(d) non-infringing 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;
(e) non-infringing 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;
(f) lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes;
(g) access by a nonprofit library, archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and
(h) in addition, a Party may provide additional exceptions or limitations for non- infringing uses of a particular class of works, performances, or phonograms, when an actual or likely adverse impact on those non-infringing uses is demonstrated by substantial evidence in a legislative, regulatory, or administrative proceeding in accordance with the Party's law.
5. The exceptions and limitations to measures implementing paragraph 1 for the activities set forth in paragraph 4 may only be applied as follows, 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 under the Party's legal system:
(a) measures implementing paragraph (1)(a) may be subject to exceptions and limitations with respect to each activity set forth in paragraph (4);
(b) measures implementing paragraph (1)(b), 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 paragraphs (4)(a), (b), (c), (d), and (f); and
(c) measures implementing paragraph (1)(b), 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 paragraphs (4)(a) and (f).
6. Effective technological measure means a technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects copyright or rights related to copyright. (72)
Article 20.67. Rights Management Information (73)
1. In order to provide adequate and effective legal remedies to protect rights management information (RMD, each Party shall provide that any person that, without authority, and knowing, or having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of the copyright or related right of authors, performers, or producers of phonograms, knowingly: (74)
(a) removes or alters any RMI;
(b) distributes or imports for distribution RMI knowing that the RMI has been altered without authority; (75) or
(c) distributes, imports for distribution, broadcasts, communicates, or makes available to the public copies of works, performances, or phonograms, knowing that RMI has been removed or altered without authority, is liable and subject to the remedies set out in Article 20.81 (Civil and Administrative Procedures and Remedies).
2. Each Party shall provide for criminal procedures and penalties to be applied if a person is found to have engaged willfully and for purposes of commercial advantage or financial gain in any of the activities referred to in paragraph 1.
3. A Party may provide that the criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution or public non-commercial broadcasting entity. (76)
4. For greater certainty, nothing prevents a Party from excluding from a measure that implements paragraphs 1 through 3 a lawfully authorized activity that is carried out for the purpose of law enforcement, essential security interests, or other related governmental purposes, such as the performance of a statutory function.
5. For greater certainty, nothing in this Article obligates a Party to require a right holder in a work, performance, or phonogram to attach RMI to copies of the work, performance, or phonogram, or to cause RMI to appear in connection with a communication of the work, performance, or phonogram to the public.
6. RMI means:
(a) information that identifies a work, performance, or phonogram, the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of a right in the work, performance, or phonogram;
(b) information about the terms and conditions of the use of the work, performance, or phonogram; or
(c) any numbers or codes that represent the information referred to in subparagraphs (a) and (6),
if any of these items is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, performance, or phonogram to the public.
Article 20.68. Collective Management
The Parties recognize the important role of collective management societies for copyright and related rights in collecting and distributing royalties (77) based on practices that are fair, efficient, transparent, and accountable, which may include appropriate record keeping and reporting mechanisms.
Section I. Trade Secrets (78) (79)
Article 20.69. Protection of Trade Secrets
In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that 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-owned enterprises) without their consent in a manner contrary to honest commercial practices.
Article 20.70. Civil Protection and Enforcement
In fulfilling its obligation under paragraphs 1 and 2 of Article 39 of the TRIPS Agreement, each Party shall:
(a) provide civil judicial procedures (80) for any person lawfully in control of a trade secret to prevent, and obtain redress for, the misappropriation of the trade secret by any other person; and
(b) not limit the duration of protection for a trade secret, so long as the conditions in Article 20.72 (Definitions) exist.
Article 20.71. Criminal Enforcement
1. Subject to paragraph 2, each Party shall provide for criminal procedures and penalties for the unauthorized and willful misappropriation (81) of a trade secret.
2. With respect to the acts referred to in paragraph 1, a Party may, as appropriate, limit the availability of its procedures, or limit the level of penalties available, to one or more of the following cases in which the act is:
(a) for the purposes of commercial advantage or financial gain;
(b) related to a product or service in national or international commerce; or
(c) intended to injure the owner of that trade secret.
Article 20.72. Definitions
For the purposes of this Section:
trade secret means information that:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has actual or potential commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;
misappropriation means the acquisition, use, or disclosure of a trade secret in a manner contrary to honest commercial practices, including the acquisition, use, or disclosure of a trade secret by a third party that knew, or had reason to know, that the trade secret was acquired in a manner contrary to honest commercial practices. (82) Misappropriation does not include situations in which a person:
(a) reverse engineered an item lawfully obtained;
(b) independently discovered information claimed as a trade secret; or
(c) acquired the subject information from another person in a legitimate manner without an obligation of confidentiality or knowledge that the information was a trade secret; and
manner contrary to honest commercial practices means at least practices such as breach of contract, breach of confidence, and inducement to breach, and includes the acquisition of undisclosed information by third parties that knew, or were grossly negligent in failing to know, that those practices were involved in the acquisition.
