1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted at Doha on 14 November 2001 by the Ministerial Conference of the WTO (the "Doha Declaration"). In interpreting and implementing the rights and obligations under this Chapter, the Parties shall ensure consistency with the Doha Declaration.
2. Each Party shall implement Article 31bis of the TRIPS Agreement, as well as the Annex and the Appendix to that Annex, which entered into force on 23 January 2017.
Article 25.7. Exhaustion
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.
Section B. STANDARDS CONCERNING INTELLECTUAL PROPERTY RIGHTS
Subsection 1. COPYRIGHT AND RELATED RIGHTS
Article 25.8. International Agreements
1. Each Party affirms their commitment to and shall comply with:
(a) the Berne Convention;
(b) the Rome Convention;
(c) the WIPO Copyright Treaty ("WCT"), done at Geneva on 20 December 1996;
(d) the WPPT; and
(e) the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled, done in Marrakesh on 27 June 2013.
2. Each Party shall make all reasonable efforts to ratify or accede to the Beijing Treaty on Audiovisual Performances, adopted in Beijing on 24 June 2012.
Article 25.9. Authors
Each Party shall provide authors with the exclusive right to authorise or prohibit:
(a) direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of their works;
(b) any form of distribution to the public by sale or otherwise of the original of their works or copies thereof;
(c) any 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 them from a place and at a time individually chosen by them; and
(d) the commercial rental to the public of originals or copies of their computer programs or cinematographic works.
Article 25.10. Performers
Each Party shall provide performers with the exclusive right to authorise or prohibit:
(a) the fixation (1) of their performances;
(b) the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of fixations of their performances;
(c) the distribution to the public, by sale or otherwise, of the fixations of their performances;
(d) the making available to the public of fixations of their performances, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them; and
(e) the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.
Article 25.11. Producers of Phonograms
Each Party shall provide phonogram producers with the exclusive right to authorise or prohibit:
(a) the direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part, of their phonograms;
(b) the distribution to the public, by sale or other transfer of ownership, of their phonograms, including copies thereof;
(c) the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them; and
(d) the commercial rental of their phonograms to the public.
Article 25.12. Broadcasting Organisations
Each Party shall provide broadcasting organisations with the exclusive right to authorise or prohibit:
(a) the fixation of their broadcasts transmitted by wireless means;
(b) the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part, of fixations of their broadcasts transmitted by wireless means; and
(c) the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public (1) of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
Article 25.13. Broadcasting and Communication to the Public of Phonograms Published for Commercial Purposes (2)
1. Each Party shall provide a right in order to ensure that a single equitable remuneration is paid by the user to the performers and producers of phonograms, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting or communication to the public3.
2. Each Party shall ensure that the single equitable remuneration referred to in paragraph 1 is shared between the relevant performers and phonogram producers. Each Party may enact legislation that, in the absence of an agreement between performers and producers of phonograms, sets the terms according to which performers and producers of phonograms shall share such single equitable remuneration.
Article 25.14. Term of Protection
1. The rights of an author of a work shall run for the life of the author and for no less than 70 years after the death of the author, irrespective of the date when the work is lawfully made available to the public (1).
2. In the case of a work of joint authorship, the term of protection provided for in paragraph 1 shall be calculated from the death of the last surviving author.
3. In the case of anonymous or pseudonymous works, the term of protection shall run for no less than 70 years after the work is lawfully made available to the public. However, if the pseudonym adopted by the author leaves no doubt as to the identity of the author, or if the author discloses their identity during the period referred to in this paragraph, the term of protection applicable shall be that provided for in paragraph 1.
4. The term of protection of cinematographic or audiovisual works shall expire no less than 70 years after the date of death of the last surviving author. It shall be a matter for the laws and regulations of the Parties to determine the persons that are to be considered authors of a cinematographic or audiovisual work.
5. The rights of broadcasting organisations shall expire 50 years after the date of the first transmission of a broadcast.
