(a) provide adequate evidence to satisfy the competent authorities that, under the law of the Party providing the procedures, there is prima facie an infringement of the right holder's intellectual property right; and
(b) supply sufficient information that may reasonably be expected to be within the right holder's knowledge to make the suspect goods reasonably recognizable by its competent authorities.
The requirement to provide that information shall not unreasonably deter recourse to these procedures.
3. Each Party shall provide that its competent authorities have the authority to require a right holder submitting an application referred to in paragraph 1 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 does not unreasonably deter recourse to these procedures. A Party may provide that the 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.
4. Without prejudice to a Party's law pertaining to privacy or the confidentiality of information:
(a) if a Party's competent authorities have detained or suspended the release of goods that are suspected of being counterfeit trademark or pirated copyright goods, that Party may provide that its competent authorities have the authority to inform the right holder without undue delay of the names and addresses of the consignor, exporter, consignee, or importer; a description of the goods; the quantity of the goods; and, if known, the country of origin of the goods; (98) or
(b) if a Party does not provide its competent authority with the authority referred to in subparagraph (a) when suspect goods are detained or suspended from release, it shall provide, at least in cases of imported goods, its competent authorities with the authority to provide the information specified in subparagraph (a) to the right holder normally within 30 working days of the seizure or determination that the goods are counterfeit trademark goods or pirated copyright goods.
5. Each Party shall provide that its competent authorities may initiate border measures ex officio against suspected counterfeit trademark goods or pirated copyright goods under customs control (99) that are:
(a) imported;
(b) destined for export;
(c) in transit; (100) and
(d) admitted into or exiting from a free trade zone or a bonded warehouse.
6. Nothing in this Article precludes a Party from exchanging, if appropriate and with a view to eliminating international trade in counterfeit trademarked goods or pirated copyrighted goods, available information to another Party in respect of goods that it has examined without a local consignee and that are transshipped through its territory and are destined for the territory of the other Party, to inform that other Party's efforts to identify suspect goods upon arrival in its territory.
7. 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 in paragraphs 1 and 5, whether the suspect goods infringe an intellectual property right. If a Party provides administrative procedures for the determination of an infringement, it may also provide its authorities with the authority to impose administrative penalties or sanctions, which may include fines or the seizure of the infringing goods following a determination that the goods are infringing.
8. Each Party shall provide that its competent authorities have the authority to order the destruction of goods following a determination that the goods are infringing. In cases in which the goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, the goods are disposed of outside the channels of commerce in such a manner as to avoid 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.
9. If a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee, or destruction fee, that Party shall not set the fee at an amount that unreasonably deters recourse to these procedures.
10. This Article applies to 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 travelers' personal luggage. (101)
Article 20.84. Criminal Procedures and Penalties
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. In respect of willful copyright or related rights piracy, "on a commercial scale" includes:
(a) acts carried out for commercial advantage or financial gain; and
(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace. (102) (103)
2. Each Party shall treat willful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties. (104)
3. Each Party shall provide for criminal procedures and penalties to be applied in cases of willful importation (105) and domestic use, in the course of trade and on a commercial scale, of a label or packaging:
(a) to which a trademark has been applied without authorization that is identical to, or cannot be distinguished from, a trademark registered in its territory; and
(b) that is intended to be used in the course of trade on goods or in relation to services that are identical to goods or services for which that trademark is registered.
4. Each Party shall provide for criminal procedures to be applied against a person who, willfully and without the authorization of the holder (106) of copyright or related rights in a cinematographic work, knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of the cinematographic work or any part thereof, from a performance of the motion picture or other audiovisual work in a movie theater or other venue that is being used primarily for the exhibition of a copyrighted motion picture. In addition to the criminal procedures, a Party may provide for administrative enforcement procedures.
5. With respect to the offenses for which this Article requires a Party to provide for criminal procedures and penalties, each Party shall ensure that criminal liability for aiding and abetting is available under its law.
6. With respect to the offenses described in paragraphs 1 through 5, each Party shall provide:
(a) penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity; (107)
(b) that its judicial authorities have the authority, in determining penalties, to account for the seriousness of the circumstances, which may include circumstances that involve threats to, or effects on, health or safety; (108)
(c) that its judicial or other competent authorities 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, and assets derived from, or obtained through the alleged infringing activity. If a Party requires identification of items subject to seizure as a prerequisite for issuing a judicial order referred to in this subparagraph, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure;
(d) that its judicial authorities have the authority to order the forfeiture, at least for serious offenses, of any assets derived from or obtained through the infringing activity;
(e) that its judicial authorities have the authority to order the forfeiture or destruction of:
(i) all counterfeit trademark goods or pirated copyright goods,
(ii) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trademark goods, and
(iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offense,
In cases in which counterfeit trademark goods and pirated copyright goods are not destroyed, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, those goods are 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 (d) occur without compensation of any kind to the defendant;
(f) that its judicial or other competent authorities have the authority to release or, in the alternative, provide access to, goods, material, implements, and other evidence held by the relevant authority to a right holder for civil (109) infringement proceedings; and
(g) that its competent authorities may act upon their own initiative to initiate legal action without the need for a formal complaint by a third person or right holder.
7. With respect to the offenses described in paragraphs 1 through 5, a Party may provide that its judicial authorities have the authority to order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to the assets derived from, or obtained directly or indirectly through, the infringing activity.
Article 20.85. Protection of Encrypted Program-Carrying Satellite and Cable Signals
1. Each Party shall make it a criminal offense to:
(a) manufacture, assemble, (110) modify, import, export, (111) sell, or otherwise distribute a tangible or intangible device or system knowing or having reason to know (112) that the device or system meets at least one of the following conditions:
(i) it is intended to be used to assist, or
(ii) it is primarily of assistance,
in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor (113) of that signal; (114) and
(b) with respect to an encrypted program-carrying satellite signal, willfully:
(i) receive (115) that signal, or
(ii) further distribute (116) that signal,
knowing that it has been decoded without the authorization of the lawful distributor of the signal.
2. Each Party shall provide for civil remedies for a person that holds an interest in an encrypted program-carrying satellite signal or its content and that is injured by an activity described in paragraph 1.
3. Each Party shall provide for criminal penalties and civil (117) remedies for willfully:
(a) manufacturing or distributing equipment knowing that the equipment is intended to be used in the unauthorized reception of any encrypted program-carrying cable signal; and
(b) receiving, or assisting another to receive, (118) an encrypted program-carrying cable signal without authorization of the lawful distributor of the signal.
Article 20.86. Government Use of Software
1. Each Party recognizes the importance of promoting the adoption of measures to enhance government awareness of respect for intellectual property rights and of the detrimental effects of the infringement of intellectual property rights.
2. Each Party shall adopt or maintain appropriate laws, regulations, policies, orders, government-issued guidelines, or administrative or executive decrees that provide that its central government agencies use only non-infringing computer software protected by copyright and related rights, and, if applicable, only use that computer software in a manner authorized by the relevant license. These measures apply to the acquisition and management of the software for government use.
Article 20.87. Internet Service Providers
1. For the purpose of Article 20.88 (Legal Remedies and Safe Harbors), an Internet Service Provider is:
(a) a provider of services for the transmission, routing, or providing of connections for digital online communications without modification of their content, between or among points specified by a user, of material of the user's choosing, undertaking the function in Article 20.88.2(a) (Legal Remedies and Safe Harbors); or
(b) a provider of online services undertaking the functions in Article 20.88.2(b), Article 20.88.2(c), or Article 20.88.2(d) (Legal Remedies and Safe Harbors).
2. For the purposes of Article 20.88 (Legal Remedies and Safe Harbors), "copyright" includes related rights.
Article 20.88. Legal Remedies and Safe Harbors (119)
1. The Parties recognize the importance of facilitating the continued development of legitimate online services operating as intermediaries and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective and expeditious action by right holders against copyright infringement covered under this Chapter that occurs in the online environment. Accordingly, each Party shall ensure that legal remedies are available for right holders to address that copyright infringement and shall establish or maintain appropriate safe harbors in respect of online services that are Internet Service Providers. This framework of legal remedies and safe harbors shall include:
(a) legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials; and
(b) limitations in its law that have the effect of precluding monetary relief against Internet 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.
2. The limitations described in paragraph 1(b) shall include limitations in respect of the following functions:
(a) transmitting, routing, or providing connections for material without modification of its content or the intermediate and transient storage of that material done automatically in the course of such a technical process; (120)
(b) caching carried out through an automated process;
(c) storage, at the direction of a user, of material residing on a system or network controlled or operated by or for the Internet Service Provider; and
(d) referring or linking users to an online location by using information location tools, including hyperlinks and directories.
3. To facilitate effective action to address infringement, each Party shall prescribe in its law conditions for Internet Service Providers to qualify for the limitations described in paragraph 1(b), or, alternatively, shall provide for circumstances under which Internet Service Providers do not qualify for the limitations described in paragraph 1(b): (121)
(a) With respect to the functions referred to in paragraphs 2(c) and 2(d), these conditions shall include a requirement for Internet Service Providers to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the copyright infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as through receiving a notice (122) of alleged infringement from the right holder or a person authorized to act on its behalf.
(b) An Internet Service Provider that removes or disables access to material in good faith under subparagraph (a) shall be exempt from any liability for having done so, provided that it takes reasonable steps in advance or promptly after to notify the person whose material is removed or disabled. (123)
4. For the purposes of the functions referred to in paragraphs 2(c) and 2(d), each Party shall establish appropriate procedures in its laws or regulations for effective notices of claimed infringement, and effective counter-notices by those whose material is removed or disabled through mistake or misidentification. If material has been removed or access has been disabled in accordance with paragraph 3, that Party shall require that the Internet Service Provider restores the material that is the subject of a counter-notice, unless the person giving the original notice seeks relief through civil judicial proceedings within a reasonable period of time as set forth in that Party's laws or regulations.
5. Each Party shall ensure that monetary remedies are available in its legal system against a person that makes a knowing material misrepresentation in a notice or counter-notice that causes injury to any interested party (124) as a result of an Internet Service Provider relying on the misrepresentation.
6. Eligibility for the limitations in paragraph 1 shall be conditioned on the Internet Service Provider:
(a) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers;
(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 copyright owners and service providers, 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; and
(c) with respect to the functions identified in paragraphs 2(c) and 2(d), not receiving a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity.
7. Eligibility for the limitations identified in paragraph 1 shall not be conditioned on the Internet Service Provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with the technical measures identified in paragraph 6(b).
8. Each Party shall provide procedures, whether judicial or administrative, in accordance with its legal system, and consistent with principles of due process and privacy, that enable a copyright owner that has made a legally sufficient claim of copyright infringement to obtain expeditiously from an Internet Service Provider information in the provider's possession identifying the alleged infringer, in cases in which that information is sought for the purpose of protecting or enforcing that copyright.
9. The Parties understand that the failure of an Internet Service Provider to qualify for the limitations in paragraph 1(b) does not itself result in liability. Further, this Article is without prejudice to the availability of other limitations and exceptions to copyright, or any other defenses under a Party's legal system.
10. The Parties recognize the importance, in implementing their obligations under this Article, of taking into account the impact on the right holders and Internet Service Providers.
Section K. Final Provisions
Article 20.89. Final Provisions
1. Except as otherwise provided in Article 20.10 (Application of Chapter to Existing Subject Matter and Prior Acts) and paragraphs 2, 3, and 4, each Party shall implement the provisions of this Chapter on the date of entry into force of this Agreement.
2. During the relevant periods set out below, a Party shall not amend an existing measure or adopt a new measure that is less consistent with its obligations under the Articles referred to below for that Party than relevant measures that are in effect on the date of signature of this Agreement.
3. With regard to obligations subject to a transition period, Mexico shall fully implement its obligations under the provisions of this Chapter no later than the expiration of the relevant time period specified below, which begins on the date of entry into force of this Agreement:
(a) Article 20.7 (International Agreements), UPOV 1991, four years;
(b) Article 20.45 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), five years;
(c) Article 20.46 (Patent Term Adjustment for Unreasonable Curtailment), 4.5 years;
(d) Article 20.48 (Protection of Undisclosed Test or Other Data), five years;
(e) Article 20.70 (Civil Protection and Enforcement), Article 20.73 (Provisional Measures) and Article 20.75 (Civil Remedies), five years; and
(f) Articles 20.87 (Internet Service Providers) and 20.88 (Legal Remedies and Safe Harbors), three years.