Article 20.73. Provisional Measures
In the civil judicial proceedings described in Article 20.70 (Civil Protection and Enforcement), each Party shall provide that its judicial authorities have the authority to order prompt and effective provisional measures, such as orders to prevent the misappropriation of the trade secret and to preserve relevant evidence.
Article 20.74. Confidentiality
In connection with the civil judicial proceedings described in Article 20.70 (Civil Protection and Enforcement), each Party shall provide that its civil judicial authorities have the authority to:
(a) order specific procedures to protect the confidentiality of any trade secret, alleged trade secret, or any other information asserted by an interested party to be confidential; and
(b) impose sanctions on parties, counsel, expert, or other person subject to those proceedings, related to violation of orders concerning the protection of a trade secret or alleged trade secret produced or exchanged in that proceeding, as well as other information asserted by an interested party to be confidential.
Each Party shall further provide in its law that, in cases in which an interested party asserts information to be a trade secret, its judicial authorities shall not disclose that information without first providing that person with an opportunity to make a submission under seal that describes the interest of that person in keeping the information confidential.
Article 20.75. Civil Remedies
In connection with the civil judicial proceedings described in Article 20.70 (Civil Protection and Enforcement), each Party shall provide that its judicial authorities have the authority at least to order:
(a) injunctive relief that conforms to Article 44 of the TRIPS Agreement against a person that misappropriated a trade secret; and
(b) a person that misappropriated a trade secret to pay damages adequate to compensate the person lawfully in control of the trade secret for the injury suffered because of the misappropriation of the trade secret (83) and, if appropriate, because of the proceedings to enforce the trade secret.
Article 20.76. Licensing and Transfer of Trade Secrets
No Party shall discourage or impede the voluntary licensing of trade secrets by imposing excessive or discriminatory conditions on those licenses or conditions that dilute the value of the trade secrets.
Article 20.77. Prohibition of Unauthorized Disclosure or Use of a Trade Secret by Government Officials Outside the Scope of Their Official Duties
1. In civil, criminal, and regulatory proceedings in which trade secrets may be submitted to a court or government entity, each Party shall prohibit the unauthorized disclosure of a trade secret by a government official at the central level of government outside the scope of that person's official duties.
2. Each Party shall provide for in its law deterrent level penalties, including monetary fines, suspension or termination of employment, and imprisonment, to guard against the unauthorized disclosure of a trade secret described in paragraph 1.
Section J. Enforcement
Article 20.78. General Obligations
1. Each Party shall ensure that enforcement procedures as specified in this Section are available under its law so as to permit effective action against an act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements. (84) 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 confirms that the enforcement procedures set forth in Article 20.81 (Civil and Administrative Procedures and Remedies), Article 20.82 (Provisional Measures), and Article 20.84 (Criminal Procedures and Penalties) shall be available to the same extent with respect to acts of trademark infringement, as well as copyright or related rights infringement, in the digital environment.
3. Each Party shall ensure that its procedures concerning the enforcement of intellectual property rights are fair and equitable. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
4. 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 its 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.
5. In implementing this Section in its intellectual property system, each Party shall take into account the need for proportionality between the seriousness of the infringement of the intellectual property right and the applicable remedies and penalties, as well as the interests of third parties.
Article 20.79. Presumptions
1. In civil, criminal, and, if applicable, administrative proceedings involving copyright or related rights, each Party shall provide for a presumption (85) that, in the absence of proof to the contrary:
(a) the person whose name is indicated in the usual manner (86) as the author, performer, or producer of the work, performance, or phonogram, or if applicable the publisher, is the designated right holder in that work, performance, or phonogram; and
(b) the copyright or related right subsists in that subject matter.
2. In connection with the commencement of a civil, administrative, or criminal enforcement proceeding involving a registered trademark that has been substantively examined by its competent authority, each Party shall provide that the trademark be considered prima facie valid.
3. In connection with the commencement of a civil or administrative enforcement proceeding involving a patent that has been substantively examined and granted by the competent authority of a Party, that Party shall provide that each claim in the patent be considered prima facie to satisfy the applicable criteria of patentability in its territory. (87) (88)
Article 20.80. Enforcement Practices with Respect to Intellectual Property Rights
1. Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights:
(a) are in writing and preferably state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based; and
(b) are published (89) or, if 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 infringements of intellectual property rights as well as collecting information on best practices to prevent and combat infringements.
3. Each Party shall 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 those purposes.
Article 20.81. Civil and Administrative Procedures and Remedies
1. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered in this Chapter. (90)
2. Each Party shall provide that its judicial authorities have the authority to order injunctive relief that conforms to Article 44 of the TRIPS Agreement, including to prevent goods that involve the infringement of an intellectual property right under the law of the Party providing that relief from entering into the channels of commerce.
3. Each Party shall provide (91) 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 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.
4. In determining the amount of damages under paragraph 3, each Party's judicial authorities shall have the authority to consider, among other things, 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.
5. 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, at least in cases described in paragraph 3, to pay the right holder the infringer's profits that are attributable to the infringement. (92)
6. In civil judicial proceedings with respect to the infringement of copyright or related rights protecting works, phonograms, or performances, each Party shall establish or maintain a system that provides for one or more of the following:
(a) pre-established damages, which shall be available on the election of the right holder; or
(b) additional damages. (93)
7. In civil judicial proceedings with respect to trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:
(a) pre-established damages, which shall be available on the election of the right holder; or
(b) additional damages. (94)
8. Pre-established damages referred to in paragraphs 6 and 7 shall be in an amount sufficient to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement.
9. In awarding additional damages referred to in paragraphs 6 and 7, judicial authorities shall have the authority to award those additional damages as they consider appropriate, having regard to all relevant matters, including the nature of the infringing conduct and the need to deter similar infringements in the future.
10. Each Party shall provide that its judicial authorities, if appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, patents, and 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 the Party's law.
11. If a Party's judicial or other authorities appoint a technical or other expert in a civil proceeding concerning the enforcement of an intellectual property right and require that the parties in the proceeding pay the costs of that expert, that Party should seek to ensure that those costs are reasonable and related appropriately, among other things, to the quantity and nature of work to be performed and do not unreasonably deter recourse to those proceedings.
12. Each Party shall provide that in civil judicial proceedings:
(a) at least with respect to pirated copyright goods and counterfeit trademark goods, its judicial authorities have the authority, at the right holder's request, to order that the infringing goods be destroyed, except in exceptional circumstances, without compensation of any sort;
(b) its judicial authorities have the authority to order that materials and implements that have been used in the manufacture or creation of the infringing goods be, without compensation of any sort, promptly destroyed or, in exceptional circumstances, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risk of further infringement; and
(c) in regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed is not sufficient, other than in exceptional circumstances, to permit the release of goods into the channels of commerce.
13. 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 an intellectual property right, its judicial authorities have the authority, on a justified request of the right holder, to order the infringer or the alleged infringer, as applicable, 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. This information may include information regarding any person involved in any aspect of the infringement or alleged infringement and 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 the goods or services and of their channels of distribution.
14. In cases in which a party in a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide relevant evidence under its control within a reasonable period, or significantly impedes a proceeding relating to an enforcement action, each Party shall provide that its judicial authorities shall have the authority to make preliminary and final determinations, affirmative or negative, on the basis of the evidence presented, including the complaint or the allegation presented by the party adversely affected by the denial of access to evidence, subject to providing the parties an opportunity to be heard on the allegations or evidence.
15. Each Party shall ensure that its judicial authorities have the authority to order a party at whose request measures were taken and that has abused enforcement procedures to provide to a party wrongfully enjoined or restrained adequate compensation for the injury suffered because of that abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney's fees.
16. Each Party shall provide that in relation to a civil judicial proceeding concerning the enforcement of an intellectual property right, its judicial or other authorities have the authority to impose sanctions on a party, counsel, expert, or other person subject to the courtâs jurisdiction for violation of judicial orders concerning the protection of confidential information produced or exchanged in that proceeding.
17. To the extent that a civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that those procedures conform to principles equivalent in substance to those set out in this Article.
18. In civil judicial proceedings concerning the acts described in Article 20.66 (Technological Protection Measures) and Article 20.67 (Rights Management Information):
(a) each Party shall provide that its judicial authorities have the authority at least to: (95)
(i) impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity,
(ii) order the type of damages available for copyright infringement, as provided under its law in accordance with this Article,
(iii) order court costs, fees or expenses as provided for under paragraph 10, and
(iv) order the destruction of devices and products found to be involved in the prohibited activity; and
(b) a Party may provide that damages are not available against a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity, if it sustains the burden of proving that it was not aware or had no reason to believe that its acts constituted a prohibited activity.
Article 20.82. Provisional Measures
1. Each Party's authorities shall act on a request for relief in respect of an intellectual property right inaudita altera parte expeditiously in accordance with that Party's judicial rules.
2. Each Party shall provide that its judicial authorities have the authority to require the applicant for a provisional measure in respect of an intellectual property right to provide any reasonably available evidence in order to satisfy the judicial authority, with a sufficient degree of certainty, that the applicant's right is being infringed or that the infringement is imminent, and to order the applicant to provide security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse. That security or equivalent assurance shall not unreasonably deter recourse to those procedures.
3. In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities have the authority to order 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.
Article 20.83. Special Requirements Related to Border Measures
1. Each Party shall provide for applications to suspend the release of, or to detain, suspected counterfeit or confusingly similar trademark or pirated copyright goods that are imported into the territory of the Party. (96)
2. Each Party shall provide that a right holder, submitting an application referred to in paragraph 1, to initiate procedures for the Party's competent authorities (97) to suspend release into free circulation of, or to detain, suspected counterfeit or confusingly similar trademark or pirated copyright goods, is required to: