to reveal such
secret information in the course of litigation except under a court order pursuant to an express,provision of the law for the specific purposes for which that provision was enacted.  (Section 9
Professional Secrecy Act).IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
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The Judge is also entitled to order that proceedings be held 'in camera' and that access to the
records be restricted other that to the parties.
38. Article 43.1 of the TRIPS Agreement authorizes judges to order production of evidence
necessary to substantiate a party's claim wher e that party has been unable to obtain such
evidence from the opposing party.  Please explain the provisions of Malta's laws or regulations
that provide this authorization.
Witnesses may be subpoenaed to give evidence or to produce any book, document or other
thing that belongs to the contending parties or which is under the charge or custody of such
witnesses or which, according to law the witness is bound to produce.  (Sections 569 and 570
COCP)
It is also lawful to demand the production of documents which are in the possession of other
persons if the party demanding the production of the documents shows that he has an interest that
such documents be produced by the other party to the suit.
Documents belonging to persons who are not parties to the suit if the person possessing such
documents does not show that he has special reasons not to produce the documents.  (Section 637
COCP)
39. Article 44.1 of the TRIPS Agreement authorizes judges to enjoin a defendant, except
the government from infringing intellectual property rights.  Please cite to the provisions of
Malta's laws or regulations that provide this same authorization.
The Courts have the power to issue a warrant of prohibitory injunction to restrain a person
from doing anything stated in the warrant which might be prejudicial to the person suing out thewarrant.  (Section 873 COCP).  Such warrant has to  be followed by a court case to assert the
applicant's right.
Under the proposed Trademark Act 2000, the proprietor of a trademark may apply to the
court for an order for the delivery up to him or such other such other person as the Court may directof any infringing goods, material or articles which a person has in his possession or control in the
course of a business.  (Section 16(1))
40. What provisions of Malta's laws or regulations authorize judges to order the payment
of monetary damages adequate to compensate for the injury done by the infringement, as
outlined in Article 45.1 of the TRIPS Agreement?
Under Maltese Law damages include both loss of profit and loss of earnings.  Expenses
incurred due to the fault of other parties and lawyers fees and also recoverable in accordance to the
Court judgement.
Specific - Patents
Any person who exploits an invention which is the subject matter of a patent or patent
application shall be liable in damages towards the proprietor of the patent or of a patent application
or the licensee.  The right to sue for damages shall be without prejudice to the right of such person to
apply for the issue of any precautionary warrant as provided in the Code of Organization and CivilProcedure to protect his rights.  (Section 47(1) and (2))IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
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Specific - Copyright
Where any person infringes the copyright, neighbouring rights or sui generis  rights in
respect of a work, he shall be liable, at the suit of the copyright owner or right holder to be
condemned by the Civil Court, First Hall to the pa yment of damages or to the payment of a fine to
be determined in accordance with a scale of fines to be prescribed by the Minister and to the
restitution of all the profit derived from the infr ingement of the copyright, neighbouring rights or sui
generis  rights.
Where the defendant proves to the satisfaction of the Court that at the line of the
infringement he was not aware and could not reasonably he expected to be aware that copyright,
neighbouring rights or sui generis  rights subsisted in the work to which the action relates, the Court
shall not condemn him to the restitution of the profit.
The Civil Court, First Hall may in an action for infringement of copyright, neighbouring
rights or sui generis  rights having regard to all the circumstances and in particular to the flagrancy of
the infringement and any benefit accruing to the defendant by reason of the infringement, awardsuch additional damage as the justice of the case may require.  (Section 43(1) and (2)).
Any person who is found liable for infringement of moral rights shall be liable at the suit of
the author or his heirs to be condemned by the Civi l Court, First Hall, to the payment of a fine, and
for damages to be determined in accordance with a scale of fines to be prescribed by the Minister.
41. Article 45.2 of the TRIPS Agreement authoriz es judges to order the infringer to pay
right holders enforcement costs and recovery of profits and/or statutory damages.  Please cite
to the provisions of Malta's laws or regula tions that provide this same authorization.
Please see the answer to question 40.
42. Article 46 of the TRIPS Agreement authoriz es additional remedies including seizure of
infringing goods, and the disposal of material s and implements used predominantly in the
creation of infringing goods.  Please cite to th e provisions of Malta's laws or regulations to
provide this same authorization.
