3) promote, through international cross-border cooperation initiatives, the development of mechanisms to assist users in submitting cross-border complaints regarding personal information protection.
2. The Parties shall consider establishing a forum to address any of the issues listed above, or any other matter pertaining to the operation of this Chapter.
Article 19.15. Cybersecurity
1. The Parties recognize that threats to cybersecurity undermine confidence in digital trade. Accordingly, the Parties shall endeavor to:
(a) build the capabilities of their respective national entities responsible for cybersecurity incident response; and
(b) strengthen existing collaboration mechanisms for cooperating to identify and mitigate malicious intrusions or dissemination of malicious code that affect electronic networks, and use those mechanisms to swiftly address cybersecurity incidents, as well as for the sharing of information for awareness and best practices.
2. Given the evolving nature of cybersecurity threats, the Parties recognize that risk-based approaches may be more effective than prescriptive regulation in addressing those threats. Accordingly, each Party shall endeavor to employ, and encourage enterprises within its jurisdiction to use, risk-based approaches that rely on consensus-based standards and risk management best ptactices to identify and protect against cybersecurity risks and to detect, respond to, and recover from cybersecurity events.
Article 19.16. Source Code
1. No Party shall require the transfer of, or access to, a source code of software owned by a person of another Party, or to an algorithm expressed in that source code, as a condition for the import, distribution, sale or use of that software, or of products containing that software, in its territory.
2. This Article does not preclude a regulatory body or judicial authority of a Party from requiring a person of another Party to preserve and make available the source code of software, or an algorithm expressed in that source code, to the regulatory body for a specific investigation, inspection, examination, enforcement action, or judicial proceeding, (6) subject to safeguards against unauthorized disclosure.
Article 19.17. Interactive Computer Services
1. The Parties recognize the importance of the promotion of interactive computer services, including for small and medium-sized enterprises, as vital to the growth of digital trade.
2. To that end, other than as provided in paragraph 4, no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information. (7)
3. No Party shall impose liability on a supplier or user of an interactive computer service on account of:
(a) any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material that is accessible or available through its supply or use of the interactive computer services and that the supplier or user considers to be harmful or objectionable; or
(b) any action taken to enable or make available the technical means that enable an information content provider or other persons to restrict access to material that it considers to be harmful or objectionable.
4. Nothing in this Article shall:
(a) apply to any measure of a Party pertaining to intellectual property, including measures addressing liability for intellectual property infringement; or
(b) be construed to enlarge or diminish a Party's ability to protect or enforce an intellectual property right; or
(c) be construed to prevent:
(i) a Party from enforcing any criminal law, or
(ii) a supplier or user of an interactive computer service from complying with a specific, lawful order of a law enforcement authority. (8)
5. This Article is subject to Annex 19-A.
Article 19.18. Open Government Data
1. The Parties recognize that facilitating public access to and use of government information fosters economic and social development, competitiveness, and innovation.
2. To the extent that a Party chooses to make government information, including data, available to the public, it shall endeavor to ensure that the information is in a machine-readable and open format and can be searched, retrieved, used, reused, and redistributed.
3. The Parties shall endeavor to cooperate to identify ways in which each Party can expand access to and use of government information, including data, that the Party has made public, with a view to enhancing and generating business opportunities, especially for SMEs.
ANNEX 19-A.
1. Article 19.17 (interactive Computer Services) shall not apply with respect to Mexico until the date of three years after entry into force of this Agreement.
2. The Parties understand that Articles 145 and 146 of Mexico'sLey Federal de Telecomunicaciones y Radiodifusión, as in force on the date of entry into force of this Agreement, are not inconsistent with Article 19.17.3 (Interactive Computer Services). In a dispute with respect to this article, subordinate measures adopted or maintained under the authority of and consistent with Articles 145 and 146 of Mexico's Ley Federal de Telecomunicaciones y Radiodifusión shall be presumed to be not inconsistent with Article 19.17.3 (Interactive Computer Services).
3. The Parties understand that Mexico will comply with the obligations in Article 19.17.3 (Interactive Computer Services) in a manner that is both effective and consistent with Mexico's Constitution (Constitución Política de los Estados Unidos Mexicanos), specifically Articles 6 and 7.
4. For greater certainty, Article 19.17 (Interactive Computer Services) is subject to Article 32.1 (General Exceptions), which, among other things, provides that, for purposes of Chapter 19, the exception for measures necessary to protect public morals pursuant to paragraph (a) of Article XIV of GATS is incorporated into and made part of this Agreement, mutatis mutandis. The Parties agree that measures necessary to protect against online sex trafficking, sexual exploitation of children, and prostitution, such as Public Law 115-164, the "Allow States and Victims to Fight Online Sex Trafficking Act of 2017," which amends the Communications Act of 1934, and any relevant provisions of Ley General para Prevenir, Sancionar y Erradicar los Delitos en Materia de Trata de Personas y para la Protección y Asistencia a las Víctimas de estos delitos, are measures necessary to protect public morals.
