WikiLeaks Release of Secret Trans-Pacific Partnership Agreement
(TPP)
Advanced Intellectual Property Chapter for All 12 Nations with
Negotiating Positions (August 30 2013 consolidated bracketed
negotiating text)
This
Document Contains TPP CONFIDENTIAL Information
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TPP Negotiations, R18
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MODIFIED HANDLING AUTHORIZED
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IP Group
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Intellectual Property [Rights] Chapter
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30 August
2013
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COVER PAGE
INTELLECTUAL PROPERTY [RIGHTS] CHAPTER
CONSOLIDATED TEXT
CHAPTER QQ
{INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL
PROPERTY}
{GENERAL PROVISIONS}
For the purposes of this Chapter:
Intellectual property refers to
all categories of intellectual property that are the subject of
Sections 1 through 7 of Part II of the TRIPS Agreement
[].
[NZ/CL/PE/VN/BN/MY/SG/CA/MX
propose; US/JP oppose: The objectives of this
Chapter are:
-
Enhance the role of intellectual property in
promoting economic and social development, particularly in relation
to the new digital economy, technological innovation, the [PE:
generation,] transfer and dissemination of technology and trade;
-
reduce impediments to trade and investment by
promoting deeper economic integration through effective and
adequate creation, utilization, protection and enforcement of
intellectual property rights, taking into account the different
levels of economic development and capacity as well as differences
in national legal systems;
-
maintain a balance between the rights of
intellectual property holders and the legitimate interests of users
and the community in subject matter protected by intellectual
property.
-
protect the ability of Parties to identify, promote
access to and preserve the public domain;
-
Ensure that measures and procedures to enforce
intellectual property rights do not themselves become barriers to
legitimate trade;
-
Promote operational efficiency of intellectual
property systems, in particular through quality examination
procedures during the granting of intellectual property rights.]
[NZ/CA/SG/CL/MY/VN propose. g. The protection and enforcement of
intellectual property rights should contribute to the promotion of
technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of
technological knowledge and in a manner conducive to social and
economic welfare, and to a balance of rights and obligations.
-
Support each Party's right to protect public health,
including by facilitating timely access to affordable
medicines.]
[NZ/CA/SG/CL/MY propose : 1. Each Party may, in
formulating or amending its laws and regulations, adopt measures
necessary to protect public health and nutrition, and to promote
the public interest in sectors of vital importance to its
socio-economic and technological development, provided that such
measures are consistent with the provisions of this Chapter.
2. Each Party may adopt or maintain appropriate
measures, provided that they are consistent with the provisions of
this Chapter, to prevent the abuse of intellectual property rights
by right holders or the resort to practices which unreasonably
restrain trade or adversely affect the international transfer of
technology.
3. Each Party may adopt or maintain, consistently
with the other provisions of this Chapter, appropriate measures to
prevent or control practices or conditions that may in particular
cases constitute an abuse of intellectual property rights having an
adverse effect on competition in the relevant market.]]
Each Party shall give effect to the provisions of
this Chapter. A Party may, but shall not be obliged to, provide
more extensive protection for, and enforcement of, intellectual
property rights under its law than is required by this Chapter,
provided that such protection and enforcement does not contravene
the provisions of this Chapter. Each Party shall be free to
determine the appropriate method of implementing the provisions of
this Chapter within its own legal system and practice.
The Parties affirm their commitment to the
Declaration on the TRIPS Agreement and Public Health
(WT/MIN(01)/DEC/2).
The Parties have reached the following
understandings regarding this Chapter:
(a) The obligations of this
Chapter do not and should not prevent a Party from taking measures
to protect public health by promoting access to medicines for all,
in particular concerning cases such as HIV/AIDS, tuberculosis,
malaria, [US oppose: chagas] and other epidemics as well as
circumstances of extreme urgency or national emergency.
Accordingly, while reiterating their commitment to this Chapter,
the Parties affirm that this Chapter can and should be interpreted
and implemented in a manner supportive of each Party's right to
protect public health and, in particular, to promote access to
medicines for all.
(b) In recognition of the
commitment to access to medicines that are supplied in accordance
with the Decision of the General Council of 30 August 2003 on the
Implementation of Paragraph Six of the Doha Declaration on the
TRIPS Agreement and Public Health (WT/L/540) and the WTO General
Council Chairman's statement accompanying the Decision
(JOB(03)/177, WT/GC/M/82)
[SG/BN/VN/PE/CL/CA/MY/NZ/US/AU/MX/JP: , as
well as the Decision on the Amendment of the TRIPS Agreement,
adopted by the General Council, 6 December 2005 US/MY propose: and
the WTO General Council Chairperson's statement accompanying the
Decision (WT/GC/M/100)] (collectively, the "TRIPS/health
solution"), this Chapter does not and should not prevent the
effective utilization of the TRIPS/health solution.
(c) With respect to the aforementioned matters, if
[US oppose: any waiver of any provision of the TRIPS Agreement, or
any] [US propose: an] amendment of the TRIPS Agreement, enters into
force with respect to the Parties, and a Party's application of a
measure in conformity with that [US oppose: waiver or] amendment
[US oppose: is contrary to the obligations of] [US propose:
violates] this Chapter, the Parties shall immediately consult in
order to adapt this Chapter as appropriate in the light of the [US
oppose: waiver or] amendment.
1. [US: Further to Article
-AA.2,] the Parties affirm their existing rights
and obligations with respect to each other under the TRIPS
Agreement [CL/PE: and any other multilateral agreements relating to
intellectual property to which they are party] [MX propose: The
TRIPS Agreement is incorporated into and made part of this
Agreement, mutatis mutandis.][CA
Propose: 1. Except as otherwise provided in this Chapter, nothing
in this Chapter shall be construed as a limitation to the
flexibilities, exceptions and limitations set out on the TRIPS
Agreement and any other multilateral agreement relating to
intellectual property to which they are party.]
[CL/NZ propose; US/AU/JP/MX
oppose: 2. Nothing in this Chapter shall derogate from existing
rights and obligations that Parties have to each other under the
TRIPS Agreement or other multilateral agreements, such as those
concluded or administered under the auspices of the World
Intellectual Property Organization (WIPO), the World Health
Organization (WHO) and United Nations Educational, Scientific and
Cultural Organization (UNESCO).]
[CA propose; MX/US oppose: 2. Except as otherwise
provided in this Chapter, the Parties shall interpret this Chapter
in such a way as to be [complementary to / compatible with] their
rights and obligations under multilateral treaties concluded or
administered under the auspices of the World Trade Organization
(WTO), the World Intellectual Property Organization (WIPO), the
World Health Organization (WHO) and the United Nations Educational,
Scientific and Cultural Organization (UNESCO) to which they are
party, especially with regards to measures aimed at protecting
public health and protecting equal access to knowledge and food.]
[CL/NZ/VN/BN/MY/PE: 3. [Except as
otherwise provided in this Chapter,] Nothing in this Chapter shall
be construed as a limitation to the flexibilities, exceptions and
limitations set out on the TRIPS Agreement and any other
multilateral agreement relating to intellectual property to which
they are party, especially with regards to measures aimed at
protecting equal access to knowledge, food and public
health.]]
[US/AU propose;
CL/NZ/MY/PE/BN/VN/CA/JP/MX oppose:
4. Each Party shall ratify or accede to the
following agreements by the date of entry into force of this
Agreement:
-
Patent Cooperation Treaty
(1970), as amended in 1979;
-
Paris Convention for the
Protection of Industrial Property (1967);
-
Berne Convention for the
Protection of Literary and Artistic Works (1971);
-
Convention Relating to the
Distribution of Programme-Carrying Signals Transmitted by
Satellite (1974);
-
Protocol Relating to the Madrid
Agreement Concerning the International Registration of Marks
(1989);
-
Budapest Treaty on the
International Recognition of the Deposit of Microorganisms for the
Purposes of Patent Procedure (1977), as
amended in 1980;
-
International Convention for the
Protection of New Varieties of Plants [MX
propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV
Convention);
-
Singapore Treaty on the Law of
Trademarks (2006);
-
WIPO Copyright Treaty
(1996); and
-
WIPO Performances and Phonograms
Treaty (1996).]
[US/AU/NZ/PE/CA/JP/SG/MX propose : 5.
Each Party shall notify the WTO of its acceptance of the Protocol
amending the TRIPS Agreement done at Geneva on December 6,
2005.]
[US/SG propose;
CL/MY/NZ/PE//VN/BN/CA/JP/MX oppose: 6.
Each Party shall make all reasonable efforts to ratify or accede to
the following agreements by the date of entry into force of the
Agreement:
[SG oppose: (a)
Patent Law Treaty (2000); and]
(b) Hague
Agreement Concerning the International Registration of Industrial
Designs (1999).]
1. In respect
of all categories of intellectual property covered in this Chapter,
each Party shall accord to nationals [] of the other
Party treatment no less favorable than it accords to its own
nationals with regard to the protection []
[NZ/BN/MY/CA/JP/SG/VN oppose: and enjoyment of such intellectual
property rights, and any benefits derived from such
rights.][NZ/VN/BN/MY/CL/PE/JP/SG propose;
US/AU
oppose: of intellectual property, subject to the
exceptions provided in the TRIPS Agreement and in those
multilateral agreements concluded under the auspices of WIPO.]
[CL/AU/NZ/BN/PE propose: With
respect to secondary uses of phonograms by means of analog
communications and free over-the-air radio broadcasting, however, a
Party may limit the rights of the performers and producers of the other Party to the rights its persons
are accorded within the jurisdiction of the other
Party.]
[VN: Articles 3 and 5 of the TRIPS shall apply with
necessary modifications to the protection of intellectual property
in this Chapter.]
-
A Party may derogate from
paragraph 1 [national
treatment] in
relation to its judicial and administrative procedures, including
requiring a national of the other Party to designate an address for
service of process in its territory, or to appoint an agent in its
territory, provided that such derogation is:
-
necessary to secure compliance with laws and
regulations that are not inconsistent with this Chapter; and
-
not applied in a manner that would constitute a
disguised restriction on trade.
[CL:3 Paragraphs 1 and 2 do] [US:
Paragraph [X national treatment/judicial
and administrative procedures] does] not
apply to procedures in multilateral agreements concluded under the
auspices of WIPO relating to the acquisition or maintenance of
intellectual property rights.
[PE/CL: With regards to the protection and defence
of intellectual property referred to in this chapter, any
advantage, favour, privilege or immunity granted by a Party to the
nationals of any other country will be accorded immediately and
unconditionally to the nationals of the other Parties. The
exceptions to this obligation shall be in conformity with the
pertinent dispositions referred to in articles 4 and 5 of the TRIPS
Agreement.]
[VN: Articles 4 and 5 of the TRIPS shall apply with
necessary modifications to the protection of intellectual property
in this Chapter.]
[CL/NZ/VN/AU/BN/SG/PE/MY/MX/CA propose;
US/JP oppose: 1. Nothing in this Chapter shall prevent a Party from
adopting appropriate measures to prevent: (a) the abuse of
intellectual property rights by right holders or the resort to
practices that unreasonably restrain trade or adversely affect the
international transfer of technology; and (b) anticompetitive
practices that may result from the abuse of intellectual property
rights;, provided that such measures are consistent with this
Agreement. [PE propose; CL/AU oppose: Nothing in this Chapter shall
be construed to reduce the protection that the Parties agree on or
have agreed on in benefit of the conservation or sustainable use of
biodiversity.]]
[NZ/AU/US/SG/MY/PE/VN/JP/MX propose: 1. [US: Further to Article ___
(Publication), and with the object of making the protection and
enforcement of intellectual property rights transparent,] Each
Party shall ensure that its laws, regulations and procedures [VN:
or administrative rulings of general application] concerning the
protection and enforcement of intellectual property rights [US: are
in writing and are] [US oppose: shall be]
published[], or where
such publication is not [US/PE oppose: practical] [US/PE:
practicable], are made publicly available [US/AU/NZ: in a national
language in such a manner as to enable [AU oppose: governments and
right holders] [AU: interested persons and Parties] to become
acquainted with them.] [US/AU/NZ oppose: in at least the national
language of that Party or in the English
language.]]
[NZ/AU/SG/MY/CA/MX/CL
propose; VN/PE oppose: 2. Each Party shall endeavour to make
available on the Internet [AU/NZ:
-
its laws, regulations, procedures, and
administrative rulings of general application concerning the
protection and enforcement of intellectual property rights; and]
-
[JP oppose: those details of patent, trademark,
design, plant variety protection and geographical indication
applications that are open to public inspection under national
law.]]
[US/MX propose; BN oppose:
4. Nothing in
this Chapter shall require a Party to disclose confidential
information the disclosure of which would impede law enforcement or
otherwise be contrary to the public interest [PE oppose: or would
prejudice the legitimate commercial interests of particular
enterprises, public or private].]
[US propose: 1. Except as it
otherwise provides, including in Article QQ.G.8__ (Berne 18/TRIPS
14.6), this Chapter gives rise to obligations in respect of all
subject matter existing at the date of entry into force of this
Agreement that is protected on that date in the territory of the
Party where protection is claimed, or that meets or comes
subsequently to meet the criteria for protection under this
Chapter.]
2.
[CL/NZ/PE/MY/BN/VN/CA/MX oppose: Except as
otherwise provided in this Chapter, including Article QQ.G.8____
(Berne 18/TRIPS 14.6),] a Party shall not
be required to restore protection to subject matter that on the
date of entry into force of this Agreement has fallen into the
public domain in its territory.
3. This Chapter does not give rise to obligations in
respect of acts that occurred before the date of entry into force
of this Agreement.
[CL/MY/NZ/VN/SG/BN/PE propose; US/AU/JP/MX oppose:
The Parties are encouraged to establish international exhaustion of
rights.]
[CL/VN/PE propose: Each Party shall endeavour to
provide relevant information to disseminate public domain,
including appropriate tools that help to identify the [CL:
extension] [VN: expiration] of the terms of protection of
intellectual property rights.]
[CL/VN propose: 1. The Parties recognize the
importance of a rich and accessible public domain for their
societies and the need that public domain material shall be free
for its use by all persons.
2. For purposes of paragraph 1, each Party shall
endeavor to:
-
identify subject matter that has fallen into the
public domain within their respective jurisdictions;
-
promote access to the public domain; and
-
preserve the public domain.
3. Actions to achieve the purposes referred to in
paragraph 2, may include the development of publicly accessible
data bases of registered rights, guidelines and other tools to
enhance access to material in the public domain.
4. Each Party shall make its best efforts to promote
cooperation among the Parties to identify and facilitate access to
subject matter that has fallen into the public domain and share
updated information related to right holders and terms of
protection.]
[CL/VN Alternative Proposal:
1. The Parties recognize the importance of a rich
and accessible public domain for their societies and the need that
public domain material shall be free for its use by all persons.
2. For this purpose, Parties may include the
development of publicly accessible data bases of registered rights,
guidelines and other tools to enhance access to material in the
public domain.
3. Each Party shall make its best efforts to promote
cooperation among the Parties to identify and faciliate access to
subject matter that has fallen into the public domain and share
updated information related to right holders and terms of
protection.]
COOPERATION
Note: We have not introduced
braces into this section because party attributions are not clear
based on the text.
Each Party shall designate at least one contact
point for the purpose of cooperation under this section.
[NZ/CL/SG/BN/AU/MY/PE/VN/MX propose: 1. [AU/US
oppose: Where a Party is a member of any of the following
agreements, that Party shall, where appropriate and upon request by
another Party, support that Party in implementing any of the
following agreements] [AU/CA/JP/SG: A Party may seek to cooperate
with other Parties to support its accession to, and implementation
of, the agreements X-X ]:
(a) Patent Cooperation Treaty;
[PE/CA oppose: (b)
Protocol Relating to the Madrid Agreement
Concerning the International Registration of Marks;
(c) Singapore Treaty on the Law of Trademarks;] and
(d) Nice
Agreement Concerning the International Classification of Goods and
Services for the Purposes of the Registration of
Marks.]
[JP/SG/PE propose: (e)
International Convention for the Protection of
New Varieties of Plants (1991) (UPOV Convention)]
[AU: 2. Each Party shall endeavor to provide such
cooperation as appropriate and upon request.]
