RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/116/Add.1
30 November 1998
(98-4790)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
REVIEW OF LEGISLATION
Replies by Ecuador to the Questions Posed by the European Communities
and their Member States1
Addendum
The following communication, dated 20 November 1998, was received from the Permanent
Mission of Ecuador.
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A. COPYRIGHT AND RELATED RIGHTS
1. Please explain whether and how Ecuador provides full retroactive protection to works,
phonograms and performances from other WTO Members as required by Articles 9.1, 14.6 and70.2 of the TRIPS Agreement, each of which incorporate by reference or rely upon Article 18 of
the Berne Convention.  Please give the date to which such protection extends back with respect
to each category of subject-matter.
Book I of the Intellectual Property Law of Ecuador provides for the protection referred to in
the question.  Article 5 states that a copyright comes into being and is protected by the mere fact of
the creation of the work, independently of its merits, purpose or mode of expression.  The moral rights
deriving therefrom may not be waived, alienated, assigned or prescribed, and are transferable upon thedeath of the author in accordance with the provis ions of Article 18.  The patrimonial rights last
throughout the lifetime of the author and 70 years after the author's death.  Once the time-periods for
protection set forth in Section VII have elapsed, the works enter the public domain.  All works,
performances, productions or broadcasts are covered, whatever their country of origin.  This
protection is also valid whatever the place of publication or disclosure.  The holders of related rightsmay invoke, for the protection of recognized rights, all of the provisions of Book I except those whose
nature excludes such application or in respect of which Section VII contains an express provision.  As
a rule, the duration of the protection of artists' and performers' rights is 70 years starting from
1 January of the year following that of the performance or recording, whichever applies.  The
protection of the rights of producers of phonograms lasts 70 years starting from 1 January of the year
following the date on which the phonogram was first published.
According to the Intellectual Property Law, the provisions thereof apply to all works,
performances or other copyrights or related rights that came into being prior to its entry into force
provided they have not entered the public domain.  The date of entry into the public domain can bedetermined by applying the time-limits for protection established under the Law.
                                                     
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Recognition of copyright and related rights is not subject to registration, deposit or any other
formality.
2. Please clarify how compilations of data are protected under Ecuadorian legislation
(Article 10.2 of the TRIPS Agreement).
Article 8 of the Intellectual Property Law specifically states that copyright protection covers
all intellectual works in the literary or artistic field including,  inter alia , "compilations and databases
of all sorts".  Article 28 of the Law stipulates that computer programs are considered as literary works
and protected as such, independently of whether or not they are stored in a computer and regardless of
the form in which they are expressed, namely in man-readable form (source code) or in
machine-readable form (object code).  Moreov er, the regulations of the Andean Community, in
particular Chapter II, Article 4 and Chapter VIII, Ar ticle 23 of Decision of 351 of the Commission of
the Cartagena Agreement provide for the protection of anthologies and compilations of various works
and databases.
B. TRADEMARKS , GEOGRAPHICAL INDICATIONS AND INDUSTRIAL DESIGNS
1. Trademarks
1. Article 15.1 of the TRIPS Agreement specifies that marks can be personal names,
letters, figurative elements and combinations of colours as well as any combination of such
signs.  However, Article 194, paragraph 1 of the Intellectual Property Law only contains a
general definition of a mark.  Please explain whet her the Law is interpreted as to cover the signs
enumerated in Article 15.1 of the TRIPS Agreement.
According to Article 194 of the Intellectual Property Law, a mark shall be understood to be
"any kind of sign" that is sufficiently distinctive and capable of representation serving to distinguish
products or services in the market.  The specific exceptions to this principle are set forth in the said
Law and do not include any of those specified in Article 15.1 of the TRIPS Agreement.  At the sametime, Article 81 of Decision 344 of the Commission of the Cartagena Agreement, an Andean decision
that is in force in Ecuador, also states that "a trademark should be understood as being any perceptible
sign capable of distinguishing in the market the products or services produced or marketed by one
person from identical or similar products or services of another person."
2. Article 21 of the TRIPS Agreement provides that the owner of a trademark shall have
the right to assign the trademark with or without the transfer of the business to which the
trademark belongs.  Please clarify where this provision is implemented in Ecuador's legislation.
Article 282 of the Intellectual Property Law stipulates that "The right to a trademark or
business name may be transferred with or without the business which it identifies."
2. Geographical indication
3. Please clarify whether and how Articles 23.2 and 23.3 of the TRIPS Agreement are
implemented in Ecuador's legislation.
The Intellectual Property Law does not contain any specific provisions for the additional
protection of wines, but prohibits the registration as marks of signs which reproduce or imitate a
domestic or foreign geographical indication with the likelihood of causing confusion in respect of the
products or services to which it applies and whose use could mislead the public as to the origin,
provenance, qualities or characteristics of the goods for which the marks are used.  Similarly, when
the trademark consists of a geographical  name, the product may not be marketed or the serviceIP/C/W/116/Add.1
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rendered without a visible and clearly legible indication of the place of manufacture of the product or
origin of the service.