4. With regard to obligations subject to a transition period, Canada shall fully implement its obligations under the provisions of this Chapter no later than the expiration of the relevant time period specified below, which begins on the date of entry into force of this Agreement.
(a) Article 20.7.2(f) (International Agreements), four years;
(b) Article 20.44 (Patent Term Adjustment for Unreasonable Granting Authority Delays), 4.5 years; and
(c) Article 20.62(a) (Term of Protection for Copyright and Related Rights), 2.5 years.
ANNEX 20-A. ANNEX TO ARTICLE 20.50
1. As an alternative to implementing Article 20.50, and subject to paragraph 2, Mexico may instead maintain a system other than judicial proceedings that precludes, based upon patent- related information submitted to the marketing approval authority by a patent holder or the applicant for marketing approval, or based on direct coordination between the marketing approval authority and the patent office, the issuance of marketing approval to any third person seeking to market a pharmaceutical product subject to a patent claiming that product, unless by consent or acquiescence of the patent holder.
2. If Mexico maintains the system referred to in paragraph 1, Mexico shall ensure that in administrative proceedings under that system:
(a) a person of another Party that is directly affected by the proceeding is provided, whenever possible and, in accordance with domestic procedures, with reasonable notice of the initiation of a proceeding, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of the issue in question;
(b) a person of another Party that is directly affected by the proceeding is afforded a reasonable opportunity to present facts and arguments in support of that personâs position prior to any final administrative action, when time, the nature of the proceeding, and the public interest permit; and
(c) the procedures are in accordance with its law.
ANNEX 20-B. ANNEX TO SECTION J
1. In order to facilitate the enforcement of copyright online and to avoid unwarranted market disruption in the online environment, Articles 20.88.3, 20.88.4, and 20.88.6 (Legal Remedies and Safe Harbors) shall not apply to a Party provided that, as from the date of agreement in principle of this Agreement, the Party continues to:
(a) prescribe in its law circumstances under which Internet Service Providers do not qualify for the limitations described in Article 20.88. 1(b) (Legal Remedies and Safe Harbors);
(b) provide statutory secondary liability for copyright infringement in cases in which a person, by means of the Internet or another digital network, provides a service primarily for the purpose of enabling acts of copyright infringement, in relation to factors set out in its law, such as:
(i) whether the person marketed or promoted the service as one that could be used to enable acts of copyright infringement;
(ii) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
(iii) whether the service has significant uses other than to enable acts of copyright infringement;
(iv) the person's ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
(v) any benefits the person received as a result of enabling the acts of copyright infringement; and
(vi) the economic viability of the service if it were not used to enable acts of copyright infringement;
(c) require Internet Service Providers carrying out the functions referred to in Article 20.88.2(a) and (c) (Legal Remedies and Safe Harbors) to participate in a system for forwarding notices of alleged infringement, including if material is made available online, and if the Internet Service Provider fails to do so, subjecting that provider to pre-established monetary damages for that failure;
(d) induce Internet Service Providers offering information location tools to remove within a specified period of time any reproductions of material that they make, and communicate to the public, as part of offering the information location tool upon receiving a notice of alleged infringement and after the original material has been removed from the electronic location set out in the notice; and
(e) induce Internet Service Providers carrying out the function referred to in Article 20.88.2(c) (Legal Remedies and Safe Harbors) to remove or disable access to material upon becoming aware of a decision of a court of that Party to the effect that the person storing the material infringes copyright in the material.
2. For a Party to which Articles 20.88.3, 20.88.4, and 20.88.6 (Legal Remedies and Safe Harbors) do not apply pursuant to paragraph 1, and in light of, among other things, paragraph 1(b), for the purposes of Article 20.88.1(a), legal incentives shall not mean the conditions for Internet Service Providers to qualify for the limitations provided for in Article 20.88.1(b), as set out in Article 20.88.3.
3. Pursuant to paragraph 1, for a Party to which Articles 20.88.3, 20.88.4, and 20.88.6 (Legal Remedies and Safe Harbors) do not apply:
(a) the term "modification" in paragraphs 20.87.1(a) and 20.88.2(a) does not include modifications made for solely technical reasons such as division into packets; and