RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/331
5 December 2001
(01-6179)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French
REVIEW OF LEGISLATION
Replies from Tunisia to Questions Posed by Canada and Switzerland
By means of a communication from the Permanent Mission of Tunisia, dated
27 November 2001, the Secretariat has received th e following replies to the questions posed by
Canada and Switzerland, as circulated in documents IP/C/W/314 and 315.
_______________
CANADA
1. Please describe how the enforcement obligations (Articles 41-46 of the TRIPS
Agreement) have been implemented.
Literary and artistic intellectual property (copyright and related rights) is protected in Tunisia
by the following:
- International treaties legally ratified pursuant to Article 32 of the Constitution, which
take precedence over legislation (the Uruguay Round agreements (TRIPS), the Berne
Convention, etc.);
- ordinary law: general civil and criminal legislation (Code of Obligations and
Contracts, Commercial Code, Law on Competition and Prices, Code of Criminal
Procedure, Customs Code, etc.);
- special ( sui generis ) legislation, specifically Law No. 94-36 of 24 February 1994 on
Literary and Artistic Property (copyright) and the relevant implementing provisions,
in particular Decree No. 96-2230 of 11 November 1996 on the administrative and
financial organization of the Tunisian Copyright Protection Agency and its operating
procedures.
It should be noted that a draft Law is currently before the Chamber of Deputies, following
adoption of the text by the Council of Ministers and the Constitutional Council.  The main objective
of this legislation is on the one hand to bring the provisions of the above-mentioned Law No. 94-36,
relating to copyright, into line with the provis ions of the TRIPS Agreement and the WIPO Treaty of
December 1996, and on the other hand to incorporate in this special legislation provisions on related
rights in accordance with the TRIPS Agreement, the Rome Convention and the WIPO Treaty of
December 1996.
As regards the enforcement obligations under Section 3 of the TRIPS Agreement, Tunisian
legislation lays down procedures for the enforcement of copyright and related rights which allow
effective action to be taken against any act in infringement of such rights.IP/C/W/331
Page 2
Article 42
For example, in accordance with Article 42 of the TRIPS Agreement on fair and equitable
procedures:
(1) The parties are authorized to arrange to be represented by independent legal counsel.
Indeed, "representation by an attorney-at-law is mandatory in proceedings before a Court of First
Instance.  The chambers of the attorney-at-law shall be regarded as the elected domicile of its client
for the level of jurisdiction for which the attorney is retained" (Article 68 of the Code of Civil and
Commercial Procedure).
(2) Defendants must receive timely written notice setting out the basis for the allegations.
Article 70 of the Code of Civil and Commercial Procedure states that "the writ of summons must
specify the surnames, given names, occupations and addresses of the parties and the capacities in
which they are acting, along with an account of the facts in the matter …  It must also include a
statement calling on the party on whom the writ is served to enter its pleadings in reply".
(3) A procedure is specified in Tunisian legislation for the identification and protection
of confidential information, as follows:
- Article 253 of the Criminal Code states that "Any person who discloses the contents
of a letter, telegram or any document belonging to another party without authorization
is liable to a prison sentence of three months".
- Article 254 of the Criminal Code states that "Any doctor, surgeon or other medical
personnel, as well as any pharmacist, midwife or any other person in whom secrets
are vested by virtue of their status or profession who reveals such secrets, except
where required or permitted by law to report the matter, shall be liable to a prison
sentence of six months and a fine ...".
The general regulations governing the conduct of public-sector personnel place civil servants
under obligations of professional secrecy and discretion; these general regulations include thefollowing:
- The General Regulations for State employees of local public authorities and
administrative public bodies;
- the General Regulations for the employees of Boards, industrial and commercial
public bodies, and companies whose capital is held directly or indirectly by the State
or by public authorities;
- the General Regulations for magistrates;
- the General Regulations for customs staff;
- the General Regulations for the personnel of the internal security forces.Furthermore, Article 168 of the Labour Code states that: "members of company consultative
committees and staff representatives are bound by the obligation of professional secrecy with respect
to all information of a confidential nature coming into their possession while serving in that capacity,
and to all matters relating to manufacturing processes.  In the event of a breach of this obligation they
shall be liable to the penalties set down in Articles 138 and 254 of the Criminal Code".IP/C/W/331
Page 3
Article 138 of the Criminal Code states as follows: "in addition to a fine, any manager, clerk
or worker of a factory who discloses or communicates a manufacturing secret shall be liable to a
prison sentence of two years; attempts to do so are also punishable".
Article 43
Tunisian legislation, in accordance with Article 43 of the TRIPS Agreement on evidence,
gives judicial authorities the power to order a party in proceedings, on a request to this effect from the
opposing party, to produce the evidence lying in its control.
Articles 213 to 223 of the Code of Civil and Commercial Procedure allow the presiding judge
of the Court to issue rulings on request from either of the parties in the case, to ensure the protection
of rights and interests which must not be left unprotected. In cases of extreme urgency, judges may
rule in their private homes on questions submitted to them.
Enforcement of rulings issued in this manner is not subject to the appending of the seal of the
Court or " ad hoc " registration.  These formalities are completed later.
Rulings issued on request are exempted from the registration procedure.  Such rulings are
enforced without delay by process-serving notaries.
A request for the withdrawal of a ruling does not suspend enforcement.  Article 101 of the
same Code states that "if it is necessary to obtain an expert’s report and the parties fail to agree on the
selection of the expert, the expert shall be appointed by the judge".
