 
  WORLD TRADE  
ORGANIZATION  IP/Q/PNG/1 
IP/Q2/PNG/1 
IP/Q3/PNG/1 IP/Q4/PNG/1 
27 April 2004 
 
 
(04-1855) 
Council for Trade-Related Aspects of Intellectual Property Rights Original:   English 
 
  
REVIEW OF LEGISLATION 
 
 
PAPUA NEW GUINEA
1 
  
 The present document reproduces the introductory statement made by the delegation of 
Papua New Guinea, the questions put to it and the responses given in connection with the review of 
legislation initiated at the Council's meeting of 2 to 5 April 2001.
2 
  
_______________ 
  
I. INTRODUCTORY STATEMENT 
 Some of the delegations present here have posed questions regarding implementation of 
TRIPS in Papua New Guinea and we have tried our best to be as informative and thorough as possible 
when providing our response and I am sure many of you by now are aware of our status to a certain 
extent.  Recent developments regarding IPR legi slation in Papua New Guinea has been provided to 
the Secretariat by the delegation of Papua New Guinea by means of two separate but related communications dated 18 June 2001 and 20 June 2001.
3 
  My intention here is therefore to be brief but at the same time to give you a basic overview of 
the current IPR regime in place in Papua New Guinea and the latest update concerning TRIPS 
implementation.   Let me begin my update by giving you a very  brief overview of the development of various 
legislation covering IPR in Papua New Guinea.  Since Papua New Guinea gained independence in 
1975 and up until 2000 there has not been any prot ection available in Papua New Guinea as far as 
industrial design, patents and copyright is concer ned, and the concept and development of IPR has 
never featured prominently in Papua New Guinea.   At the time however, intellectual property was 
regulated by the Trade Marks Act (CH.389) and th e now outdated Copyright Act (No.16) of 1978, 
directly inherited from Australian Colonial Laws after independence.  The Copyright Act was passed 
by the Legislative Assembly, and actually amended in  1981, but has never been enforced.  The Trade 
Mark Act is now out of date and is currently undergoing a review. 
 
                                                     
 
1 As regards laws and regulations notified by Papua New Guinea under Article 63.2 of the Agreement, 
reference is made to documents IP/N/1/PNG/1. 
2 The minutes of this meeting have been circulated as document IP/C/M/30. 
3 See documents IP/C/W/292 and IP/C/W/292/Corr.1. IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 2 
 
 
  Papua New Guinea's system of laws and procedure is based on the common law system and 
its development through judicial precedents.  A. D
EVELOPMENT OF MODERN IPR REGIME  
 The modern approach to intellectual property ri ghts in the context of international agreements 
particularly in relation to the facilitation of trad e and investment and the benefits derived from the 
protection of intellectual creativity, has made it imperative for Papua New Guinea to have its own 
modernised national structure and legisla tion to facilitate those requirements. 
 
 In recognition of this imperative my govern ment, in close consultation with the World 
Intellectual Property Organization (WIPO), in 1999 embarked on a major reform programme designed 
to protect intellectual property rights in Papua New Guinea, which saw sweeping (administrative) 
changes in several institutions (and sectors) of government dealing with IPR.  These efforts 
culminated in the passing of the legislation c overing plants, industrial design and copyright by 
parliament in July 2000.  The passage of this legisl ation effectively repealed the former Copyright Act 
(1978).  However, it must be borne in mind that the legislation at this stage not yet in force as the Regulation to implement it is with the legislative arm of the government for its endorsement before 
implementation.  This we hope to accomplish in th e month of November and the Secretariat will be 
informed accordingly.  
 Commensurate with the enactment of the above legislation, 2000 saw the birth of the basic 
but modern IPR regime which continues to undergo rapid changes even as we speak.  The current 
Trade Mark Act is undergoing a review with the assi stance of the Australian Government to introduce 
a modern trademark system consis tent with TRIPS and one which c onforms to current international 
trends and practices.  Amendment Bill on same is ex pected to go before the cabinet and parliament by 
early 2002. 
  I am proud to state that with the exception of the Trade Marks Act, the new legislation passed 
in 2000 are all TRIPS compliant, thereby fulfilling our obligations as per WTO and TRIPS requirements in so far as enactment of appropriate legislation within the time frame set by WTO is 
concerned.  The full implementation of this and th e TRIPS agreement will reflect a major change in 
the history on the development of intellectual property in Papua New Guinea. 
  With this comes the challenge of putti ng into place the actual processing systems. 
  Papua New Guinea is now actively engaged in the initial stages of automation of its 
processing systems to effectively implement and admi nister these new TRIPS complaint legislation.  
The current Trade Marks system is already an auto mated system whilst review of the legislation is 
presently being undertaken.  B. B
ORDER MEASURES  
 The New TRIPS legislation on Border Measures, once enacted will bring into place new 
stringent measures against the importation of pirate d works etc.  Under the new IPR regime this 
legislation will now be administered by the Custom s Bureau of Papua New Guinea Internal Revenue 
Commission, as the competent authority in Papua New Guinea.   This legislation is currently before  the Parliament for its endorsement. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 3 
 
 
 C. P
ROTECTION OF OTHER INTELLECTUAL PROPERTY  
 At this stage, Papua New Guinea has not le gislated for other intellectual properties like 
layout-designs of integrated circuit and undiscl osed information, best known as trade secrets. 
 
 Concerning traditional knowledge and plant varie ties there is no specific legislation covering 
these in Papua New Guinea either.  My government has been following developments in this area 
very closely as Papua New Guinea is privy to some of the region's most prestigious and pristine fauna 
and flora species.  While traditional knowledge, folk lore and cultural values are not covered under the 
TRIPS, plant species and genetic resources and its prot ection thereof are not adequately covered for in 
the TRIPS and the Agreement leaves this subject to  member States' national laws and other such 
arrangements.   A careful examination of our traditional knowle dge, folklore and cultura l values reveals that 
some aspects may be protected under the current Co pyright Act (2000) and others under the Patent 
System (2000).  The rest may be protected as trade secrets under the Common Law and Equity since 
at present Papua New Guinea does not have a body of legislation on trade secrets.  However, my government recognises that a sui generis  system for the protection of these would be preferred to 
adequately deal with the issues involved due to the diversity and overlapping natures of traditional 
knowledge, folklore and cultural values.  
 I now wish to highlight recent developments concerning these intellectual properties.  
Considerable efforts and discussions have been made  at the national and regional level, through the 
Pacific Islands Forum Secretariat, on these subject s and Papua New Guinea has been actively taking 
part through important Working Committees and Missi ons commissioned by the forum secretariat.  
At the international level the forum member countries including Papua New Guinea have been 
working very closely with the WIPO to develop appropriate policies and legal and administrative 
framework to ensure that same can be accommodated in domestic IPR regimes.  Consistent with 
recommendations and understanding reached at the forum and international level Papua New Guinea 
has progressed considerably in the drafting of a basic legislation for a sui generis  system for the 
protection of same in Papua New Guinea.  This le gislation is shortly expected to go before the 
executive and legislative arms of the government for its deliberation, following which it should go 
before the parliament for final approval.  The WTO Secretariat will be fully briefed on the outcome of 
this.   There are other requirements under the TRIPS Agreement still outstandi ng but we believe our 
progress thus far as a developing nation has been satisfactory to say the least. 
 
D. E
NFORCEMENT  
 I submit that enforcement of IPR is a mammot h task and efforts are now underway to ensure 
effective administration and enforcement of rights .  There is a coordinated approach concerning 
enforcement issues by key agencies and arms of the government dealing with the various aspects of 
IPR in Papua New Guinea. 
 
 The current Trade Marks Act and the new Pate nts and Industrial Designs Act 2000 and the 
Copyright and Neighbouring Rights Act 2000 clearly establish that intellectual property rights are private rights, and as such, the right holder must initia te proceedings either in the Courts of Law, the 
Intellectual Property Office of Papua New Guinea or  line Government Agencies, e.g. the Customs 
Bureau, to seek redress.  This would either be by  way of a complaint filed or through Summons in 
Court.  IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 4 
 
 
  Where right infringement is proven or reasona bly foreseen, the right owner would be entitled 
to, or either, an injunction, damages, account of profits and Court orders, including the order for 
impounding or infringing goods, copies or implements  and articles that could be used in the 
infringement. 
 
 In addition to the civil remedies, the Trade Marks Act, and noticeably the new Copyright and 
Neighbouring Rights Act 2000 provide that wilful acts  of infringement or acts of gross negligence, 
including acts of forgery, are crimin al offences prosecutable in Court. 
 
 The criminal remedies include heavy fines, imprisonment and forfeitu re of infringing goods 
and implements.  The Copyright and Neighbouring Rights Act ( supra ) expressly adopt sections of the 
Criminal Code dealing with Search and Seizur e and the Customs Act dealing with illegal goods. 
  As pointed out, enforcement and administrati on of the IPR regime in Papua New Guinea will 
be a coordinated effort principally between the In tellectual Property Office of Papua New Guinea, the 
Customs Bureau of the Internal Revenue Commission, the Police personnel from the Royal 
Constabulary of Papua New Guinea and the Judicial System.   It remains to be tested how well the enfo rcement systems set in place by the government 
functions, when we commence full implementation in January 2002. 
 
 I now wish to move on to discuss Internati onal Conventions and Treaties as an important 
strategy for development of an effective enforc ement structure and regime in Papua New Guinea. 
 E. I
NTERNATIONAL CONVENTIONS AND AGREEMENTS  
 At present Papua New Guinea is party to th e Paris Convention as well as the Convention 
establishing the WIPO.  Further, Papua New Guinea became a member of the WTO in June of 1996 
and in so doing became a party to the TRIPS Agreement.   Our country strategy is this:  to provide adequate legal and administrative framework and 
therefore adequate protection for Papua New Guinea at the domestic and also at the international 
level.  Our strategy to accede to important inte rnational treaties and conve ntions would ensure a 
harmonized and guaranteed protection for our nationa ls on a worldwide basis, and in short, a more 
complete protection regime.   Undoubtedly the single most important task for my government is to make our IPR regime 
suitable for the age of electronic commerce and digital networking and this we envisage 
accomplishing through prompt ratification and faithful implementation of these treaties and conventions.   Preparations are already underway on drafti ng of the necessary instrument to ratify the 
various treaties and agreements in the field of Intellectual Property Rights and the Secretariat and 
WIPO will be informed accordingly in due course. 
 F. WIPO 
 Concerning our fruitful relationship with WIPO, I am proud to point out here that we go back 
a long way. 
 
 May I at this juncture, place on record our gr atitude to WIPO for its unwavering support and 
assistance towards us and other lik e developing nations.  May I also  take this opportunity to  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 5 
 
 
 encourage member countries to fully utilise the f acilities and assistance schemes set up by WIPO for 
developing countries.   One such facility is the Dispute Settlement  Mechanism within WIPO and WTO which the 
developing nations including Papua New Guinea coul d greatly benefit from.  Papua New Guinea is 
very mindful of the dispute settlement aspect of IPR and is in the process  of strengthening its 
processes and systems through development of its ow n such systems and therefore will be fully 
utilising the above facility and assistance therein.  
G. C
ONCLUSION  
Finally, in giving you this snapshot of our situation we are also mindful of the on-going 
process in Papua New Guinea concerning TRIPS and we  hope to provide anothe r update in the not too 
distant future.  May I once again thank you for your support and for the opportunity to make this statement. 
 
H. N
OTE BY PAPUA NEW GUINEA CONCERNING ITS RESPONSES  
 Although questions relating to patents and industrial designs and copyright and neighbouring 
rights have been answered, it should be borne in mi nd that the legislation covering them is, at this 
stage, not yet in  force.  The Patents and Industr ial Designs Regulations are presently being finalized, 
following WIPO's comments on our draft regulation towards the end of May 2001. 
 
 There is a coordinated effort between some state agencies, which include Customs (of the 
Internal Revenue Commission), the Police Force and the Attorney-General's Department.  Thus in 
many of our answers we have referred to them, particularly on issues of enforcement.  Customs 
officials will very much be involved in enforcem ent of border measures, but are presently awaiting 
the gazettal of the TRIPS legislation. 
  
II. RESPONSES TO QUESTIONS POSED BY CANADA 
1. Please describe how the enforcement obligations (Articles 41-61 of the TRIPS 
Agreement) have been implemented. 
 Much of the enforcement provisions under the various IP legislation of Papua New Guinea 
are of judicial proceedings.  Both civil and cr iminal remedies are available under the various 
legislation.  The criminal remedies include subs tantial fines and imprisonment, and seizure of 
infringing goods (particularly for goods infringing copyright) and forfeiture of counterfeit goods (in 
trademark infringement).  Civil remedies include injunction, damages, account of profits and 
destruction or other reasonable disposition of in fringing goods (expressly stated for goods infringing 
copyright).   The Courts may also order the impounding of pack aging of the implements that could be used 
for the making of copies of works or son, d recordings, and the documents, accounts or business 
papers relating to such copies. 
 
 Owners of patent and industrial designs can al so institute proceedings against any person who 
performs an act, which makes it likely that his right will be infringed.  An order for inspection of 
anything in or on any vehicle, vessel, aircraft, build ing or premise can also be obtained for purposes 
of enforcing, his right. 
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 6 
 
 
  The enforcement in the current IP legislation for Articles 47, 48 and 49, are either not 
expressly stated, but are stated in general terms.  The civil procedure instituted in the Courts for the 
enforcement of IP rights is the same as any other ci vil procedure, e.g., the order for the production of 
documents and confidential (or privileged) information. 
 
2. What protection does your Copyright legislation afford to "foreign works"? 
 The Act does not define "foreign works" neither is there any "discriminatory" provision in the 
Act in favour of the nationals of Papua New Guinea.   Under Section 3 (Application) it is stated in 
Subsections (4) and (8) that the provisions of the Act shall apply to works (and performers, producers 
of sound recordings and broadcasting organizations) that are eligible for protection by virtue of, and 
in accordance with, any international convention or  other international agreement to which Papua 
New Guinea is a party.   III. RESPONSES TO QUESTIONS POSED BY  THE EUROPEAN COMMUNITIES AND 
THEIR MEMBER STATES 
A. G
ENERAL PROVISIONS  
1. Please describe if your legislation includes measures necessary to protect public health 
and nutrition, and to promote the public interes t 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 me asures are consistent with the provisions of the 
TRIPS Agreement. 
There is no such provision for copyright and neig hbouring rights.  With regards to industrial 
property there is no specific provision in either the Trade Marks Act or the Patents and Industrial 
Designs Act 2000.  The Patents and Industrial Desi gns Act 2000 briefly mentions in Section 12 
(Patentable Inventions) that an invention that is contrary to public order and morality or which would 
seriously prejudice the environment, is not patentab le.  Where an invention is granted a patent, but 
subsequently proves to be not in the best interest of the public under this section, it can be invalidated 
through a request under Section 37 of the Act. 
Section 32 (Exploitation by Government or Pers on Authorized by Government), provides that 
a patented invention can be exploited by the govern ment or an authorized person even without the 
consent of the right holder where public interest, in  particular, national security, nutrition, health or 
the development of other sectors of the national ec onomy requires, or where the Minister determines 
that the nature of the exploitation of the patent ed invention by, the owner or licensee is anti 
competitive and that the exploitation of it in accordance with this division would remedy it. 
The Minister, however, prior to granting the author ization. must be satisfied that the owner of 
the patent had received from the government agency of person requesting the authorization, a request 
for a contractual licence but that that agency or person had been unable to obtain the license on 
reasonable commercial terms and conditi ons and within a reasonable time. 
  The provision neither describes any particul ar events or cases to do this (apart from 
mentioning "national emergency"), nor does it d escribe any measures to take to ensure it. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 7 
 
 
 B. C
OPYRIGHT AND RELATED RIGHTS  
2. Please state how your legislation provides fo r 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  Articles 1-21 of the Berne Convention and 
the Appendix to the Berne Convention (1971). 
 Papua New Guinea is yet to accede to the Bern e Convention.  However, by virtue of the 
TRIPS Agreement it has given effect to Articles 1 - 21 of the Berne Convention.  The basic principles 
laid down in the said convention have been  generally adopted with little alterations. 
 
 Authors' works in books, pamphlets, articles, computer programs and other writings, 
speeches, lectures, addresses, sermons and other oral works are expressly protected under Section 4 of the Copyright and Neighbouring Rights Act.  Their economic and moral rights are expressly 
stipulated and protected under Sections 6 and 7 respectively. 
 
3. Please describe the protection accorded to  authors of computer programs, databases or 
compilations of data.  
 See generally discussion in 2 above.  The words "computer program" are defined as "a set of 
instruction expressed in words, codes, schemes or in any other form, which is capable, when 
incorporated in a medium that the computer can r ead of causing a computer to perform or achieve a 
particular task or result". 
 
 Computer programs are expressly protected under Section 4(1)(a)(i).  Derivative works, including collections of works and databases, whethe r in machine readable or other forms, are also 
protected under the same Section in (1)(b)(ii). 
 
4. Please state whether your legislation provides for a rental right and, if so, the works to 
which it applies. 
 Rental rights are expressed in Section 6 (Ec onomic Rights).  A copyright owner has rental 
rights of his original or copy of his work whethe r it be an audiovisual work, work embodied in a 
sound recording, a computer program, a database or a musical work in the form of notation.  Rental does not apply to rental of a computer program wh ere the program itself is not the essential object of 
the rental. 
 
5. Please describe the rights granted to performers, producers of phonograms (sound 
recordings) and broadcasting organizations under your legislation. 
(a) Subject to the express limitations (see part 2 of the response to question 6 below) a performer 
has the exclusive right to carry out or  authorize any of the following acts: 
(i) The broadcasting or other communication to the public of his performance, except 
where the broadcasting or other communication is made from the fixation of the performance (limitations of these are expressed), or is a rebroadcasting made or authorized by the organization initially broadcasting the performance; and 
(ii) The fixation of his unfixed performance; and 
(iii) The direct or indirect reproduction of a fi xation of his performance in any manner or 
form; and IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 8 
 
 
 (iv) The first making available to the public of a fixation of his performance, or copies 
thereof, through sale or other transfer or ownership; and 
(v) The rental to the public or public lending of a fixation of his performance, or copies 
thereof, irrespective of the ownership of the copy rented or lent; and 
(vi) The making available to the public of his fixed performance, by wire or wireless 
means, in such a way that members of the public may access them from a place or at a 
time individually chosen by them. 
Where the performer has authorized the incorpor ation of his performance in an audio-visual 
fixation, the above has no further application. 
 
A performer has an independent right in r espect of his live aural performances and 
performances fixed in phonograms to claim to be identified as the performer of the performances and 
the right to object to any distortions, mutilation or other modification of his performances that would be prejudicial to his reputation. 
 
(b) Subject to the express limitations (see part 2 of the response to question 6, below), a producer 
of a sound recording has the exclusive right to carry out or authorize the following acts: 
(i) The direct or indirect reproduction of th e sound recording in any manner or form; and 
(ii) The importation of copies of the sound recording; and 
(iii) The making available to the public by sale or other transfer of ownership of original 
or copies of the sound recording that has not already been subject to a distribution authorized. by the producer; and 
(iv) The rental to the public or public lending of a copy of the sound recording irrespective 
of the owner of the copy, rented or lent; and 
(v) The making available to the public of the sound recording by wire or wireless means, 
in such a manner that members of the public may access it from a place or at a time individually chosen by them. 
There is an express provision for a single equitable remuneration 
to be paid to the producer by 
the user for the use of sound reco rding, where it is published for commercial purposes (or copies of it) 
and it is directly used for broadcasting or other co mmunication to the public.  This amount is to be 
divided as they agree or in the ab sence of such agreement, by half. 
 (c)  Subject to the express limitations (see part 2 of the response to question 6 below), broadcasting organizations have the exclusive rights to carry out or to authorize the following acts: 
(i) The rebroadcasting of the broadcast; and 
(ii) The communication to the public of the broadcast; and 
(iii) The fixation of the broadcast; and (iv) The reproduction of the fixation of the broadcast.  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 9 
 
 
 The rights above are to be protected from the moment when the broadcasting take place until 
the end of the fiftieth calendar year followi ng the year in which the broadcast takes place. 
 
6. Please state whether your legislation provides for any limitation or 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 light of Arti cles 13 and 14.6 of the TRIPS Agreement. 
(1) Specific actions stated in Sections 8-16 of the Copyright and Neighbouring Rights Act 2000 
limit the exclusive right of authorship (i.e. the authors' authorization need not be obtained), 
which include: 
 
(a) Private reproductions for personal purposes; 
(b) Temporary reproductions; 
(c) Quotations; 
(d) Reproductions for teaching; 
(e) Reprographic reproductions by public institutions; 
(f) Reproductions, broadcasts and other communi cation to the public for information 
purposes; 
(g) Reproductions and adaptations of computer programs;   
(h) Importation of works for personal uses; 
(i) Display of works; 
Provided that those reproductions are compatible with fair practice and do not exceed the 
extent justified by the purpose.  There is no defi nition of "fair practice", and as to what would be 
"justifiable" may be a question of law.  (2) The rights of performers, producers of sound recordings and broadcasting organizations do 
not apply where the acts referred to (as stated a bove in the response to question 5) are related 
to:- 
 
(a) the use of short excerpts for reporting current  events to the extent justified by the 
purpose of providing current information; or 
(b) reproductions solely for scientific research; or 
(c) reproductions solely for the purpose of fa ce-to-face teaching activities except for 
performances and phonograms wh ich have been published for teaching or instruction 
materials; or 
(d) cases where, under part 1 of the response to  question 6 above, a work can be used 
without the authorization of the author or owner of copyright. IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 10 
 
 
 7. Please state the terms of protection of each right described above and the work or 
subject matter to which it applies. 
Copyright
 
 
(a) The author's economic and moral rights as steed are protected during the life of the 
author and fifty years after his death. 
(b) The same applies for wo rks of joint authorship. 
(c) For collective work other th an work of applied an, and in  the case of an audio-visual 
work, the economic and moral rights are protected for a period of fifty years from the 
date on which the work was first made, firs t made to the public or first published, 
whichever occurs last. 
(d) For works published anonymously or under a pseudonym the economic and moral 
rights shall be protected for a period of 50 years from the date on which the work was first made, first made available to the public or first published, whichever occurs last, 
provided that where the author's identity is re vealed or is no longer in doubt before 
the expiration of the said period then the period stated in parts (a) or (b) of the response to question 7 apply.  The above rights are protected from the publication of sound recording until the end of the fiftieth  calendar year following the year of 
publication, or if not published, from the year of the fixation. 
Neighbouring rights
 
 
(a) Rights of performers:  Protected until the end of the fiftieth calendar year following 
the year in which the performance was fi xed in a phonogram. or in the absence of 
this, the year in which the performance took place. 
(b) Rights of producers of sound recordings:  The protection lasts fifty calendar years 
from the year of the publication of the sound recording, or if not published, from the 
year of the fixation of the sound recording. 
(c) Rights of broadcasting organizations:  The protection begins from the moment the 
broadcasting takes place until the end of the fiftieth calendar year following the year 
in which the broadcast takes place. 
The rights and subject matters have be en listed in the preceding paragraphs. 
 
8. Please state how your legislation grants the retroactive protection provided pursuant to Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS Agreement) and Article 14.6 of the TRIPS Agreement. 
Despite there being no express provision granting retroactive protection pursuant to the said 
provisions of the Conventions, the Act does recognize a nd provide for priority dates.  It may be noted 
also that under the miscellaneous provisions of the Act (in Section 32), it is expressed that the 
provisions of any international treaty in respect of copyright and neighbouring rights to which Papua New Guinea is a party shall apply to matters dealt with under the Act, and the treaty shall prevail to 
the extent of any inconsistency.  
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 11 
 
 
 C. T
RADEMARKS  
9. Please give the definition of a sign under your national legislation and explain under 
what conditions it is protectable. 
 The word "sign" is not defined under the Trad e Marks Act, Chapter 385.  Instead the term 
"mark" is defined to "include a devise, brand, head ing, label, ticket, name, signature, word, letter or 
numeral or any combination of them".  Smell and sound marks are not protected.   A mark is registrable in Part A of the Register if it is distinctive.  Ev idence must be furnished 
to show that a mark is distinctive to be capable of registration in this Part.  Registrable marks in Part 
A may contain or consist of: 
 
(a) the name of a person represented in a special or particular manner;  or 
(b) the signature of the applicant for re gistration or of some predecessor in his 
business; or 
(c) an invented word; or 
(d) a word; 
(i) not having a direct reference to the quality of character of the goods 
respect of which registration is sought; and 
(ii) not being, according to its ordinary meaning, a geographical name or 
a surname; or 
(e) any other distinctive mark. 
A mark is registrable in Part B if it is distin ctive or is capable of becoming distinctive, of 
goods in respect of which registration of the trad emark is sought and with which the applicant for 
registration is or may be connected in the course of trade. 
 
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. 
 Services are a protectable subject matter unde r the Trade Marks Act.  The definition of 
"goods" in Section 1 includes "services". 
 
11. Please explain what the requirements of use are, 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. 
For purposes of applying for the registration of a trademark, the applicant is not obliged to 
furnish prior evidence of use of th e mark.  The Act allows for the removal of a registered mark in 
respect of any goods in respect of which it is regi stered, only upon an application be an aggrieved 
person on the following grounds: 
 (a) that the mark was registered without an intention in good faith on the part of the 
applicant for registration that it should be used in relation to those goods by him or in IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 12 
 
 
 cases of a registered user, that there is in  fact no use in good faith in relation to the 
goods by the registered proprietor or user of the mark for the time being earlier than 
one month before the application; or 
(b) that up to one month before the applicati on, a continuous period of not less than three 
years had elapsed during which the trademark was a registered trademark and during 
which there was no use in good faith of the trademark in relation to those goods by the registered proprietor or a registered user of the trademark for the time being.  
12. Please confirm whether or not your legislation permits that the registration of 
trademarks be indefinitely renewable. 
 This is confirmed.  Section 46 provides for this. 
 
13. Please describe the special requirements, if any, prescribed by your legislation concerning the use of a trademark. 
 There are no express special requirements concerning the use of a trademark. 
 
D. G
EOGRAPHICAL INDICATIONS  
14. Please explain whether or not your tr ademark registration authority refuses a 
trademark application if it contains a geographical indication. 
 Trademark applications that contain geographi cal names or other geographical indications are 
generally refused registration.  In most cases th e applicants are required to submit evidence of 
distinctiveness of the mark through extensive use of th e mark for at least a period of three (3) years. A 
decision is then made on whether the mark may be re gistered in Part A or Part B of the Register. 
 
15. Please give the definition of a geographical indication in your legislation. 
 The term is not defined in the Trade Marks Act. 
 16. Please describe and explain the provisions of your legislation establishing a link, if any, between the characteristics of an indication and its geographical origin. 
 There is no such provision under the current Trade Marks Act, Chapter 385. Amendments, in 
light of the TRIPS Agreement and international pr actices, are being proposed but yet to be submitted 
for passing by the National Parliament.  17. Please describe how additional protection is granted by your legislation to wines and 
spirits.  Please mention other types of products, if any, covered by this additional protection. 
 There is no provision for this in the present Tr ade Marks Act. (Please refer to comments in the 
response to question 16 above).  18. Please explain how exceptions under Articl e 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. 
 This has not been catered for in the present Act. (Please refer to comments in the response to 
question 16 above).  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 13 
 
 
 E. I
NDUSTRIAL DESIGNS  
19. Please explain whether or not your legislation extends to the protection of designs 
dictated essentially by technical or functional considerations.  Please explain how textile designs 
are protected. 
 This is not specifically stated.  There is no specific provision on the protection of textile 
designs, instead a general provision on industrial designs  is made, and considering the definition of an 
"industrial design" such are accommodated and can be protected.  
 
20. Please explain how your legislation protects right holders of a design against importing 
of articles bearing embodied or copied design. 
 There is no specific provision for this. Howeve r, action can be taken by the right holders 
under Section 49 of the Patents and Industrial Desi gns Act 2000 for a remedy.  The provision is in 
wide terms and allows a right holder to take Court action where his right is breached or is likely to be 
breached.  
 21. Please state whether or not your legislation provides for the right to issue a compulsory 
licence for industrial designs. 
 The Patents and Industrial Designs Act 2000 does not provide for this. 
 
22. Please indicate for what period of time your legislation grants protection for industrial 
designs. 
 Section 50 of the Patents and Industrial Designs Act 2000 provides that the registration of an 
industrial design shall expire five (5) years after the filing date of the application for registration.  The 
registration can be renewed for two furt her consecutive periods of five years. 
 
F. P
ATENTS  
23. Please describe how your legislation defin es the notions of: novelty, inventiveness and 
industrial application. 
(a) Under Section 13 of the Patents and Industria l Designs Act 2000, an invention is new "where 
it is not anticipated by prior art". 
(b) Under Section 14 of the said Act, an invention involves an inventive step where it would not 
have been obvious to a person skilled in the rele vant act in the light of the common general 
knowledge as it existed prior to the filing or, wh ere appropriate, the priority date of the 
application claiming the invention. 
(c) Under Section 15 of the said Act, an invention is industrially applicable where it can be made 
or used any in kind of industry, which includ es handicrafts, agriculture, fishery and services. 
24. Please explain whether or not in your legislat ion, patent or otherwise, patent rights are 
enjoyed without any exclusions.  If exclusions  are provided for, please describe in detail how 
these exclusions are applied in legal as well as practical terms. 
 There are no exclusions to the enjoyment of pate nt rights by owners.  (Also please refer to the 
second paragraph of the response to question 1,  on the discussion on Section 32 of the Act). IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 14 
 
 
 25. Please explain whether your legislation provides 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 al so explain if it has been applied in practice. 
 Section 12 (2) of the Act makes a general provision in the following terms -  
 
 "An invention, the commercial exploitation of which would-  
(a) be contrary to public order or morality; or 
(b) … 
is not patentable". 
 The Act is not yet in force.  However, with the finalization of the Regulations, this should be 
enforced within this year (2001). 
 
26. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded 
from patentability in your legislation. If so, pl ease explain the relevant section of your legislation 
and explain its formulation. 
 Yes. Section 2 of the Act expressly states that "invention ..., does not include diagnostic, 
therapeutic and surgical methods, but not including an y products for use in any such methods, for the 
treatment of humans and animals." 
 
27. Please explain whether or not plants, an imals 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. 
 There is no express provision on this under the Act. 
 
28. Please describe how micro-organisms , non-essentially biological processes, 
microbiological processes and plant varieties are prot ected in your legislation. Please explain, in 
this respect, the relevant sections of your legislation. 
 There is no provision for this under the Act. 
 
29. Please explain how your legislation prot ects patent right holders against the importing 
and against the offering for sale of a patented invention. 
 There is no specific provision for this.  However,  Section 29 of the Act (Rights considered by 
a Patent) prohibits "the exploitation in Papua New Guinea of a patented invention by persons other 
than the owner of the patent".  Under Section 2 of the Act, the phrase "exploitation of a patented 
invention" means any of the following acts: 
 
"(a) where the subject matter of a patent is a product -  
(i) making, using, offering for hire, selling and importing  the product; 
and 
(ii) …  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 15 
 
 
 (b) Where the subject matter of a patent is a process- 
(i) ... and (ii) using, offering for sale, selling and importing  a product obtained 
directly by means of the process." 
 Empowered by the TRIPS legislation (now awaiting gazettal), Customs agents will be 
assisting in the enforcement of the rights. 
 
30. Please state if your legislation provides fo r patent product protect ion of pharmaceutical 
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference. 
 This is not expressly stated under the Act.  The Act, however, makes broad provisions, under 
which these, except plant varieties, can be  protected (see Section 12 of the Act). 
 
31. Please clarify if the patent protection of a process, as provided for in your legislation, 
covers the product obtained directly by that process. 
 Yes. Please also refer to part (b) of the response to question 29, above. 
 
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 legi slations and describe the additional conditions 
in detail. 
 There are no additional conditions stipulated. 
 
33. Please describe if your legislation provides for limited exceptions to the exclusive rights 
conferred by a patent.  If affirmative, pl ease make a reference to relevant legislation. 
The Act makes certain limitations on the right of  owners of patent under Section 29 (4) of the 
Act.  Patent owners' rights shall not extend to: 
 
(a) acts in respect of articles which have been  put on the market in Papua New Guinea by 
the owner of the patent or with his consent; or 
(b) the use of articles on, or in the constructi on or operation of, aircraft, land, vehicles or 
vessels of other countries which temporarily or accidentally the air space, territory or 
waters of Papua New Guinea; or 
(c) acts done only for experimental purposes re lating to a patented invention; or 
(d) acts done by any person who, in good faith, before the filing of an application for 
grant of patent, or where priority is claiming the priority date of the application on 
which the patent is granted, was exploiti ng the invention or was making effective and 
serious preparation for such exploitation in Papua New Guinea; or 
(e) acts performed by any person who proves that, at the date of any infringement of a 
patent, he was not aware, and had no reasona ble grounds to believe, that a patent for 
the invention existed. IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 16 
 
 
 34. Please explain whether or not your legislat ion provides for compulso ry licensing. If so, 
please explain in detail the conditions under which a compulsory licence may be granted.  In 
particular, please explain how your national le gislation considers individual merits in the 
authorization of such use. 
 The Act does not make provision for this. 
 
35. Please explain how your legislation explic itly ensures that a proposed user has made 
efforts to obtain authorization from the ri ght holder on reasonable commercial terms and 
conditions and that such efforts have not been su ccessful within a reasonable period of time. In 
this context, how do you define "reasonable p eriod of time".  Please also explain how your 
legislation ensures that the use of a compulsory licence shall be authorised predominantly for the supply to the domestic market of the Member authorizing such use. 
 Generally see part (b) of the response to qu estion 1, above. "Reasonable Period of Time" is 
not defined anywhere under the Act. 
 
36. Please state if your legislation grants additional protection for innovations after the 20 
years of patent protection has lapsed. 
 Under the Act, the duration of a patent is 20 years.  There is no additional protection in the 
Act for innovations after the 20 years of the patent protection has lapsed.  37. Please explain how your legislation provid es for the enhanced patent protection of 
patents or patent applications pending on 1 January 1995. 
 The Act does not provide for this. 
 
38. Please explain how your legislation provides for the reversal of the burden of proof in 
relation to process patents. 
 Under Section 30 of the Act, in infringement of a patent, where the subject matter of the 
patent is a process for obtaining a product, the onus  of establishing that the product was not made by 
the process is on the alleged infringer where the Court is satisfied that -   
(a) a substantial likelihood exists that the product was made by the process; and 
(b) the owner of the patent has been unable through reasonable efforts to 
determine the process actually used. 
G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS  
39. Please describe how your legislation protects Topographies. 
 Layout-designs of integrated circuits are not provided for in the current legal structure on 
intellectual property.  Questions 39 through to 42 will not be answered. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 17 
 
 
 40. Please explain what protection your national legislation grants to right holders against 
the unlawful importation, sale or distribut ion for commercial purposes of topographies 
including integrated circuits or other articles  in which a topography is incorporated in 
accordance with Article 36 of the TRIPS Agreement. 
Please refer to the response to question 39. 
 
41. Please explain how your legislation provides for the derogation from Article 36 as specified in Article 37 of the TRIPS Agreement 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.  
Please refer to the response to question 39. 
 
42. Please state the term of protection granted by your legislation to topographies. 
Please refer to the response to question 39. 
 
H. P
ROTECTION OF UNDISCLOSED INFORMATION  
43. Please explain whether or not your legislation grants a defined period of time for the 
protection of undisclosed information. If so, please give the time span. 
 The current law on Intellectual Property does not provide for a definite period for the 
protection of undisclosed information, or define this t ype of IP.  This type of IP is not legislated for 
presently.  Data submitted to governments or gove rnmental agencies is not provided for in the 
legislation. 
 
44. Please explain how your legislation defines "undisclosed information". 
 Please see the response to question 43. 
 
45. Please explain how your legislation defines data submitted to governments or 
governmental agencies. 
 Please see the response to question 43. 
 I. E
NFORCEMENT  
46. Please describe how your legislation provides for effective action against infringement of 
intellectual property rights. 
 Both civil and criminal action can be in stigated under the Acts to enforce a right. 
 Patents and Industrial Designs:
 
 
- Civil Remedies:   Right owners or any other interested person can  take no civil proceeding under the Act, and if 
the other party is found to be infringing their rights or is doing an action that which makes it likely that the patent or industrial design will be infringed, the Court –  
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 18 
 
 
 (a) may grant an injunction; or 
(b) make an order for the inspection of anythi ng in or on any vessel, vehicle, aircraft, 
building or premises; or 
(c) award damages; or 
(d) order an account of profits. 
- Criminal Remedies: 
 
(a) A person convicted on false representations about a patent or industrial design faces a 
fine not exceeding PNGK10 000.00, and a default penalty not exceeding 
PNGK1000.00 
(b) The same maximum fines apply to pers ons guilty of disobedience to summons to 
either appear as a witness before the Registrar, or produce a document required by the Registrar (if there is no lawful excuse). 
(c) On conviction on any, general offence unde r the Act, the penalty of which is not 
specified, a fine hot exceeding PNGK5000.00 applies. 
(d) The Registrar has power under the Act to prosecute any offence under the Act.  Any 
other person can do so after obtaining the written consent of the Registrar. 
Copyright:
 
  The Court has powers to order conservatory and provisional measures under the Copyright 
and Neighbouring Rights Act 2000.  Under this power, the regular Courts may: 
 
(a) grant injunctions, whether interlocutory or  perpetual, to prohibit the committing or 
continuation of committing of any infringement of copyright; or 
(b) order the impounding of copies of work or  sound recordings suspected of being 
made or imported without the authori zation of the right owner  where the 
making, or importation of copies is subject  to authorization by the right owner; 
(c) order the impounding of packaging of implements that could be used for the 
making of copies of works and sound reco rdings, and the documents, accounts or 
business papers relating to such copies. 
- Civil Remedies: 
 
(a) The right owner is entitled to payment of damages where is right is infringed, 
including the expenses caused by the infringement.  The amount of damages is determinate upon the importance of the mate rial, the moral prejudice suffered by the 
right owner and importance of the infringer's profits attributable to the infringement. 
Where the infringer did not or had no justifia ble reason to know he was engaged in an 
infringing activity, the damages may be reduced.  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 19 
 
 
 (b) Copies of infringing goods may be destroyed unless the right owner requests 
otherwise.  This does not apply to third parties where the copies were obtained in good faith. 
(c) Where it appears to the Courts that ther e is a likelihood of an act of infringement 
continuing, the Court may order that such an act of infringement be ceased.  Failure 
to comply with this order carries a maximum fine (on conviction) of PNGK100 000.00. 
- Criminal Remedies: 
 
(a) A person who infringes any right protected under the Act wilfully or by gross 
negligence and for profit making purposes is gu ilty of an offence and may be liable to 
either imprisonment for a term not exceeding 10 years, or a fine not exceeding PNGK100 000.00 or both. 
(b) The provisions of the Criminal Code deali ng with search and seizure also applies in 
proceedings under this Act; and 
 (c) The provisions of the Customs Act dealing with illegal goods will also apply to 
articles and implements used in relation to infringement of rights under this Act. This 
is included in the 'TRIPS Legislation' pending in Parliament. 
 Trademarks
 
 
 The Court may grant an injunction against th e committing, or continuation of committing of 
an infringing activity, and, at the option of the plaintiff either  damages or an account of profits. 
 
Forgery of trademarks, or falsely applying a trademark to goods or producing dies, blocks, 
machines or instruments for purposes of forcing a tr ademark are offences that attract a maximum of 
three years imprisonment or fine not exceeding PNGK2000.00. (Note that the fines under the Trade Marks Act are presently under review).  
Selling or importing goods with false marks a ttracts a maximum fine of PNGK500.00.  The 
same maximum fine applies to anyone aiding or abetting, counselling or procuring directly or 
indirectly any person in the commission of an offence under the Act. 
 Infringing goods shall be forfeited to the stat e upon conviction of the person involved in the 
infringing activity. 
 
Enforcement agencies include Customs officers a nd the police, under the various provisions 
of the Customs Act and the Criminal Code Act. 
 
47. Please explain whether or not your legislat ion provides for a mechanism to appeal to 
judicial bodies of final administrative decisions. 
 Yes.  Aggrieved persons in the Registrar's d ecisions can appeal to the Courts.  Once a case 
comes before the Courts, the normal appeal process can  be followed to the highest Court.  No time-
period is mentioned within which to appeal the decisi ons of the registrar, except for patents, which is 
for one month from the date of notification of the decision of the registrar. 
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 20 
 
 
 48. Please describe how your legislation author izes judges to order production of evidence 
by the opposing party.  Please give precise info rmation on what measures are taken to ensure 
the protection of confidential information. 
 The Registrar has express powers to order persons  to appear to civil evidence or to produce 
documents. Judges have the power to do so under the norw21 civil action proceedings as stipulated 
under the National Court Rules on pleadings.  An y privileged information or manufacturing or 
business secrets (confidential information) may not be  disclosed.  The person against whom the order 
to produce documents is nude should indicate the na ture of the documents and claim privilege over 
them.  The judge will have to decide whether or not the information is indeed privileged and should 
not be disclosed. 
 
49. Please quote provisions of your legislation that authorize judges to order a defendant to 
desist from an infringement. 
Patents
 
 
 Section 29 (3) of the Patents and Industr ial Designs Act 2000 reads (for Patents) - 
 
"Where the Court finds that a patent has been infringed or is likely to be infringed, it may, on the application of the owner of the patent or an y other interested person, and in respect of any 
person: 
 
(a) grant an injunction, subject to such te rms, if any, as the Court thinks fit; or 
(b) make an order for the inspection of anyt hing in or on any vehicle, vessel, aircraft, 
building or premises and may impose such term s and give such directions, if any, in 
relation to the inspection, as the Court thinks fit." 
 Section 49 (3) of the Patents and Industrial Designs Act 2000 reads (for Industrial Designs) -  
 
"Where the Court finds that a registered industrial design has been infringed or is likely to be infringed, it may, on the application of the owner of the patent or any other interested person, 
and in respect of any person, 
 
(a) grant an injunction, subject to such term s, if any, as the Court thinks fit,  or 
(b) make an order for the inspection of anyt hing in or on any vehicle, vessel, aircraft, 
building or premises and may impose such term s and give such directions, if any, in 
relation to the inspection, as the Court thinks fit." 
Copyright and Neighbouring Rights Act
 
 
 Under Section 26 (1) of the Copyright and Neighbouring Rights Act 2000, it is stated:  
"The Court shall have the authority, under its civil and criminal jurisdiction, and oil such 
terms as it may deem reasonable - 
 
(a) to grant injunctions to prohibit the committing or continuation of committing, of an 
infringement of any right protected under this Act; or  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 21 
 
 
 (b) to order the impounding of copies of works or sound recordings suspected of being 
made or imported without the authorizati on of the right owner where the making or 
importation of copies is subject to such authorization-, 
(c) order the impounding of packaging of implem ents that could be used for the making 
of copies of works and sound recordings , and the documents, accounts or business 
papers relating to such copies. 
 Under Section 27(7) of the said Act, the following is stated: 
 
"Where it appears to the Court that there is likelihood of an act of infringement continuing, 
the Court may order that such act of infringement shall cease to be continued." 
 
Trademarks Section 56 of the Trade Marks Act lays down a general provision in the following 
terms: 
 
"The relief which a Court may grant in an action or proceeding for infringement of a 
registered trademark includes an injunction, subj ect to such terms (if any) as the Court thinks 
fit and, at the option of the plaintiff, either damages or an account of profits." 
  (Please refer generally to the response to question 46, above). 
 
50. Please quote what provisions of your legislation authorize judges to order the payment 
to the right holder of adequate damages to compensate the injury he suffered. 
Patents and Industrial Designs
 
  Sections 29 (3)(c) and (d) and 49 (3)(c) a nd (d) provide for damages for infringement of 
Patents and Industrial Designs. 
 Copyright
 
 
Section 27 of the Copyright and Neighbouring Rights Act provide for damages in copyright. 
infringement 
 
Trademarks  
  Section 56 of the Trade Marks Act provides for the award of damages to the trademark owner 
in cases of infringement of his registered trademark.  51. Please quote what provisions of your legislation authorize judges to order the payment of the right holder's expenses by the infringer. 
 There is no express provision in the Acts for Pa tents, Industrial Designs and Trademarks.  The 
Trade Marks Act, in this regard, only empowers a party to pay costs to another party, but this seems to 
indicate expenses for legal proceedings. 
 
The Copyright and Neighbouring rights Act does make such express provision under 
Section 27. 
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 22 
 
 
 52. Please explain if and how judges have the authority to order that infringing goods are 
placed outside channels of commerce or destroyed. 
 The Acts do not express how, where and the means of placing infringing goods outside 
channels of commerce to be destroyed. Genera l provisions, however, mention that such goods be 
either forfeited to the state (trademarks) or (for copyright), simply destroyed unless requested 
otherwise by the right owner.  There is no e xpress provision for patents and industrial designs. 
 
53. Please quote what provisions of your legislation authorize judges to indemnify a defendant in the event of abuse by the plaintiff. 
 Indemnification of defendants has not been expressly provided for in the present intellectual 
property Acts.  
 
54. Please explain how your legislation implements Article 50 the TRIPS Agreement. 
The general provisions under the IP Acts reas onably enforce this provision of the TRIPS 
Agreement.  Provision is made for right owners to seek remedy against actions performed that may 
likely  lead to an infringement of their rights.  Further an order to inspect any thing , in or on any 
vehicle, vessel, aircraft, building or premise will en sure that any such acts may be identified and dealt 
with.  Lastly, provision is made that any person in possession of an article, instrument, machine or 
devise for the production of infringing goods (trademark  infringement) is guilty of an offence.  For 
copyright, provision is made to order impounding or p ackaging of implements that could be used to 
produce copies or works and sound recordings. 
  There is no express provision on preservation of re levant evidence in regard to the alleged 
infringement.  Apart from customs checks on illegal goods under the Customs Act, there is no specific 
provision for the prevention of the entry in channels of commerce the infringing goods.  55. Please identify the competent authorities in  your jurisdiction who receive requests from 
right holders for an application to suspend the release of counterfeit goods by the customs authorities. 
 The Act does not specify this.  However, there is a coordinated effort between the Intellectual 
Property Office  of Papua New Guinea, the Customs (Intern al Revenue Commission), the Police and 
the Attorney General, to share responsibilities in th e enforcement of IP laws  in Papua New Guinea. 
The Customs officials are  directly responsible for border m easures enforcement and would be the 
competent authority in this matter.  (See the response to question 46, paragraph (c) under the heading 'Copyright' and the sub-heading 'Criminal Remedies').  56. Please indicate whether or not procedures  are available to suspend the exporting of 
counterfeit goods. 
 There are no stipulated procedures under the body of  IP legislation.  However, it is understood 
that the rules of unlawful exports and exporting u nder the Customs Acts and procedures would apply. 
(Note the response to question 55, above). 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 23 
 
 
 57. Please quote what provisions of your legisl ation authorize the competent authorities to 
order the destruction or disposal of infringing goods. 
 Only the Copyright and Neighbouring Rights Act has this expressly stated in Section 27 (4) of 
the Act.  The Trade Marks Act only mentions "fo rfeiture" to the state. The Patents and Industrial 
Designs Act is silent on this matter. 
 
58. Please indicate whether or not your legislation provides for a de minimis imports exception. 
 There is no express  mention of this in the IP  legislation.  However, the Customs Act and 
regulations does address this issue.  
 
59. Please explain how your legislation implem ents Article 61 of the TRIPS Agreement. 
 This is adequately implemented under both  the Copyright and Neighbouring Rights Act 2000 
(under Part IV) and the Patents and Industr ial Designs Act 2000.  (Please refer to the  discussions in 
the response to question 46, above).  The part on se izure, forfeiture and destruction of infringing 
goods is not adequately covered under th e Patents and Industrial Designs Act. 
 The Trade Marks Act does make wilful trademark counterfeiting an offence.  Again, however, the current amount of fine is outdated.  The Act does state that infringing goods be forfeited to the 
state.  
 
 
IV. RESPONSE TO A QUESTION POSED BY JAPAN 
C
OPYRIGHT AND RELATED RIGHTS  
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. 
 There is no express exception in the Copyright and Neighbouring Rights Act 2000. 
  
V. RESPONSES TO QUESTIONS POSED BY SWITZERLAND 
A. P
ATENTS  
1. In your law, are patents available for all ca tegories of products? In particular, are all 
pharmaceutical products patentable? Are there an y exceptions? If so please explain in detail 
what these exceptions are and how they comply  with Article 27 of the TRIPS Agreement. 
 The provision on "patentable inventions" is in  very broad and in gene ral terms.  Further, 
according to the meaning of "invention", any produc t for use in diagnostic, therapeutic and surgical 
methods are patentable, but not the method themselves. 
  The Act does not specifically and expressly mention the categories of patentable products, e.g., pharmaceutical products, plant varieties and micro- organisms.  As it is, it covers a wide range of 
products.  IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 24 
 
 
 2. Does your law, in accordance with Article 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)? 
 Yes.  According to the definition of "explo iting an invention", importation of a patented 
product constitutes an exploitation or working of a patent. 
 
3. Does your law make compulsory licenses s ubject to all the conditions enumerated in 
Article 31 of the TRIPS Agreement? Please cite the relevant provisions of law. 
 Yes, under Section 32 of the Act, (except clause (e) has not been clearly expressed, and the 
Act makes no difference to clause (1)). 
 
Follow-up question
 
 
 In your answer, you mention that the condition set out in Article 31(e) of the TRIPS 
Agreement is not expressly mentioned in your legisl ation.  Does this mean that this provision is 
directly applicable in your legislation? 
 
 Section 32 of the Patents and Industrial De signs Act 2000 (certified only) clearly seeks to 
enforce Article 31 of the TRIPS Agreement.  Despite the unexpressed provision for Article 31(e), it can reasonably be implied that assignment (of the right to use of the subject matter of a patent) is not a 
right acquired with the right to use the subject matte r of a patent.  The Act clearly limits the right (of 
the authorized person) to use
 the subject matter of a patent only, and not to any other rights.  The said 
Section also expressed in Sub-section (6)(c) that:   "(6) The exploitation of a patented inventio n which is authorized by the Minister (under 
sub-sub-section (1)): 
   (c) shall not
 exclude: 
    (i) the conclusion of licensing contracts by the owner of the patent;  and  
  (ii) the continued exercise, by the  owner of the patent, of his rights under 
Section 29(1)." 
  The basis of Section 32 is founded on Article 31 of the TRIPS Agreement, and therefore its 
intention, purpose and scope can be ascertained by,  and/or, linked to, this Article of the TRIPS 
Agreement. 
 
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. 
 Yes.  This is provided for under Section 30. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 25 
 
 
 B. P
ROTECTION OF UNDISCLOSED INFORMATION  
5. Please explain in detail if your legislation ensures that undisclosed and confidential test 
data or other data submitted by an applicant to the responsible State agency in the procedure 
for market authorisation of a pharmaceutical or of an agricultural chemical product is 
protected against disclosure and against unfair comm ercial use by a competitor, for example by 
prohibiting a second applicant from relying on, or fr om referring to the original data of the first 
applicant, when applying subsequently for mark et authorisation for his own product.  Does 
your legislation provide for exceptions to this ? If yes, under what conditions would such 
exceptions apply? Does your legislation provide for a defined period of protection for 
undisclosed information / for such t est data of the first applicant? 
 The current IP legislation does not provide for the protection of undisclosed information, 
including confidential test data or other data submitte d by an applicant to the state in the procedure for 
market authorization.  Follow-up question
 
  You mention that there is no legislation governing undisclosed information in your country. Does this mean that the obligations co ntained in Article 39 of the TRIPS Agreement 
are directly applicable in your legislation? 
  From the body of current PNG IP or IP related legislation, protection of undisclosed 
information would be impossible due to lack of pr ovision for this.  However, although there is no 
legislation in place for the protection of undisclosed  information, the Article's definition of this 
subject under Article 39(2) (a), (b) and (c) clearly  qualify this matter as trade secret under the 
principles of trade secret law under Common Law a nd Equity.  The British Common Law and Equity 
is adopted by the PNG National Constitution to c onstitute part of the country's underlying law. 
  An alternative would be, for example, to in corporate protection clauses into confidentiality 
agreements or contract clauses to be governed under the Common Law principles of Contract Law. 
  Because of the harmonious definition of undisclosed information with trade secret, the 
obligations as contained in the Article are directly applicable in PNG under the underlying law and 
therefore may be enforced as such thereunder.   
VI. RESPONSES TO QUESTIONS POSED BY THE UNITED STATES 
A. G
ENERAL  
1. Please describe, in relation to each form of intellectual property covered by the TRIPS 
Agreement, including plant variety protection, th e manner in which nation treatment and most-
favoured-nation treatment are provided to nationals of other WTO Members. 
 Plant variety protection is not provided for in the current IP legislation. There is no express 
mention of the most-favoured-nation or national treatment principles. 
 
 Generally, however, the principles of the WN  and National Treatment are recognized, thus 
the absence of any discriminatory provisions in an y of the existing IP legislation for any form of 
intellectual property presently legislated for.  IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 26 
 
 
  The Copyright and Neighbouring Rights Act speci fically mention in Section 3 (7) that "the 
provisions of this Act shall apply to performer s, producers of sound recordings and broadcasting 
organizations that are eligible for protection by virtue of, and in accordan ce with, any international 
convention or other international agreement to wh ich Papua New Guinea is a party".  The Act also 
provides that in case of inconsistency with any such  agreements, the provisions of the international 
convention or agreement prevails to the extent of the inconsistency. 
 B. C
OPYRIGHT AND RELATED RIGHTS  
2. Please explain whether and how the copyri ght law of Papua New Guinea complies with 
Article 9 of the TRIPS Agreement requiring th at 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 relating to the latter Article under the TRIPS Agreement. 
 The copyright law does comply, to a great exte nt, with Articles 1 through 21 of the Berne 
Convention.  Most of the provisions have been adap ted in very similar wordings, in particular the 
following Articles: 
 
(i) 1;  and 
(ii) 2;  and 
(iii) 5;  and 
(iv) 7;  and 
(v) 7bis;  and 
(vi) 8;  and 
(vii) 9;  and 
(viii) 10;  and 
(ix) 10bis;  and 
(x) 11,  and 
(xi) 11bis;  and 
(xii) 13;  and 
(xiii) 14ter;  and 
(xiv) 15;  and 
(xv) 16. 
 There are no conflicting sections in the Act re lating to the other provisions of the Berne 
Convention not mentioned above. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 27 
 
 
 3. Please explain how the copyright law of Papua New Guinea protects computer 
programs as literary works  and complications of data as re quired by Article 10 of the TRIPS 
Agreement. 
 The words "computer program" are defined as "a set of instruction expressed in words, codes, 
schemes or in any other form, which is capable, when  incorporated in a medium that the computer can 
read, of causing a computer to perform or achieve a particular task or result.   Computer programs are expressly protected under Section 4(1)(a)(i). Derivative works, including collections of works and databases, whethe r in machine readable or other forms, are also 
protected under the same Section in (1)(b)(ii). 
 
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and cinematographic works be available.  Please cite to the corresponding provision of the 
copyright law of Papua New Guinea. 
 Rental rights for copyrighted works are expressed in Section 6 (Economic Rights).  A 
copyright owner has rental rights of his original or copy of his work whether it be an audiovisual work, work embodied in a sound recording, a computer program, a database or a musical work in the form of notation.  Rental does not apply to rental of a computer program where the program itself is not the essential object of the rental. 
 
5. Please state the length and terms of protection the copyright law of Papua New Guinea 
provides  for a work other than a photographic wo rk or a work of applied art and cite to the 
relevant provision of law. 
Under Section 17 of the Copyright and Nei ghbouring Rights Act 2000, it is provided that: 
 
(a) The author's economic and moral rights are protected during the life of the author and 
fifty years after his death. 
(b) The same applies for wo rks of joint authorship. 
(c) For collective work (other than work of applied art), and in the case of an audio-
visual work, the economic and moral rights are protected for a period of fifty years from the date on which the work was first ma de, firs', made to the public or first 
published, whichever occurs last. 
(d) For works published anonymously or u nder a pseudonym - the economic and moral 
rights shall be protected for a period of 50 years from the date on which the work was first made, first made available to the public or first published, whichever occurs last, 
provided that where the author's identity is re vealed or is no longer in doubt before 
the expiration of the said period then the period stated in (a) or (b) above apply. 
Neighbouring rights
 
 
(a) Rights of performers: Protected until the end of the fiftieth calendar year following 
the year in which the performance was fi xed in a phonogram, or in the absence of 
this. the year in which the performance took place; IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 28 
 
 
 (b) Rights of producers of sound recordings: The protection lasts fifty calendar years 
from the year of the publication of the sound recording, or if not published, from the year of the fixation of the sound recording 
(c) Rights of broadcasting organizations: The protection begins from the moment the 
broadcasting takes place until the end of the fiftieth calendar year following the year 
in which the broadcast takes place.  
6. Please describe the protection the copyri ght law of Papua New Guinea provides for 
performers, and the term of the protection. 
 See part (a) in the response to ques tion 5, above, under Neighbouring Rights. 
 
7. Article 14.2 of the TRIPS Agreement provi des that producers of phonograms are to 
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2 requires that producers of phonogr ams are to have the right to authorize or 
prohibit the commercial rental to the public of originals or copies of their phonograms.  Please 
describe how the copyright law of Papua New Guin ea implements these obligations and indicate 
the term of protection. 
Section 22 of the Act provid es for this in these terms: 
"Subject to the express limitations (see (b) below), a producer of a sound recording has the 
exclusive right to carry out or authorize the following acts - 
 
(i) The direct or indirect reproduction of the sound recording in any manner or 
form; and 
(ii) The importation of copies of the sound recording; and (iii) The making , available to the public by sale or other transfer of ownership of 
original or copies of the sound recording that has not already been subject to 
a distribution authorized by the producer; and 
(iv) The rental to the public or public lending of a copy of the sound recording 
irrespective of the owner of the copy rented or lent; and 
(v) The making available to the public of the sound recording by wire or wireless 
means, in such a manner that members of the public may access it from a place or at a time individually chosen by them 
 The exceptions referred to above are - 
 
(a) the use of short excerpts for reporting curre nt events to the extent justified by the 
purpose of providing current information; or 
(b) reproductions solely for scientific research; or 
(c) reproductions solely for the purpose of  face-to-face teaching activities except for 
performances and phonograms wh ich have been published for teaching or instruction 
materials; or  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 29 
 
 
 (d) cases where, under part 1 of the response to question 6 above, a work can be used 
without the authorization of the author or owner of copyright. 
C. T
RADEMARKS  
8. Please describe the subject matter that can comprise a trademark under the trademark 
law of Papua New Guinea. 
 Any mark that is distinctive or is capable of  becoming distinctive is a registrable trademark 
and includes a device, brand, heading, label, ticke t, name, signature, word, letter or numeral, or any 
combination of them.  9. Please describe the procedure that must be followed to register a trademark in Papua 
New Guinea, citing the relevant provisions of the law, and describe the rights that the owner of 
a registered mark can exercise. 
 Part V of the Trade Marks Act Chapter 385 and Part IV of the Trade Marks Regulations 
provide for the procedure of making an applicati on for trademark registration and the requirements 
involved.  In general: 
 
(a) The proprietor of a mark may apply (in pe rson or through his agent) to the Registrar 
in the prescribed manner, i.e. by filing  and submitting a form 4 (Application for 
registration of a trademark). 
(b) The application must specify which part of the Register he wishes to register his mark 
under and must specify the goods in respect of which the registration of the mark is 
sought. 
(c) An application can only be made in respect of goods comprised in one class; i.e. 
separate applications must be made for different classes of goods. 
(d) The application must be submitted with 8 representations of the trademark each 
measuring, unless otherwise allowed, 80mm x 60mm.  One copy of the  representation 
must be fixed in the space provided for in the form and the rest to be attached to the 
form. 
(e) The application(s) must be submitted together with the prescribed fee(s).  
10. Please provide the length and terms of pr otection that the trademark law of Papua New 
Guinea provides for a trademark. 
 A trademark, once registered, is protected for a term of 10 years.  Renewals of the registration 
can be made for further terms of 10 years from time to time.  IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 30 
 
 
 D. G
EOGRAPHICAL INDICATIONS  
11. Please describe in detail how the laws of  Papua New Guinea provide for the recognition 
and protection of geographical indications requi red by Article 22.2 of the TRIPS Agreement, 
citing to the relevant provisions of law or regulation, and provide examples of geographical 
indications so protected.   
 The current Trade Marks Act does not provide fo r the protection of geographical indications.  
A review of the Act is presently being done and proposed amendments, including this matter, are 
being prepared. 
 
12. Please describe in detail the manner in which the higher level of protection required for 
wines and spirits under Article 23.2 of the TRI PS Agreement is implemented, citing to the 
relevant provisions of law or regulation, and provide examples of geographical indications for such products. 
 The present Act does not provide for this. 
 E. I
NDUSTRIAL DESIGNS  
13. Please describe the procedure that must be  followed to obtain protection for industrial  
designs, citing to the provisions of the law of Papua New Guinea, and describe the nature of the 
protection provided. 
(1) Section 43 of the Patents and Industrial Desi gns Act 2000 provides for application to register 
industrial designs.  The application must be filed with the Registrar. 
    The application must contain:  
(a) A request in the prescribed form and 
(b) Drawings, photographs or other adequate  graphic representations of the article 
embodying the industrial design; and 
(c) An indication of the kind of products fo r which the industrial design is to be used; 
and 
(d) Shall be accompanied by the prescribed fee. 
(2) Where the applicant is not the creator a statemen t justifying  the right of the applicant to the 
registration of the industrial design shall accompany the request. 
 (3) Two or more industrial designs may be the s ubject of the same application, provided they 
relate to the same class of the international cl assification or to the same set or composition of 
articles. 
  Protection of industrial designs is mainly judi cial.  Infringement of a registered industrial 
design carries with it both criminal and civil sancti ons.  Penalties include imprisonment for a term of 
years, or fines or both.  
 The Registrar may intervene in infringement cases after being granted leave by the Court. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 31 
 
 
 14. Please describe the procedure that must be followed to obtain protection for textile 
designs and cite to the relevant provisions of law or regulation. 
 Textile designs are not expressly stated under the present Act.  The definition of "industrial 
designs" is a general definition.  There is no speci fic or express procedure to obtain protection of 
textile designs. 
 F. 
PATENTS  
15. Please describe in detail the way in which the patent law of Papua New Guinea 
implements Article 27 of the TRIPS Agreement, indicating any exceptions provided for, and 
including details regarding the protection fo r micro-organisms and non-biological and 
microbiological processes and plant varieties.  Pl ease cite to the relevant provisions of the law. 
 Under Section 12 of the Patents and Industrial D esigns Act 2000, an invention is patentable if 
it:  
(a) Is new, i.e. it is not anticipated by prior art, which consists of everything, disclosed to 
the public, anywhere in the world, by tangible form, or oral disclosure, or use, or any other way. 
(b) Involves an inventive step, and 
(c) Is industrially applicable. "Industry" in this sense must be construed in its broadest 
sense and include handicraft, agriculture, fishery and services. 
 The Act's provision on "patentable inventions" pl us the meaning of "invention" are broad.  
However, micro-organisms and non-biological and mi crobiological processes and plant varieties are 
not expressly stated in the Act.  
16. Please describe in detail the rights provi ded patent holders under the patent law of 
Papua New Guinea and cite to the relevant provisions of law. 
 Section 29 of the Patents and Industrial D esigns Act stipulates the rights conferred by a 
patent.  The relevant provisions are as quoted:   (1) The exploitation in Papua New Guinea of a patent invention by pe rsons other than the 
owner of the patent is not permitte d without the owner of the patent. 
 
 (2) The owner of the patent shall, in add ition to any other rights, remedies or actions 
available to him have the right, subject to Subsection (4) and to Section 32 (Exploitation by Government or Persons Au thorized by Government), to institute 
proceedings in the Court against any person who - 
 
(a) infringes the patent by performing, without the agreement of the owner, any 
of the acts which amount to exploitation of a patented invention; or 
(b) performs an act, which makes it likel y that the patent will be infringed.  
(3) Where the Court finds that a patent has been  infringed, or is likely to be infringed, it 
may, on the application of the owner of the patent or any other interested person, and 
in respect of any person - IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 32 
 
 
 (a) grant an injunction, subject to such te rms, if any, as the Court thinks fit; or 
(b) make an order for the inspection of anything in or on any vehicle, vessel, 
aircraft, building or premises, and may impose such terms  and give such 
directions, if any, in relation to the inspection, as the Court thinks fit, or 
(c) award damages; or 
(d) order an account of profits. 
 (4) The rights of an owner of patent shall not extend to- 
 
(a) acts in respect of articles which have been put on the market in Papua New 
Guinea by the owner of the patent or with his consent; or 
(b) the use of articles on, or in the construction or operation of aircraft, land, 
vehicles or vessels of other countries which temporarily or accidentally the air space, territory or waters of Papua New Guinea; or 
(c) acts done only for experimental purposes relating to a patented invention; or 
(d) acts done by any person who, in good fa ith, before the filing of an application 
for grant of patent, or where priority is claimed. the priority date of the application on which the patent is gr anted, was exploiting the invention or 
was making effective and serious prepar ation for such exploitation in Papua 
New Guinea; or 
(e) acts performed by any person who proves that, at the date of any 
infringement of a patent, he was not aware, and had no reasonable grounds to 
believe, that a patent for the invention existed.  
17. Please describe in detail any provisions in the laws of Papua New Guinea permitting 
unauthorized use of a patent, citing to the rele vant provisions of law, and describe in detail the 
conditions under which such use can occur. 
 There is no express provision in the Act on this. (However, see generally part 4 of the 
response to question 16, above. There is no need to obtain the consent of the owner of a patent where 
the Government or an authorized person by the Gove rnment decides to exploit the patented invention 
in cases of national emergency, subject to the express conditions in the Act,  which are parallel to 
Article 31 of the TRIPS Agreement.  18. What term of protection does the patent la w of Papua New Guinea provide for patents?  
Please describe any provisions for extension of the term of protection and cite to the relevant 
provisions of the law. 
 Section 31(1) provides that subject to the paymen t of annual patent fees, a patent shall expire 
20 years after the filing date of the application for the patent. 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 33 
 
 
 G. L
AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS  
19. Please describe in detail the protection for layout-designs of integrated circuits provided 
under the laws of Papua New Guinea, including the term of protection, and cite to the relevant 
provisions of law. 
 This area of IP is not covered by legislation presently. 
 H. P
ROTECTION OF UNDISCLOSED INFORMATION  
20. Please describe in detail how the laws of  Papua New Guinea provide for the protection 
of undisclosed information as required by Arti cle 39.2 of the TRIPS Agreement and provide 
citations to the relevant provisions of law.  
 This is not covered by legislation presently.  However, under Section 30 of the Patents and 
Industrial Designs Act 2000, it is pr ovided that in proceeding, where th e subject matter of the patent is 
a process for obtaining a product, in trying to establish whether a product was obtained by means of the process, the Court must take into account the inte rest of the alleged infringer in not disclosing his 
manufacturing and business secrets, and may make such or ders and give such directions as it thinks fit 
in order to give effect to that. 
 
21. Please describe in detail the manner in whic h protection is provided test data regarding 
pharmaceutical and agricultural chemical produc ts submitted to the government in order to 
obtain marketing approval in Papua New Guinea and cite to the relevant provisions of law. 
 There is no specific provision for this under the legislation. (See the response to question 20, 
above). 
 
22. Are other applicants for marketing approv al 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 peri od of exclusivity is given the earlier applicant 
before such reliance becomes possible. 
 This is not provided for in any of the present IP legislation. 
 I. E
NFORCEMENT - GENERAL OBLIGATIONS , CIVIL AND ADMINISTRATIVE PROCEDURES AND 
REMEDIES AND PROVISIONAL MEASURES  
23. Please describe in detail the manner in whic h the laws of Papua New Guinea provide for 
effective action against infringement of intellect ual property rights as required by Article 41.1 
of the TRIPS Agreement.  
 Both civil and criminal action can be in stigated under the Acts to enforce a right. 
 
Patents and Industrial Designs  
 - Civil Procedures (Judicial):   Right owners or any other interested person can  take no proceedings under the Act, and if the 
other party is found to be infringing their ri ghts or is doing an action that which makes it 
likely that the patent or industrial design will be infringed, the Court- 
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 34 
 
 
 (a) may grant an injunction; or 
(b) make an order for the inspection of anythi ng in or on any vessel, vehicle, aircraft, 
building, or premises; or 
(c) award damages; or 
(d) order an account of profits. 
- Criminal Procedures (Judicial) 
 
(a) A person convicted on false representations about a patent or industrial design faces a 
fine not exceeding PNGK10 000.00, and a default penalty not exceeding 
PNGK1000.00 
(b) The same maximum fines apply to pers ons guilty of disobedience to summons to 
either appear as a witness before the Registrar, or produce a document required by the Registrar (if there is no lawful excuse). 
(c) On conviction on any general offence unde r the Act, the penalty of which is not 
specified, a fine not exceeding PNGK5000.00 applies. 
(d) The Registrar has power under the Act to prosecute any offence under the Act.  Any 
other person can do so after obtaining, the written consent of the Registrar. 
Copyright
 
  The Court has power to order conservatory and provisional measures under the Copyright and 
Neighbouring Rights Act 2000.  Under this  power, the regular Courts may: 
 
(a) grant injunctions, whether interlocutory or perpetual, to prohibit the committing or 
continuation of committing of any infringement of copyright; or 
(b) order the impounding of copies of work or sound recordings suspected of being made 
or imported without the authorization of the right owner where the making or 
importation of copies is subject to authorization by the right owner; 
(c) order the impounding, of packaging of implem ents that could be used for the making 
of copies of works and sound recordings , and the documents, accounts or business 
papers relating to such copies. 
- Civil Remedies (Judicial) 
 
(a) The right owner is entitled to payment of damages where his right is infringed, 
including the expenses caused by the infri ngement.  The amount g the importance of 
the material, of damages is to be determin ed considering, the moral prejudice suffered 
by the right owner and importance of the infringer's profits attributable to the 
infringement.  Where the infringer did not or  had no justifiable reason to know he 
was engaged in an infringing activity, the damages may be reduced.  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 35 
 
 
 (b) Copies of infringing goods may be destroyed unless the right owner requests 
otherwise.  This does not apply to third parties where the copies were obtained in good faith. 
(c) Where it appears to the Courts that ther e is a likelihood of an act of infringement. 
continuing, the Court may order that such an act of infringement be ceased.  Failure 
to comply with this order carries a maximum fine (on conviction) of PNGK100 000.00. 
- Criminal Remedies (Judicial) 
 
(a) A person who infringes any light protect ed under the Act wilfully or by gross 
negligence and for profit making purposes is gu ilty of an offence and may be liable to 
either imprisonment for a term not exceeding 10 years, or a fine not exceeding PNGK100 000.00 or both; 
(b) The provisions of the Criminal Code deali ng with search and seizure also applies in 
proceedings under this Act; and 
(c) The provisions of the Customs Act deali ng with illegal goods also applies to articles 
and implements used in relation to infringement of rights under this Act. 
Trademarks
 
  The Court may grant an injunction against the committing or continuation of committing of 
an infringing activity, and, at the option of the plaintiff, either  damages or an account of profits. 
  Forgery of trademarks, or falsely applying a trademark to goods or producing dies, blocks, machines or instruments for purposes of  forging, a trademark are offences  that attract a maximum of 
three years imprisonment or fine not exceeding PNGK2000.00 (Note that the fines under the Trade 
Marks Act are presently under review).  
 
Selling or importing, goods with false marks attracts a maximum fine of PNGK500.00.  The 
same maximum fine applies to anyone aiding oral  betting, counselling or procuring directly or 
indirectly any person in the commission of offence under the Act. 
 
Infringing goods shall be forfeited to the stat e upon conviction of the person involved in the 
infringing activity. 
 
 Enforcement agencies include Customs officer s and the police, under the various provisions 
of the Customs Act and the Criminal Code Act.  24. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production of evidence necessary to substantiate  a party's claims where that party has been 
unable to obtain such evidence from the opposi ng party.  Please describe how the laws or 
regulations of Papua New Guinea provide this authorization, citing to the relevant provisions of law or regulation. 
 This is not expressly provided for in the curre nt IP legislation. However, it is worth noting 
that as soon as any civil proceeding is instituted in  Court, the normal Court Rules (National Court 
Rules) apply.  The plaintiff can seek an order for discovery or production of documents in the 
pleadings stage. IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 36 
 
 
 25. Please describe in detail the all of the civil remedies that are available to right holders 
under the laws of Papua New Guinea, citing to the relevant provisions of law or regulation. 
Patents and Industrial Designs
 
 
 Sections 29 (3) and 49 (3) of the Pa tents and Industrial Designs Act 2000: 
  The Court may, in proceedings instituted by the right owner:  
(a) grant an injunction; or 
(b) make an order for the inspection of an3nhi ne, in or on any vessel. vehicle, aircraft, 
building or premises; or 
(c) award damages; or (d) order an account of profits. 
Copyright
 
 
 Section 27 of the Copyright and Neighbouring Rights Act 2000:  
(a) The right owner is entitled to payment of damages where is right is infringed, 
including the expenses caused by the infringement.  The amount of damages is determinate upon the importance of the mate rial, the moral prejudice suffered by the 
right owner and importance of the infringer's profits attributable to the infringement.  
Where the infringer did not or had no justifia ble reason to know he was engaged in an 
infringing activity, the damages may be reduced. 
(b) Copies of infringing goods may be destroyed unless the right owner requests 
otherwise.  This does not apply to third parties where the copies were obtained in 
good faith. 
(c) Where it appears to the Courts that ther e is a likelihood of an act of infringement 
continuing, the Court may order that such an act of infringement be ceased.  Failure to comply with this order carries a maximum fine (on conviction) of PNGK100 000.00. 
Trademarks
 
 
 Section 56 of the Trade Marks Act, Chapter 385:  the Court may grant an injunction against the committing or continuation of committing of an infringing activity, and, at the option of the plaintiff, either  damages or  an account of profits. 
 26.  Please describe in detail the provision al procedures and remedies available to right 
holders under the laws of Papua New Guinea, ci ting to the relevant provisions of law and 
regulation, and indicate any condition under which a right holder may avail itself of those procedures and remedies. 
 Except for the legislation on Copyright, the other body of IP legislation do not expressly 
provide for this.  For copyrights, it is stated in Section 26 of the Act as follows: 
  IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 37 
 
 
 Conservatory and provisional measures
 
  "(1) The Court shall have the authority, under its civil and criminal jurisdiction, and on 
such terms as it may deem reasonable - 
 
(a) to grant injunctions to prohibit the committing or continuance of committing, 
of an infringement of any right protected under this Act; or 
(b) to order the impounding of copies of works or sound recordings suspected of 
being made or imported without the aut horization of the owner of any right 
protected under this Act where the maki ng or importation of copies is subject 
to such authorization; or 
(c) to order the impounding or packaging of the implements that could be used 
for the making of copies of works a nd sound recordings, and the documents, 
accounts or business papers relating to such copies." 
 The remedies have been generally explaine d above.  There is no provision on conditions 
under which right holders can avail themselves of the procedures and remedies, except the express 
limitations on right owners, as has also being explained.  J. E
NFORCEMENT - SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES  
27. Please describe in detail the procedu res under the laws of Papua New Guinea that 
provide for border enforcement at least for tr ademark counterfeiting and copyright piracy, 
identifying the competent authority and citing to  the relevant provisions of law or regulation.  
 National Intellectual Property Rights Committe e has been set up, and comprises members 
from line agencies responsible for the various aspects of enforcement of intellectual property.  A 
coordinated effort is in place to ensure the en forcement of border measures, with Customs as the 
competent authority. Under this arrangement, it is understood that the rules and procedures applicable 
to illegal or prohibited goods will apply.  The Customs agents will be operating under the 'TRIPS 
legislation', (which is now before Parliament). 
 
28. Please indicate if border enforcement is availa ble to owners of other forms of intellectual 
property and, if so, please describe the procedur es and remedies available in relation to each 
form of intellectual property, citing the relevant provisions of law. 
 The Acts expressly state this only for infr inging goods in copyright and trademarks. 
 
29. Article 58 of the TRIPS Agreement speci fies procedures to be followed where the 
competent authorities can act ex officio.  Plea se explain whether the competent authorities in 
Papua New Guinea are empowered to  act ex officio and, if so, please identify the intellectual 
property areas subject to ex officio action. 
 (Please refer to the response to question 28, ab ove). It is understood that this would be the 
case if the goods or aspect of enforcement falls w ithin the ambit of the competent authority. 
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 38 
 
 
 K. E
NFORCEMENT - CRIMINAL PROCEDURES  
30. Please describe in detail how the laws of Papua New Guinea implement Article 61 of the 
TRIPS Agreement that requires Members to have criminal procedures and penalties, including 
imprisonment and/or monetary fines sufficient to ac t as a deterrent, at least for cases of wilful 
trademark counterfeiting and copyright infringeme nt on a commercial scale.  Please cite to the 
relevant provisions of law and regulation. 
 This is adequately implemented under both  the Copyright and Neighbouring Rights Act 2000 
(under Part IV) and the Patents and Industrial Designs Act 2000.  
Patents and Industrial Designs
 
  The following is expressed in the legislation:  
(a) A person convicted on false representations about a patent or industrial design faces a 
fine not exceeding PNGK10 000.00, and a default penalty not exceeding 
PNGK1000.00. 
(b) The same maximum fines apply to pers ons guilty of disobedience to summons to 
either appear as a witness before the Registrar, or produce a document required by the Registrar (if there is no lawful excuse). 
(c) On conviction on any general offence unde r the Act, the penalty of which is not 
specified, a fine not exceeding PNGK5000.00 applies, 
(d) The Registrar has power under the Act to prosecute any offence under the Act.  Any 
other person can do so after obtaining the written consent of the Registrar. 
Copyright
 
 
(a) A person who infringes any right protected under the Act wilfully or by gross 
negligence and for profit making purposes is gu ilty of an offence and may be liable to 
either imprisonment for a term not exceeding 10 years, or a fine not exceeding PNGK100 000.00 or both. 
(b) The provisions of the Criminal Code deali ng with search and seizure also applies in 
proceedings under this Act; and 
(c) The provisions of the Customs Act deali ng with illegal goods also applies to articles 
and implements used in relation to infringement of rights under this Act. 
Trademarks
 
  The Trade Marks Act makes wilful tradem ark counterfeiting an offence. Forgery of 
trademarks, or falsely applying a trademark to goods or producing dies, blocks, machines or 
instruments for purposes of forging a trademark are offences that attract a maximum of three years 
imprisonment or fine not exceeding PNGK2000.00. (Note that the fines under the Trade Marks Act are presently under review).   IP/Q/PNG/1, IP/Q2/PNG/1,  
 IP/Q3/PNG/1, IP/Q4/PNG/1  Page 39 
 
 
  Selling or importing goods with false marks attracts a maximum fine of PNGK500.00.  The 
same maximum fine applies to anyone aiding or abetting, counselling or procuring directly or 
indirectly any person in the commission of an offence under the Act.  
 Infringing goods shall be forfeited to the st ate upon conviction of the person involved in the 
infringing activity. 
 
31. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture 
and destruction of infringing goods and any materials and implements the predominant use of 
which has been the commission of the offence.  Please describe the provisions in the laws of 
Papua New Guinea that provide for such remedi es, and describe the circumstances in which 
those remedies would be imposed, citing to the relevant provisions of law or regulation.   
 There is an express provision for this under the Trade Marks Act and the Copyright and 
Neighbouring Rights Act 2000, under Sections 78 and 27 (4), respectively.  This is not expressly 
stated for infringing goods for patents and industrial designs. 
 
32. 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 Papua New Guinea that provide for such procedures and remedies, citing to the relevant provisions of law or regulation. 
 Other forms of IP are not expressly stated in any current IP legislation. 
 
L. STATISTICAL QUESTIONS  
33.  Please provide statistical information related  to civil copyright, trademark, geographical 
indication, industrial design, patent, integrated circuit layout-design, and trade secret 
enforcement for 2000, including the number of cases filed; injunctions issued; infringing 
products seized; infringing equipment seized; cases resolved (including settlement); and the 
amount of damages awarded. 
 The Patents and Industrial Designs Act 2000 a nd the Copyright and Neighbouring Rights Act 
2000 have been certified but are not yet gazetted for enforcement.  Therefore there are no recorded statistics for the matters said.  With the regulations  presently being finalized, the coming into force of 
the Act should be done soon. 
  Papua New Guinea does not have legislation presently in place for geographical indications. 
integrated circuit layout-design and trade secrets.  
 The Intellectual Property Office of Papua Ne w Guinea, although is the primary Government 
IP administrative agency, is not directly involved in issuance of injunctions (a matter for the Courts) and seizure of infringing or goods (which is a ma tter under the responsibility of the Customs agents 
and the Police Force).   Most cases of trademark infringement have been settled through civil proceedings in Court. 
Thus the amount of damages awarded and the numbe r of cases involved is unknown.  Quite a number 
of trademark oppositions have been dealt with in the normal registration process, however, we 
understand this question to mean the civil procedures in Court and the subsequent settlements therein. 
Our office does not keep a record of these. 
 IP/Q/PNG/1, IP/Q2/PNG/1,  
IP/Q3/PNG/1, IP/Q4/PNG/1 Page 40 
 
 
 34.  Please provide statistical information rel ated to criminal enforcement in the area of 
copyright piracy and trademark infringement  for 2000, including the number of raids, 
prosecutions, convictions, and the amount of fin es and/or jail terms (including whether the fines 
were paid and whether the jail term was actu ally served or was suspended) and any other 
information establishing that the criminal system operates effectively to deter copyright piracy 
and trademark counterfeiting.  
 Certain provisions of the Criminal Code are st ated to apply for the enforcement of IP laws, 
thus the involvement of the Police.  However, se e generally, the response to question 33, above, for 
copyrights.  For trademarks, this is un known, for similar reasons as the above. 
 
  
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