Where a person is found to have infringed a registered trademark, the Court may make an
order requiring him:
(a) to cause the offending sign to be erased, removed or obliterated from any infringing
goods, material or articles in his possession, custody or control;  or
(b) if it is not reasonably practicable for the offending sign to be erased, removed or
obliterated, to secure the destruction of the infringing goods, material or articles in
question.  (Section 15(1)(a) and (b)).
If an order as specified above is not complied with, or it appears likely to the Court that such
an order would not be complied with, the Court may order that the infringing goods, material orarticles be delivered to such person as the Court may direct of erasure, removal or obliteration of the
sign, or for destruction, as the case may be.  (Section 15(2)).
The proprietor of a registered trademark may apply to the Court for an order for the delivery
up to him, or such other person as the Court may direct, of any infringing goods, material or articleswhich a person has in his possession, custody or control in the course of a business.  (Section 16(1)).IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 62
An application shall not be made after the end of the period of six years, and no order shall
be made unless the Court also makes, or it appears to the Court that there are grounds for making, an
order.  A person to whom any infringing goods, material or articles are delivered up in pursuance of
an order shall retain them pending the decision of the Court.  (Section 16(2) and (3)).
Where infringing goods, materials or articles have been delivered up in pursuance of an
order an action by writ of summon may be brought before the Court by any party interested:
(a) for an order that they be destroyed or forfeited to such person as the Court may think
fit;  or
(b) for a decision that no such order should be made.
In considering its decision, the Court shall consider whether other remedies available in an
action for infringement of the registered trademar k would be adequate to compensate the proprietor
and any licensee to protect their interests.  (Section 19(a)(b) and (c)).
Patents
The Court may on the demand of the plaintiff, order that the machinery or other industrial
means or contrivances used in contravention of the patent, the infringing articles, and the apparatus
destined for their production, be forfeited, wholly or partially, and delivered up to the proprietor of
the patent.  (Section 47(3)).
Furthermore, the Court may order that all the infringing articles still in possession of the
defendant be delivered to the plaintiff.
The Court shall order the destruction of all the infringing articles still in the possession of
the defendant where it is satisfied that the prejudice caused to the author is so serious as to justifysuch measure.  This provision shall not apply where the infringing article is a building.
(Section 44(2) and (3)).
43. According to Article 48.1 of the TRIPS Agreem ent, judges are authorized to indemnify
a defendant, including in the event of abuse by the plaintiffs.  Please cite to the corresponding
provision of Malta's laws or regulations.
The Trademark Act provides that any person aggrieved by groundless threats of
infringement proceedings may by means of a writ of summons before the Civil Court claim damages
in respect of any loss he may have sustained by the threats.  (Section 20(2)(c)).
Moreover, in general a defendant wrongly enjoined may demand the revocation of any
precautionary warrants issued against him.  He may also demand damages, judicial costs and a
condemnation of the plaintiff to the payment of a penalty if the latter's claims are found to be
malicious, frivolous or vexatious.  A defendant who is successful in a court case is awarded judicial
costs.
K. E
NFORCEMENT - PROVISIONAL MEASURES
44. Please explain in detail how Malta's laws or regulations implement Article 50 of the
TRIPS Agreement.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 63
With regard to Article 50 paragraph 1 the judicial authorities have the right to prevent, upon
the demand of the interested party, an infringement of any intellectual property right from occurring
by issuing provisional warrants of seizure, garnishee orders or warrants of prohibitory injunction.
Goods suspected of being infringing goods may also be seized and placed under the
authority of the Court of Magistrates as a Court of Criminal Inquiring until it is determined whether:
Article 50.1 - The judicial authorities have a right to prevent, upon the demand of the
interested party, an infringement of an inte llectual property right from occurring by issuing
provisional warrants of seizure, of description, garnishee orders or warrants of prohibitory
injunction.  (Sections 839 to 854 and sections 855 to 870 of the COCP).
In cases where the facts constitute a criminal offence the infringing goods may be seized by
the Police for the purpose of being exhibited in Court in the course of a criminal inquiry or a
criminal prosecution.
Article 50.2 - The Court has the power to issue precautionary warrants inaudita altera parte .
Article 50.3 - The Courts have the authority to require the applicant to provide evidence in
order to satisfy themselves 'prima facie' (in the case of precautionary warrants) that the applicant is
the right holder and that the applicant's right is  being infringed or that such infringement is
imminent.  In the case of warrants of prohibitory injunction the provisional issue of which isdemanded inaudita altera parte the Court may impose any conditions which it deems appropriate.