3. Industrial designs
4. Please explain how textile designs a re protected under Ecuadorian legislation
(Article 25.2 of the TRIPS Agreement).
Article 1 of the Intellectual Property Law stipulates that the State shall recognize, regulate and
guarantee intellectual property.  In this context, textile designs are protected under the provisions of
Books I and II of the said Law, firstly as works of art (Book I, Article 8(j)) and secondly, in the
framework of the protection of "industrial designs" (Book II, Chapter V, and Section III).  It should be
mentioned in this connection that  Chapter III, Article 58 of Andean Decision 344 of the Commission
of the Cartagena Agreement states that "An industrial design shall be considered to be anycombination of lines or colours or any external two-dimensional or three-dimensional form which is
incorporated in an industrial or craftsmanship product to give it a distinctive appearance without
changing the purpose or end-use of the said product, and serving as a model or pattern for its
manufacture."
C. 
PATENTS , LAYOUT DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS , PROTECTION OF
UNDISCLOSED INFORMATION AND CONTROL OF ANTI -COMPETITIVE PRACTICES IN
CONTRACTUAL LICENCES
1. Patents
1. Articles 154-158 of the Intellectual Property Act describe details of conditions for the
granting of compulsory licences.  However, not all conditions, as set forth in Article 31of the
TRIPS Agreement, seem to be reflected; in particular, Article 31 (a), (c), (h), (i), (j), (k), (l).
Please clarify.
The conditions set forth in Article 31 of the TRIPS Agreement, including subparagraphs (a),
(c), (h), (k) and (l), are generally reflected in the provisions of Book II, Section VII of the Intellectual
Property Law (Compulsory Licensing Regime).  Subpa ragraphs (i) and (j) are covered by Article 357
of the said Law, according to which applications for judicial review may be filed either with the
Committee on Intellectual Property or with the admi nistrative courts.  Section VII of Decision 344 of
the Commission of the Cartagena Agreement also applies.
2. Please clarify how Article 32 of the TRIPS Agreement is implemented in Ecuador's
legislation.
According to Article 357 of the Intellectual Property Law, definitive administrative measures,
such as the revocation or declaration of forfeiture of a patent, are subject, inter alia , to application for
judicial review.  Such applications may be filed directly with the administrative courts, which may
suspend the implementation of the contested measure.  In practice, however, there are seldom any
applications for judicial review concerning the forfeiture of a patent, since such declarations are the
result of failure to pay the fees laid down by the Law.
3. Please explain whether and how Article 34 - reversal of burden of proof in cases of
process patents - is reflected in Ecuadorian legislation.
The last paragraph of Article 302 of the Intellectual Property Law states that where the case
relates to violation of a process patent, the burden of proof concerning the lawfulness of the processused for the manufacture of the product is on the defendant.  Similarly, Chapter I, Section VIII,
Article 51 of Decision 344 of the Commission of the Cartagena Agreement states that "In cases whereIP/C/W/116/Add.1
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a patent whose subject-matter is a process for obtaining a new product is claimed to be infringed, it is
up to the defendant to prove that the procedure used to obtain the product is different from the
procedure protected by the provisions claimed to have been infringed."
2. Layout designs (topographies) of integrated circuits
4. Please clarify whether and how Article 37.1 - acts not requiring the authorization of the
right holder - of the TRIPS Agreement is implemented in Ecuadorian legislation.
This Article is implemented in Ecuadorian legislation through Article 181 of the Intellectual
Property Law.  The importation, distribution or sale of  integrated circuits incorporating layout designs
(topographies) unlawfully reproduced or any Article incorporating such integrated circuits are not
considered unlawful when the person carrying out or ordering such importation was unaware or hadno reasonable grounds for believing, on acquiring the integrated circuit or the Article incorporating
such integrated circuit, that it incorporated an un lawfully reproduced layout design.  This exception
ceases to apply as soon as the person referred to in subparagraph (d) of Article 181 of the Intellectual
Property Law has received from the right holder or the representative of the right holder a written
communication concerning the unlawful origin of the said incorporation, in which case he may takepossession of the object incorporating the layout design provided he pays the right holder a reasonable
royalty which, failing agreement, is established by the court.
5. Please clarify whether Ecuadorian legislation provides for non-voluntary licences and/or
for government use.  If so, what are the condi tions?  (Article 37.2 of the TRIPS Agreement).
Book II, Section VII of the Intellectual Property Law contains provisions concerning
compulsory licences.  Under Article 154, compulsory licensing is governed by public interest,
emergency or national security.  The decision to grant a compulsory licence establishes the scope or
extent thereof, specifying the period for which it is granted, the purpose of the licence and the amountand conditions of payment of royalties, without prejudice to Article 156 of the Law.  The granting of a
licence for reasons of public interest does not diminish the holder's right to exploit the licence.
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