[AU/CL/NZ/PE/SG/BN/MX/VN/MY/US/CA
propose: The Parties shall endeavour to cooperate on the subject
matter covered by this Chapter through appropriate cooordination,
training and exchange of information between the intellectual
property offices, [or other relevant
institutions], of
the Parties. Cooperation may cover such areas as:
-
developments in domestic and international
intellectual property policy
-
intellectual property administration and
registration systems
-
education and awareness relating to intellectual
property
-
intellectual property issues relevant to:
-
small and medium-sized enterprises
-
science, technology & innovation activities[PE
propose: , which may include generation, transfer and dissemination
of technology.]
-
policies involving the use of intellectual property
for research, innovation and economic growth
-
such other areas as may be agreed among [AU/NZ
oppose: the] Parties.]
[[AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: In order
to improve quality and efficiency in the Parties' patent systems,]
The Parties shall endeavour to [US/SG propose: cooperate] [US
oppose: establish a framework for cooperation] among their
respective patent offices to facilitate the
[AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP oppose: exploitation]
[AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: sharing and use] of
search and examination work of other Parties. This may include:
-
making search and examination results available to
the patent offices of other Parties, and
-
exchanges of information on quality assurance
systems and quality standards relating to patent searching and
examination;
[JP propose; CL/PE oppose: (c) implementing and
promoting the Patent Prosecution Highway;]
[CL/AU/MY/NZ/SG/PE/VN/CA/MX/BN
oppose: which may, among other things, facilitate work
sharing.]]
[JP proposal: 2. In the course of the cooperation
referred to Paragraph 1, the Parties are encouraged not to require
the applicants to submit search and examination results, including
cited documents, made available by the patent offices of other
Parties, with a view to reducing the procedural costs of the
applicants.]
Cooperation activities and initiatives undertaken
under this Chapter shall be subject to the availability of
resources, and on request and on terms and conditions mutually
agreed upon between the Parties involved.[VN propose: , including
the technical assistance for developing countries.]
{TRADEMARKS}
[NZ/US/AU/CL/PE/SG/CA/JP/MY propose: 1.
[VN/BN/MX oppose: No] Party may require, as a condition of
registration, that a sign be visually perceptible, [VN/BN/MX
oppose: nor may a Party] [VN/BN/MX propose: and] deny registration
of a trademark solely on the ground that the sign of which it is
composed is a sound [CL/CA/JP/MY oppose: or a scent] [CL/CA/MX/MY
propose: Each Party may provide trademark protection for scents].]
A Party may require a concise and accurate description, or
graphical representation, or both, as applicable, of the
trademark.
1. Each Party shall provide that trademarks shall
include collective marks and certification marks. A Party is not
obligated to treat certification marks as a separate category in
its domestic law, provided that such marks are protected.
Each Party [JP/MX propose: may][
JP oppose: shall] also provide that signs that may serve as
geographical indications are eligible for protection under its
trademark system [][PE/NZ/MX/CL/BN/AU/US/JP/SG oppose; VN
propose: A Party may
provide that Signs descriptive of geographical origin of goods or
services, including geographical indication as defined in Article
22 of the TRIPS Agreement, may not be protected as trademarks other
than collective and certification marks, unless they have acquired
distinctiveness through use.]
[US/PE/MX/SG propose;
AU/NZ/ VN/BN/MY/CL/CA oppose: 2. Pursuant to Article 20 of the
TRIPS Agreement, each Party shall ensure that its measures
mandating the use of the term customary in common language as the
common name for a good or service ("common name") including, inter
alia, requirements concerning the relative size, placement or style
of use of the trademark in relation to the common name, do not
impair the use or effectiveness of trademarks used in relation to
such good or service. []][]
Each Party shall provide that the
owner of a registered trademark shall have the exclusive right to
prevent third parties not having the owner's consent from using in
the course of trade identical or similar signs, [PE/MY/VN/CA/MX
oppose: including
subsequent geographical indications,] for goods or services that
are related to those goods or services in respect of which the
owner's trademark is registered, where such use would result in a
likelihood of confusion.
In the case of the use of an
identical sign, [PE/MY/SG/CL/CA/MX/VN oppose: including a
geographical indication,] for identical goods or services, a
likelihood of confusion shall be presumed.
Each Party may provide limited exceptions to the
rights conferred by a trademark, such as fair use of descriptive
terms, provided that such exceptions take account of the legitimate
interest of the owner of the trademark and of third parties.
[VN propose;
AU/US/NZ/SG/MY/CL/PE/CA/JP/BN oppose: The owner of a registered
trademark shall not have the right to prevent third parties from
using geographical indications or other signs descriptive of goods
and services even though they are identical or similar to the
trademark unless such use would result in
confusion.]
1. No Party may require as a condition for
determining that a trademark is well-known that the trademark has
been registered in the Party or in another jurisdiction, included
on a list of well-known trademarks, or given prior recognition as a
well-known trademark.
2. Article 6bis of the Paris Convention for the
Protection of Industrial Property (1967) shall apply,
mutatis mutandis, to
goods or services that are not identical or similar to those
identified by a well-known trademark,[] [BN oppose:
whether registered or not,] provided
that use of that trademark in relation to those goods or services
would indicate a connection between those goods or services and the
owner of the trademark, and provided that the interests of the
owner of the trademark are likely to be damaged by such use.
3. Each Party recognizes the
importance of the Joint Recommendation
Concerning Provisions on the Protection of Well-Known Marks
(1999) as adopted by the Assembly of the Paris
Union for the Protection of Industrial Property and the General
Assembly of WIPO.
[US/BN/CL/PE/MX/CA/JP/NZ/SG/VN
propose; AU/MY oppose: 4.
Each Party shall
[PE/BN/MX/CA
propose: according to domestic laws] provide for
appropriate measures to refuse or cancel the registration and
prohibit the use of a trademark that is identical or similar to a
well-known trademark, [SG/VN propose: as being already well-known
before the registration or use of the first-mentioned trademark,]
for related goods or services, if the use of that trademark is
likely to cause confusion [CA/SG/VN oppose: or to deceive
or risk associating the trademark with the owner of the well-known
trademark, or constitutes unfair exploitation of the reputation of
the well-known trademark.]]
Each Party shall provide a system
for the examination and registration of trademarks which shall
include, inter alia:
-
providing to the applicant a communication in
writing, which may be electronic, of the reasons for any refusal to
register a trademark;
-
providing the opportunity for the applicant to
respond to communications from the competent authorities, to
contest an initial refusal, and to appeal judicially any final
refusal to register a trademark;
-
providing an opportunity to oppose
the registration of a trademark or to seek
cancellation of a
trademark; and
-
requiring that administrative decisions in
oppositions and cancellation proceedings be reasoned and in
writing. Written decisions may be provided electronically.
Each Party shall provide:
-
a system for the electronic application for, and
maintenance of, trademarks; and
-
a publicly available electronic information system,
including an online database, of trademark applications and of
registered trademarks.
Each Party shall adopt or maintain
a trademark classification system that is consistent with
the Nice Agreement Concerning the
International Classification of Goods and Services for the Purposes
of the Registration of Marks (Nice
Classification) of [June 15, 1957], as revised and amended. Each
Party shall provide that:
[CA oppose: (a) registrations and
the publications of applications indicate the goods and services by
their names, grouped according to the classes established by the
Nice Classification ;
and]
-
goods or services may not be considered as being
similar to each other on the ground that, in any registration or
publication, they are classfied in the same class of the Nice
Classification. Conversely, each Party shall provide that goods or
services may not be considered as being dissimilar from each other
on the ground that, in any registration or publication, they are
classified in different classes of the Nice
Classification.
Each Party shall provide that initial registration
and each renewal of registration of a trademark shall be for a term
of no less than 10 years.
No Party may require recordal of trademark licenses:
a. to establish the validity of the license;
[US/CA/NZ/SG/JP/AU propose; VN/MX/BN/PE/CL/MY
oppose: b. as a condition for the right of a licensee to join
infringement proceedings initiated by the holder, or to obtain by
way of such proceedings damages resulting from an infringement of
the trademark which is subject to the license; or
c. as a condition for use of a trademark by a
licensee, to be deemed to constitute use by the holder in
proceedings relating to the acquisition, maintenance and
enforcement of trademarks.]
[CL/NZ/SG/VN/PE/MY/BN/AU/CA/MX propose; US/JP
oppose: The Parties are encouraged to establish international
exhaustion of trademark rights. For this purpose, the registration
of a trademark shall not entitle the proprietor to prohibit its use
in relation to goods which have been put on the market in any
country under that trademark by the proprietor or with his
consent.]
1.
In order to address the problem of trademark
[VN/MX propose: geographical indication and trade name]
cyber-piracy, each Party shall adopt or maintain a system for the
management of its country-code top-level domain (ccTLD) that
provides:
(a) an appropriate procedure for the settlement of
disputes, based on, or modelled along the same lines as, the
principles established in the Uniform Domain-Name
Dispute-Resolution Policy, or that is: (i) designed to resolve
disputes expeditiously and at low cost, (ii) fair and equitable,
(iii) not overly burdensome, and (iv) does not preclude resort to
court litigation;
(b) online public access to a
reliable and accurate database of contact information concerning
domain-name registrants;
in accordance with each Party's
laws regarding protection of privacy
and personal data.
2. [PE/SG/CL/AU/NZ/MY/BN/CA
oppose; US/VN/JP/MX propose: Each party shall provide [VN: oppose
adequate and effective] [VN propose: appropriate] remedies against
the registration trafficking, or
use in any ccTLD, with a bad faith intent to profit, of a domain
name that is identical or confusingly similar to a trademark [VN/MX
propose: , geographical indication or trade name].]
{GEOGRAPHICAL
INDICATIONS}
The Parties recognize that [US propose;
CL/PE/CA/MX/SG/MY/BN/VN/JP oppose: , subject to Article
QQ.C.2(1), (Gls
eligible for protection as trademarks)] geographical
indications may be protected through a trademark or sui generis
system or other legal means.
Where a Party provides
administrative procedures for the protection or recognition of
geographical indications, through a system
of trademarks or a sui generis system, the Party shall with respect
to applications for such protection or petitions for such
recognition:
-
accept those applications or
petitions without requiring intercession by a Party on behalf of
its nationals;
-
process those applications or petitions without
imposition of overly burdensome formalities;
-
ensure that its regulations governing the filing of
those applications or petitions are readily available to the public
and clearly set out the procedures for these actions;
-
make available information sufficient to allow the
general public to obtain guidance concerning the procedures for
filing applications or petitions and the processing of those
applications or petitions in general; and allow applicants,
petitioners, or their representatives to ascertain the status of
specific applications and petitions;
-
ensure that those applications or petitions are
published for opposition and provide procedures for opposing
geographical indications that are the subject of applications or
petitions; and
-
provide for cancellation, annulment, or revocation
of the protection or recognition afforded to a geographical
indication
Each Party shall, whether
protection or recognition is provided to a geographical indication
through [SG/CA/MY oppose: its domestic measures] [SG/CA/MY propose:
the system referred to in article QQ.D.2] [CL/PE/MY/SG/VN/BN/CA/MX
oppose: or pursuant
to an agreement with another government or government entity],
provide a process that allows interested persons to object to the
protection or recognition of a geographical indication, [CA oppose:
and for protection or recognition to be refused
annulled
or, [AU propose: where appropriate,] cancelled]
[MY/VN/SG/MX oppose: , at least
on the following grounds:
-
the geographical indication is
likely to cause confusion with a trademark or geographical
indication that is the subject of a pre-existing good faith pending
application or registration in the territory of such
Party[];
-
[BN oppose: the geographical
indication is likely to cause confusion with a pre-existing
trademark or geographical indication, the rights to which have been
acquired in accordance with the Party's law[];] and
-
the geographical indication is a term customary in
common language as the common name for such goods or services in
that Party's territory.]]
[US propose; CL/PE/NZ/AU/SG/MY/MX/CA/BN/VN oppose: No Party shall, whether
pursuant to an agreement with a government or a governmental entity
or otherwise:
(a) in the case of geographical
indications for goods other than wines or spirits, prohibit third
parties from using or registering translated versions of the
geographical indication;[] or
(b) prohibit third parties from using a term that is
evoked by the geographical indication.]
[NZ/AU/BN/US
propose;
VN/PE/SG/CL/MY/CA/MX oppose: A Party may provide
the means to protect a geographical indication against use in
translation by third parties only if such use would, with respect
to a geographical indication for goods other than wines and
spirits:
(a) give rise to a likelihood of confusion with a
prior trademark or geographical indication in the territory of that
Party;
(b) mislead the public as to the geographical origin
of the good; or
(c) constitute an act of unfair competition within
the meaning of Article 10bis of the Paris Convention (1967).
[US/NZ/AU/CL/SG
propose; MX/VN/PE/MY oppose: If a Party grants protection or
recognition to a geographical indication through the systems
described in Article QQ.D.2 or through an agreement with another
government or government entity, such protection or recognition
shall commence no earlier than [CL oppose: (i) the filing date in
the Party[],]
(ii) the date on which such agreement enters into force, or (iii)
if a Party implements such protection or recognition on a date
after entry into force of the agreement, on that later
date.]
[NZ/AU/US
propose; PE/CL/VN/SG/MY/BN/CA/MX oppose: No Party shall preclude the
possibility that a term that it recognized as a trademark or
geographical indication may become a term customary in the common
language as the common name for the associated goods or
services.]
[CL/PE/AU/US/NZ/MX/CA/VN/JP
propose ; BN
oppose: In determining whether a term is the term customary in the
common language as the common name for the relevant goods or
services in a Party's territory, a Party's authorities shall have
the authority to take into account how consumers understand the
term in that Party's territory. Factors relevant to such consumer
understanding may include [SG/CL/PE/MX/VN propose: if
appropriate]:
-
whether the term is used to refer to the type of
product in question, as indicated by competent sources such as
dictionaries, newspapers, and relevant websites;
-
how the product referenced by the term is marketed
and used in trade in the territory of that Party; and
-
[CL/PE/MX/CA
oppose:
whether the term is used in relevant international standards to
refer to a class or type of product].]
[NZ/AU/US/VN/BN/CL
propose;
PE/MY/MX oppose: An individual component of a multi-component term
that is protected as a geographical indication in a Party shall
remain available for the public to use in that Party if the
individual component is a term customary in the common language as
the common name for the associated goods.]
[SG propose: For
greater certainty, nothing in this section shall require a Party to
apply its provisions in respect of any individual component
contained in a GI for which that individual component is identical
with the term customary in common language as the common name of
such goods in the territory of that Party.]
[US propose; AU/CL/SG/PE/MY/NZ/BN/VN/MX/CA oppose: The existence of a
geographical indication shall not be a ground upon which a Party
may:
-
refuse a trademark owner's otherwise permissible
request to renew the registration of its trademark; or
-
refuse a trademark owner's request to register an
otherwise permissible modification of its registered
trademark.]
The terms listed in Annex […] are
recognized as geographical indications of the respective Party,
within the meaning of paragraph 1 of Article 22 of the TRIPS
Agreement. Subject to domestic laws [], in a
manner that is consistent with the TRIPS Agreement, such terms will
be protected as geographical indications in the territories of the
other Parties.]
[NZ/CL/VN/MY/BN/SG/MX
propose;
PE/US/AU oppose: 1. Each Party may provide protection to homonymous
geographical indications. Where a Party provides protection to
homonymous geographical indications, that Party may, where
necessary, lay down the practical conditions of use to make a
distinction between the homonymous geographical indications, taking
into account the need to ensure equitable treatment of the
producers concerned and that consumers are not misled.]
[CL propose;
AU/US/PE/NZ/VN/SG/MY/BN/MX/CA/JP oppose: 2. The Parties recognize
the geographical indication Pisco
for the exclusive use for products from Chile and
Peru.]
[CL/SG/BN/MX propose;
AU/PE/US/NZ/CA/JP oppose: Annex […] Lists
of Geographical Indications]
[CL/AU/NZ/SG/BN/VN/MY/PE/CA/MX/JP
propose : The
Parties shall provide the legal means for interested parties to
prevent commercial use of country names of the Parties in relation
to goods in a manner which misleads consumers as to the origin of
such goods.]
[US propose;
CL/PE/VN/MY/CA oppose: Each Party shall permit the use, and as
appropriate, allow the registration, of signs or
indications that identify goods other than wines
or spirits, and that reference a geographical area that is not the
place of origin of the goods, unless such use is misleading, would
constitute an act of unfair competition, or would cause a
likelihood of confusion with a prior trademark or geographical
indication that identifies the same or similar goods. The foregoing
shall not be understood to prevent a Party from denying
registration of such a sign or indication on other grounds,
provided such denial does not derogate from the provisions of the
Paris Convention and the TRIPS Agreement.]