(Section 873(7) COCP).  Moreover, a party against whom a precautionary act has been issued , upon
showing good cause , to demand that the Court or der the party suing out the warrant to provide
security for the payment of damages, interest and any penalty which the Court may impose if the
proceedings are found to be abusive.  (Section 838A COCP).
Article 50.4 - A person against whom a precautionary warrant has been issued may demand
the revocation of such warrant by means of an application to the Court if it is shown that in the
circumstances it would be unreasonable, unnecessary or unjustifiable to maintain the warrant in
force in whole or in part or if the warrant wa s unduly obtained.  (Sections 836 and 837 COCP).  A
person against whom a warrant is issued has to be given notice of the warrant
Article 50.5 - The Courts may require the applicant to supply other information necessary
for the identification of the goods before ordering the execution of precautionary warrants.
Article 50.6 - The person suing out a precautionary warrant is bound to bring the action in
respect of the claim stated in the warrant within four working days from the delivery to him or to an
advocate or legal procurator who represented him on the application of notice of execution of the
warrant or within twelve days after the issue of the warrant, whichever is the earlier date, and in
default the effects of the warrant shall cease (Sections 843, 847, 850, and 875 COCP)
Article 50.7 - In cases where the applicant does not bring the action in respect of the claim
stated in the warrant or where upon the demand of the defendant for the rescission of the
precautionary warrant the person suing out the warrant fails to show that the precautionary warrant
was founded or if it is shown that the applicant's claim was frivolous or vexatious, the person suing
out the warrant may be condemned, upon the request of the defendant to pay such damages as may
have been caused by the issue of the warrant.  The Court may in addition condemn the applicant topay a penalty to the person against whom a precautionary warrant was abusively issued.  (Section
836 COCP).IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 64
Article 50.8 - Provisional warrants may only be issued by judicial authorities and
administrative authorities have no parallel or similar powers in this regard.
L. ENFORCEMENT - SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
45. Article 51 of the TRIPS Agreement requires that countries adopt procedures that
enable right holders to request suspension of  the implementation of counterfeit trademark
goods and pirated copyright works.  Section 5(3)(a )(ii) states that, with respect to copyright or
neighbouring rights, the applicant must produce pr oof or authorship or of the person's status
as a right holder.  Please explain in detail, with examples, what kind of evidence would be
considered to satisfy this requirement.
Border Measures are dealt with under Cross Border Measures Act VIII of 2000.
It should first be pointed out that, in cases dealing with copyright or neighbouring rights,
proof of authorship or the person's status as a right holder must be provided when the work in
question has not been registered or for which no application for such registration has been made.  In
such cases any proof that the work is eligible for copyright protection, accompanied by proof that thesame work has not been already published and is covered by a copyright in Malta or in a State in
which such works are protected under an international agreement to which Malta is a party, may be
considered.
46. Section 11 of the law dealing with importation of infringing goods provides for fines for
such imports.  Please explain to whom the fine is payable and, if it is not to the party whose
rights are infringed and who, under section 5(7), is charged for the administrative costs of the
procedures, please explain why not.
Any fines imposed by the Courts are payable to the Government.  The administrative costs
indicated in section 5(7) of this legislation are pa yable to the Customs Department in respect of costs
incurred in dealing with the application itself and are not related to the legal proceedings initiated by
the right holder.
47. Section 11(2) of the Trademark Law states that the proceedings under this section are
to be conducted in accordance with the provisions of the Criminal Code.  Please describe how
the procedure would work in this regard.
It is presumed that the writer is referring to Title II (sections 112 and 113) of the Industrial
Properties (Protection) Act , Chapter 29 of the Laws of Malta.  Application of false industrial
descriptions and the use of trademarks without the requisite licence may be within the parameters of
commercial and industrial fraud as defined in sections 298, 301 and 304 of the Criminal Code,
Chapter 9 of the Laws of Malta.
The Police may proceed to institute court action in this regard ex officio , i.e. without the
complaint of the injured party.  A person found guilty of infringing the above provisions of the law
may be liable from four months to one year of imprisonment.  The Attorney General may issue itsconsent so that the court case could be heard summarily.  Summary proceedings are held before the
Court of Magistrates as a Court of Criminal Judicature.  Normally evidence of criminal cases
punishable by more than six months of imprisonment must first be heard before the Court of
Magistrates sitting as a Court of Criminal Inquiry.
48. Please explain whether procedures, permissible under Article 51 of the TRIPS
Agreement, are available to stop the re-export of goods suspected of infringing copyright
and/or trademarks.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 65
No re-export of goods which have been placed in one the situations mentioned in Section 4
of the Cross Border Measures Law and are suspected of infringing copyrights and/or trademarks will
be allowed if a valid application for action by Customs is received from the right holder and legal
proceedings have been initiated.