Chapter 20. INTELLECTUAL PROPERTY RIGHTS
Section A. General Provisions
Article 20.1. Definitions
1. For the purposes of this Chapter:
Berne Convention means the Berne Convention for the Protection of Literary and Artistic Works, done at Berne on September 9, 1886, as revised at Paris on July 24, 1971;
Brussels Convention means the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, done at Brussels on May 21, 1974;
Budapest Treaty means the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), done at Budapest on April 28, 1977, as amended on September 26, 1980;
Declaration on TRIPS and Public Health means the Declaration on the TRIPS Agreement and Public Health (WT/MIN(O1)/DEC/2), adopted on November 14, 2001;
geographical indication means an indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin;
Hague Agreement means the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, done at Geneva on July 2, 1999;
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;
Madrid Protocol means the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, done at Madrid on June 27, 1989;
Paris Convention means the Paris Convention for the Protection of Industrial Property, done at Paris on March 20, 1883 as revised at Stockholm on July 14, 1967;
performance means a performance fixed in a phonogram, unless otherwise specified; with respect to copyright and related rights, right to authorize or prohibit refers to exclusive rights;
PLT means the Patent Law Treaty adopted by the WIPO Diplomatic Conference done at Geneva on June 1, 2000;
Singapore Treaty means the Singapore Treaty on the Law of Trademarks, done at Singapore on March 27, 2006;
UPOV 1991 means the International Convention for the Protection of New Varieties of Plants, done at Paris on December 2, 1961, as revised at Geneva on March 19, 1991;
WCT means the WIPO Copyright Treaty, done at Geneva on December 20, 1996; WIPO means the World Intellectual Property Organization;
for greater certainty, work includes a cinematographic work, photographic work, and computer program; and
WPPT means the WIPO Performances and Phonograms Treaty, done at Geneva on December 20, 1996.
2. For the purposes of Article 20.8 (National Treatment), Article 20.30 (Administrative Procedures for the Protection or Recognition of Geographical Indications), and Article 20.61 (Related Rights):
a national means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 20.7 (International Agreements) or the TRIPS Agreement.
Article 20.2. Objectives
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.
Article 20.3. Principles
1. A 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 their socio-economic and technological development, provided that those measures are consistent with the provisions of this Chapter.
2. Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to ptactices which unreasonably restrain trade or adversely affect the international transfer of technology.
Article 20.4. Understandings In Respect of this Chapter
Having regard to the underlying public policy objectives of national systems, the Parties recognize the need to:
(a) promote innovation and creativity;
(b) facilitate the diffusion of information, knowledge, technology, culture, and the arts; and
(c) foster competition and open and efficient markets;
through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including right holders, service providers, users, and the public.
Article 20.5. Nature and Scope of Obligations
1. Each Party shall provide in its territory to the nationals of another Party adequate and effective protection and enforcement of intellectual property rights, while ensuring that measures to enforce intellectual property rights do not themselves become barriers to legitimate trade.
2. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene 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.
Article 20.6. Understandings Regarding Certain Public Health Measures
The Parties affirm their commitment to the Declaration on TRIPS and Public Health. In particular, 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. 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. Each Party has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria, and other epidemics, can represent a national emergency or other circumstances of extreme urgency.
(b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the WTO General Council of August 30, 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), as well as the Decision of the WTO General Council of December 6, 2005 on the Amendment of the TRIPS Agreement, (WT/L/641) and the WTO General Council Chairperson's Statement Accompanying the Decision (JOB(05)/319 and Corr. 1,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 any waiver of a provision of the TRIPS Agreement, or any 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 waiver or amendment is contrary to the obligations of this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the waiver or amendment.
Article 20.7. International Agreements
1. Each Party affirms that it has ratified or acceded to the following agreements:
(a) Patent Cooperation Treaty, as amended on September 28, 1979, and modified on February 3, 1984;
(b) Paris Convention;
(c) Berne Convention;
(d) WCT; and
(e) WPPT.
2. Each Party shall ratify or accede to each of the following agreements, if it is not already a party to that agreement, by the date of entry into force of this Agreement:
(a) Madrid Protocol;
(b) Budapest Treaty;
(c) Singapore Treaty; (1)
(d) UPOV 1991;
(e) Hague Agreement; and
(f) Brussels Convention.
3. Each Party shall give due consideration to ratifying or acceding to the PLT, or, in the alternative, shall adopt or maintain procedural standards consistent with the objective of the PLT.