Article 44
As regards Article 44 of the TRIPS Agreement on injunctions, under Tunisian legislation the
judicial authorities have authority to issue various kinds of rulings, i.e. interim injunctions, payment
injunctions and final or other judgments.
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as
necessary, the Court may ask the judge acting as rapporteur to carry out any investigative actions,such as an inquiry, visit to the scene, expert’s report, taking of pleas of forgery, or any other action
that will help to establish the truth".
The Court, during the hearing and in the presence of the parties, may set the date for the
investigative action so ordered, specifying the date and time for the appearance of the parties in thechambers of the judge as rapporteur or at the location of the dispute or any other location.
Article 225 of that same Code states that "in any event, the Court may require ex officio  the
participation of a third party in the proceedings where it sees the presence of that party as essential for
a correct appreciation of the matter at issue".  If it is necessary to arrange an expert’s report and theparties fail to agree on the selection of the expert, the expert is appointed by the judge.
Emergency interim proceedings:
Article 201 of the Code of Civil and Commercial Procedure (CPCC) states as follows:  "In all
situations of urgency, emergency interim rulings shall be issued, without prejudice to the main
action".  "Emergency interim rulings may be made by the presiding judge of the Court of First
Instance or a person with delegated authority from that judge, or a canton magistrate where that
magistrate has jurisdiction under the law" (Art. 202 of the Code of Civil and Commercial Procedure).IP/C/W/331
Page 4
"Provisional injunctions are enforceable 24 hours after service, unless the judge has granted a
period of grace."
Enforcement is carried out without a security unless the judge has ordered that a security be
provided (Art. 207 of the Code of Civil and Commercial Procedure).
- Payment injunctions
Article 59 of the Code of Civil and Criminal Procedure states that a payment
injunction may be issued for any debt payment demand where the debt – irrespective of its
nature – is for a fixed amount and is based on a contract.
- Judgment
A judgment is not final if the decision is subject to appeal.  However, provisional
enforcement of a judgment may always be ordered, with or without security, according to the
circumstances of the case (Articles 126 and 286 of the Code of Civil and CommercialProcedure).
Regarding the enforcement of a judgment:The process-serving notary may:- Enter the premises where the enforcement of the judgment is to be carried out, place a
guard at the door to prevent any misappropri ation of property, require the immediate
attendance of the officer in charge of the local police station or national guard, in
whose presence the opening of the doors ... and furniture ... will take place ...;
- effect a distraint procedure on property of the party against which the ruling is given.The Court may:- Order the publication of the judgment, in part or in full, at the expense of the party
against which the ruling is given.
- Final judgment
A final judgment ends the action by deciding  the question at issue in the proceedings.
Article 45
With respect to the damages referred to in Ar ticle 45 of the TRIPS Agreement, the provisions
of Articles 82 and 83 of the Code of Obligations and Contracts (COC) require a party which has
knowingly or deliberately caused material or moral damage to another party to make good thatdamage, where it is established that this was the direct cause of the damage in question.
Along the same lines, Article 51 of Law No. 94-36 of 24 February 1994 on Literary and
Artistic Property states that "any person who infringes copyright as set out in this Law shall be
required to pay the owner of such right damages for material and moral damage caused to the owner,
for the amount determined by the competent Court". The draft Law amending and adding to the said
Law No. 94-36 extends these rights to include related rights.IP/C/W/331
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Article 46
With respect to the other remedies referred to in Article 46 of the TRIPS Agreement, the
following points should be noted:
Regarding precautionary measures:
(1) The Code of Criminal Procedure gives the investigating magistrate, and in some cases
criminal investigation police officers, the power to effect the following:
• Searches in all premises where objects may be located whose disclosure is deemed
necessary in order to arrive at the truth.
• Confiscation of papers or chattels likely to contribute to establishing the truth of the
matter ...
• Expert’s reports where required by the circumstances, so that technical inspections can
be carried out ... with experts to be given specific time limits for the submission of
their reports ...
• The Code of Civil and Commercial Procedure allows any person able to demonstrate a
legitimate interest to ask the Court to order the implementation of any measures toensure the protection of rights and interests which must not be left unprotected ...
(2) Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property
allows the competent Court to order ex officio  or on request the confiscation or destruction of
fraudulent copies and the temporary or definitive closure of the establishment in which the
infringement has been ascertained.
The owner of the establishment where the infr ingement has been committed is regarded as
jointly and severally liable with the principal of fender committing the infringement for making good
the damage.
Article 47
As regards the right of information referred to  in Article 47 of the TRIPS Agreement, in a
criminal case the judicial authority and its auxiliary entities are empowered to seek any information or
clarification from the person charged regarding his or her accomplices, the beneficiaries of the offence
with which the defendant is charged, and the channels of distribution of the objects involved in the
criminal offence.  The person charged does of course have the right to remain silent and may decline
to answer any question, but the judge will take that silence into account when considering the penaltyto be imposed.
The information obtained from the criminal inve stigation can be used as supporting evidence
for a civil action, both in the case of civil actions brought separately and for actions conducted
concomitantly with the criminal proceedings.
Article 48
Regarding the indemnification of the defendan t referred to in Article 48 of the TRIPS
Agreement, ordinary law (the Code of Obligations  and Contracts) generally allows reparation forIP/C/W/331
Page 6
moral and material damage suffered, and a suit can be brought to seek reparation for the loss incurred
following a wrongful and unjustified action.