Such re-export may be allowed however if:- no valid application is received within the prescribed time-limit in respect of the
goods in question;
- a valid application is received and no legal proceedings are initiated;- legal proceedings are initiated;  and- the Court finds that no infringement of an intellectual property right has taken place.
49. Article 57 requires that the competent author ities be able to authorize the right holder
to inspect the detained goods in order to substantiate the claims.  Please explain how right
holders are provided an opportunity under Malta's laws to inspect suspect goods that have
been detained by customs authorities.
Section 7(3) of the Cross Border Measures La w stipulates that Customs shall provide the
applicant (who must be the right holder as defined in this legislation) with the opportunity to inspect
goods, the release of which has been suspended or which have been detained.
50. Article 57 also establishes that, where the decision on the merits favours the right
holder, the competent authorities may gave auth ority to give the right holder information
regarding the importer, consignee or consignor.  If competent authorities in Malta can provide
information regarding the importer, consignee or consignor to the right holder, please explain
how information regarding names and addresses of consignors, importers and consignees and
quantities of goods is provided to the applicant after a positive decision of infringement ismade, e.g., authorities automatically providing information or by submission of a written
request from the right holder, etc.  Please cite to the law or regulations providing such
authority.
Section 8(2) of the Cross Border Measures Law, under the title 'Provisions applicable to
goods found to be goods infringing an intellectual property right', provides that Customs shall inform
the holder of the right in question, upon request, of the names and addresses of the consignor, of theimporter or exporter and of the manufacturer of the goods established to be goods infringing the
intellectual property right and of the quantity of the goods in question.
51. Article 58 specifies procedures to be followed where the competent authorities can act
ex officio .  Please explain whether the competent authorities in Malta are empowered to act
ex officio and, if so, please identify the intellectual property areas subject to ex officio  action.
Section 6 of the Cross Border Measures Law provides for the Customs Department, where
goods suspected of infringing an intellectual property right have been detected before an application
by the holder of the right has been lodged or approved, to suspend the release of (or detain) thegoods in question for five working days, in order to enable the holder of the right to lodge an
application for action by Customs.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 66
The intellectual property areas covered by ex officio  action are the same areas covered by
this legislation, namely Counterfeit goods, including goods infringing trademarks and relative
packaging, Pirated goods including goods infringing Copyright and neighbouring rights and Design
rights, goods infringing a Patent under Maltese law and Materials and Implements, the predominant
use of which is for the manufacture of goods infringing intellectual property rights.
The use of fake intellectual property in the commissioning of crimes relating to commercial
and industrial fraud may be prosecuted ex officio  in terms of sections 298, 301 and 304 of the
Criminal Code.  Otherwise complainants in terms of the Industrial Properties (Protection) Act may
seek redress at the Civil Court.  The police may only proceed to take criminal court action in cases of
violation of copyrights with the complaint of th e injured party (section 298B of the Criminal Code).
Violation of other intellectual property rights does not fall within the domain of the Criminal Law.
52. Article 59 identifies the remedies that are to be available, including destruction or
disposal of infringing goods outside the stream of commerce.  Please explain what the law in
Malta permits regarding the disposition of infringing goods, i.e., does the law allow for
destruction, disposal or both.  Please cite to  the law or regulations providing such authority.
Section 8(1) of the Cross Border Measures Law provides, once goods have been found to be
goods infringing an intellectual property right, that  the Court shall order Customs to dispose of these
goods outside the channels of commerce in such a way as to preclude injury to the holder of the right
or to destroy them.
The Court may also take, or order Customs to take in respect of such goods, any other
measures which will effectively deprive the guilty person of any economic benefits from the
transaction.
This legislation however also stipulates that the Court shall take due account of the need for
proportionality between the seriousness of the infringement and the remedies ordered, as well as of
the interests of third parties.
M. ENFORCEMENT - CRIMINAL PROCEDURES
53. Article 61 of the TRIPS Agreement require s that Members have criminal procedures
and penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at
least for cases of wilful trademark counterfeiti ng and copyright infringement on a commercial
scale.  Please describe the provisions of the law of Malta that fulfil that obligation and provide
legal citations.
Trademark counterfeiting for the commissioning of commercial and industrial fraud may be
punished by four months to one-year imprisonment.  Violation of copyrights, which is prosecuted by
the police upon the complaint of the injured party, is punishable by a fine of Lm5,000
(approximately: US$13,000) and/or up to one year of imprisonment (Section 298B of the Criminal
Code).