Article 20.8. National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favorable than it accords to its own nationals with regard to the protection (2) of intellectual property rights.
2. A Party may derogate from paragraph 1 in relation to its judicial and administrative procedures, including requiring a national of another Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that this derogation is:
(a) necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
3. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 20.9. Transparency
1. Further to Article 20.80 (Enforcement Practices with Respect to Intellectual Property Rights), each Party shall endeavor to publish online its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights.
2. Each Party shall, subject to its law, endeavor to publish online information that it makes public concerning applications for trademarks, geographical indications, designs, patents, and plant variety rights. (3) (4)
3. Each Party shall, subject to its law, publish online information that it makes public concerning registered or granted trademarks, geographical indications, designs, patents, and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights. (5)
Article 20.10. Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided in this Chapter, including in Article 20.63 (Application of Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement), this Chapter gives tise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement and that is protected on that date in the territory of a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
2. Unless provided in Article 20.63 (Application of Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement), 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.
Article 20.11. Exhaustion of Intellectual Property Rights
Nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system. (6)
Section B. Cooperation
Article 20.12. Contact Points for Cooperation
Each Party may designate and notify the other Parties of one or more contact points for the purpose of cooperation under this Section.
Article 20.13. Cooperation
The Parties shall endeavor to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination and exchange of information between their respective intellectual property offices, or other agencies or institutions, as determined by each Party.
Article 20.14. Committee on Intellectual Property Rights
1. The Parties hereby establish a Committee on Intellectual Property Rights (IPR Committee), composed of government representatives of each Party.
2. The IPR Committee shall:
(a) exchange information, pertaining to intellectual property rights matters, including how intellectual property protection contributes to innovation, creativity, economic growth, and employment, such as:
(i) developments in domestic and international intellectual property law and policy,
(ii) economic benefits related to trade and other analysis of the contributions arising from the protection and enforcement of intellectual property rights,
(iii) intellectual property issues particularly relevant to small and medium-sized enterprises; science, technology, and innovation activities; and to the generation, transfer, and dissemination of technology,
(iv) approaches for reducing the infringement of intellectual property rights, as well as effective strategies for removing the underlying incentives for infringement,
(v) programs on education and awareness related to intellectual property and building capacity regarding intellectual property rights matters, and
(vi) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
(b) work towards strengthening border enforcement of intellectual property rights through the promotion of collaborative operations in customs and exchange of best practices;
(c) exchange information regarding trade secret-related matters, including the value of trade secrets and the economic loss associated with trade secret misappropriation;
(d) discuss proposals to enhance procedural fairness in patent litigation, including with respect to choice of venue; and
(e) upon request of a Party and in the interest of advancing transparency, endeavor to reach a mutually agreeable solution before taking measures in connection with future requests of recognition or protection of a geographical indication from any other country through a trade agreement.
3. The Parties shall endeavor to cooperate on providing technical assistance regarding trade secret protection to the relevant authorities of non-Parties and identify appropriate opportunities to increase cooperation between the Parties on trade-related intellectual property rights protection and enforcement.
4. The IPR Committee shall meet within one year after the date of entry into force of this Agreement and thereafter as necessary.
Article 20.15. Patent Cooperation and Work Sharing
1. The Parties recognize the importance of improving the quality and efficiency of their respective patent registration systems as well as simplifying and streamlining the procedures and processes of their respective patent offices to the benefit of all users of the patent system and the public as a whole.
2. Further to paragraph 1, the Parties shall endeavor to cooperate among their respective patent offices to facilitate the sharing and use of search and examination work of the Parties. This may include:
(a) making search and examination results available to the patent offices of the other Parties; (7) and
(b) exchanging information on quality assurance systems and quality standards relating to patent examination.
3. In order to reduce the complexity and cost of obtaining the grant of a patent, the Parties shall endeavor to cooperate to reduce differences in the procedures and processes of their respective patent offices.
Article 20.16. Cooperation on Request
Cooperation activities undertaken under this Chapter are subject to the availability of resources, and on request, and on terms and conditions mutually decided upon between the Parties involved. The Parties affirm that cooperation under this Section is additional to and without prejudice to other past, ongoing, and future cooperation activities, both bilateral and multilateral, between the Parties, including between their respective intellectual property offices.
Section C. Trademarks
Article 20.17. Types of Signs Registrable as Trademarks
No Party shall require, as a condition of registration, that a sign be visually perceptible, nor shall a Party deny registration of a trademark only on the ground that the sign of which it is composed is a sound. Additionally, each Party shall make best efforts to register scent marks. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Article 20.18. Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not required to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system. (8)