Administration officials guilty of abuses and faults committed in the course of their duties are
subject to administrative sanctions under the regulations governing their conduct, and may beprosecuted in civil and even criminal proceedings, according to the nature and level of the fault
committed.
Article 50-4 of the draft Law amending and adding to Law 94-36 of 24 February 1994 states
that "subject to completion of all customs formalit ies, the suspension of the release of the products
shall be revoked automatically if the author, holder of related rights or his/her representative has
failed to provide the customs authorities, within ten days from notification of the suspension of therelease of the products, with proof of the following:
• Lodgement of a security sufficient to cove r its liability to the persons concerned in
the event of it being subsequently established that the products in question do not
infringe the copyright or related rights.  The amount of the said security shall be set
by the competent Court".
Similarly, Article 54 (new) of the new draft Law states as follows in its last paragraph:  "The
records of the identification of the infringement and the confiscation measure shall be sent within
seven days to the Public Prosecutor, who shall fo rward the documents to the competent Court for a
ruling on the approval or revocation of the confiscation within a time limit of no more than one monthfrom the date on which the confiscation measure was carried out.
If the Court does not rule on the confiscation within the time limit specified, the confiscation
measure shall be revoked automatically".
Article 49
As regards the administrative procedures referr ed to in Article 49 of the TRIPS Agreement,
Tunisian legislation does not provide for any administrative procedures on the merits of a case.  Only
the judicial authorities are authorized to deal with the matter.
Article 50
As regards the provisional measures referred  to in Article 50 of the TRIPS Agreement
(generic legislation), adequate provisional measures are provided for in Tunisian ordinary law through
the mechanisms of provisional injunctions and rulings on request as described above.
The draft Law amending and adding to law No. 94-36 of 24 February 1994 on Literary and
Artistic Property states in Article 54-1 that "the right holder or his/her representative may, as a
preventive measure, on the basis of a ruling on request issued by the presiding judge of the competent
Court, arrange for a process-serving notary, assisted by an expert, to carry out a detailed description,
with or without physical confiscation, of the alleged counterfeit products constituting an infringementof copyright or related rights".
Such measures may be ordered "in all situations of urgency, on a provisional basis, without
prejudice to the principal action" (Article 201 of the Code of Civil and Commercial Procedure).IP/C/W/331
Page 7
Articles 51-60
As regards the special requirements related to border measures referred to in Articles 51 to 60
of the TRIPS Agreement, in addition to the Cu stoms Code which protects the borders from any
infringement of intellectual property and Ar ticle 50 of Law No. 94-36 of 24 February 1994 on
Literary and Artistic Property, which prohibits the importation of works breaching copyright,
Articles 50-1 to 50-5 of the draft Law amending and adding to Law No. 94-36 1994 on Literary and
Artistic Property contain provisions in accordance with the requirements of the TRIPS Agreement.
1. Thus, Article 50-1 of the draft Law states that "customs authorities may suspend customs
clearance procedures for products in respect of which there is manifest evidence of infringements
against copyright and related rights.  The customs authorities may ask the author and holders ofrelated rights or their representative to provide an y information which may be of assistance in the
exercise of their authority".
2. As regards procedures by which the customs authorities suspend the release into free
circulation of the goods, paragraph 2 of Article 50-1 states that "the customs authorities shallpromptly notify the author or holders of related rights or their representative of the suspension; they
are required to lodge the application referred to in Article 50-2 within a time limit of seven days from
the date of the notification.
Article 50-3 of the same draft Law states that "customs authorities shall immediately notify
the author or holders of related rights or their re presentative, and the owner, importer or consignee, of
the suspension of release, giving them the opportunity to examine the products whose release has
been suspended in accordance with the provisions of the Customs Code. On the basis of a ruling on
request, to enable the author and holders of related rights or their representative to bring legal actions,
the customs authorities are required to inform them  of the names and addresses of the owner, importer
or consignee, if known".
Finally, Article 50-5 of the draft Law am ending and adding to Law No. 94-36 of
24 February 1994 states that "the owner, importer or consignee shall be entitled to ask the Court to
revoke the suspension of the release of the products at issue, in return for the lodgement of a security
sufficient to protect the interests of the author or holders of related rights, provided that:
- The customs authorities have been info rmed within the time limit specified in
Article 50-4 of this Law of the referral of the matter to the competent Court for a
ruling on the merits of the case;
- on the expiry of that time limit, the competent Court has not granted any
precautionary measures;  and
- all customs formalities have been completed.
3. As regards the actual duration of the customs procedures, Article 50-4 of the draft Law
amending and adding to Law No. 94-36 of 24 Februa ry 1994 on Literary and Artistic Property states
as follows:
"Subject to completion of all customs formalities, the measure of suspension of the release of
the products shall be revoked automatically if the author, holders of related rights or theirrepresentative has failed to provide the customs authorities, within ten days from notification
of the suspension of the release of the products, with proof of the following:
- Adequate precautionary measures ordered by the competent Court;  orIP/C/W/331
Page 8
- the lodgement of a civil or criminal action;  or
- lodgement of a security sufficient to cover its liability to the persons concerned in the
event of it being subsequently established that the products in question do not infringethe copyright or related rights.  The amount of the said security shall be set by the
competent Court.
Where appropriate, the time limit set down in the first indent of this Article may be extended
by a maximum of ten days by the competent Court.