54. Article 61 also requires that remedies in appropriate cases include the seizure,
forfeiture and destruction of infringing goods and any materials and implements the
predominant use of which has been the commis sion of the offence.  Please explain the
provisions in the laws of Malta that provide fo r such remedies, and describe the circumstances
in which those remedies would be imposed.  Please provide legal citations.
The forfeiture by the courts of all articles used in the commissioning of any crime is a direct
consequence of the punishment for such crime. (Section 23 of the Criminal Code).IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 67
55. 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 Malta that provide for such procedures and remedies.
Please provide legal citations.
Criminal court action may only be taken in Malta as regards violation of intellectual
property rights, in cases of violation of copyrights.  (Section 298B of the Criminal Code).
56. Please provide statistical information related to civil copyright, trademark,
geographical indication, industrial design, pate nt, integrated circuit layout-design, and trade
secret enforcement for each of the years 1996, 1997, 1998 and 1999, including the number ofcases filed: injunctions issued; infringing products seized; infringing equipment seized; cases
resolved (including settlement); and the amount of damages awarded.
See the reply to questions 56 and 57 below.
57. Please provide statistical information on  criminal enforcement against copyright
piracy and trademark counterfeiting for the years 1996, 1997, 1998 and 1999, including the
number of raids, prosecutions, convictions, the amount of fines and/or jail terms (and whether
the fines were paid and the jail term was actu ally served or was suspended) and other
information establishing that the criminal syst em operates effectively to deter copyright piracy
and trademark counterfeiting.
Reply to questions 56 and 57:
Year Number
 of raidsNumber of
prosecutionsNumber of
convictions
5Fines/Imprisonment6
1996 n/a 8 2 Conditional discharge for a
period of one year.18 months imprisonment
suspended for 3 years.
1997 n/a 9 1 1 year imprisonment suspend
for 2 years and a fine of
Lm1000.
1998 37 22 14 12 cases fined for a total sum
of over than Lm8,000.
3 cases - 1 month
imprisonment suspended for
1 year.4 months imprisonment
suspended for 1 year.
12 months imprisonment
suspended for 2 years (to pay
also injured party).
                                                     
5 Some cases are under judicial review.
6 In all decided cases the Court ordered the forfeiture of the seized items.IP/Q/MLT/1, IP/Q2/MLT/1,
IP/Q3/MLT/1, IP/Q4/MLT/1
Page 68
Year Number
 of raidsNumber of
prosecutionsNumber of
convictions7Fines/Imprisonment8
1999 33 13 3 2 cases conditionally
discharged for 6 months.
2 cases fined for a total sum
of Lm1,000.
 6 months imprisonment
suspended for 2 years.
There are no distinct patterns as regards prevalent regions where cases related to intellectual
properties occurred.
The persons who were charged before the Magistrates' Courts hailed from different regions
in Malta.  No females were charged in relation to violation of copyrights.  No exact statistics are held
as regards enforcement.  However, various police sections hold surprise inspections at the rate of oneinspection at a particular location per week.  The police do not keep statistics as regards sentences or
sentencing policies by the courts.  However, persons found guilty of copyright infringements are
generally sentenced to pecuniary punishments ranging from US$1000 to US$1500.
In 1998 there was a person who was sentenced to two years imprisonment and a fine of
US$2,300 after being found guilty of copyrights violations and commercial fraud in relation to optic
media.  This person appealed before the Criminal Court of Appeal and had his sentenced altered to a
fine of US$1,300.
The above cases concerned violation of copyrights relating to the optic media, textiles and
books.  However, twenty of the above cases related to the optical media.  The Police department
does not keep any statistics as regards Civil Court Action and civil proceedings.
58. Please describe any few initiatives planned to improve enforcement of intellectual
property rights in Malta, particularly initiatives related to criminal enforcement.
There are several new initiatives planned for the amelioration of intellectual property rights
in Malta.  There is a recommendation for the holding of seminars for beat police as regards
identification of fake items.  The will undoubtedly ameliorate the enforcement process.  Members of
the Police Economic Crime Unit from time to time attend conferences and seminars abroad on the
subject.  It is also planned that a social marketing campaign sponsored by public and private entities
will be launched in the near future to enhance public awareness of intellectual property rights.
__________
                                                     
7 Some cases are under judicial review.
8 In all decided cases the Court ordered the forfeiture of the seized items.