{PATENTS/ UNDISCLOSED TEST OR OTHER DATA/ TRADITIONAL
KNOWLEDGE}
1. Subject to the provisions of
paragraph 2 and 3, each Party shall make patents available for any
invention, whether a product or process, in all fields of
technology, provided that the invention is new, involves an
inventive step, and is capable of industrial application.
[US/AU propose; CL/MY/PE/SG/VN/BN/NZ/CA/MX oppose: The Parties confirm
that:
-
patents shall be available for any new uses or
methods of using a known product],
[US/JP propose; CL/MY/PE/SG/VN/BN/AU/NZ/CA/MX
oppose: (b) a Party may not deny a patent solely on the basis that
the product did not result in enhanced efficacy of the known
product when the applicant has set forth distinguishing features
establishing that the invention is new, involves an inventive step,
and is capable of industrial application.]
2. Each Party may exclude from patentability
inventions, the prevention within their territory of the commercial
exploitation of which is necessary to protect ordre public
or morality, including to protect human, animal or plant life or
health or to avoid serious prejudice to nature or the environment,
provided that such exclusion is not made merely because the
exploitation is prohibited by their law.
3. [US: Consistent with paragraph 1] each Party [US
propose; AU/NZ/VN/BN/CL/PE/MY/SG/CA/MX oppose: shall make patents
available for inventions for the following]
[NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: may also exclude from
patentability]:
(a) plants and animals,
[NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: other than microorganisms];
[JP oppose: (b)diagnostic, therapeutic, and surgical
methods for the treatment of humans or animals [US propose;
AU/SG/MY/NZ/CL/PE/VN/BN/CA/MX oppose: if they cover a method of
using a machine, manufacture, or composition of matter];
[NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose:] and
(c) essentially biological processes for the
production of plants or animals, other than non-biological and
microbiological processes for such production.]
[MX propose: (d) and the diagrams, plans, rules and
methods for carrying out mental processes, playing games or doing
business, and mathematical methods as such; software as such;
methods to present information as such; and aesthetic creations and
artistic or literary works.]
[NZ/CA/SG/CL/MY propose: ALT 3. Each Party
may also exclude from patentability:
-
diagnostic, therapeutic and surgical methods for the
treatment of humans or animals; and
-
plants and animals other than microorganisms, and
essentially biological processes for the production of plants or
animals other than non-biological and microbiological processes.
However, Parties shall provide for the protection of plant
varieties either by patents or by an effective sui generis system
or by any combination thereof.]
Each Party shall disregard at least information
contained in public disclosures used to determine if an invention
is novel or has an inventive step if the public
disclosure[
[]:
-
was made by the patent applicant or by a person who
obtained the information directly or indirectly from the patent
applicant,
and
-
occurred within 12 months prior to the date of
filing of the application in the territory of the Party.
[US: Without prejudice to Article 5A(3) of the Paris
Convention,] Each Party shall provide that a patent may be
cancelled, revoked or nullified only on grounds that would have
justified a refusal to grant the patent. A Party may also provide
that fraud, misrepresentation, or inequitable conduct may be the
basis for cancelling, revoking, or nullifying a patent or holding a
patent unenforceable. [AU/CL/MY/NZ/BN/CA/MX/VN propose; US/JP oppose: A Party may also
provide that a patent may be cancelled, revoked or nullified on the
basis that the patent is used in a manner determined to be
anti-competitive in a judicial [VZ/CA/MX propose: or
administrative] proceeding] [AU/CL/CA/MX propose: US oppose;
consistent with Article 5A(3) of the Paris Convention.]
[NZ/CA/SG/CL/MY propose: Each Party shall provide a
procedure for third persons to oppose the grant of a patent, either
before or after the grant of a patent, or both.]
Each Party may provide limited exceptions to the
exclusive rights conferred by a patent, provided that such
exceptions do not unreasonably conflict with a normal exploitation
of the patent and do not unreasonably prejudice the legitimate
interests of the patent owner, taking into account the legitimate
interests of third parties.
[NZ/CA/SG/CL/MY propose: Consistent with [Article
QQ.E.5 (Exceptions)], each Party may provide that a third person
may do an act that would otherwise infringe a patent if the act is
done for purposes connected with the collection and submission of
data in order to comply with the regulatory requirements of that
Party or another country, including for purposes connected with
marketing or sanitary approval.]
[NZ/CA/SG/CL/MY propose: 1. Consistent with [Article
QQ.E.5 (Exceptions)], each Party may provide that a third person
may do an act that would otherwise infringe a patent if the act is
done for experimental purposes relating to the subject matter of a
patented invention.
2. For the purposes of this Article, experimental
purposes may include, but need not be limited to, determining how
the invention works, determining the scope of the invention,
determining the validity of the claims, or seeking an improvement
of the invention (for example, determining new properties, or new
uses, of the invention).]
[NZ/CA/SG/CL/MY propose: Nothing in this Chapter
shall limit a Party's rights and obligations under Article 31 of
the TRIPS Agreement or any amendment thereto.]
1 Each Party shall provide that where an invention
is made independently by more than one inventor, and separate
applications claiming that invention are filed with or for the
relevant authority of the Party, any patent granted for the claimed
invention shall be granted on the application [US/VN/MX propose;
AU/NZ/CL/MY/CA/PE oppose: which has been found to be patentable
and] which has the earliest filing or, if applicable, priority date
[AU/NZ/PE/BN/CL/CA
propose;
US/VN/MY/MX/SG oppose: and which is published].[US: ]
Each Party shall provide patent applicants with at
least one opportunity to make amendments, corrections, and
observations in connection with their applications.
[US/AU/PE/VN propose; CL/MY/BN/NZ/CA/SG/MX oppose: Each Party shall
provide that a disclosure of a claimed invention shall be
considered to be sufficiently clear and complete if it provides
information that allows the invention to be made and used by a
person skilled in the art, without undue experimentation, as of the
filing date.]
[US/PE/AU propose; CL/VN/MY/BN/NZ/CA/SG/MX
oppose: Each Party shall provide that a claimed invention [AU
oppose: is] [AU propose: shall be] sufficiently supported by its
disclosure [AU oppose: if the disclosure reasonably conveys to a
person skilled in the art that the applicant was in possession of
the claimed invention] as of the filing date.]
[US/AU/MX propose; SG/CL/MY/VN/PE/BN/NZ/CA
oppose: Each Party shall provide that a claimed invention is [US/AU
propose: useful] [MX propose: industrially applicable] if it has a
specific [MX propose: and], substantial, [MX oppose: and credible]
utility.]
[AU/PE/NZ/MY/CL/VN/US/CA/MX/JP: 1. Each Party shall
publish [US/MX oppose: or make available for public inspection] any
patent application promptly after the expiry of 18 months from its
filing date or, if priority is claimed, from its priority date,
unless the application has been published earlier or has been
withdrawn, abandoned or refused [CA propose: , without leaving any
rights outstanding].]
[AU/PE/NZ/CL/VN/CA/MX propose; MY oppose: 2. Each
Party shall provide that an applicant may request the early
publication of an application prior to the expiry of the period
mentioned above.]
[US/AU/CA/SG/PE/CL/NZ/JP propose;
MY/BN/VN/MX oppose: For published patent applications and
issued patents, each Party shall make available to the public
[US/PE/CA propose: at least] the following information : submitted
[US/SG/PE propose: to that Party's competent authorities] in
accordance with [US/SG/PE propose: their] requirements [US/SG/PE
oppose: of the Party's competent authorities] [AU/CA/CL propose: in
their possession] [US/SG/PE propose: and] in connection with the
prosecution of such patent applications and patents:
(a) search and examination results, [JP oppose:
including any relevant prior art search histories];
(b) [SG/PE/CL/US/NZ/AU/JP propose: non
confidential]
communications from applicants; and
(c) patent and non-patent related literature
citations submitted by applicants, and relevant third parties.]
[CL propose: The Parties are encouraged to establish
international exhaustion of patent rights. For this purpose, the
registration of a patent shall not entitle its holder to prevent
third parties from making, using, offering for sale, selling or
importing a product protected by that patent, which has been put in
the market in any country by the patent holder or with his
consent.]
[US propose; CA/NZ/JP oppose: Each Party, at the
request of the patent owner, shall adjust the term of a patent to
compensate for unreasonable delays that occur in the granting of
the patent. For purposes of this subparagraph, an unreasonable
delay at least shall include a delay in the issuance of the patent
of more than four years from the date of filing of the application
in the territory of the Party, or two years after a request for
examination of the application has been made, whichever is later.
Periods attributable to actions of the patent applicant need not be
included in the determination of such delays. Any patent term
adjustment under this article shall confer all of the exclusive
rights of a patent subject to the same limitations and exceptions
that would otherwise apply to the patent absent any adjustment of
the patent term.]
Article QQ.E.13 : {Exceptions / Regulatory
Review Exception}
[US/NZ/PE/CA/MX/JP propose: Consistent with
paragraph [QQ.E.5] (patent exceptions and limitations), each Party
shall permit] [CL/SG/MY/AU/VN/BN propose: Where a Party permits] a
third person to use the subject matter of a subsisting patent to
[US/NZ/PE/AU/MX/VN/BN/JP] propose: generate information necessary
to] support an application for [AU/CA/MX/VN/BN propose: regulatory
or] marketing approval [CL/NZ/PE/SG/MY/AU/CA/MX/VN/BN propose: or
sanitary permit] of a [AU/CA/VN/BN oppose: pharmaceutical] product
[PE propose: or agricultural chemical product],
[US/NZ/PE/SG/MY/MX/JP propose: and shall further] [CL/AU/CA/VN/BN
propose: that Party may also] provide that any product produced
under such authority [CL/AU/CA/VN/BN propose: may be]
[US/NZ/PE/SG/MY/MX/JP propose: shall not be] made, [CA propose:
constructed,] [CL/PE/VN/BN propose: offered for sale], [PE/VN/BN
propose: imported,] used, or sold in its territory
[US/NZ/PE/SG/MY/MX/JP propose: other than] for purposes related to
[US/NZ/PE/AU/MX/VN/BN/JP propose: generating such information to
support an application for] meeting [AU/CA/MX/VN/BN propose:
regulatory or] marketing approval [CL/NZ/PE/SG/MY/AU/CA/MX/VN/BN
propose: or sanitary permit] requirements of that Party
[NZ/SG/MY/AU/CA/MX/CL/VN/BN propose: or another country].
[US/SG/MY/PE/MX/CL propose; NZ/AU/CA/VN/BN oppose: If the
Party permits exportation of such a product, the Party shall
provide that the product shall only]] [NZ/CA/BN propose: Each Party
shall permit a product to] [AU/VN propose: Each Party may permit
such a product to] be exported outside its territory
[US/NZ/PE/AU/MX/VN/BN propose: for purposes of generating
information] to support an application for meeting [AU/CA/MX/VN/BN
propose: regulatory or] marketing approval
[CL/NZ/SG/MY/PE/AU/CA/MX/VN/BN propose: or sanitary approval]
requirements of that Party [CL/NZ/SG/MY/AU/CA/MX/VN/BN propose: or
another country].
[US propose; AU/NZ/CL/PE/MY/SG/BN/VN/CA/MX
oppose: 6.
(a) Each Party shall make best efforts to process
patent applications and marketing approval applications
expeditiously with a view to avoiding unreasonable or unnecessary
delays.
(c) Each Party, at the request of
the patent owner, shall make available an adjustment of the patent
term of a patent which covers a new pharmaceutical
product
or a patent that covers a method of making or
using a pharmaceutical product, to compensate the patent owner of
unreasonable curtailment of the effective patent term as a result
of the marketing approval process.
(d) In implementing subparagraph 6(c), a Party may:
-
limit the applicability of subparagraph 6(c) to a
single patent term adjustment for each new pharmaceutical product
that is being reviewed for marketing approval;
-
require the basis for the adjustment to be the first
marketing approval granted to the pharmaceutical product in that
Party;
and
-
limit the period of the adjustment to no more than 5
years.
(e) In implementing subparagraph
6(c), and as a condition for providing the adjustment set forth in
subparagraph 6(c) for a new pharmaceutical product approved
consistent with Article 9.2(b) or Article 9.2(d), a Party may
require an applicant that has submitted an application for
marketing approval consistent with Article 9.2(b) or Article 9.2(d)
to commence the process of obtaining marketing approval for that
new pharmaceutical product in the Party within [X] years of the
date of the first marketing approval of the same pharmaceutical
product in another Party.
(f) Any adjustment under subparagraph 6(c) shall
confer all of the exclusive rights, subject to the same limitations
and exceptions, of the patent claims of the product, its method of
use, or its method of manufacture in the originally issued patent
as applicable to the product and the approved method of use of the
product. ]] ]
Submission of Information or Evidence Concerning the
Safety or Efficacy of a New Pharmaceutical Product
[US propose; AU/PE/VN/NZ/CL/MY/SG/BN oppose: 1. (a)
If a Party requires or permits, as a condition for granting
marketing approval for a new pharmaceutical product, the submission
of information concerning the safety or efficacy of the product,
the origination of which involves a considerable effort, the Party
shall not, without the consent of a person previously submitting
such safety or efficacy information to obtain marketing approval in
the territory of the Party, authorize a third person to market a
same or a similar product based on:
-
the safety or efficacy information previously
submitted in support of the marketing approval; or
-
evidence of the existence of the marketing
approval,
-
for at least five years from the date of marketing
approval of the new pharmaceutical product in the territory of the
Party.
-
If a Party requires or permits, in connection with
granting marketing approval for a new pharmaceutical product, the
submission of evidence concerning the safety or efficacy of a
product that was previously approved in another territory, such as
evidence of prior marketing approval in the other territory, the
Party shall not, without the consent of a person previously
submitting the safety or efficacy information to obtain marketing
approval in the other territory, authorize a third person to market
a same or a similar product based on:
-
the safety or efficacy information submitted in
support of a prior marketing approval in the other territory; or
-
evidence of the existence of a prior marketing
approval in the other territory,
for at least five years from the date of marketing
approval of the new pharmaceutical product in the territory of the
Party.
Submission of New Clinical Information or Evidence
relating to a Pharmaceutical Product that Includes a Chemical
Entity that has been Previously Approved for Marketing in Another
Pharmaceutical Product
-
If a Party requires or permits, as a condition of
granting marketing approval for a pharmaceutical product that
includes a chemical entity that has been previously approved for
marketing in another pharmaceutical product, the submission of new
clinical information that is essential to the approval of the
pharmaceutical product containing the previously approved chemical
entity, other than information related to bioequivalency, the Party
shall not, without the consent of a person previously submitting
such new clinical information to obtain marketing approval in the
territory of the Party, authorize a third person to market a same
or a similar product based on:
-
the new clinical information previously submitted in
support of the marketing approval; or
-
evidence of the existence of the marketing approval
that was based on the new clinical information,
for at least three years from the date of marketing
approval based on the new clinical information in the territory of
the Party.
-
If a Party requires or permits, in connection with
granting marketing approval for a pharmaceutical product of the
type specified in subparagraph (c), the submission of evidence
concerning new clinical information for a product that was
previously approved based on that new clinical information in
another territory, other than evidence of information related to
bioequivalency, such as evidence of prior marketing approval based
on new clinical information, the Party shall not, without the
consent of a person previously submitting such new clinical
information to obtain marketing approval in the other territory,
authorize a third person to market a same or a similar product
based on:
-
the new clinical information submitted in support of
a prior marketing approval in the other territory; or
-
evidence of the existence of a prior marketing
approval that was based on the new clinical information in the
other territory,
for at least three years from the date of marketing
approval based on the new clinical information in the territory of
the Party.]
[US: Additional
Provisions relating to Pharmaceutical Products
-
Notwithstanding paragraph 2 above, a Party may take
measures to protect public health in accordance with:
-
the Declaration on the TRIPS Agreement and Public
Health (WT/MIN(01)/DEC/2) (the "Declaration");
-
any waiver of any provision of the TRIPS Agreement
granted by WTO Members in accordance with the WTO Agreement to
implement the Declaration and in force between the Parties; and
-
any amendment of the TRIPS Agreement to implement
the Declaration that enters into force with respect to the
Parties.
