Article 217. Collective Management Societies
The Parties recognise the importance of collective management societies for copyright and related rights, in order to ensure an effective management of the rights entrusted to them, as well as an equitable distribution of remunerations collected, which are proportional to the utilization of the works, performances or phonograms, in a context of transparency and good management practices, according to the domestic legislation of each Party.
Article 218. Duration of Rights of Authors
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death.
2. In the case of a work of joint authorship, the term of protection referred to 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 granted by this Agreement shall expire 70 years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection applicable shall be that laid down in paragraph 1. If the author of an anonymous or pseudonymous works discloses his identity during the above-mentioned period of time, the term of protection applicable shall be that laid down in paragraph 1. No Party shall be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for 70 years.
4. Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 70 years from the end of the calendar year of authorised publication, or, failing such authorised publication, within at least 50 years from the making of the work, 70 years from the end of the calendar year of its making.
5. The term of protection of cinematographic or audiovisual works shall be at least 70 years after the work has been made available to the public with the consent of the author, or, failing such an event, within at least 50 years from the making of such work, at least 70 years after its making. Alternatively, a Party may establish that the term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last person designated as author under domestic law.
Article 219. Duration of Related Rights
1. The term of protection to be granted to performers under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed.
2. The term of protection to be granted to producers of phonograms under this Agreement shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, at least 50 years from the end of the year in which the fixation was made.
3. The term of protection granted to broadcasting organisations shall last for at least 50 years from the end of the calendar year in which the broadcast took place.
Article 220. Broadcasting and Communication to the Public
1. For the purposes of this Article:
- "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organisation or with its consent; and
- "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of paragraph 3, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.
2. Performers shall enjoy the exclusive right of authorising, as regards their performances:
(a) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and
(b) the fixation of their unfixed performances.
3. Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public. The Parties shall establish in their domestic legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. The Parties may enact domestic legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration.
4. Each Party shall provide performers with the exclusive right to authorise or prohibit, in relation to their fixed performances:
(a) direct or indirect reproduction;
(b) distribution through sale or other transfer of ownership;
(c) rental to the public of the original and copies thereof; and
(d) making available to the public 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.
5. Where performers have transferred the right of making available or the right of rental, a Party may provide that performers retain the unwaivable right to obtain an equitable remuneration, which may be collected by a collecting society duly authorised by law, in accordance with its domestic law.
6. The Parties may recognise to performers of audiovisual works an unwaivable right to obtain an equitable remuneration for broadcasting or for any communication to the public of their performances fixed, remuneration which may be collected by a collecting society, duly authorised by law, in accordance with domestic law.
7. The Parties may provide in their domestic law, limitations or exceptions to rights of performers of audiovisual works, in certain special cases which do not conflict with the normal exploitation of the performances, and do not unreasonably prejudice the legitimate interests of the performers.
8. Each Party shall provide broadcasting organisations with the exclusive right to authorise or prohibit the re-transmission of their broadcasts by at least any wireless means.
Article 221. Protection of Technological Measures
The Parties shall comply with the provisions of Article 11 of the WCT and Article 18 of the WPPT.
Article 222. Protection of Rights Management Information
The Parties shall comply with the provisions of Article 12 of the WCT and Article 19 of the WPPT.
Article 223. Resale Right of Artists In Works of Arts
1. Without prejudice to Article 14 ter (2) of the Berne Convention, each Party shall provide the author of a work of art, and on his/her death to his/her successors in title, with an inalienable and unwaivable right to receive a royalty based on the sale price obtained for the resale of the work subsequent to the first transfer of the work by the author.
2. The right referred to in paragraph 1 shall apply, in accordance with the domestic legislation, to all acts of resale made by auction or through art market professionals, such as salesrooms, art galleries, or other dealers in works of art.
Section 4. Designs
Article 224. International Agreements
The Parties shall make all reasonable efforts to accede to the Geneva Act to the Hague Agreement Concerning the International Registration of Industrial Designs adopted in Geneva on 2 July 1999.
Article 225. Requirements for Protection of Designs (76)
1. Each Party shall provide for the protection of independently created designs that are new. When the legislation of a Party so provides, individual character of such designs may also be required. This protection shall be provided by registration and shall confer an exclusive right upon their holders in accordance with the provisions of this Section.
2. A design applied to, or incorporated in, a product which constitutes a component part of a complex product shall only be considered protectable according to paragraph 1 if the component part, once it has been incorporated into the complex product (77), remains visible during normal use (78) of the latter, and to the extent that those visible features of the component part fulfil in themselves the requirements to be protectable.
Article 226. Rights Conferred by Registration
1. The holder of a registered design shall have the exclusive right at least to prevent third parties not having his/her consent, from making, offering for sale, selling, importing, exporting, stocking such a product or using articles bearing or embodying the protected design when such acts are undertaken for commercial purposes.
2. The holder of a registered design shall also have the right to take legal action against any person who produces or markets a product whose design only presents minor differences with respect to the protected design or where appearance is the same as the latter protected design.
Article 227. Term of Protection
The duration of protection of an industrial design shall amount to, at least, 10 years from the date of the submission of the application for registration. The Parties may implement a longer term of protection in their domestic legislation.
Article 228. Exceptions
1. The Parties may establish 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 owner of the protected design, taking account of the legitimate interests of third parties.
2. Design protection shall not extend to designs dictated entirely by technical or functional considerations.
3. A design right 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 may perform its function.
4. A design does not confer rights when it is contrary to public order or morality.
Article 229. Relationship to Copyright
The subject matter of protection of a design right may be protected under copyright legislation if the conditions for such protection are met. The extent to which, and the conditions under which, such protection is conferred, including the level of originality required, shall be determined by each Party.
Section 5. Patents
Article 230.
1. The Parties shall comply with Articles 2 through 9 of the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done in Budapest on 28 April 1977 and amended on 26 September 1980.
2. The European Union shall make all reasonable efforts to comply with the Patent Law Treaty, adopted at Geneva on 1 June 2000 (hereinafter referred to as the "PLT"). The signatory Andean Countries shall make all reasonable efforts to accede to the PLT.
3. When the marketing of a pharmaceutical or agricultural chemical product (79) in a Party requires to obtain an authorisation by its competent authorities in such matters, such Party shall make its best efforts to process the corresponding application expeditiously with a view to avoiding unreasonable delays. The Parties shall cooperate and provide mutual assistance to achieve this objective.
4. With respect to any pharmaceutical product that is covered by a patent, each Party may, in accordance with its domestic legislation, make available a mechanism to compensate the patent owner for unreasonable curtailment of the effective patent term resulting from the first marketing approval of that product in that Party. Such mechanism shall confer all of the exclusive rights of a patent, subject to the same limitations and exceptions applicable to the original patent.
Section 6. Protection of Data of Certain Regulated Products
Article 231.
1. Each Party shall protect undisclosed test or other data related to safety and efficacy of pharmaceutical products (80) and agricultural chemical products, in accordance with Article 39 of the TRIPS Agreement and its domestic legislation.
2. According to paragraph 1, and subject to paragraph 4, when a Party requires, as a condition for approving the marketing of pharmaceutical or of agricultural chemical products which contain new chemical entities, the submission of undisclosed test or other data related to safety and efficacy, that Party shall grant an exclusivity period normally of five years from the date of marketing approval in the territory of that Party for pharmaceutical products, and 10 years for agricultural chemical products, period during which a third party may not commercialise a product based on such data, unless he/she presents proof of the explicit consent of the holder of the protected information or his/her own test data. (81)
3. For the purpose of this Article, a "new chemical entity" is the one which has not been previously approved in the territory of the Party for its use in a pharmaceutical or chemical agricultural product, pursuant to its domestic legislation. Accordingly, the Parties need not apply this Article with respect to pharmaceutical products that contain a chemical entity that has been previously approved in the territory of the Party.
4. The Parties may regulate:
(a) exceptions for reasons of public interest, situations of national emergency or extreme urgency, when it is necessary to allow access to those data to third parties; and
(b) abbreviated marketing approval procedures in their territory, relying on a marketing approval granted by another Party. In such case, the period of exclusive use of the data submitted in connection with obtaining the approval shall begin from the date of the first marketing approval relied on, when the approval is granted within six months from the filing of a complete application.
5. With regard to agricultural chemical products, the Parties may provide procedures which make it possible to remit or refer to the undisclosed information on safety and efficacy related to tests and studies that involve vertebrate animals. During the term of protection, the interested person in using such information shall compensate the holder of the protected information. The costs of such compensation shall be determined in a fair, equitable, transparent and non-discriminatory manner. The right to this compensation shall apply for as long as the protection of the undisclosed information on safety and efficacy lasts.
6. In accordance with the provisions of Article 197 paragraph 5, the protection provided for in this Article does not prevent a Party from adopting measures in response to the abuse of intellectual property rights or practices which unreasonably restrain trade.
Section 7. Plant Varieties
Article 232.
The Parties shall cooperate to promote and ensure the protection of plant varieties based on the International Convention for the Protection of New Varieties of Plants (hereinafter referred to as "UPOV Convention"), as revised on 19 March 1991 (82), including the optional exception to the right of the breeder as referred to in Article 15(2) of such Convention.
Section 8. Unfair Competition
Article 233.
1. Each Party shall grant effective protection against unfair competition in accordance with Article 10 bis of the Paris Convention. For this purpose, any act carried out in respect of industrial property in the course of trade that is contrary to honest commercial practices shall be considered unfair in accordance with the domestic legislation of each Party.
2. In accordance with the domestic legislation of each Party, this Article may be applied without prejudice to the protection granted under this Title.
Chapter 4. Enforcement of Intellectual Property Rights
Section 1. General Provisions
Article 234.
1. Without prejudice to their rights and obligations under the TRIPS Agreement, and in particular of its Part III, each Party shall provide for measures, procedures and remedies as established under this Chapter, which are necessary to ensure the enforcement of intellectual property rights as defined in Article 196, subparagraphs 5(a) to 5(i).
2. The provisions under this Chapter shall include measures, procedures and remedies that are expeditious, effective, and proportionate, and constitute a deterrent to further infringements and 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.
3. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
4. This Chapter does not create for the Parties any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, or any obligation with respect to the distribution of resources for enforcement of intellectual property rights and the enforcement of law in general.
Section 2. Civil and Administrative Remedies and Procedures
Article 235.
Articles 237, 239 and 240 shall apply in respect of acts carried out on a commercial scale, and if permitted by their domestic law, the Parties may apply the measures provided for in such Articles in respect of other acts.
Article 236. Entitled Applicants
Each Party shall recognise as persons entitled to seek application of the measures, initiate the procedures and apply for remedies referred to in this Section and in Part III of the TRIPS Agreement:
(a) holders of intellectual property rights in accordance with its applicable law;
(b) all other persons authorised to use those rights, in particular the exclusive licensee and other licensees, in so far as permitted by and in accordance with its applicable law;
(c) intellectual property collective rights management bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with the provisions of its applicable law; and
(d) professional defence bodies which are regularly recognised as having a right to represent holders of intellectual property rights, in so far as permitted by and in accordance with its applicable law.
Article 237. Evidence
Each Party shall take such measures as are necessary, in the case of an infringement of an intellectual property right committed on a commercial scale, to enable its competent judicial authorities to order the opposing party, where appropriate and upon application by a party, the communication of relevant banking, financial or commercial documents under his/her control, subject to the protection of confidential information.
Article 238. Measures for Preserving Evidence
Each Party shall provide that, even before the commencement of proceedings on the merits of the case, the competent judicial authorities may, upon application by a person, who has presented reasonably available evidence enough to support his/her claims that his/her intellectual property right has been infringed or is about to be infringed, order prompt, effective and proportionate provisional measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information. Such measures may include, among others, the detailed description, with or without the taking of samples, or if the domestic legislation permits, the physical seizure of the alleged infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto. Those measures shall be taken, if necessary, without the other party being heard, in particular where any delay is likely to cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
Article 239. Right of Information
1. Each Party shall provide that, in the context of proceedings concerning an infringement of an intellectual property right and in response to a justified and proportionate request of the claimant, the competent judicial authorities may order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by the infringer and/or any other person who:
(a) was found in possession of the infringing goods on a commercial scale;
(b) was found to be using the infringing services on a commercial scale;
(c) was found to be providing on a commercial scale services used in infringing activities; or
(d) was indicated by the person referred to in subparagraphs (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services in question.
2. The information referred to in paragraph 1 shall, as appropriate, comprise:
(a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as the intended wholesalers and retailers;
(b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question.
3. Paragraphs 1 and 2 shall apply without prejudice to other statutory provisions which:
(a) grant the right holder rights to receive fuller information;
(b) govern the use in civil or criminal proceedings of the information communicated pursuant to this Article; (c) govern responsibility for misuse of the right of information;
(d) afford an opportunity for refusing to provide information which would force the person referred to in paragraph 1 to admit his own participation or that of his close relatives in an infringement of an intellectual property right; or
(e) govern the protection of confidentiality of information sources or the processing of personal data.
Article 240. Provisional and Precautionary Measures
1. In accordance with its domestic legislation, each Party shall provide that its judicial authorities may, upon request of the applicant, issue an interlocutory injunction against any party, intended to prevent any imminent infringement of an intellectual property right, or to forbid, on a provisional basis and subject, where appropriate, to a recurring penalty payment where provided for by domestic law, the continuation of the alleged infringements of that right, or to subject such continuation to the lodging of guarantees intended to ensure the compensation of the right holder.
2. An interlocutory injunction may also be issued to order the seizure or withdrawal of the goods suspected of infringing an intellectual property right so as to prevent their entry into or movement within the channels of commerce.
Article 241. Corrective Measures
1. Each Party shall take the necessary measures to provide that its competent judicial authorities may order, upon request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, and without compensation of any sort to the infringer, the withdrawal, definitive removal from the channels of commerce or destruction of goods that they have found to be infringing an intellectual property right. If appropriate, the competent judicial authorities may also order the destruction of materials and implements principally used in the creation or manufacture of those goods.
2. The judicial authorities shall order that measures, as referred to in paragraph 1, shall be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.
Article 242. Injunctions
Without prejudice to the provisions of Article 44.2 of the TRIPS Agreement, each Party shall provide that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue an injunction against the infringer aimed at prohibiting the continuation of the infringement. Where provided for in the domestic law of a Party, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance (83).
Article 243. Alternative Measures
Each Party may provide, in accordance with its domestic legislation, that in appropriate cases and upon request of the person liable to be subject to the measures provided for in Article 241 and/or Article 242, the competent judicial authorities may order pecuniary compensation to be paid to the injured party instead of applying the measures provided for in Article 241 and/or Article 242 if that person acted unintentionally and without negligence, if execution of the measures in question would cause such person disproportionate harm and if pecuniary compensation to the injured party appears reasonably satisfactory.
Article 244. Damages
1. Each Party shall provide that when setting the damages, its judicial authorities:
(a) take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the right holder by the infringement; or
(b) as an alternative to subparagraph (a), may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.
2. Where the infringer did not knowingly, or with reasonable grounds to know, engage in an infringing activity, the Parties may provide that the judicial authorities may order the recovery of profits or the payment of damages which may be pre-established.
Article 245. Legal Costs
Each Party shall ensure that reasonable and proportionate legal costs and other procedural expenses, including attorney's fees, incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, except for equity or other reasons, in accordance with domestic legislation.
Article 246. Publication of Judicial Decisions
Each Party shall take the necessary measures to ensure that, in legal proceedings instituted for infringement of an intellectual property right, the judicial authorities may order, upon request of the applicant and at the expense of the infringer, appropriate measures for the dissemination of the information concerning the decision, including displaying the decision and publishing it in full or in part. The Parties may provide for other additional publicity measures which are appropriate to the particular circumstances, including prominent advertising.
Article 247. Presumption of Authorship or Ownership
For the purposes of applying the measures, procedures and remedies provided for under this Agreement in relation to the enforcement of copyright and related rights:
(a) for the author of a literary or artistic work, in the absence of proof to the contrary, to be regarded as such, and consequently to be entitled to institute infringement proceedings, it shall be sufficient for his/her name to appear on the work in the usual manner. This subparagraph shall be applicable even if such name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his/her identity;
(b) subparagraph (a) shall apply mutatis mutandis to the holders of rights related to copyright with regard to their protected subject matter.
Article 248. Administrative Procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in the relevant provisions of this Section.
Article 249. Border Measures
1. Each Party shall, unless otherwise provided for in this Article, adopt procedures [74] to enable a right holder, who has valid grounds for suspecting that the import, export, or transit of goods infringing a copyright or a trademark right [75] may take place, to lodge an application in writing with competent authorities, for the suspension by the customs authorities of the release into free circulation or for the detention of such goods. The Parties will evaluate the application of these measures for goods suspected of infringing a geographical indication.
2. Each Party shall provide that when the customs authorities, in the course of their actions, have sufficient grounds for suspecting that goods infringe a copyright or a trademark right, such authorities may suspend ex officio the release of the goods or detain them in order to enable the right holder to submit, subject to the domestic law of each Party, a judicial or administrative action in accordance with paragraph 1.
3. Any right or obligation established in Part III, Section 4 of the TRIPS Agreement concerning the importer shall be also applicable to the exporter or to the consignee of the goods.