6. The rights of performers shall expire no less than 50 years after the date of the fixation of the performance; however:
(a) if a fixation of the performance is lawfully published or, where provided for by a Party, lawfully communicated to the public within the period of 50 years referred to in this paragraph, the term of protection shall be calculated from the date of the first such publication or, where provided for by a Party, the first such communication to the public; where a Party provides for both possibilities, the term of protection shall be calculated from whichever event occurs earlier; and
(b) if a fixation of the performance in a phonogram is lawfully published or, where provided for by a Party, lawfully communicated to the public within the period of 50 years referred to in this paragraph, the term of protection shall expire no less than 70 years after the date of the first such publication or, where provided for by a Party, the first such communication to the public; where a Party provides for both possibilities, the term of protection shall be calculated from whichever event occurs earlier.
7. The rights of producers of phonograms shall expire no less than 50 years after the fixation is made. However, if the phonogram is lawfully published or, where provided for by a Party, lawfully communicated to the public within that period, such rights shall expire no less than 70 years after the date of the first such publication or, where provided for by a Party, the first such communication to the public. The Parties may adopt or maintain effective measures to ensure that the profit generated during the 20 years of protection beyond 50 years is shared fairly between the performers and the producers of phonograms.
Article 25.15. Resale Right
1. Each Party shall provide for, for the benefit of the author of an original work of graphic or plastic art, a "resale right", to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained, for any resale of the work, subsequent to the first transfer of the work by the author (1).
2. The resale right referred to in paragraph 1 shall apply to all acts of resale involving art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art, as sellers, buyers or intermediaries.
3. Each Party may provide that the resale right referred to in paragraph 1 shall not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed a certain minimum amount.
Article 25.16. Collective Management of Rights
1. The Parties shall promote cooperation between their respective collective management organisations for the purposes of fostering the availability of works and other protected subject matter in the territories of the Parties, and of the transfer of rights revenue between their respective collective management organisations for the use of such works or other protected subject matter.
2. The Parties shall promote transparency of collective management organisations, in particular regarding rights revenue they collect, deductions they apply to rights revenue they collect, the use of the rights revenue collected, the distribution policy and their repertoire.
3. Each Party shall ensure that collective management organisations established in its territory that represent another collective management organisation established in the territory of the other Party through a representation agreement are encouraged to accurately, regularly and diligently pay amounts owed to the represented collective management organisation as well as to provide the represented collective management organisation with information on the amount of rights revenue collected on its behalf and on any deductions made to that rights revenue.
Article 25.17. Limitations and Exceptions
Each Party shall provide for limitations or exceptions to the rights set out in Articles 25.9 to 25.13 only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holders.
Article 25.18. Protection of Technological Measures
1. Each Party shall provide adequate legal protection against the circumvention of any effective technological measure, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that the person is pursuing that objective.
2. Each Party shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumventing any effective technological measures;
(b) have only a limited commercially significant purpose or use other than to circumvent any effective technological measures; or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
3. For the purposes of this Sub-Section, "technological measure" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter (1), which are not authorised by the right holder of any copyright or related right as provided for by the law of a Party. Technological measures shall be deemed to be effective if the use of a protected work or other subject matter is controlled by the right holders through the application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter, or of a copy control mechanism which achieves the protection objective.
4. Notwithstanding the legal protection provided for in paragraph 1 of this Article, in the absence of voluntary measures taken by the right holders, each Party may take appropriate measures, as necessary, to ensure that the adequate legal protection against the circumvention of effective technological measures provided for in accordance with this Article does not prevent beneficiaries of exceptions or limitations provided for in accordance with Article 25.17 from enjoying such exceptions or limitations.
Article 25.19. Obligations Concerning Rights-management Information
1. Each Party shall provide adequate legal protection against any person knowingly performing, without authority, any of the following acts, if such person knows, or has reasonable grounds to know, that by so doing that person is inducing, enabling, facilitating or concealing an infringement of any copyright or related rights as provided for in the law of that Party:
(a) the removal or alteration of any electronic rights-management information; and
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject matter protected under this Sub-Section from which electronic rights-management information has been removed or altered without authority.