-
A Party that requires or permits an applicant to
obtain approval for marketing a new pharmaceutical product in its
territory by relying, in whole or in part, on the prior approval of
the pharmaceutical product by the regulatory authority in another
territory may, as a condition for providing the period of data
protection specified in subparagraph 2(b) or 2(d), require an
applicant that has submitted an application for marketing approval
consistent with said subparagraphs to commence the process of
obtaining marketing approval for that pharmaceutical product within
[X] years of the date of first marketing approval of the same
pharmaceutical product in another Party.
1. Where a Party requires or permits, as a condition
of approving the marketing of a pharmaceutical product, persons,
other than the person originally submitting safety or efficacy
information, to rely on that information or on evidence concerning
safety or efficacy information for a product that was previously
approved, such as evidence of prior marketing approval in another
territory, each Party shall:
(a) provide a transparent and effective system to:
-
identify a patent or patents covering an approved
pharmaceutical product or its approved method of use; and
-
provide notice to a patent holder of the identity of
another person who intends to market, during the term of the
identified patent or patents, a product that is the same as, or
similar to, the approved pharmaceutical product referenced in
subparagraph 5(a)(i).
(b) unless such other person agrees to defer the
marketing of the product until after the expiration of an
identified patent, ensure that a patent holder may seek, prior to
granting of marketing approval to an allegedly infringing product,
available remedies by providing:
-
an automatic delay of the grant of
marketing approval that remains in place for a period of time
designed to ensure sufficient opportunity to
adjudicate
disputes concerning the validity or infringement
of allegedly infringed patents; and
-
judicial or administrative procedures, including
effective
provisional measures, to allow for the timely
adjudication of disputes concerning the validity or infringement of
an allegedly infringed patent.
(c) If such other person's product has been found to
infringe a valid patent identified pursuant to subparagraph (a),
provide measures that operate to prohibit the unauthorized
marketing of that product prior to the expiration of the patent.
(d) when a Party delays the grant
of marketing approval consistent with subparagraph 5(b)(i), provide
an effective reward, consistent with the provisions of this
Agreement, for the successful challenge of the validity or
applicability of the patent.
-
In implementing subparagraph 5(b)(i), and as a
condition for providing the automatic delay of the grant of
marketing approval specified in subparagraph 5(b)(i) for a new
pharmaceutical product approved consistent with subparagraph 2(b)
or 2(d), a Party may require that an applicant that has submitted
an application for marketing approval consistent with subparagraph
2(b) or 2(d) to commence the process of obtaining marketing
approval for that new pharmaceutical in the Party within [X] years
of the date of first marketing approval of the pharmaceutical
product in another Party.
Where a Party provides for a
period of data protection for a pharmaceutical product of more than
[5+Y] years pursuant to subparagraph 2(a) or 2(b) of this Article,
that Party is not required to implement for that pharmaceutical
product subparagraphs 2(c), 2(d) (3-year
data protection in connection with submission of new clinical
information), 5(b)(i) (automatic delay of marketing approval) or 5(d) of this Article (reward
for the successful challenge of the validity or applicability of a
patent).
Where a Party chooses to apply subparagraph 6(e) of
Article 8 and paragraphs 4 and 6 of this Article, the following
provisions shall apply:
-
a Party shall permit an applicant to commence the
process of obtaining marketing approval by providing the regulatory
authority of the Party information supporting approval of the new
pharmaceutical product in the Party that is available to the person
at the time the request is made, such as evidence of the prior
approval of the product in another Party. It is understood that,
while a Party may impose reasonable additional requirements or
deadlines as a condition of authorizing the person to market the
pharmaceutical product in its territory, satisfaction of those
additional requirements or deadlines or the granting of approval
shall be recognized by the Party as necessarily occurring after the
commencement of the marketing approval process within the meaning
of subparagraph 6(e) of Article 8 and paragraphs 4 and 6 of this
Article; and
-
a Party may not refuse to grant
approval of a new pharmaceutical product on the basis of a failure
of an applicant for marketing approval to satisfy the requirements
of subparagraph 6(e) of Article 8 or paragraphs 4 and 6 of this
Article.
[US: General Provisions relating to Pharmaceutical Products and
Agricultural Chemical Products
For purposes of this Article, a
new pharmaceutical product means a product that does not contain a
chemical entity that has been previously approved in the territory
of the Party for use in a pharmaceutical product [JP propose: for
human use].
Subject to paragraph 3
(protection of public
health), when a product is subject to a
system of marketing approval in the territory of a Party pursuant
to paragaph 1 or 2 and is also covered by a patent in the territory
of that Party, the Party shall not alter the term of protection
that it provides pursuant to paragraph 1 or 2 in the event that the
patent protection terminates on a date earlier than the end of the
term of protection specified in paragraph 1 or 2.]]
[NZ/CA/SG/CL/MY/VN propose: Each Party may adopt or
maintain measures to encourage the timely entry of pharmaceutical
products to its market.]
[NZ/CA/SG/CL/MY/VN propose: 1. Each Party shall
endeavour to improve quality and efficiency in its patent system.
2. Each Party shall endeavour to enhance its patent
registration system by maintaining examination procedures,
cancellation procedures and, where provided, opposition procedures
that consistently provide high quality rights for granted patents,
and endeavour to simplify and streamline its administration system
for the benefit of all users of the system and the public as a
whole.]
[NZ/CA/SG/CL/MY/VN propose: 1. Each Party shall
endeavour to process applications for patents, and applications for
marketing, regulatory or sanitary approval of pharmaceutical
products, in an efficient and timely manner.
2. Each Party may provide a procedure for patent
applicants to apply to expedite the examination of their patent
application.
3. If there are unreasonable delays in a Party's
processing of applications for patents, or processing of
applications for marketing, regulatory or sanitary approval of
pharmaceutical products, the Party shall endeavour to address those
delays.]
[NZ/CA/SG/CL/MY/VN propose: 1. Where a Party
requires, as a condition of marketing, regulatory or sanitary
approval for pharmaceutical products which utilize new chemical
entities, the submission of undisclosed test or other data, the
origination of which involves a considerable effort, that Party
shall protect such data against unfair commercial use. In addition,
each Party shall protect such data against disclosure, except where
necessary to protect the public or unless steps are taken to ensure
that the data is protected against unfair commercial use.
-
Each Party may provide that the
protection of data under paragraph 1, inter alia:
-
is limited to undisclosed test or other data, the
origination of which involves a considerable effort;
-
is limited to pharmaceutical products that do not
contain a new chemical entity that has been previously approved for
marketing in the Party;
-
is limited to pharmaceutical products which utilize
a new chemical entity;
-
is available only once per pharmaceutical product;
-
is not available for new uses or indications, new
dosage forms or methods of making a pharmaceutical product;
-
is limited to a period of time as determined by the
Party; or
-
may be waived to facilitate the marketing,
regulatory or sanitary approval of a pharmaceutical product that is
the subject of a voluntary or compulsory license, or a licence
otherwise issued pursuant to the TRIPS Agreement.
-
Each Party may take measures to protect public
health in accordance with:
-
the Declaration on the TRIPS Agreement and Public
Health (WT/MIN(01)/DEC/2) (the "Declaration");
-
any waiver of any provision of the TRIPS Agreement
granted by WTO Members in accordance with the WTO Agreement to
implement the Declaration and in force between the Parties; and
-
any amendment of the TRIPS Agreement to implement
the Declaration that enters into force with respect to the
Parties.]
[NZ/CA/SG/CL/MY/VN propose: Each Party shall
endeavour to promptly make public the granting of marketing,
regulatory or sanitary approval of pharmaceutical products.]
[US/SG/PE/MX/JP
propose
; NZ/VN oppose: 1.
(a) If a Party
requires [AU/CL/MX oppose: or permits], as a condition of granting
marketing approval [CL/MX propose: or sanitary permit] for a new
agricultural chemical product [CL/MX propose; JP oppose: which
utilize new chemical entity], the submission of [CL/MX propose:
undisclosed][AU oppose: information] [AU propose; JP oppose:
undisclosed test or other data] concerning safety or efficacy of
the [CL/MX oppose: product][CL/MX propose;
JP oppose: new chemical entity], the Party shall not, without the
consent of [AU oppose: a person that previously submitted such] [AU
propose: the person who provided the] [CL/MX oppose: safety or
efficacy] information [AU oppose: to obtain marketing approval in
the Party, authorize another] [AU propose: , permit third persons]
to [CL/MX oppose: market] a [CL/MX oppose: same or a similar]
product based on:
[SG oppose: (i) [CL/MX propose; JP
oppose: undisclosed information concerning][AU oppose: the safety
or efficacy information submitted in support of the marketing
approval] [CL/MX propose: or sanitary permit][AU propose; JP
oppose: that undisclosed test or other data]; or]
[CL/MX oppose: (ii) [AU oppose:
evidence of the existence of] the marketing approval,]
[MX oppose: for [AU oppose: at
least] ten years from the date of marketing approval [AU oppose: in
the territory of] [AU propose: by] the Party .] [MX propose: Where
origination of such data involve considerable
efforts,
] [CL/MX propose; JP oppose: Each Party shall
protect such information against disclosure except where necessary
to protect the public, or unless steps are taken to ensure that the
data are protected against unfair commercial use]
[CL/MX oppose: (b) If a Party [AU oppose: requires
or permits, in connection with] [AU propose: permits, as a
condition of ] granting marketing approval for a new agricultural
chemical product, the submission of evidence concerning the safety
or efficacy of a product that was previously approved in another
territory, such as evidence of prior marketing approval [AU oppose:
in the other terrritory]; the Party shall not, without the consent
of [AU oppose: a person that] [AU propose: the person who]
previously submitted [AU oppose: the safety or efficacy]
information [AU propose: concerning safety or efficacy] to obtain
marketing approval in another territory, [AU oppose: authorize
another] [AU propose: permit third persons] to market a same or a
similar product based on:
[SG oppose: (i) [AU oppose: the safety or efficacy]
information [AU propose: concerning safety or efficacy] submitted
[AU oppose: in support of] [AU propose: to obtain] the prior
marketing approval in the other territory; or]
(ii) evidence of [AU oppose: the existence of a]
prior marketing approval in the other territory,
for [AU oppose: at least] ten years from the date of
marketing approval [AU oppose: of the new product in the territory
of the Party].]
[PE propose: In
order to receive protection under subparagraph (b), a Party may
require that the person providing the information in the other
territory seek approval in the territory of the Party within five
years after obtaining marketing approval in the other
territory.]
[MX propose: Where a
Party relies on a marketing approval granted by another Party, the
reasonable period of exclusive use of the data submitted in
connection with obtaining the approval relied on shall begin with
the date of the first marketing approval relied on.]
[CL/MX oppose: 2. For purposes of this Article, a
new agricultural chemical product is one that [AU oppose: contains]
[AU propose: does not contain] a chemical entity that has [AU
oppose: not] been previously approved [AU propose: for marketing]
in the [AU oppose: territory of the] Party [AU oppose: for use in
an agricultural chemical product].]]
[NOTE: ARTICLES ORIGINALLY LABELED AS QQ.E.23-24
HAVE BEEN MOVED TO QQ.A.4-5]
Article QQ.E.23 :
[PE/NZ/MX/SG: Proposed joint text for the Intellectual Property
Chapter on Traditional Knowledge, Traditional Cultural Expressions
and Genetic Resources
[PE/NZ/VN/BN/MX/SG/CL/MY propose: 1. The Parties
recognise the importance and contribution of traditional knowledge,
traditional cultural expressions, and biological diversity to
cultural, economic and social development. ]
[PE/MY/MX/BN propose; NZ/AU/SG/CL oppose: 2. Each
Party exercises sovereignty over their biological [MY/BN oppose:
diversity] [MY/BN propose: resources] and shall determine the
access conditions to their genetic resources and their derivatives
in accordance to their domestic legislation.]
[PE/NZ/BN/MY/MX/VN propose;
AU/SG/CL oppose: 3. Where national legislation [MY/BN propose: or
policies] establishes such requirements, the Parties recognise that
users of genetic resources [NZ/CA oppose: and their derivatives]
[
] or traditional knowledge associated with
genetic resources [NZ/CA oppose: and their derivatives] [NZ
propose: may] [PE/MY propose: shall]:
(a) obtain prior informed consent to access genetic
resources [NZ/CA oppose: and their derivatives];
(b) access traditional knowledge associated with
genetic resources [NZ/CA oppose: and their derivatives] with the
prior informed consent or approval and involvement of the
indigenous or local community holding such knowledge; and
-
[BN/MY propose: fairly and] equitably share the
benefits arising from the use of genetic resources [NZ/CA oppose:
and its derivatives] and traditional knowledge associated with
genetic resources [NZ/CA oppose: and their derivatives] on mutually
agreed terms.]
[PE/NZ/MX/CL/VN propose; SG oppose: 4. The parties
recognize that:
(a) information about genetic resources [NZ/CL/AU/CA
oppose: and their derivatives] and traditional knowledge [CL
oppose: associated with genetic resources [NZ/AU/CA oppose: and
their derivatives]] can be useful in assessing patent applications
against existing eligibility criteria; and
(b) the intellectual property system is one possible
means to protect the traditional knowledge [CL oppose: associated
with genetic resources [NZ/AU/CA oppose: and their derivatives]]
and traditional cultural expressions of indigenous and local
communities.]
[PE/NZ/MX/CL propose; SG oppose: 5. The Parties
affirm that they will promote quality patent examination of
applications concerning genetic resources and traditional knowledge
[CL oppose: associated with genetic resources [NZ/AU/CA oppose: and
their derivatives]] to ensure that the eligibility criteria for
patentability are satisfied. This may include:
(a) in determining prior art, ensuring that readily
available documented information related to genetic resources
[NZ/CL/AU/CA oppose: and their derivatives] or traditional
knowledge [CL oppose: associated with genetic resources [NZ/AU/CA
oppose: and their derivatives]] is taken into account;
(b) an opportunity to cite, in writing, to the
appropriate examining authority prior art that may have a bearing
on patentability;
(c) where applicable and appropriate, the use of
databases or digital libraries containing traditional knowledge [CL
oppose: associated genetic resources [NZ/AU/CA oppose: and their
derivatives]]; and
(d) cooperation in the training of patent examiners in the
examination of patent applications related to genetic resources
[NZ/CL/AU/CA oppose: and their derivatives] and traditional
knowledge [CL oppose: associated with genetic resources [NZ/AU/CA
oppose: and their derivatives]].]
[PE/NZ/AU/MX/MY/BN/VN/CL propose; SG oppose: 6.
Subject to each Party's international obligations [AU/MY/BN/VN/CL
oppose: the Parties affirm that they will endeavour
to][AU/MY/BN/VN/CL propose: each Party may] establish appropriate
measures to protect traditional knowledge and [MY oppose:
traditional cultural expressions].]
[PE/MX propose; NZ/AU/SG/CL oppose: 7. Each Party
will take appropriate, effective and proportionate measures to
address situations of non-compliance with provisions established in
paragraph 3.]
[PE/NZ/MX/SG/MY/BN/VN propose: 8.
The Parties shall, through their respective agencies responsible
for intellectual property, cooperate to enhance understanding of
how the intellectual property system can deal with issues
associated with traditional knowledge, traditional cultural
expressions and genetic resources. [This
text is a place holder, to be reconsidered depending on the outcome
of the cooperation section of the IP chapter]]]
[JP propose: {INDUSTRIAL
DESIGNS}
Each Party shall ensure that adequate and effective
protection is provided to industrial designs, including to designs
of a part of an article, regardless of whether or not the part can
be separated from the article.]
{COPYRIGHT AND RELATED RIGHTS}
-
Each Party shall provide that authors, [NZ oppose:
performers], and producers of phonograms have the right to authorize or prohibit
all reproductions of their works, [NZ oppose: performances], and
phonograms, [] in
any manner or form,[] [VN/CA/NZ oppose: permanent
or temporary (including temporary storage in electronic form)]
[]
[] [VN
propose: it shall be a matter for national legislation to determine
exceptions and limitations under which the right may be
exercised].
Without prejudice to Articles 11(1)(ii),
11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and
14bis(1) of the Berne Convention, each Party shall provide
to authors the exclusive right to authorize or prohibit the
communication to the public of their works, by wire or wireless
means, including the making available to the public of their works
in such a way that members of the public may access these works
from a place and at a time individually chosen by them.
[US/AU/PE/NZ/SG/CL/MX propose; VN/MY/BN/JP oppose:
Each Party shall provide to authors, [NZ/MX oppose: performers,]
and producers of phonograms the right to authorize or prohibit the
importation[] into
that Party's territory of copies of the work [PE oppose:
[NZ/MX: oppose: performance,] or phonogram] made without
authorization, [PE/AU/NZ/CA/SG/CL/MX/JP oppose: or made outside
that Party's territory with the authorization of the author,
performer, or producer of the phonogram.[] ]] []
Each Party shall provide to authors, [NZ/MX oppose:
performers,] and producers of phonograms the right to authorize or
prohibit the making available to the public of the original and
copies of
their works, [NZ/MX oppose: performances,] and phonograms through
sale or other transfer of ownership.[]
Each Party shall provide that in cases where
authorization is needed from both the author of a work embodied in
a phonogram and a performer or producer owning rights in the
phonogram, the need for the authorization of the author does not
cease to exist because the authorization of the performer or
producer is also required. Likewise, each Party shall provide that
in cases where authorization is needed from both the author of a
work embodied in a phonogram and a performer or producer owning
rights in the phonogram, the need for the authorization of the
performer or producer does not cease to exist because the
authorization of the author is also required.
[US/AU/PE/SG/CL/MX propose; VN/BN/NZ/MY/CA/JP
oppose: Each Party shall provide that, where the term of protection
of a work (including a photographic work), performance, or
phonogram is to be calculated:
-
on the basis of the life of a natural person, the
term shall be not less than the life of the author and [MX propose:
100] [MX oppose: 70] years after the author's death; and
-
on a basis other than the life of a natural person,
the term shall be:
-
not less than [US propose; CL oppose: 95]
[AU/PE/SG/CL propose: 70] [MX propose: 75] years from the end of
the calendar year of the first authorized publication of the work,
performance, or phonogram, or
-
failing such authorized publication within [US
propose; CL oppose: 25] [SG/PE/AU/CL propose: 50] years from the
creation of the work, performance, or phonogram, not less than [US
propose; CL oppose: 120] [AU/PE/SG/CL propose: 70] years from the
end of the calendar year of the creation of the work, performance,
or phonogram.]
[NZ/BN/MY/VN/CA/JP propose; US/AU/SG/MX oppose: The
term of protection of a work, performance or phonogram shall be
determined according to each Party's domestic law and the
international agreements to which each Party is a party.]
Each Party shall apply Article 18 of the Berne
Convention for the Protection of Literary and Artistic Works
(1971) (Berne Convention) and [PE/SG/NZ/BN/US/VN/CL/MY/MX: the corresponding
provision in] Article 14.6 of the TRIPS Agreement, mutatis
mutandis, to [CA oppose: the subject matter, rights, and
obligations] [CA propose; US oppose: rights of authors, performers
and producers of phonograms] in [Section G].
[CA/JP/SG/BN/NZ/PE/CL/VN/AU propose:
Each Party shall apply, mutatis mutandis, Article
18 of the Berne Convention for the Protection of Literary and
Artistic Works (1971) to the rights of authors, performers and
producers of phonograms in [Section G]. A Party may provide for
conditions, limitations, exceptions and reservations to the extent
permitted in Article 14.6 of the TRIPS Agreement. ]
Each Party shall provide that for
copyright and related rights, any person acquiring or holding any
economic rightin a work,
[SG/BN/NZ/MY/VN/CL oppose: performance,] or phonogram:
-
may freely and separately transfer
that right by contract; and
-
by virtue of a contract, including contracts of
employment underlying the creation of works, [BN/SG/MY/VN/NZ/CL
oppose: performances,] and phonograms, shall be able to exercise
that right in that person's own name and enjoy fully the benefits
derived from that right.
[CL: (c) Each Party may establish:
(i) which specific contracts underlying the creation
of works or phonograms shall, in the absence of a written
agreement, result in a transfer of economic rights by operation of
law; and
(ii) reasonable limits to the provisions in
[paragraph 2(a)] [cross reference to QQ.G.9(a)-(b)] to
protect the interests of the original right holders, taking into
account the legitimate interests of the transferees.]
No Party may subject the enjoyment and exercise of
the rights of authors, performers and producers of phonograms
provided for in this Chapter to any formality.
[US/AU/SG/PE/MX propose; MY/VN/BN/JP
oppose: (a)
In order to provide adequate legal protection and effective legal
remedies against the circumvention of effective technological
measures that authors, performers, and producers of phonograms use
in connection with the exercise of their rights and that restrict
unauthorized acts in respect of their works, performances, and
phonograms, each Party shall provide that any person who:
-
knowingly, [CL oppose: or having
reasonable grounds to know],
circumvents without [CL oppose: authority] [CL propose:
authorization] any effective technological measure that controls
access to a protected work, performance, phonogram, [PE/CA/CL
oppose: or other subject matter]; or
-
manufactures, imports,
distributes, [CL oppose: offers [CA/CL propose: for sale or rental]
to the public, provides, or otherwise traffics
in] devices, products, or components, [CL oppose:
or offers to the public] or provides services, that:
-
are promoted,
advertised, or
marketed by that person, [PE/SG/CL oppose: or by another person
acting in concert with that person and with that person's
knowledge,] for the purpose of circumvention of any effective
technological measure,
-
have only a limited commercially significant purpose
or use other than to circumvent any effective technological
measure, or
-
are primarily designed, produced,
or performed for the purpose of [CA oppose: enabling or
facilitating] the circumvention of any
effective technological measure,
shall be liable and subject to the remedies set out in Article
[12.12] . [CL
propose: If the conduct is carried out in good faith without
knowledge that the conduct in prohibited, a Party may exempt acts
prohibited under this subparagraph that are carried out in
connection with a nonprofit library, archive or educational
institution]. Each Party shall provide for
criminal procedures and penalties to be applied when any person,
other than a nonprofit library, [CA/CL propose: museum,]
archive, educational institution, or
[CA/CL oppose: public noncommercial broadcasting entity,] [CA
propose: any other nonprofit entity as determined by a Party's law]
is found to have engaged [CA oppose: willfully and for purposes of
commercial advantage [CL oppose: or private financial gain]] [CA
propose: knowingly and for commercial purposes] in any of the
foregoing activities. [SG/AU/PE/CL
oppose: Such criminal procedures and penalties
shall include the application to such activities of the remedies
and authorities listed in subparagraphs (a), (b), and (f) of
Article [15.5] as
applicable to infringements, mutatis
mutandis. [] ][CL propose: No Party is required to impose civil or
criminal liability for a person who circumvents any effective
technological measure that protects any of the exclusive rights of
copyright or related rights in a protected work, but does not
control access to such work].
-
In implementing subparagraph (a), no Party shall be
obligated to require that the design of, or the design and
selection of parts and components for, a consumer electronics,
telecommunications, or computing product provide for a response to
any particular technological measure, so long as the product does
not otherwise violate any measures implementing subparagraph
(a).
[CL oppose: (c) Each Party shall provide that a
violation of a measure implementing this paragraph is independent
of any infringement that might occur under the Party's law on
copyright and related rights.]
-
Each Party shall confine exceptions and
limitations to measures implementing subparagraph (a) [CL oppose:
to the following activities,] [CL propose:
certain special cases that do not impair the adequacy of legal
protection of the effectiveness of legal remedies against
the circumvention of effective technological
measures] [CL oppose: which shall be applied to relevant measures
in accordance with subparagraph (e)]:
-
[CA oppose: noninfringing reverse
engineering activities with regard to a lawfully obtained copy of a
computer program, carried out in good faith with respect to
particular elements of that computer program that have not been
readily available to the person engaged in those activities
, for the
sole purpose of achieving interoperability of an independently
created computer program with other programs] [CA
propose: reverse engineering activities with regard to a lawfully
obtained copy of a computer program, for the sole purpose of
achieving interoperability of the program or any other
program];
-
[CA oppose: noninfringing good faith activities,
carried out by an appropriately qualified researcher who has
lawfully obtained a copy, [CL oppose: unfixed] performance, or
display of a work, performance, or phonogram and who has made a
good faith effort to obtain authorization for such activities, to
the extent necessary for the sole purpose of research consisting of
identifying and analyzing flaws and vulnerabilities of [CL propose:
encryption] technologies [CL oppose: for scrambling
and descrambling of information]] [CA propose: activities with
regard to a lawfully obtained copy of a work, performance, or
phonogram for the sole purpose of encryption research] ;
-
the inclusion of a component or part for the sole
purpose of preventing the access of minors to inappropriate online
content in a technology, product, service, or device that itself is
not prohibited under the measures implementing subparagraph
(a)(ii);
-
[CA oppose: noninfringing good faith activities that
are authorized by the owner of a computer, computer system, or
computer network for the sole purpose of testing, investigating, or
correcting the security of that computer, computer system, or
computer network] [CA propose: security testing activities that are
authorized by the owner or administrator of a computer, computer
system or computer network for the sole purpose of testing,
investigating, or correcting the security of that computer,
computer system or computer network];
-
[CA oppose: noninfringing activities for the sole
purpose of identifying and disabling a capability to carry out
undisclosed collection or dissemination of personally identifying
information reflecting the online activities of a natural person in
a way that has no other effect on the ability of any person to gain
access to any work] [CA propose: activities for the sole purpose of
identifying or disabling a capacity to carry out collection or
dissemination of personally identifying information];
-
lawfully authorized activities carried out by
government employees, agents, or contractors for the purpose of law
enforcement, intelligence, essential security, or similar
governmental purposes;
-
access by a nonprofit library, [CA propose: museum,]
archive, or educational institution to a work, performance, or
phonogram not otherwise available to it, for the sole purpose of
making acquisition decisions; and
[CA propose: (viii) activities for the sole purpose
of making a work, performance or phonogram perceptible to a person
with a perceptual disability.
-
activities for the sole purpose of making an
ephemeral reproduction of a work, performance or phonogram,
-
circumvention of a technological measure on a radio
apparatus for the sole purpose of gaining or facilitating access to
a telecommunication service by means of the radio
apparatus]
-
[CA oppose: noninfringing uses [SG
oppose: of a work, performance, or phonogram] in a particular class
of works, [SG oppose: performances, or phonograms] when an actual
or likely adverse impact on those noninfringing uses [CL propose:
or exceptions or limitations to
copyright or related rights with respect to
users] is [PE oppose: credibly demonstrated] [PE propose: found]
[CL propose: demonstrated or recognized] in a legislative or
administrative review or proceeding [SG oppose: by substantial
evidence]; provided that [AU/PE oppose: any limitation or exception
adopted in reliance upon this clause shall have effect for a
renewable period of not more than three [SG propose: four]
years] [AU/PE propose: any such
review or proceeding is conducted at least once
every four years] from the date of
conclusion of such review or proceeding.]
[CA propose: (xi) Each Party may provide further
exceptions and limitations to measures implementing subparagraph
(a) in relation to non infringing uses as determined through a
legislative, regulatory, judicial, or administrative process in
accordance with the Party's law, following due consideration of the
actual or potential adverse impact on those non infringing
uses.]
-
The exceptions and limitations to measures
implementing subparagraph (a) for the activities set forth in
subparagraph [4.9(d)] may [CL oppose: only] be applied as
follows[CL oppose: , and only to the extent that they do not impair
the adequacy of legal protection or the effectiveness of legal
remedies against the circumvention of effective technological
measures]:
-
Measures implementing subparagraph (a)(i) may be
subject to exceptions and limitations with respect to each [CL
propose: situations and] activity set forth in subparagraph (d).
-
Measures implementing subparagraph (a)(ii), as they
apply to effective technological measures that control access to a
work, performance, or phonogram, may be subject to exceptions and
limitations with respect to activities set forth in subparagraph
(d)(i), (ii), (iii), (iv), and (vi).
-
Measures implementing subparagraph (a)(ii), as they
apply to effective technological measures that protect any
copyright or any rights related to copyright, may be subject to
exceptions and limitations with respect to activities set forth in
subparagraph (d)(i) and (vi).
-
Effective technological measure means any
[CA propose: effective] technology, device, or component that, in
the normal course of its operation, controls access to a protected
work, performance, phonogram, [PE/CL/CA oppose: or other protected
subject matter,] or protects [CA oppose: any copyright or any
rights related to copyright] [CA propose: rights related to a work,
performance or phonogram].][CL propose: and cannot, in a
usual case be circumvented
accidentally.]
[SG/CL propose: Nothing
in this agreement shall require any Party to restrict the
importation or domestic sale of a device that does not render
effective a technological measure the sole purpose of which is to
control market segmentation for legitimate copies of
cinematographic film or computer program,
and is not otherwise a violation of law.]
Article QQ.G.12:
{Technological Protection Measures}
[CL/NZ/PE/VN/MY/BN/JP propose; AU/US oppose:
1. [PE/SG oppose: Each Party [VN propose: may] [VN
oppose: shall] provide legal protections and remedies against the
circumvention of effective technological protection measures in
their domestic copyright laws where circumvention is for purposes
of infringing the exclusive rights of copyright [NZ oppose: or
related rights] owners.]
2. Each Party may provide that such protections and
remedies shall not hinder or prevent uses of copyright or related
rights protected material that are permitted under exceptions or
limitations to the exclusive rights of copyright [NZ oppose: and
related rights] owners, or the use of materials that are in the
public domain.
[PE/SG: It is understood that
nothing in this Article prevents a Party from adopting effective
and necessary measures to ensure that a beneficiary may enjoy
limitations and exceptions provided in that Party's national law,
in accordance with Article QQG16, where technological measures have
been applied to a work, performance or
phonogram, and the beneficiary has legal access to that work,
performance or phonogram particularly in circumstances such as
where appropriate and effective measures have not been taken by
rights holders in relation to that work, performance or phonogram
to enable the beneficiary to enjoy the limitations and exceptions
under that Party's national law.]
3. Subject to each Party's international
obligations, the Parties affirm that they may establish provisions
to facilitate the exercise of permitted acts where technological
measures have been applied.]
In order to provide adequate and effective legal
remedies to protect rights management information:
-
each Party [VN oppose: shall] [VN: may] provide [VN
oppose: that] [VN: legal remedies against] any person who without
authority, and knowing, or, with respect to civil remedies, having
reasonable grounds to know, that it would induce, enable,
facilitate, or conceal an infringement of [CA oppose: any] [CA
propose: the] copyright or related right [VN oppose: ,] [VN:
:]
-
knowingly removes or alters any [CA/JP propose:
electronic] rights management information;
-
[MY/BN/VN/CA/JP oppose: distributes or imports for
distribution rights management information knowing that the rights
management information has been altered without authority; or]
-
[CA propose: knowingly] distributes, imports for
distribution, broadcasts, communicates or makes available to the
public copies of works, [CL/NZ/MY/SG/VN oppose: performances,] or
phonograms, knowing that [CA/JP propose: electronic] rights
management information has been removed or altered without
authority [VN oppose: ,] [VN: .]
[VN oppose: shall be liable and subject to the
remedies set out in Article [QQ.H.4(15) ]. Each Party [CA/MX/JP propose:
may] [CA/MX oppose: shall] provide for criminal procedures and
penalties to be applied when any person, other than a nonprofit
library, archive, [CA propose: museum,] [MY: or] educational
institution [MY/CA oppose: , or [CL oppose: public noncommercial]
broadcasting entity] [CA propose: any other nonprofit entity as
determined by a Party's law.] [CL: established without a
profit-making purpose], is found to have engaged [CA oppose:
willfully and for purposes of commercial advantage or private
financial gain] [CA propose: knowingly and for commercial purposes]
in any of the foregoing activities. [MY/CA propose: Each Party may
provide that these criminal procedures and penalties do not apply
to any other nonprofit entity as determined by a Party's law.]
[AU/SG/PE/CL/MY/NZ/BN/CA/MX/JP oppose: Such criminal procedures and
penalties shall include the application to such activities of the
remedies and authorities listed in subparagraphs (a), (b) and (f)
of Article [15.5] as applicable to infringements, mutatis
mutandis.]]
[SG/NZ/CL/MY/BN/VN/CA/JP oppose: (b) each Party
shall confine exceptions and limitations to measures implementing
subparagraph (a) to lawfully authorized activities carried out by
[MX propose: the] government [MX oppose: employees, agents, or
contractors] for the purpose of law enforcement, intelligence,
essential security, or similar governmental purposes.]
(c) Rights management information means:
-
[AU/MY/CA/JP propose: electronic] information that
identifies a work, [NZ/MY oppose: performance,] or phonogram, the
author of the work, [NZ/MY oppose: the performer of the
performance,] or the producer of the phonogram; or the owner of any
right in the work, [NZ/MY oppose: performance,] or phonogram;
-
[AU/MY/CA/JP: electronic] information about the
terms and conditions of the use of the work, [NZ/MY
oppose:performance,] or phonogram ; or
-
any [AU/MY/CA/JP: electronic] numbers or codes that
represent such information,
when any of these items [CA propose: of
information] is attached to a copy of the work, [NZ/MY oppose:
performance,] or phonogram or appears in connection with the
communication or making available of a work, [NZ/MY oppose:
performance] or phonogram, to the public.
(d) For greater certainty, nothing in this paragraph
shall obligate a Party to require the owner of any right in the
work, performance, or phonogram to attach rights management
information to copies of the work, performance, or phonogram, or to
cause rights management information to appear in connection with a
communication of the work, performance, or phonogram to the public.
1. Each Party shall accord the rights provided for
in this Chapter with respect to [NZ/BN/MY oppose: performers and]
producers of phonograms to the [NZ/BN/MY oppose: performers and]
producers of phonograms who are nationals of another Party and to
[NZ/BN/MY oppose: performances or] phonograms first published or
first fixed in the territory of another Party. A [NZ/BN/MY oppose:
performance or] phonogram shall be considered first published in
the territory of a Party in which it is published within 30 days of
its original publication.[][]
2. Each Party shall provide to performers the right
to authorize or prohibit:
-
broadcasting and communication to the public of
their unfixed performances, except where the performance is already
a broadcast performance; and
-
fixation of their unfixed performances.
3. [US/AU/PE/NZ/MY/BN/VN/CL/MX/SG propose ; CA
oppose:
(a) Each Party shall provide to [NZ oppose:
performers and] producers of phonograms the right to authorize or
prohibit [BN oppose: the broadcasting or] any communication to the
public of their [NZ oppose: performances or] phonograms, by wire or
wireless means, including the making available to the public of
those [NZ oppose: performances and] phonograms in such a way that
members of the public may access them from a place and at a time
individually chosen by them.]
[US/CL/PE/MX/SG/MY/NZ/AU/VN/BN propose: (b)
Notwithstanding subparagraph (a) and Article [QQ.G.16.1]
[exceptions and limitations - 3 step test], the application
of this right to analog transmissions and [SG/VN/BN oppose:
non-interactive], free over-the-air [CL/PE/MX oppose: analog and
digital] broadcasts, and exceptions or limitations to this right
for such activity, shall be a matter of each Party's law.]
[US/AU/SG/CL/PE/VN/MY propose:
(c) Each Party may adopt limitations to this right in respect of
other noninteractive transmissions in accordance with Article
[QQ.G.16.1] [exceptions and limitations
- 3 step test], provided that the
limitations do not [CL/PE oppose: unreasonably] prejudice the right
of the performer or producer of phonograms to obtain equitable
remuneration].
[CA propose: Each Party shall provide to performers
and producers of phonograms the rights to authorize or prohibit:
(c) the broadcasting or any communication to the
public of their performances or phonograms; and
(d) the making available to the public, by wire or
wireless means, of their performances and phonograms in such a way
that members of the public may access them from a place and at a
time individually chosen by them.
Where, upon the data of signature of this Agreement,
the right in subparagraph (a) has not been implemented by a Party,
the requirement may be satisfied by providing a right to a single
equitable remuneration for the direct or indirect use of phonograms
published for
commercial purposes for broadcasting or for any communication to
the public.]
For purposes of this [Article QQ.G.1 and Article
QQ.G.3 - 18 ], the following definitions apply with respect to
performers and producers of phonograms:
-
broadcasting means the transmission by
wireless means for public reception of sounds or of images and
sounds or of the representations thereof; such transmission by
satellite is also "broadcasting"; transmission of encrypted signals
is "broadcasting" where the means for decrypting are provided to
the public by the broadcasting organization or with its
consent;
-
communication to the public of a performance
or a phonogram means the transmission to the public by any medium,
other than by broadcasting, of sounds of a performance or the
sounds or the representations of sounds fixed in a phonogram. For
the purposes of paragraph [3], "communication to the public"
includes making the sounds or representations of sounds fixed in a
phonogram audible to the public;
-
fixation means the embodiment of sounds, or
of the representations thereof, from which they can be perceived,
reproduced, or communicated through a device;
-
performers means actors, singers, musicians,
dancers and other persons who act, sing, deliver, declaim, play in,
interpret, or otherwise perform literary or artistic works or
expressions of folklore;
-
phonogram means the fixation of the sounds of
a performance or of other sounds, or of a representation of sounds,
other than in the form of a fixation incorporated in a
cinematographic or other audiovisual work;
-
producer of a phonogram means the person who,
or the legal entity which, takes the initiative and has the
responsibility for the first fixation of the sounds of a
performance or other sounds, or the representations of sounds; and
-
[CA propose:]publication of a
performance or a phonogram means the offering of copies of the
performance or the phonogram to the public, with the consent of the
rightholder, and provided that copies are offered to the public in
reasonable quantity.
-
With respect to Section G, each Party shall confine
limitations or exceptions to exclusive rights to certain special
cases that do not conflict with a normal exploitation of the work,
performance, or phonogram, and do not unreasonably prejudice the
legitimate interests of the right holder.
-
Article QQ.G.X.1 neither reduces
nor extends the scope of applicability of the limitations and
exceptions permitted by the TRIPS Agreement, Berne Convention [VN
propose: Rome Convention,] the WIPO Copyright Treaty, and the WIPO
Performances and Phonograms Treaty.
Each Party shall endeavor to
achieve an appropriate balance in its copyright and related rights
system, inter alia
by means of limitations or exceptions that are
consistent with Article QQ.G.X, including those for the digital
environment, giving due consideration to legitimate purposes such
as, but not limited to, criticism, comment, news reporting,
teaching, scholarship, research [CL/MY propose:
,education, ] [CL propose: and persons with disabilities]
[US/MY/SG/CA/PE/BN/MX/VN propose: , as well as facilitating access
to published works for persons who are blind, visually impaired, or
otherwise print disabled] .
[CL/NZ/MY propose: It is
consistent with this Agreement to provide exceptions and
limitations for temporary acts of reproduction which are transient
or incidental and an integral and essential part of a technological
process and whose sole purpose is to enable (a) a lawful
transmission in a network between third parties by an intermediary;
or (b) a lawful use of a work; and which have no independent
economic significance.]
[CL/NZ/SG/MY/BN/VN/PE/MX propose;
AU/US oppose: The Parties are encouraged to establish international
exhaustion of rights.]
[CA propose: Nothing in this Chapter shall affect
the freedom of the Parties to determine whether and under what
conditions the exhaustion of copyright and related rights applies.]
The Parties recognize the
important role of collective management societies for copyright and
related rights in collecting and distributing
royalties
based on practices that are fair, efficient,
transparent and accountable, and which may include appropriate
record keeping and reporting mechanisms.
{ENFORCEMENT}
1. Each Party shall ensure that enforcement
procedures as specified in this section, are available under its
law [CL/SG/CA/BN/PE/MX/VN propose: and its legal system] so as to
permit effective action against any act of infringement of
intellectual property rights covered by this Chapter, including
expeditious remedies to prevent infringements and remedies which
constitute a deterrent to future infringements. These procedures
shall be applied in such a manner as to avoid the creation of
barriers to legitimate trade and to provide for safeguards against
their abuse.
2. Each Party shall ensure that its procedures
concerning the enforcement of intellectual property rights shall be
fair and equitable. These procedures shall not be unnecessarily
complicated or costly, or entail unreasonable time-limits or
unwarranted delays.
[CL/VN/PE/AU/MY/BN/NZ/SG/MX/CA propose: 3. This
Section does not create any obligation:
(a) to put in place a judicial system for the
enforcement of intellectual property rights distinct from that for
the enforcement of law in general, nor does it affect the capacity
of each Party to enforce their law in general, or
(b) with respect to the distribution of resources
as between the enforcement of intellectual property rights and the
enforcement of law in general.]
[US/SG propose;
BN/VN/PE/MY/NZ/MX/CA oppose: 4. The Parties understand that the
distribution of enforcement resources shall not excuse that Party
from complying with this Section.]
1. In civil, criminal, and if applicable,
administrative proceedings involving copyright or related rights,
each Party shall provide:
-
for a presumption [US/CA propose: ] that, in the absence of
proof to the contrary, the person whose name is indicated in the
usual manner [CL/VN/BN/AU/MX/CA/SG/PE/NZ propose: ] as the author,
performer, producer [CA oppose: , or publisher] of the work,
performance, or phonogram [CA propose: , or as applicable, the
publisher] is the designated right holder in such work,
performance, or phonogram; and
-
for a presumption that, in the absence of proof to
the contrary, the copyright or related right subsists in such
subject matter.
[US/BN/MY/NZ/SG/CA propose; 2 AU/PE/CL/VN/MX
oppose: In
civil, [BN/MY oppose: administrative,] and criminal proceedings
involving trademarks, each Party shall provide for a rebuttable
presumption that a registered trademark is valid.
[BN/SG/MY oppose: In civil or administrative
patent enforcement proceedings, each Party shall provide for a
rebuttable presumption that each claim in a patent substantively
examined and granted by the competent authority satisfies the
applicable criteria of patentability in the territory of the Party
].]
1. Each Party shall provide that final judicial
decisions and administrative rulings of general application
pertaining to the enforcement of intellectual property rights shall
[SG/BN/MY/CA propose: preferably] be in writing and [MY oppose:
shall] [MY/CA propose: may] state [VN/SG/BN/MY/CA oppose: any
relevant findings of fact and] the reasoning or the legal basis on
which the decisions and rulings are based. Each Party shall also
provide that such decisions and rulings shall be published
[] or,
where publication is not practicable, otherwise made available to
the public, in a national language in such a manner as to enable
interested persons and Parties to become acquainted with them.
2. Each Party recognizes the importance of
collecting and analyzing statistical data and other relevant
information concerning intellectual property rights infringements
as well as collecting information on best practices to prevent and
combat infringements.
3. Each Party [US/AU/PE/NZ/CL/MX/CA/JP/SG/BN/VN propose: shall] [MY
propose: may] publish or otherwise make available to the public
information on its efforts to provide effective enforcement of
intellectual property rights in its civil, administrative and
criminal systems, such as statistical information that the Party
may collect for such purposes.
1. Each Party shall make available
to right holders civil
judicial procedures concerning the enforcement of any intellectual
property right covered in
this Chapter.
2 Each Party shall provide
[] that in
civil judicial proceedings its judicial authorities have the
authority at least to order the infringer to pay the right holder
damages adequate to compensate for the injury the right holder has
suffered [PE oppose: because of an infringement of that person's
intellectual property right by an infringer who knowingly, or with
reasonable grounds to know, engaged in infringing activity.]
[SG/PE/AU/NZ/MY/CL/CA/MX/BN/VN oppose: ]
2bis. At least in cases of
copyright or related rights infringement and trademark
counterfeiting, each Party shall provide that, in civil judicial
proceedings, its judicial authorities have the authority to order
the infringer to pay the right holder the infringer's profits that
are attributable to the infringement.[]
2ter. In determining the amount
of damages under paragraph 2, its judicial authorities shall have
the authority to consider, inter
alia, any legitimate measure of value
the right holder submits, which may include lost profits, the value
of the infringed goods or services measured by the market price, or
the suggested retail price.
[US/CA/BN/AU/JP/MX/NZ/PE/VN
propose: 3.
Each Party shall provide that its judicial
authorities have the authority to order injunctive relief that
conforms to the provisions of Article 44 of the TRIPS
Agreement, inter alia,
to prevent goods that involve the infringement of
an intellectual property right from entering into the channels of
commerce [VN propose: in that Party's
Jurisdiction].]
[CL/PE/BN//VN
propose;
US/NZ oppose: 4. Each Party shall ensure that its
judicial authorities shall have the authority to order a party at
whose request measures were taken and who has abused enforcement
procedures to provide the party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such
abuse.]
(1) In civil judicial proceedings, with respect to
infringement of copyright or related rights protecting works,
phonograms, and performances, each Party shall establish or
maintain a system that provides for one or more of the following:
-
pre-established damages, which shall be available
upon the election of the right holder; or
-
additional damages.
(2) In civil
judicial proceedings, with respect to trademark counterfeiting,
each Party [US propose: shall] [NZ/MY/BN/JP propose: may] also
establish or maintain a system that provides for one or more of the
following:
-
pre-established damages, which shall be available
upon the election of the right holder; or
-
additional damages.
(3) Pre-established damages shall be set out in an
amount that would be sufficient to compensate the right holder for
the harm caused by the infingement [VN oppose: , and with a view to
deterring future infringements].
(4) In awarding additional
damages, judicial authorities shall have the authority to award
such additional damages as they consider appropriate, having regard
to all relevant matters, including the [seriousness / extent /
blatancy of the infringing conduct] and the
need to deter similar infringements in the future.
[US propose;
SG/PE/VN/CA/CL/NZ/MY/BN/AU/MX/JP oppose: 6. In civil judicial
proceedings concerning patent infringement, each Party shall
provide that its judicial authorities shall have the authority to
increase damages to an amount that is up to three times the amount
of the injury found or assessed. ]
7. Each Party shall provide that
its judicial authorities, [PE oppose: where appropriate,] [CA
propose:] [PE
propose: except in exceptional circumstances] have the authority to
order, at the conclusion of civil judicial proceedings concerning
infringement of at least copyright or related rights, [CA/MX/US
propose: patents and] [CA/MX/US oppose: or] trademarks, that the
prevailing party be awarded payment by the losing party of court
costs or fees and appropriate attorney's fees, or any other
expenses as provided for under that Party's law.
9. In civil
judicial proceedings concerning copyright or related rights
infringement and trademark counterfeiting, each Party shall provide
that its judicial authorities shall have the authority [VN propose:
, at the right holder's request,] to order [VN propose: as
provisional measures] the seizure or other taking into custody of
suspected infringing goods, materials and implements relevant to
the infringement, and, at least for trademark counterfeiting,
documentary evidence relevant to the infringement.
10. Each
Party shall provide that in civil judicial proceedings :
-
At least with respect to pirated copyright goods and
counterfeit trademark goods, each Party shall provide that, in
civil judicial proceedings, at the right holder's request, its
judicial authorities have the authority to order that such
infringing goods be [VN propose: disposed of outside the channel of
commerce or] destroyed, except in exceptional circumstances,
without compensation of any sort.
-
Each Party shall further provide that its judicial
authorities have the authority to order that materials and
implements that have been used in the manufacture or creation of
such infringing goods, be, without undue delay and without
compensation of any sort, destroyed or disposed of outside the
channels of commerce in such a manner as to minimize the risks of
further infringements.
-
in regard to counterfeit trademark goods, the simple
removal of the trademark unlawfully affixed shall not be
sufficient, other than in exceptional circumstances, to permit the
release of goods into the channels of commerce.
11. Without
prejudice to its law governing privilege, the protection of
confidentiality of information sources, or the processing of
personal data, each Party shall provide that, in civil judicial
proceedings concerning the enforcement of intellectual property
rights, its judicial authorities have the authority, upon a
justified request [VN: propose] of the
right holder, to order the infringer or, in the alternative, the
alleged infringer, to provide to the right holder or to the
judicial authorities, at least for the purpose of collecting
evidence, relevant information as provided for in its applicable
laws and regulations that the infringer or alleged infringer
possesses or controls. Such information may include information
regarding any person involved in any aspect of the infringement or
alleged infringement and regarding the means of production or the
channels of distribution of the infringing or allegedly infringing
goods or services, including the identification of third persons
alleged to be involved in the production and distribution of such
goods or services and of their channels of distribution.
12. Each Party shall provide that
in relation to a civil judicial proceeding concerning the
enforcement of intellectual property rights, its judicial or other
authorities have the authority to impose sanctions on a party,
counsel, experts, or other persons subject to the court's
jurisdiction, for violation of judicial orders concerning the
protection of confidential information produced or exchanged in
connection with such a proceeding.
13. To the extent that any civil
remedy [VN propose; MX oppose: ]can be
ordered as a result of administrative procedures on the merits of a
case, each Party shall provide that such procedures conform to
principles equivalent in substance to those set out in this Article
(civil and administrative proceedings)
14. In the event that a Party's
judicial or other authorities appoint technical or other experts in
civil proceedings concerning the enforcement of intellectual
property rights and require that the parties to the litigation bear
the costs of such experts, that Party should seek to ensure that
such costs are reasonable and related appropriately,
inter alia, to the
quantity and nature of work to be performed and do not unreasonably deter recourse to such
proceedings.
[US/AU/SG propose; BN/VN/MX/JP
oppose: 15. In
civil judicial proceedings concerning the acts described in Article
4.[9] (TPMs) and Article 4.[10] (RMI), each Party shall provide
that its judicial authorities shall, at the least, have the
authoriy to:
-
impose provisional measures, including seizure or
other taking into custody of devices and products suspected of
being involved in the prohibited activity;
-
[US/SG propose; NZ/AU/MY oppose: provide an
opportunity for the right holder to elect between actual damages it
suffered (plus any profits attributable to the prohibited activity
not taken into account in computing those damages) or
pre-established damages;] [AU/NZ/PE propose: order damages of the
type available for the infringement of copyright]
-
order [NZ propose: , where appropriate,] payment to
the prevailing party at the conclusion of civil judicial
proceedings of court costs and fees, and appropriate attorney's
fees, by the party engaged in the prohibited conduct; and
-
order the destruction of devices and products found
to be involved in the prohibited activity.
[US/AU/SG/NZ/MY/CL/CA propose [US
propose: No Party shall make damages available under this
paragraph] [AU/SG/NZ/MY/CL/CA propose: A Party may provide that
damages shall not be available] against a [MY oppose: nonprofit]
library, archives, educational institution, [CA propose: museum, or
any other nonprofit entity as determined by a Party's law] [CA
oppose: or public noncommercial broadcasting entity] [MY oppose:
that sustains the burden of proving that such entity was not aware
and had no reason to believe that its acts constituted a prohibited
activity]. ]]
[NZ/CA/SG/CL/MY propose: 16. Each Party may adopt or
maintain measures to discourage vexatious or unreasonable
proceedings, including those involving pharmaceutical products that
are subject to marketing, regulatory or sanitary approval.]
1. Each Party's authorities shall
act on requests for relief inaudita altera
parte expeditiously in accordance with the
Party's judicial rules.
2. Each Party shall provide that its judicial
authorities have the authority to require the applicant, with
respect to provisional measures, to provide any reasonably
available evidence in order to satisfy themselves with a sufficient
degree of certainty that the applicant's right is being infringed
or that such infringement is imminent, [VN//PE: and that any delay
in the issuance of such measures is likely to cause irreparable
harm to the right holders, or there is a demonstrable risk of
evidence being destroyed,] and to order the applicant to provide a
security or equivalent assurance set at a level sufficient to
protect the defendant and to prevent abuse. Such security or
equivalent assurance shall not unreasonably deter recourse to such
procedures.
1. Each Party shall provide that
any right holder initiating procedures for its competent
authorities to suspend release of suspected counterfeit
[SG/BN/MY/VN/CA oppose: or confusingly similar] trademark goods, or
pirated copyright goods into free
circulation is required to provide adequate evidence to satisfy the
competent authorities that, under the law{s} of the
[CA/NZ/MX/US/PE/AU oppose: country of importation]
[CA/NZ/MX/US/PE/AU propose:
Party providing the procedures], there is prima facie an infringement of the
right holder's intellectual property right and to supply sufficient
information that may reasonably be expected to be within the right
holder's knowledge to make the suspected goods reasonably recognizable by its competent authorities. The
requirement to provide such information shall not unreasonably
deter recourse to these procedures.
1bis. Each Party shall provide for
applications to suspend the release of, or to detain, any suspect
goods
[SG/VN oppose: under customs control
in its territory.][SG/VN propose: that are
imported into the territory of the Party] A Party
may provide that, at the request of the right holder, an
application to suspend the release of, or to detain, suspect goods
may apply to selected points of entry [US/CA/JP/MX propose;
CL/SG/VN oppose: and exit] under customs control.] [US/AU/CA/JP/NZ propose; MX /PE/CL/MY/SG/VN/BN oppose: Each
Party shall provide that applications [NZ oppose: shall] remain in
force [NZ propose: for the period requested by the right holder but
not exceeding five years, or] for a period of not less than one
year from the date of application, or the period that the good is
protected by copyright or the relevant trademark registration is
valid, whichever is shorter.[NZ propose: A Party may provide that
its competent authorities have the authority to suspend or
invalidate an application when there is due cause.]
2. Each Party shall provide that its competent
authorities have the authority to require a right holder initiating
procedures to suspend the release of suspected counterfeit
[BN/SG/MY/VN/CA oppose: or confusingly similar] trademark goods, or
pirated copyright goods, to provide a reasonable security or
equivalent assurance sufficient to protect the defendant and the
competent authorities and to prevent abuse. Each Party shall
provide that such security or equivalent assurance shall not
unreasonably deter recourse to these procedures. A Party may
provide that such security may be in the form of a bond conditioned
to hold the defendant harmless from any loss or damage resulting
from any suspension of the release of goods in the event the
competent authorities determine that the article is not an
infringing good.
3. Without prejudice to a Party's laws pertaining to privacy or the
confidentiality of information, where its competent authorities
have detained or suspended the release of goods that are suspected
of being counterfeit or pirated, a Party may provide that its
competent authorities have the authority to inform the right holder
[CA/VN propose: who has filed a request for assistance]
[MY/CA/BN/PE/VN oppose: promptly] [MY/CA/PE /BN/SG/VN propose: within a reasonable period] of the names
and addresses of the consignor, exporter, consignee or importer, a
description of the merchandise, quantity of the merchandise, and,
if known, the country of origin of the merchandise.: Where a Party
does not provide such authority to its competent authorities when
suspect goods are detained or suspended from release, it shall
provide [US/VN propose: , at least in cases of imported goods,] its
competent authorities with the authority to provide the foregoing
information to the right holder [SG/VN oppose: within 30
days] [SG/VN
propose: within a reasonable period] of the seizure or
determination that the goods are counterfeit or pirated, whichever
is earlier.
[US/PE/AU/SG/MY/CL/CA/BN/JP
propose; NZ/VN/MX oppose: 4. Each Party shall provide that its
competent authorities may initiate border measures
ex officio with
respect to [AU propose: merchandise that is] imported,
[MY/CL/AU/PE/BN oppose: exported,] [CL/AU/PE propose; SG oppose:
destined for export,] [AU/MY/SG/CA/BN/CL oppose: or in-transit
merchandise,[PE oppose: ]]
[PE/SG/MY/CL/CA/BN oppose: or [AU oppose: merchandise] [US propose:
entering into or exiting from] [US oppose: in] free trade zones],
that is suspected of being counterfeit [SG/PE/MY/CA/BN oppose: or
confusingly similar] trademark goods, or pirated copyright
goods.]
5. Each Party shall adopt or
maintain a procedure by which its competent authorities may
determine, within a reasonable period of time after the initiation of the procedures described under
Article QQ.H.6(1) whether the
suspect goods infringe an intellectual property right. Where a
Party provides administrative procedures for the determination of
an infringement, it [VN propose:
may] [VN oppose: shall] also provide its authorities with the
authority to impose administrative penalties, which may include
monetary penalties or the seizure of the infringing goods,
following a determination that the goods are infringing.
6. Each Party shall provide that its competent
authorities have the authority to order the destruction [VN
propose: , or disposal outside the channel of commerce,] of goods
following a determination that the goods are infringing. In cases
where such goods are not destroyed, each Party shall ensure that,
except in exceptional circumstances, such goods are disposed of
outside the channels of commerce in such a manner as to avoid any
harm to the right holder. In regard to counterfeit trademark goods,
the simple removal of the trademark unlawfully affixed shall not be
sufficient, other than in exceptional cases, to permit the release
of the goods into the channels of commerce.
7. Where a Party establishes or assesses, in
connection with the procedures described in this section [article],
an application fee, storage fee, or destruction fee, such fee shall
not be set at an amount that unreasonably deters recourse to these
procedures
8. Each Party shall include in the
application of this Article goods of a commercial nature sent in
small consignments. A Party may exclude from the application of
this Article small quantities of goods of
a non-commercial nature contained in travellers' personal
luggage.
1. Each Party shall provide for criminal procedures
and penalties to be applied at least in cases of willful trademark
counterfeiting or copyright or related rights piracy on a
commercial scale.
2. [US/AU/SG/PE propose; CL/VN/MY/NZ/CA/BN/MX
oppose: Willful copyright or related rights piracy on a commercial
scale includes:
-
significant willful copyright or related rights
infringements that have no direct or indirect motivation of
financial gain; and
-
willful infringements for purposes
of commercial advantage or [AU/SG/PE/JP oppose: private] financial
gain.[AU/SG/PE/CA/JP oppose: ]]
Each Party shall treat willful
importation [SG/MX/BN/MY/VN oppose: or exportation] of counterfeit
trademark goods [VN oppose: or pirated copyright goods] on a
commercial scale as unlawful activities subject to criminal
penalties.
[US propose; AU/BN/MY/NZ/SG/CL/VN/PE/CA/MX/JP
oppose: 3. Each Party shall also provide for criminal procedures
and penalties to be applied, even absent willful trademark
counterfeiting or copyright or related rights piracy, at least in
cases of knowing trafficking in:
-
labels or packaging, of any type
or nature, to which a counterfeit trademark has been
applied, the use of which is likely to cause confusion, to cause
mistake, or to deceive; and
-
counterfeit or illicit
labels
affixed to, enclosing, or accompanying, or
designed to be affixed to, enclose, or accompany the
following:
-
a phonogram,
-
a copy of a computer program or a literary work,
-
a copy of a motion picture or other audiovisual
work,
-
documentation or packaging for such items; and
-
counterfeit documentation or packaging for items of
the type described in subparagraph (b).]
[NZ/AU/BN/MY/US/CA/SG/MX/JP
propose; PE/CL/VN oppose: 4. Each Party shall provide for criminal
procedures and penalties to be applied in cases of willful
importation
and domestic use, in the course of trade and on a
commercial scale, of labels or packaging:
-
to which a mark has been applied without
authorization which is identical to, or cannot be distinguished
from, a trademark registered in its territory; and
-
which are intended to be used in the course of trade
on goods or in relation to services which are identical to goods or
services for which such trademark is registered.]
[US propose; CA/JP oppose: Each
Party shall further ensure that criminal penalties and procedures
are applied in cases of knowing trafficking in illicit
labels
affixed, enclosing, or accompanying, or designed
to be affixed to, enclose, or accompany phonograms, copies of
computer programs, literary works, motion pictures, or other
audiovisual works.]
5. [AU/NZ/SG/MY/ CA/US propose; PE/VN/BN/MX/CL
oppose: [US/CA propose: Each] [US/CA oppose: A] Party [SG/NZ/CL
oppose: shall] [SG/NZ/CL/JP: may] provide criminal procedures and
penalties [US/CA oppose: , in appropriate cases,] for the [US/CA
propose: knowing and] unauthorized copying [MY: or recording] [US
propose; CA/JP oppose: or transmittal] of [US/CA propose: a [JP
propose: first-run] cinematographic work, or any part thereof,]
[US/CA oppose: cinematographic works] from a performance in a [CA
oppose: motion picture exhibition facility generally open to the
public] [CA/JP propose: movie theater].]
6. With respect to the offenses for which this
Article requires the Parties to provide for criminal procedures and
penalties, Parties shall ensure that criminal liability for aiding
and abetting is available under its law.
7. With respect to the offences described in Article
QQ.H.7[1]-[4] above, each Party shall provide:
-
penalties that include sentences
of imprisonment as well as monetary fines sufficiently high to
provide a deterrent to future acts of infringement, consistently
with the level of penalties applied for crimes of a corresponding
gravity;
-
that its
judicial authorities shall have the authority, when determining
penalties, to account for the seriousness of the circumstances,
which may include those that involve threats to, or effects on,
health or safety;
-
that its judicial [VN propose: or
other]authorities shall have the authority
to order the seizure of suspected counterfeit trademark goods or
pirated copyright goods, any related materials and implements used
in the commission of the alleged offense, documentary evidence
relevant to the alleged offense [MY oppose: , and assets
derived from, or obtained directly [VN
oppose: or indirectly] through the alleged
infringing activity].
Where a Party requires the identification of items subject to
seizure as a prerequisite for issuing any such judicial order, that
Party shall not require the items to be described in greater detail
than necessary to identify them for the purpose of seizure;
-
that its judicial authorities shall have the
authority to order the forfeiture, at least for serious offenses,
of any assets derived from, or obtained directly [VN oppose: or
indirectly] through the infringing activity;
-
that its judicial authorities shall have the
authority to order the forfeiture or destruction of:
-
all counterfeit trademark goods or pirated copyright
goods; and
-
materials and implements [CA/VN/MX propose:
predominantly][CA/VN/MX oppose: that have been] used in the
creation of pirated copyright goods or counterfeit trademark goods;
and
[CL/PE/VN/BN/SG/AU/CA/MX/JP oppose: (iii) any other
articles consisting of a counterfeit trademark].
In cases where counterfeit
trademark goods and pirated copyright goods are not destroyed, the
[MY oppose: judicial][MY/SG/CL/AU/PE/MX/VN/JP:
competent]
authorities shall ensure that , except in exceptional
circumstances, such goods shall be disposed of outside the channels
of commerce in such a manner as to avoid causing any harm to the
right holder. Each Party shall further provide that forfeiture or
destruction under this subparagraph and subparagraph (c)
shall occur without compensation of any kind to
the defendant;
[US/NZ propose; BN/SG/MY/CL/PE/AU/VN/CA/MX/JP
oppose: (f)
that its judicial authorities have the authority to order the
seizure or forfeiture of assets the value of which corresponds to
that of the assets derived from, or obtained directly or indirectly
through, the infringing activity];
-
that its judicial or other
competent authorites shall have the authority to release or, in the
alternative, provide access to, goods, material, implements, and
other evidence held by the authority to a right holder for
civil
infringement proceedings.
[US/NZ/PE/SG/BN/CL/AU/MY/CA/MX propose: VN/JP
oppose: (h) that its competent authorities may act upon their own
initiative to initiate a legal action without the need for a formal
complaint by a private party or right holder].
1.[CL propose:
In the course of ensuring effective protection against unfair
competition as provided in Article 10bis of the Paris Convention] Parties
shall ensure that natural and legal persons have the legal means to
prevent trade secrets lawfully in their control from being
disclosed to, acquired by, or used by others (including state
commercial enterprises) without
their consent in a manner contrary to honest commercial
practices.[
] As used in this Chapter, trade secrets
encompass, at a minimum, undisclosed information as provided for in
Article 39.2 of the TRIPS Agreement.
[US/MX/CA/NZ/JP propose;
SG/MY/PE/VN/CL/AU/BN oppose:
2. Each Party shall provide for criminal procedures and penalties
at least in cases in which a trade secret relating to a product in
national or international commerce is misappropriated, or
disclosed, willfully and without authority for purposes of
commercial advantage or financial gain, and with the intent to
injure the owner of such trade secret.]
-
Each Party shall make it a [CL/MX propose: civil
or,] [VN propose: administrative or] criminal offense to:
-
manufacture, assemble, modify,
import, export, sell, lease, or otherwise distribute a tangible or
intangible device or system, knowing[CL ] [CL/JP
oppose: or having reason to know] that the device or [CL oppose:
system is primarily of assistance] [CL propose: system's principal
function is solely to assist] in decoding an encrypted
program-carrying satellite [CL/VN/SG/PE/CA/MX oppose: or cable]
signal without the authorization of the lawful distributor of such
signal;
and
[US/AU/NZ/PE/MY/SG/MX/VN/CA/CL
propose, BN/JP oppose: (b) [VN oppose: [CA propose: except in
circumstances where the lawful distributor has not made the signal
available to persons in the area where the decoding occurs,]
willfully receive [CL oppose:
and make use of,][] or]
willfully further distribute a program-carrying signal that
originated as an encrypted satellite [PE/SG/MX/VN/CL/CA oppose: or
cable] signal knowing that it has been decoded without the
authorization of the lawful dstributor of the signal,
[PE/SG/MX/VN/CL/CA oppose: or if the signal has been decoded with
the authorization of the lawful distributor of the signal,
willfully to further distribute the signal for purposes of
commercial advantage knowing that the signal originated as an
encrypted program-carrying signal and that such further
distribution is without the authorization of the lawful signal
distributor.] ]
[US/AU/PE/NZ/MX/CL propose,
MY/BN/VN/CA oppose: 2. Each Party shall provide for civil remedies,
[CL/MX oppose: including compensatory damages,] for any person
injured by any activity described in paragraph [1], including any
person that holds an interest in the encrypted programming signal
or its content.]
[US/AU/CA/SG/NZ/PE propose, VN/
oppose:1. Each Party shall ensure that enforcement procedures, to
the extent set forth in the civil and criminal enforcement sections
of this Chapter, are available under its law so as to permit
effective action against an act of trademark, copyright or related
rights infringement which takes place in the digital environment,
including expeditious remedies to prevent infringement and remedies
which constitute a deterrent to further
infringement.]
Each Party shall
adopt or maintain appropriate laws, regulations, policies, orders,
government-issued guidelines, or administrative or executive
decrees providing that its [US/AU/CA/MY/VN/MX propose:
central
] government agencies use only
non-infringing computer
software [US/AU/CA/MX propose:; SG/CL/PE/NZ/MY/BN/VN oppose: and
other materials protected by copyright or related rights] in a
manner authorized by law and by the relevant license. These
measures shall apply to the acquisition and [PE/CA oppose:
management] [PE/CA propose: use] of such software
[PE/CL/BN/SG/NZ/MY/VN oppose: and other materials] for government
use.
[US propose: Notwithstanding
Article QQ.G.16 [limitations and exceptions] and Article
QQ.G.14.3(b) [over the air broadcasting reference], no Party may
permit the retransmission of television signals (whether
terrestrial, cable, or satellite) on the Internet without the
authorization of the right holder or right
holders of the content of the signal and, if any, of the
signal.]
Article
QQ.I.1:
{Internet Service Provider Liability}
[CL/BN/NZ/MY/VN/CA/SG/MX propose; AU/US oppose:
1. Each
Party shall limit the liability of, or the availability of remedies
against, internet service providers [when acting as
intermediaries],
for infringement of copyright or related rights that take place on
or through communication networks, in relation to the provision or
use of their services.]
[CA propose: 2. Limitations referred to in the
previous paragraph shall cover at least the following functions:
-
mere conduit, which consist of the provision of the
means to transmit information provided by a user, or the means of
access to a communication network;
-
hosting of information at the request of a user of
the hosting services;
-
caching carried out through an automated process,
when the internet service provider:
-
does not modify information other than for technical
reasons;
-
ensures that any directions related to the caching
of information that are specified in a manner widely recognized and
used by industry are complied with; and
-
does not interfere with the use of technology that
is lawful and widely recognized and used by the industry in order
to obtain data on the use of information;
-
providing an information location tool, by making
reproductions of copyright material in an automated manner, and
communicating the reproductions.]
[CA propose: 3. Qualification by an internet service
provider for the limitations as to each function in the previous
paragraph shall be considered separately from qualification for the
limitations as to each other function. Eligibility for the
limitations in the previous paragraph may not be conditioned on the
internet service provider monitoring its service, or affirmatively
seeking facts indicating infringing activity.]
[CL/BN/NZ/VN/MX propose; AU/US/SG/MY oppose: 2.
The
framework in Paragraph 1 [CA oppose: will only apply if an internet
service provider meets conditions, including] [CA/CL/VN propose;
NZ/MX oppose: shall be accompanied in a Party's law by]:
(a) [CA/NZ/CL/VN/MX propose: procedures for
notifications of claimed infringement and for] removing or
disabling access to infringing material [CA/CL/MX oppose: upon
notification from the right holder through a procedure established
by each Party]; and]
[CA/NZ/CL/VN propose: (b) legal incentives
for internet service providers to comply with these procedures, or
remedies against internet service providers who fail to comply.]]
[CA propose: 4. Each Party shall provide legal
incentives for internet service providers to comply, or remedies
against internet service providers who fail to comply, with any
procedures established in each party's law for:
(a) effective notifications of claimed
infringement; or
(b) removing or disabling access to infringing
material residing on its networks.]
[CA/CL/VN] propose: [CA oppose: 3.] [CA
propose: 5.] The framework in Paragraph 1 will not apply to the
extent that an internet service provider provides a service
primarily for the purpose of enabling acts of copyright or related
right infringement.]
[CA propose: 6. This Article is without prejudice to
the availability in a Party's law of other defences, limitations
and exceptions to the infringement of copyright or related rights.
This Article shall not affect the possibility of a court or
administrative authority, in accordance wth Parties' legal systems,
or requiring the internet service provider to terminate or prevent
an infringement.]
[US/AU/SG/NZ/PE propose; BN/VN/CA/MX oppose: 1.
[SG/MY oppose: For
the purpose of providing enforcement procedures that permit
effective action against any act of copyright infringement covered by
this Chapter, including expeditious remedies to prevent
infringements and criminal and civil remedies] each Party shall
provide, consistent with the framework set out in this Article:
-
[MY/VN oppose: legal incentives for service
providers to cooperate with copyright owners in deterring the
unauthorized storage and transmission of copyrighted materials;
and]
-
limitations in its law [MY/NZ/SG propose: on the
liability of, or on the remedies] [NZ/MY/VN oppose: regarding the
scope of remedies ]
available against service providers for copyright infringements
that they do not control, initiate or direct, and that take place
through systems or networks controlled or operated by them or on
their behalf, as set forth in this subparagraph (b). [PE propose: ]
-
[MY/VN oppose: These limitations
shall preclude monetary relief and provide reasonable restrictions
on court-ordered relief to compel or restrain certain actions for
the following functions, [NZ oppose: and shall be confined to those
functions]][]:
-
transmitting, routing, or
providing connections for material without modification of its
content[CL propose:], or the
[MY oppose: intermediate and] transient storage of such material in
the course thereof;
-
caching carried out through an automatic process;
-
storage, at the direction of a user, of material
residing on a system or network controlled or operated by or for
the service provider; and
-
referring or linking users to an online location by
using information location tools, including hyperlinks and
directories.
-
These limitations shall apply only where the service
provider does not initiate the transmission of the material, and
does not select the material or its recipients (except to the
extent that a function described in clause (i)(D) in itself entails
some form of selection).
-
Qualification by a service provider for the
limitations as to each function in clauses (i)(A) through (D) shall
be considered separately from qualification for the limitations as
to each other function[CL oppose: , in accordance with the
conditions for qualification set forth in clauses (iv) through
(vii)]
-
With respect to functions referred to in clause
(i)(B), the limitations shall be conditioned on the service
provider:
[CL/MY oppose: (A)
permitting access to cached material in
significant part only to users of its system or network who have
met conditions [NZ propose: imposed by the originator of the
material] on user access to that material;]
-
complying
with rules concerning the refreshing, reloading, or other updating
of the cached material when specified by the [CL oppose: person
making the material available online] [CL propose: supplier of the
material] in accordance with a relevant
industry standard data communications protocol for the system or
network through which that person makes the material available that
is generally accepted in the Party's territory;
-
not
interfering with technology used at the
originating site consistent with industry standards generally
accepted in the Party's territory to obtain information about the
use of the material, and not modifying its content in transmission
to subsequent users; and
-
[MY oppose: expeditiously] removing or disabling
access, on receipt of an effective notification of claimed
infringement, to cached material that has been removed or access to
which has been disabled at the originating site.
-
With respect to functions referred to in clauses
(i)(C) and (D), the limitations shall be conditioned on the service
provider:
(A) not receiving a financial benefit directly
attributable to the infringing activity, in circumstances where it
has the right and ability to control such activity;
(B) [MY oppose: expeditiously] removing or disabling
access to the material residing on its system or network on
obtaining actual knowledge of the infringement or becoming aware of
facts or circumstances from which the infringement was apparent,
such as through effective notifications of claimed infringement in
accordance with clause (ix); [NZ oppose: and
(C ) publicly designating a representative to
receive such notifications.]
[MY/NZ oppose: (vi) Eligibility for the limitations
in this subparagraph shall be conditioned on the service provider:
(A) adopting and reasonably implementing a policy
that provides for termination in appropriate circumstances of the
accounts of repeat infringers; and
(B) accommodating and not interfering with standard
technical measures accepted in the Party's territory that protect and identify
copyrighted material, that are developed through an open, voluntary
process by a broad consensus of interested parties, that are available on
reasonable and nondiscriminatory terms, and that do not impose
substantial costs on service providers or substantial burdens on
their systems or networks.]
-
Eligibility for the limitations in this subparagraph
may not be conditioned on the service provider monitoring its
service, or affirmatively seeking facts indicating infringing
activity [NZ/MY oppose: , except to the extent consistent with such
technical measures.]
[NZ oppose: (viii) If the service provider
qualifies for the limitations with respect to the function referred
to in clause (i)(A), court-ordered relief to compel or restrain
certain actions shall be limited to terminating specified accounts,
or to taking reasonable steps to block access to a specific,
non-domestic online location.[MY oppose: If the service provider
qualifies for the limitations with respect to any other function in
clause (i), court-ordered relief to compel or restrain certain
actions shall be limited to removing or disabling access to the
infringing material, terminating specified accounts, and other
remedies that a court may find necessary, provided that such other
remedies are the least burdensome to the service provider [CL
propose: and users or subscribers] among comparably effective forms
of relief. Each Party shall provide that any such relief shall be
issued with due regard for the relative burden to the service
provider [CL propose: ,to users or subscribers] and harm to the
copyright owner, the technical feasibility and effectiveness of the
remedy and whether less burdensome, comparably effective
enforcement methods are available. Except for orders ensuring the
preservation of evidence, or other orders having no material
adverse effect on the operation of the service provider's
communications network, each Party shall provide that such relief
shall be available only where the service provider has received
notice of the court order proceedings referred to in this
subparagraph and an opportunity to appear before the judicial
authority.]]
[NZ oppose: (ix) For purposes of the notice and
take down process for the functions referred to in clauses (i) [CL
propose: (B)] (C) and (D), each Party shall establish appropriate
procedures in its law or in regulations for effective notifications
of claimed infringement, and effective counter-notifications by
those whose material is removed or disabled through mistake or
misidentification. Each Party shall also provide for monetary
remedies against any person who makes a knowing material
misrepresentation in a notification or counter-notification that
causes injury to any interested party as a result of a service
provider relying on the misrepresentation.]
[NZ oppose: (x) If the service provider removes or
disables access to material in good faith based on claimed or
apparent infringement, each Party shall provide that the service
provider shall be exempted from liability for any resulting claims,
provided that, in the case of material residing on its system or
network, it takes reasonable steps promptly to notify the [CL
oppose: person making the material available on its system or
network] [CL propose: supplier of the material] that it has done so
and, if such person makes an effective counter-notification and is
subject to jurisdiction in an infringement suit, to restore the
material online unless the person giving the original effective
notification seeks judicial relief within a reasonable time.]
-
Each Party shall establish an administrative or
judicial procedure enabling copyright owners [NZ oppose: who have
given effective notification of claimed infringement] to obtain
expeditiously from a service provider information in its possession
identifying the alleged infringer.
-
For purposes of the function referred to in clause
(i)(A), service provider means a provider of transmission,
routing, or connections for digital online communications without
modification of their content between or among points specified by
the user of material of the user's choosing, [NZ oppose: and for
purposes of the functions referred to in clauses (i)(B) through (D)
service provider means a provider or operator of facilities
for online services or network access.]]
[US/AU/SG propose; CL/MY/NZ/VN/BN/CA/MX/PE
oppose: Annex to Article QQ.I.1.3(b)(ix)
In meeting the obligations of Article QQ.I.1.3(b)(ix), each Party shall adopt or maintain
requirements for: (a) effective written notice to service providers
with respect to materials that are claimed to be infringing, and
(b) effective written counter-notification by those whose material
is removed or disabled and who claim that it was disabled through
mistake or misidentification, as set forth in this letter.
Effective written notice means notice that substantially complies
with the elements listed in section (a) of this letter, and
effective written counter-notification means counter-notification
that substantially complies with the elements listed in section (b)
of this letter.
(a) Effective Written Notice, by a
Copyright Owner
or Person Authorized to Act
on Behalf of an Owner of an
Exclusive Right, to a Service Provider's Publicly Designated
Representative
In order for a notice to a service provider to
comply with the relevant requirements set out in Article
QQ.I.1.3(b)(ix), that notice must be a
written communication, which may be provided electronically, that
includes substantially the following:
-
the identity, address, telephone number, and
electronic mail address of the complaining party (or its authorized
agent);
-
information reasonably sufficient to enable the
service provider to identify the copyrighted work(s) claimed to have been
infringed;
3. information reasonably sufficient to permit the
service provider to identify and locate the material residing on a
system or network controlled or operated by it or for it that is
claimed to be infringing, or to be the subject of infringing
activity, and that is to be removed, or access to which is to be
disabled;
-
a statement that the complaining party has a good
faith belief that use of the material in the manner complained of
is not authorized by the copyright owner, its agent, or the
law;
-
a statement that the information in the notice is
accurate;
-
a statement with sufficient indicia of reliability
[SG propose:] (such
as a statement under penalty of perjury or equivalent legal
sanctions) that the complaining party is the [SG/AU oppose: holder]
[SG/AU propose: owner] of an exclusive right that is allegedly
infringed, or is authorized to act on the owner's behalf; and
-
the signature of the person giving notice.
(b) Effective Written
Counter-Notification by a Subscriber
Whose Material Was Removed or Disabled as a
Result of Mistake or Misidentification of Material
In order for a counter-notification to a service
provider to comply with the relevant requirements set out in
Article QQ.I.1.3.(b)(ix), that
counter-notification must be a written communication, which may be
provided electronically, that includes substantially the following:
-
the identity, address, [SG/AU propose: electronic
mail address] and telephone number of the subscriber;
-
the identity of the material that has been removed
or to which access has been disabled;
-
the location at which the material appeared before
it was removed or access to it was disabled;
-
a statement with sufficient indicia of reliability
(such as a statement under penalty of perjury or equivalent legal
sanctions) that the subscriber [SG/AU propose: is the supplier of
the material and] has a good faith belief that the material was
removed or disabled as a result of mistake or misidentification of
the material;
-
a statement that the subscriber agrees to be subject
to orders of any court that has jurisdiction over the place where
the subscriber's address is located, or, if that address is located
outside the Party's territory, any other court with jurisdiction
over any place in the Party's territory where the service provider
may be found, and in which a copyright infringement suit could be
brought with respect to the alleged infringement;
-
a statement that the subscriber will accept service
of process in any such suit; and
-
the signature of the subscriber.
]]
[CL propose: Annex […]
List of Geographical Indications from Chile
WINES Name of Indication
Valle de Aconcagua
Alhué
Valle del Bío Bío
Buin
Valle del Cachapoalf
Valle de Casablanca
Cauquenes
Chillán
Chimbarongo
Valle del Choapa
Coelemu
Valle de Colchagua
Valle de Copiapó
Valle de Curicó
Region de Aconcagua
Region de Atacama
Region de Coquimbo
Valle del Claro
Region del Sur
Region del Valle Central
Valle del Elqui
Valle del Huasco
Illapel
Isla de Maipo
Valle del Itata
Valle de Leyda
Valle de Limarí
Linares
Valle del Loncomilla
Valle del Lontué
Lolol
Valle del Maipo
Maria Pinto
Valle del Marga-Marga
Valle del Maule
Marchigue
Valle del Malleco
Melipilla
Molina
Monte Patria
Mulchén
Nancagua
Ovalle
Paiguano
Pajarete
Palmilla
Panquehue
Parral
Pencahue
Peralillo
Peumo
Pirque
Portezuelo
Puente Alto
Punitaqui
Quillón
Rancagua
Valle del Rapel
Rauco
Rengo
Requínoa
Río Hurtado
Romeral
Sagrada Familia
Valle de San Antonio
San Juan
Salamanca
San Clemente
San Fernando
San Javier
San Rafael
Santa Cruz
Santiago
Talagante
Talca
Valle del Teno
Valle delTutuvén
Traiguén
Vicuña
Villa Alegre
Vino Asoleado
Yumbel
SPIRITS Name of Indication Country
Pisco Chile
AGRICULTURAL Name of Indication Country
Limón de Pica Chile]