The measure of suspension of release of the products pursuant to Article 50-1 is also revoked
automatically if the author, holders of related rights or their representative fails to lodge the
application referred to in this Article within a time limit of seven days from the date of notification by
the customs authorities."
The customs authorities may act on their own initiative to suspend the customs clearance
procedures for products in respect of which there is manifest evidence of infringements of copyright
or related rights (Article 50-1 of the above-mentioned draft Law).
Article 61
As regards the criminal procedures referred to in Article 61 of the TRIPS Agreement, further
to reparation for damage in civil proceedings, Article 52 of Law No. 94-36 of 24 February 1994
provides for a fine of 50 to 5,000 dinars, doubled in the event of a repeat offence, with the possibility
of imprisonment for between one and six months.
Article 52 (new) of the draft Law ame nding and adding to Law No. 94-36 of
24 February 1994 on Literary and Artistic Property increases the fine to between 1,000 and
50,000 dinars.
The fine is doubled in the event of a repeat offence, and the possibility of imprisonment has
been increased to between one and 12 months.
These penalties may be accompanied by confiscation of the infringing goods, their destruction
and the temporary or definitive closure of the establishment where the infringement was committed.
As regards the public authorities charged with identifying infringements and initiating
criminal proceedings, the first paragraph of Article 54 (new) of the draft Law amending and adding toLaw No. 94-36 of 24 February 1994 on Literary and Artistic Property states that "the identification of
breaches of this Law and the drawing up of records of evidence [is] entrusted to the criminal
investigation police authorities and officials of the Ministry of Culture duly sworn and empowered for
this purpose ...".
Article 54 (new) of the draft Law amending and adding to Law No. 94-36 extends these
prerogatives to customs officials, officials responsible for monitoring economic activity and
municipal regulatory officials.
Public authorities may act on their own initiati ve to institute criminal proceedings.  Thus,
paragraphs 2 and 3 of Article 54 (new) of the draft Law amending and adding to Law No. 94-36 of
24 February 1994 on Literary and Artistic Property state that "the above-mentioned officials may
seize the necessary documents and take samples of the counterfeit products for the purposes of theIP/C/W/331
Page 9
investigation and to prove the infringement, against receipt. They may also seize, as a preventive
measure, any products suspected to be counterfeit and not in accordance with current regulations".
2. What protection does your Copyright legislation afford to "foreign works"?
According to the provisions of the last paragraph of Article 56 (new) of the draft Law
amending and adding to Law No. 94-36 of 24 February 1994 on Literary and Artistic Property, "the
provisions of this Law regarding copyright apply to works qualifying for protection under an
international convention to which the Tunisian State is  a party", noting that Article 32 of the Tunisian
Constitution states that legally ratified conventions take precedence over national Laws in the
hierarchy of legal norms, subject to their application by the other party (principal of reciprocity).
Tunisia ratified the Uruguay Round agreements  by Law No. 95-6 of 23 January 1995.  Thus,
the provisions of that Law provide protection to the nationals of all member countries.
SWITZERLAND
A. PATENTS
1. Does your legislation grant patent protection for inventions relating to products and
processes in all fields of technology?  Are there any exceptions?  If so, please explain what these
exceptions are and how they comply with Article 27 of the TRIPS Agreement.  In particular, is
patent protection granted to all pharmaceutical products?
The legislation on the protection of inventions, in particular the first Article of Law
No. 84-2000 of 24 August 2000, states that "any inve ntion of a product or manufacturing process may
be protected by a document referred to as a ‘patent’".
According to Article 2, all that is required is that the invention meets a number of conditions,
i.e. novelty, inventiveness and industrial applicability.
In other words, a patent may be issued for any invention of a product or manufacturing
process in all fields of technology, including pharmaceutical products and agricultural chemical
products.
However, there are a number of exceptions which are compatible with Article 27:1.  Article 3
of the above-mentioned Law states that patents may not be granted for plant varieties, animal breeds
or essentially biological processes for the production of plants or animals. This provision does not,
however, apply to medical biological processes or the products obtained through such products.
2. Does your legislation, in accordance with Ar ticle 27:1 in combination with Article 31 of
the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude
compulsory licensing, if a product is being imported)?
The legislation recognizes, in accordance with Article 27:l in combination with Article 31 of
the TRIPS Agreement, that importation is equivalent to "working" a patent.
Article 69 of Law No. 2000-84 on Patents includes the following situations where patents are
subject to compulsory licensing:
- "where the patented product has not been sold in sufficient quantities to meet the
needs of the Tunisian market";IP/C/W/331
Page 10
- "where industrial or commercial exploitation of the patented invention has been
discontinued for longer than three years in Tunisia".
These two indents show that the working of a pa tent has not been interpreted in a restrictive
manner, and is understood as referring to industrial or commercial exploitation.
The essential requirement is that the patented product is commercialized, whether by
industrial exploitation or importation, in such a way as to meet the needs of the domestic market.
3. Does your legislation make the granting of  a compulsory licence subject to all the
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevantprovisions of law.
Law No. 2000-84 of 24 August 2000 makes the granting of compulsory licences subject to
the conditions enumerated in Article 31 of the TRIPS Agreement.
Article 69 of the Law states that after expiry of the period specified (four years from filing of
the applications, or three years from the issuing of the patent), any person interested in doing so may
seek a compulsory licence at any time:
- Where industrial exploitation of the patented invention has not commenced or no
genuine preparations for such exploitation have been made in Tunisia;
- where the product to which the invention refers has not been commercialized in
sufficient quantities to meet the needs of the Tunisian market;
- where the industrial or commercial exploitation of the patented invention has been
discontinued for longer than three years in Tunisia.
Article 70 of the same Law states that any application for a compulsory licence must be made
to the competent Court. The applicant for a compul sory licence must provide proof that the applicant
has approached the patent holder to seek a contract ual licence but has not been able to obtain such a
licence on reasonable commercial terms and conditions, and within a reasonable period of time.
A compulsory licence on the basis of non-exploitation or insufficient exploitation may never
be granted if the patent holder demonstrates the existence of a legitimate excuse.
Compulsory licences are non-exclusive.According to Article 74, the Court sets the conditions for a compulsory licence, and in
particular the term of the licence, its scope and the amount to be paid to the patent holder, which is to
be commensurate with the extent of exploitation.
4. Does your legislation provide for the principle of the reversal of burden of proof in a
process patent litigation? Please cite the relevant provisions of law.
Article 85 of the Law on Patents includes provisions on the reversal of the burden of proof in
a dispute relating to a process patent. According to the Article in question, "if the patent subjectmatter is a product manufacturing process, the Court is entitled to order the defendant to prove that
the process used to obtain an identical product is different from the patented process. If the defendant
fails to provide such proof, any identical product manufactured without the consent of the patent
holder shall be presumed to be obtained through the patented process if the product is new".IP/C/W/331
Page 11
B. PROTECTION OF UNDISCLOSED INFORMATION
5. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsible State agency in the procedure for market
authorisation of a pharmaceutical or an agricu ltural chemical product is protected against
disclosure and against unfair commercial use by a competitor, for example by prohibiting asecond applicant from relying on, or from referring to the original data of the first applicant,
when applying subsequently for market auth orisation for a similar product. Does your
legislation provide for exceptions to this? If yes, under what conditions would such exceptions
apply? Does your legislation set a specific term of protection for undisclosed test or other data
of the first applicant?
The application dossiers submitted differ according to whether the product is a first product or
a generic one.  It is only in the case of a first product that all the clinical data specified by law are
required.
These data are evaluated by experts who are subject to a legal obligation of professional
secrecy. The administration itself is also subject to this secrecy requirement, and no dossier submittedmay be communicated or used on the submission of a second application.
Generic products may be exempted from the requirement for clinical and pharmacological-
toxicological dossiers if the administration deems that a sufficient period has passed, and the patent
has expired. If the administration deems these dossiers to be necessary, the laboratory in question isrequired personally to recompile all the data required, without the possibility of referring to the
documentation for the first product.
It should however be noted that traditionally it has been possible to use research which has
been published in periodicals in any first or second product dossier, since this information has beenplaced in the public domain at the initiative of the owner of the first product.
C. 
ENFORCEMENT
6. Please indicate remedies provided by your legislation which constitute effective
deterrents to infringements of intellectual property rights.
Further to the reply to this question provided in the replies of Tunisia to the Checklist of
issues on enforcement  (document IP/N/6/TUN/1) and in particular the replies to questions 15, 16, 17,
18, 19, 21, 22 and 24, the following should be noted:
Literary and artistic intellectual property (copyright and related rights) is protected in Tunisia
by the following:
- International treaties legally ratified pursuant to Article 32 of the Constitution, which
take precedence over legislation (the Uruguay Round agreements (TRIPS), the Berne
Convention, etc.);
- ordinary law: general civil and criminal legislation (Code of Obligations and
Contracts, Commercial Code, Law on Competition and Prices, Code of Criminal
Procedure, Customs Code, etc.);
- special ( sui generis ) legislation, specifically Law No. 94-36 of 24 February 1994 on
Literary and Artistic Property (copyright) and the relevant implementing provisions,
in particular Decree No. 96-2230 of 11 November 1996 on the administrative andIP/C/W/331
Page 12
financial organization of the Tunisian Copyright Protection Agency and its operating
procedures.
It should be noted that a draft Law is currently before the Chamber of Deputies, following
adoption of the text by the Council of Ministers and the Constitutional Council.  The main objectiveof this legislation is on the one hand to bring the provisions of the above-mentioned Law No. 94-36,
relating to copyright, into line with the provis ions of the TRIPS Agreement and the WIPO Treaty of
December 1996, and on the other hand to incorporate in this special legislation provisions on related
rights in accordance with the TRIPS Agreement, the Rome Convention and the WIPO Treaty of
December 1996.
As regards the enforcement obligations under Section 3 of the TRIPS Agreement, Tunisian
legislation lays down procedures for the enforcement of copyright and related rights which allow
effective action to be taken against any act in infringement of such rights.
Article 42
For example, in accordance with Article 42 of the TRIPS Agreement on fair and equitable
procedures:
(1) The parties are authorized to arrange to be represented by independent legal counsel.
Indeed, "representation by an attorney-at-law is mandatory in proceedings before a Court of FirstInstance.
The chambers of the attorney-at-law shall be rega rded as the elected domicile of its client for
the level of jurisdiction for which the attorney is retained" (Article 68 of the Code of Civil and
Commercial Procedure).
(2) Defendants must receive timely written notice setting out the basis for the allegations.
Article 70 of the Code of Civil and Commercial Procedure states that "the writ of summons must
specify the surnames, given names, occupations and addresses of the parties and the capacities in
which they are acting, along with an account of the facts in the matter …  It must also include a
statement calling on the party on whom the writ is served to enter its pleadings in reply".
(3) A procedure is specified in Tunisian legislation for the identification and protection
of confidential information, as follows:
- Article 253 of the Criminal Code states that "Any person who discloses the contents
of a letter, telegram or any document belonging to another party without authorisationis liable to a prison sentence of three months".
- Article 254 of the Criminal Code states that "Any doctors, surgeon or other medical
personnel, as well as any pharmacist, midwife or any other person in whom secrets
are vested by virtue of their status or profession who reveals such secrets, exceptwhere required or permitted by law to report the matter, shall be liable to a prison
sentence of six months and a fine of 500 francs ...".
The general regulations governing the conduct of public-sector personnel place civil servants
under obligations of professional secrecy and discretion; these general regulations include thefollowing:
- The General Regulations for State employees of local public authorities and
administrative public bodies;IP/C/W/331
Page 13
- the General Regulations for the employees of Boards, industrial and commercial
public bodies, and companies whose capital is held directly or indirectly by the State
or by public authorities;
- the General Regulations for magistrates;
- the General Regulations for customs staff;- the General Regulations for the personnel of the internal security forces …Furthermore, Article 168 of the Labour Code states that: "members of company consultative
committees and staff representatives are bound by the obligation of professional secrecy with respect
to all information of a confidential nature coming into their possession while serving in that capacity,
and to all matters relating to manufacturing processes.  In the event of a breach of this obligation they
shall be liable to the penalties set down in Articles 138 and 254 of the Criminal Code".
Article 138 of the Criminal Code states as follows: "in addition to a fine, any manager, clerk
or worker of a factory who discloses or communicates a manufacturing secret shall be liable to a
prison sentence of two years; attempts to do so are also punishable".
Article 43
Tunisian legislation, in accordance with Article 43 of the TRIPS Agreement on evidence,
gives judicial authorities the power to order a party in proceedings, on a request to this effect from the
opposing party, to produce the evidence lying in its control.
Articles 213 to 223 of the Code of Civil and Commercial Procedure allow the presiding judge
of the Court to issue rulings on request from either of the parties in the case, to ensure the protection
of rights and interests which must not be left unprotected. In cases of extreme urgency, judges may
rule in their private homes on questions submitted to them.
Enforcement of rulings issued in this manner is not subject to the appending of the seal of the
Court or " ad hoc " registration.  These formalities are completed later.
Rulings issued on request are exempted from the registration procedure.  Such rulings are
enforced without delay by process-serving notaries.
A request for the withdrawal of a ruling does not suspend enforcement.  Article 101 of the
same Code states that "if it is necessary to obtain an expert’s report and the parties fail to agree on the
selection of the expert, the expert shall be appointed by the judge".
Article 44
As regards Article 44 of the TRIPS Agreement on injunctions, under Tunisian legislation the
judicial authorities have authority to issue various kinds of rulings, i.e. interim injunctions, payment
injunctions and final judgments or other judgments.
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as
necessary, the Court may ask the judge acting as rapporteur to carry out any investigative actions,
such as an inquiry, visit to the scene, expert’s report, taking of pleas of forgery, or any other action
that will help to establish the truth."IP/C/W/331
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The Court, during the hearing and in the presence of the parties, may set the date for the
investigative action so ordered, specifying the date and time for the appearance of the parties in the
chambers of the judge as rapporteur or at the location of the dispute or any other location.
Article 225 of that same Code states that "in any event, the Court may require ex officio  the
participation of a third party in the proceedings where it sees the presence of that party as essential for
a correct appreciation of the matter at issue".  If it is necessary to arrange an expert’s report and the
parties fail to agree on the selection of the expert, the expert is appointed by the judge.
Furthermore, according to Article 86 of the Code of Civil and Commercial Procedure, "if it
sees this as necessary, the Court may ask the judge acting as rapporteur to carry out any investigative
actions, such as an inquiry, visit to the scene, expert’s report, taking of pleas of forgery, or any otheraction that will help to establish the truth".
Emergency interim proceedings:
Article 201 of the Code of Civil and Commercial Procedure (CPCC) states as follows:  "In all
situations of urgency, emergency interim rulings shall be issued, without prejudice to the main
action".
"Emergency interim rulings may be made by the presiding judge of the Court of First Instance
or a person with delegated authority from that judge,  or a canton magistrate where that magistrate has
jurisdiction under the law" (Art. 202 of the Code of Civil and Commercial Procedure).
"Provisional injunctions are enforceable 24 hours after service, unless the judge has granted a
period of grace."
Enforcement is carried out without a security unless the judge has ordered that a security be
provided (Art. 207 of the Code of Civil and Commercial Procedure).
- Payment injunctions
Article 59 of the Code of Civil and Criminal Procedure states that a payment injunction may
be issued for any debt payment demand where the debt – irrespective of its nature – is for afixed amount and is based on a contract.
- Judgment
A judgment is not final if the decision is subject to appeal.  However, provisional enforcement
of a judgment may always be ordered, with or without security, according to the
circumstances of the case (Articles 126 and 286 of the Code of Civil and Commercial
Procedure).
- Final judgment
A final judgment ends the action by deciding  the question at issue in the proceedings.
Article 45
With respect to the damages referred to in Ar ticle 45 of the TRIPS Agreement, the provisions
of Articles 82 and 83 of the Code of Obligations and Contracts (COC) require a party which hasIP/C/W/331
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knowingly or deliberately caused material or moral damage to another party to make good that
damage, where it is established that this was the direct cause of the damage in question.
Along the same lines, Article 51 of Law No. 94-36 of 24 February 1994 on Literary and
Artistic Property states that "any person who infringes copyright as set out in this Law shall berequired to pay the owner of such right damages for material and moral damage caused to the owner,
for the amount determined by the competent Court".
The draft Law amending and adding to the said Law No. 94-36 extends these rights to include
related rights.
Article 46
With respect to the other remedies referred to in Article 46 of the TRIPS Agreement, the
following points should be noted:
Regarding precautionary measures:
(1) The Code of Criminal Procedure gives the investigating magistrate, and in some cases
criminal investigation police officers, the power to effect the following:
• Searches in all premises where objects may be located whose disclosure is deemed
necessary in order to arrive at the truth.
• Confiscation of papers or chattels likely to contribute to establishing the truth of the
matter ...
• Expert’s reports where required by the circumstances, so that technical inspections can
be carried out ... with experts to be given specific time limits for the submission of
their reports ...
• The Code of Civil and Commercial Procedure allows any person able to demonstrate a
legitimate interest to ask the Court to order the implementation of any measures to
ensure the protection of rights and interests which must not be left unprotected ...
(2) Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property
allows the competent Court to order ex officio  or on request the confiscation or destruction of
fraudulent copies and the temporary or definitive closure of the establishment in which the
infringement has been ascertained.
The owner of the establishment where the infr ingement has been committed is regarded as
jointly and severally liable with the principal of fender committing the infringement for making good
the damage.
(3) Regarding the enforcement of a judgment:
The process-serving notary may:
- Enter the premises where the enforcement of the judgment is to be carried out, place a
guard at the door to prevent any misappropri ation of property, require the immediate
attendance of the officer in charge of the local police station or national guard, in
whose presence the opening of the doors ... and furniture ... will take place ...;IP/C/W/331
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- effect a distraint procedure on property of the party against which the ruling is given.
The Court may:
- order the publication of the judgment, in part or in full, at the expense of the party
against which the ruling is given.
Article 47
As regards the right of information referred to  in Article 47 of the TRIPS Agreement, in a
criminal case the judicial authority and its auxiliary entities are empowered to seek any information orclarification from the person charged regarding his or her accomplices, the beneficiaries of the offence
with which the defendant is charged, and the channels of distribution of the objects involved in the
criminal offence.  The person charged does of course have the right to remain silent and may decline
to answer any question, but the judge will take that silence into account when considering the penalty
to be imposed.
The information obtained from the criminal inve stigation can be used as supporting evidence
for a civil action, both in the case of civil actions brought separately and for actions conducted
concomitantly with the criminal proceedings.
Article 48
Regarding the indemnification of the defendan t referred to in Article 48 of the TRIPS
Agreement, ordinary law (the Code of Obligations  and Contracts) generally allows reparation for
moral and material damage suffered, and a suit can be brought to seek reparation for the loss incurredfollowing a wrongful and unjustified action.
Administration officials guilty of abuses and faults committed in the course of their duties are
subject to administrative sanctions under the regulations governing their conduct, and may be
prosecuted in civil and even criminal proceedings, according to the nature and level of the fault
committed.
Article 50-4 of the draft Law amending and adding to Law 94-36 of 24 February 1994 states
that "subject to completion of all customs formalit ies, the suspension of the release of the products
shall be revoked automatically if the author, holder of related rights or his/her representative has
failed to provide the customs authorities, within ten days from notification of the suspension of the
release of the products, with proof of the following:
Lodgement of a security sufficient to cover its liability to the persons concerned in the event
of it being subsequently established that the products in question do not infringe the copyright or
related rights.  The amount of the said security shall be set by the competent Court".
Similarly, Article 54 (new) of the new draft Law states as follows in its last paragraph:  "The
records of the identification of the infringement and the confiscation measure shall be sent within
seven days to the Public Prosecutor, who shall fo rward the documents to the competent Court for a
ruling on the approval or revocation of the confiscation within a time limit of no more than one month
from the date on which the confiscation measure was carried out. If the Court does not rule on theconfiscation within the time limit specified, the confiscation measure shall be revoked automatically".IP/C/W/331
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Article 49
As regards the administrative procedures referr ed to in Article 49 of the TRIPS Agreement,
Tunisian legislation does not provide for any administrative procedures on the merits of a case.  Only
the judicial authorities are authorized to deal with the matter.
Article 50
As regards the provisional measures referred  to in Article 50 of the TRIPS Agreement
(generic legislation), adequate provisional measures are provided for in Tunisian ordinary law through
the mechanisms of provisional injunctions and rulings on request as described above.
The draft Law amending and adding to law No. 94-36 of 24 February 1994 on Literary and
Artistic Property states in Article 54-1 that "the right holder or his/her representative may, as a
preventive measure, on the basis of a ruling on request issued by the presiding judge of the competent
Court, arrange for a process-serving notary, assisted by an expert, to carry out a detailed description,
with or without physical confiscation, of the alleged counterfeit products constituting an infringementof copyright or related rights".
Such measures may be ordered "in all situations of urgency, on a provisional basis, without
prejudice to the principal action" (Article 201 of the Code of Civil and Commercial Procedure).
Articles 51 - 60
As regards the special requirements related to border measures referred to in Articles 51 to 60
of the TRIPS Agreement, in addition to the Cu stoms Code which protects the borders from any
infringement of intellectual property and Ar ticle 50 of Law No. 94-36 of 24 February 1994 on
Literary and Artistic Property, which prohibits the importation of works breaching copyright,
Articles 50-1 to 50-5 of the draft Law amending and adding to Law No. 94-36 1994 on Literary and
Artistic Property contain provisions in accordance with the requirements of the TRIPS Agreement.
1. Thus, Article 50-1 of the draft Law states that "customs authorities may suspend
customs clearance procedures for products in respect of which there is manifest evidence of
infringements against copyright and related rights.  The customs authorities may ask the author andholders of related rights or their representative to provide any information which may be of assistance
in the exercise of their authority".
2. As regards procedures by which the customs authorities suspend the release into free
circulation of the goods, paragraph 2 of Article 50-1 states that "the customs authorities shallpromptly notify the author or holders of related rights or their representative of the suspension; they
are required to lodge the application referred to in Article 50-2 within a time limit of seven days from
the date of the notification.
Article 50-3 of the same draft Law states that "customs authorities shall immediately notify
the author or holders of related rights or their re presentative, and the owner, importer or consignee, of
the suspension of release, giving them the opportunity to examine the products whose release has
been suspended in accordance with the provisions of the Customs Code. On the basis of a ruling on
request, to enable the author and holders of related rights or their representative to bring legal actions,
the customs authorities are required to inform them  of the names and addresses of the owner, importer
or consignee, if known".
Finally, Article 50-5 of the draft Law amending  and adding to Law No. 94-36 of 24 February
1994 states that "the owner, importer or consignee sh all be entitled to ask the Court to revoke theIP/C/W/331
Page 18
suspension of the release of the products at issue, in  return for the lodgement of a security sufficient to
protect the interests of the author or holders of related rights, provided that:
- The customs authorities have been info rmed within the time limit specified in
Article 50-4 of this Law of the referral of the matter to the competent Court for aruling on the merits of the case;
- on the expiry of that time limit, the competent Court has not granted any
precautionary measures;  and
- all customs formalities have been completed.
3. As regards the actual duration of the customs procedures, Article 50-4 of the draft
Law amending and adding to Law No. 94-36 of 24 February 1994 on Literary and Artistic Property
states as follows:
"Subject to completion of all customs formalities, the measure of suspension of the release of
the products shall be revoked automatically if the author, holders of related rights or their
representative has failed to provide the customs authorities, within ten days from notification
of the suspension of the release of the products, with proof of the following:
- Adequate precautionary measures ordered by the competent Court; or- the lodgement of a civil or criminal action; or- lodgement of a security sufficient to cover its liability to the persons concerned in the
event of it being subsequently established that the products in question do not infringethe copyright or related rights.  The amount of the said security shall be set by the
competent Court.
Where appropriate, the time limit set down in the first indent of this Article may be extended
by a maximum of ten days by the competent Court.
The measure of suspension of release of the products pursuant to Article 50-1 is also revoked
automatically if the author, holders of related rights or their representative fails to lodge the
application referred to in this Article within a time limit of seven days from the date of notification by
the customs authorities."
The customs authorities may act on their own initiative to suspend the customs clearance
procedures for products in respect of which there is manifest evidence of infringements of copyright
or related rights (Article 50-1 of the above-mentioned draft Law).
Article 61
As regards the criminal procedures referred to in Article 61 of the TRIPS Agreement, further
to reparation for damage in civil proceedings, Article 52 of Law No. 94-36 of 24 February 1994
provides for a fine of 50 to 5 000 dinars, doubled in the event of a repeat offence, with the possibility
of imprisonment for between one and six months.
Article 52 (new) of the draft Law ame nding and adding to Law No. 94-36 of
24 February 1994 on Literary and Artistic Property increases the fine to between 1,000 and
50,000 dinars.IP/C/W/331
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The fine is doubled in the event of a repeat offence, and the possibility of imprisonment has
been increased to between one and 12 months.
These penalties may be accompanied by confiscation of the infringing goods, their destruction
and the temporary or definitive closure of the establishment where the infringement was committed.
As regards the public authorities charged with identifying infringements and initiating
criminal proceedings, the first paragraph of Article 54 (new) of the draft Law amending and adding to
Law No. 94-36 of 24 February 1994 on Literary and Ar tistic Property states that "the identification of
breaches of this Law and the drawing up of records of evidence [is] entrusted to the criminal
investigation police authorities and officials of the Ministry of Culture duly sworn and empowered for
this purpose ...".
Article 54 (new) of the draft Law amending and adding to Law No. 94-36 extends these
prerogatives to customs officials, officials responsible for monitoring economic activity and
municipal regulatory officials.
Public authorities may act on their own initiati ve to institute criminal proceedings.  Thus,
paragraphs 2 and 3 of Article 54 (new) of the draft Law amending and adding to Law No. 94-36 of
24 February 1994 on Literary and Artistic Property state that "the above-mentioned officials may
seize the necessary documents and take samples of the counterfeit products for the purposes of the
investigation and to prove the infringement, against receipt. They may also seize, as a preventivemeasure, any products suspected to be counterfeit and not in accordance with current regulations".
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