2. For the purposes of this Article, "rights-management information" means any information provided by right holders which identifies the work or other subject matter referred to in this Article, the author or any other right holder, or information about the terms and conditions of use of the work or other subject matter, and any numbers or codes that represent such information.
3. Paragraph 2 applies if any of the items of information referred to in that paragraph is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject matter referred to in this Article.
Subsection 2. TRADEMARKS
Article 25.20. International Agreements
Each Party shall:
(a) comply with the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989, as amended on 12 November 2007;
(b) comply with the Trademark Law Treaty, done at Geneva on 27 October 1994, and with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, of 15 June 1957, as amended on 28 September 1979; and
(c) make all reasonable efforts to accede to the Singapore Treaty on the Law of Trademarks, done at Singapore on 27 March 2006.
Article 25.21. Rights Conferred by a Trademark
Each Party shall provide that the owner of a registered trademark has the exclusive right to prevent third parties that do not have the owner's consent from using, in the course of trade, signs identical or similar to those in respect of which the trademark is registered, where such use would result in a likelihood of confusion. In the event of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
Article 25.22. Registration Procedure
1. Each Party shall provide for a system for the registration of trademarks in which each final negative decision taken by the relevant trademark administration, including a partial refusal of registration, shall be duly reasoned and communicated in writing to the relevant party.
2. Each Party shall provide for the possibility for third parties to oppose trademark applications or, where appropriate under its law, trademark registrations. Such opposition proceedings shall be adversarial.
3. Each Party shall provide for a publicly available electronic database of trademark applications and trademark registrations.
Article 25.23. Well-known Trademarks
For the purposes of giving effect to the protection of well-known trademarks, as referred to in Article 6bis of the Paris Convention and Article 16(2) and (3) of the TRIPS Agreement, the Parties affirm the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks, adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO on 20 to 29 September 1999.
Article 25.24. Exceptions to the Rights Conferred by a Trademark
1. Each Party:
(a) shall provide for the fair use of descriptive terms as a limited exception to the rights conferred by trademarks; and
(b) may provide for other limited exceptions.
2. Paragraph 1 applies provided that the exceptions take account of the legitimate interests of the owners of the trademarks and of third parties.
3. The trademark shall not entitle the proprietor to prohibit a third party from using the following, in the course of trade:
(a) their own name or address;
(b) indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services; or
(c) the trademark, where it is necessary to indicate the intended purpose of a good or service, in particular as accessories or spare parts.
4. Paragraph 3 applies where the use made by the third party is in accordance with honest practices in industrial or commercial matters (1).
5. A Party may provide that the trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade, an earlier right which only applies in a particular locality, if that right is recognised by the law of that Party and is used within the limits of the territory in which it is recognised.
Article 25.25. Grounds for Revocation
1. Each Party shall provide that a trademark shall be liable to revocation if, within a continuous period of five years, it has not been put to genuine use in the relevant territory in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use. However, a Party may provide that no person shall claim that the proprietor's rights in a trademark should be revoked where, during the interval between expiry of the five-year period and filing of the application for revocation, genuine use of the trademark has started or resumed. The commencement or resumption of use within a period of three months preceding the filing of the application for revocation, which began at the earliest on expiry of the continuous period of five years of non-use, shall, however, be disregarded if preparations for the commencement or resumption occurred only after the proprietor becomes aware that the application for revocation may be filed.
2. A trademark shall also be liable to revocation if, after the date on which it was registered as a consequence of acts or inactivity of the proprietor, it has become the common name in the trade for a good or service in respect of which it is registered (1).
Article 25.26. Bad Faith Applications
A trademark shall be liable to be declared invalid where the application for registration of the trademark was made in bad faith by the applicant. Each Party may also provide that such a trademark shall not be registered.
Subsection 3. DESIGNS (1)
Article 25.27. International Agreements
Each Party shall make all reasonable efforts to accede to the Geneva Act to the Hague Agreement Concerning the International Registration of Industrial Designs, adopted at Geneva on 2 July 1999.
Article 25.28. Protection of Registered Designs (1)
1. Each Party shall provide for the protection of independently created designs that are new or original (2). That protection shall be provided by registration and shall confer an exclusive right upon its holder in accordance with the provisions of this Article.
2. A holder of a registered design shall have the right to prevent third parties not having the holder's consent at least from making, selling, importing, exporting the product bearing and embodying the protected design or using articles bearing or embodying the protected design, where such acts are undertaken for commercial purposes, unduly prejudice the normal exploitation of the design, or are not compatible with fair trade practice.
3. A design applied to or incorporated in a product which constitutes a component part of a complex product shall only be considered to be new or original:
(a) if the component part, once it has been incorporated into the complex product, remains visible during normal use of the complex product, and
(b) to the extent that visible features of the component part referred to in subparagraph (a) fulfil in themselves the requirement of novelty or originality.
4. For the purposes of subparagraph (a) of paragraph 3, "normal use" means the use by the end user, excluding maintenance, servicing or repair work.
Article 25.29. Duration of Protection
The duration of protection available shall amount to at least 15 years from the date of filing of the application.
Article 25.30. Exceptions and Exclusions
1. Each Party may provide for limited exceptions to the protection of designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the holder of the protected design, taking account of the legitimate interests of third parties.
2. Design protection shall not extend to designs that are dictated essentially by technical or functional considerations.
3. A design shall not subsist in features of appearance of a product which must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to, or placed in, around or against, another product so that either product can perform its own function.
4. By way of derogation from paragraph 3, a design may subsist in a design which has the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system.
Article 25.31. Relationship to Copyright
A design shall also be eligible for protection under the copyright law of a Party as from the date on which the design was created or fixed in any form. Each Party shall determine the extent to which, and the conditions under which, such a protection is conferred, including the level of originality required.
Subsection 4. GEOGRAPHICAL INDICATIONS
Article 25.32. Definition and Scope
1. For the purposes of this Agreement, "geographical indication" means an indication which identifies a good as originating in the territory of a Party, or a region or locality in its territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
2. This Sub-Section applies to geographical indications, which identify the products listed in Annex 25-C.
3. The Parties agree to consider, after the entry into force of this Agreement, extend the scope of geographical indications covered by this Sub-Section to other product types of geographical indications not covered by paragraph 2, and in particular handicrafts, by taking into account the legislative developments of the Parties.
4. A Party shall protect geographical indications of the other Party, in accordance with this Sub-Section, provided that those geographical indications are protected as such in the country of origin.
Article 25.33. Listed Geographical Indications
Each Party, having examined both the legislation of the other Party referred to in Annex 25-A and the geographical indications of the other Party listed in Annex 25-C, and having completed proper publicity measures, in accordance with its laws and practices, shall protect the geographical indications of the other Party listed in Annex 25-C, in accordance with the level of protection laid down in this Sub-Section.
Article 25.34. Amendment of the List of Geographical Indications
1. The Parties agree on the possibility to amend the list of geographical indications in Annex 25-C pursuant to Article 25.40(1). Any addition by a Party to its list of geographical indications in Annex 25-C shall not exceed 45 geographical indications every three years after the date of entry into force of this Agreement. The Parties shall add new geographical indications after the completion of the opposition procedure in accordance with the criteria set out in Annex 25-B and after having examined the geographical indications, to the satisfaction of both Parties.
2. When an amendment of the list of geographical indications in Annex 25-C concerns a minor change related to the spelling of a listed geographical indication or the reference to the denomination of the geographical area to which it is attributable, the procedure referred to in Article 25.40(4) applies.
3. Any addition or change of a geographical indication pursuant to paragraph 1 or 2 shall be made by mutual consent of the Parties.
Article 25.35. Scope of Protection of Geographical Indications
1. The geographical indications listed in Annex 25-C, as well as those added pursuant to Article 25.34, shall be protected against: