the direct or indirect, temporary or permanent, reproduction of their phonograms in any manner or form, in whole or in part;
the distribution to the public of the original and copies of their phonograms through sale or other transfer of ownership;7
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
the commercial rental to the public of the original and copies of their phonograms even after distribution of them by, or pursuant to, authorisation by the producer.
7 For the purposes of the implementation of this Sub-Section, each Party may interpret the term "distribution" as synonymous with the term "making available" pursuant to Article 12 of the WPPT.
Article Article 17.15 Broadcasting Organisations
Each Party shall provide broadcasting organisations with the exclusive right to authorise:
the fixation of their broadcasts;
the reproduction of fixations of their broadcasts; and
the rebroadcasting of their broadcasts by wireless means.
Broadcasting and communication to the public of phonograms published for commercial purposes
Each Party shall provide performers and producers of phonograms 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.8
Each Party may establish in their laws and regulations that the single equitable remuneration shall be claimed from the user by the performer or the producer of a phonogram or by both. Each Party may enact laws and regulations that, in the absence of an agreement between the performer and the producer of a phonogram, set the terms according to which performers and producers of phonograms shall share the single equitable remuneration.
For the purposes of this Article, phonograms made 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 shall be considered as if they had been published for commercial purposes.
8 This paragraph is subject to any commitments and reservations of a Party under the WPPT.
Term of protection
The rights of an author of a work shall run for the life of the author and for 70 years after the author's death, irrespective of the date when the work is lawfully made available to the public.
Notwithstanding paragraph 1, each Party may provide for specific rules on the calculation of the term of protection of musical composition with words, works of joint authorship as well as cinematographic or audiovisual works. Each Party may provide for specific rules on the calculation of the term of protection of anonymous or pseudonymous works.
The rights of broadcasting organisations shall expire 50 years after the first transmission of a broadcast.
The rights of performers of phonograms shall expire 50 years after the date of the fixation of the performance. However, if the phonogram has been lawfully published or, where provided for by a Party, lawfully communicated to the public or otherwise lawfully made public, within this period, the term of protection shall expire 70 years from the date of the first such publication or, where provided by a Party, the first such communication to the public or the first such instance of otherwise making public. Where a Party provides for two or more of these possibilities, the term of protection shall be calculated from whichever event occurs earlier.
The rights of producers of phonograms shall expire 50 years after the fixation is made. However, the term of protection shall expire 70 years from the date of the first lawful publication or, where provided by a Party's law, from the date of the first lawful communication to the public or first lawfully making public, where such publication, communication to the public or making public occurs within the 50 years after the fixation is made.
The terms of protection laid down in this Article shall be calculated from the first of January of the year following the year of the event which gives rise to them. With respect to works created and performances performed before 1 January 2019, a Party may continue to apply the terms of protection that were applicable at the date of entry into force of this Agreement.
Each Party may provide for longer terms of protection than those provided for in this Article.
Resale right
Each Party shall provide, for the benefit of the author of an original work of art9, an inalienable resale 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.
The procedure for collection of the royalties, its amounts and the criteria for the works, acts of resale and authors eligible to receive the royalty shall be a matter for determination by the law of each Party.
Collective management of rights
The Parties shall promote cooperation between their respective collective management organisations for the purpose of fostering the availability of works and other protected subject matter in their respective territories and the transfer of rights revenue between the respective collective management organisations for the use of such works or other protected subject matter.
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 they collect, the distribution policy and their repertoire.
Each Party shall ensure that collective management associations established in its territory and representing another collective management organisation established in the territory of the other Party by way of a representation agreement, are encouraged to accurately, regularly and diligently pay amounts owed to the represented collective management organisations as well as to provide
9 For Australia, this means visual art. For the Union, this means works of graphic or plastic art.
those organisations with information on the amount of rights revenue collected on their behalf and any deductions from that rights revenue.
Exceptions and limitations
Each Party shall confine limitations or exceptions to the rights set out in Articles 17.12 (Authors) to 17.16 (Broadcasting and communication to the public of phonograms published for commercial purposes) to 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.
This Article is without prejudice to the limitations and exceptions to any rights provided by the TRIPS Agreement, or by multilateral agreements concluded or administered under the auspices of WIPO.
Protection of technological measures
For the purposes of this Article, the term "effective technological measures" means any technology, device, or component that, in the normal course of its operation, is used by authors, performers or producers of phonograms in connection with the exercise of their rights under this Sub-Section and that prevents or restricts acts, in respect of their works, performances or phonograms, that are not authorised by the authors, performers or producers of phonograms.
Each Party shall provide adequate legal protection and effective legal remedies against the unauthorised circumvention of effective technological measures, where such circumvention is carried out knowingly or with reasonable grounds to know. Each Party may provide for a specific regime for legal protection of technological measures used to protect computer programs.
Each Party shall provide adequate legal protection and effective legal remedies against the
manufacture, import, distribution, sale, rental, offer or advertisement for sale or rental, of devices, products or components or the provision of services which:
are promoted, advertised or marketed for the purpose of circumvention of any effective technological measures;
have only a limited commercially significant purpose or use other than to circumvent any effective technological measures; or
are primarily designed, produced or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
Each Party may provide for exceptions and limitations to measures implementing paragraphs 2 and 3 in accordance with its law and the relevant international agreements referred to in Article 17.5(1) (International agreements), provided that such exceptions and limitations do not significantly impair the adequacy of legal protection or the effectiveness of legal remedies provided by those measures against the acts prescribed in paragraphs 2 and 3.
Obligations concerning rights management information
For the purposes of this Article, the term "rights-management information" means:
any information provided by right holders that identifies the work or other subject matter referred to in this Article, the author or any other right holder;
information about the terms and conditions of use of the work or other subject matter referred to in this Article; or
any numbers or codes that represent such information.
Paragraph 1 applies if any of the items of information referred to in paragraph 1 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.
Each Party shall provide adequate legal protection against any person knowingly performing without authority:
the removal or alteration of any electronic rights-management information; or
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,
if such person knows, or has reasonable grounds to know, that by doing so they are inducing, enabling, facilitating or concealing an infringement of any copyright or related rights.
Each Party shall confine exceptions to measures implementing this Article to lawfully authorised activities carried out by government employees, agents, contractors for the purpose of law enforcement, intelligence, essential security or similar government purposes.
Article ARTICLE 17.23
Trademark classification
Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, done at Nice on 15 June 1957, as amended on 28 September 1979.
Signs of which a trademark may consist
A Party shall not require, as a condition of registration of a trademark, that a sign be visually perceptible, nor deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound.
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 identical or similar signs for goods or services which are identical or similar to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
Registration and opposition procedure
Each Party shall provide for a system for the examination and registration of trademarks in which each final refusal taken by the competent authorities shall be communicated in writing to the relevant party, duly reasoned and subject to judicial appeal.
Each Party shall provide for the possibility to oppose the registration of a trademark.10
10 For greater certainty, each Party may provide for opposition before or after registration.
Electronic trademarks database
Each Party shall provide a publicly available electronic database of trademark applications and trademark registrations.
Each Party recognises the importance of providing a system for the electronic application and maintenance of trademarks.
Well-known trademarks
Each Party shall provide for 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. Each Party shall give consideration to 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.
Exceptions to the rights conferred by a trademark
Provided that such exceptions take account of the legitimate interests of the owners of the trademarks and of third parties, each Party:
shall provide for the fair use of descriptive terms11 as a limited exception to the rights conferred by trademarks; and
11 For greater certainty, the fair use of descriptive terms may include terms to indicate the geographical origin of the goods or services.
may provide for other limited exceptions to the rights conferred by trademarks.
Collective and certification marks
Each Party shall provide that trademarks include collective marks and may provide that trademarks include certification marks.
Each Party may provide that signs that may serve as geographical indications are capable of protection under its trademark system.
Cancellation12
Each Party shall provide that its competent authority, upon request, has the authority to cancel a trademark, if within a period of time determined by the law of that Party, the trademark has not been used13 in the relevant territory in connection with the goods or services in respect of which it is registered, and, subject to that Party's law, there are no proper reasons for non-use.
Each Party shall provide that its competent authority, upon request, has the authority to cancel a trademark if, after the date on which the trademark was registered:
it has become the common name in the trade for a good or service in respect of which it is registered;14 or
12 For greater certainty, a Party may define cancellation as revocation or removal.
13 A Party may require that the use is of genuine character or made in a quantity or manner corresponding to commercial use or is in good faith. A Party may further decide to disregard the commencement or resumption of use just before the filing of the cancellation request.
14 For greater certainty, a Party may require that the trademark may only be cancelled if it has become common in consequence of acts or inactivity of the proprietor.
it is liable to mislead the public, including as to the nature, quality or geographical origin of those goods or services for which it was registered.15
Bad faith applications
Each Party shall provide that its competent authority, upon request, has the authority to invalidate a trademark where the application for registration of the trademark was made in bad faith. Each Party may also provide that a trademark shall not be registered where the application for registration of the trademark was made in bad faith.
Article ARTICLE 17.33
International agreements
Each Party shall make all reasonable efforts to accede to the Geneva Act (1999).
Protection of industrial designs
Each Party shall provide for the protection of independently created industrial designs that are
15 For greater certainty, a Party may require that the trademark may only be cancelled if it has become misleading in consequence of the use made of it by the proprietor or with the proprietor's consent.
new and original.16 This protection shall be provided by registration17 and shall confer an exclusive right upon owners of such industrial designs in accordance with the provisions of this Sub-Section.
The owner of a registered industrial design shall have the right to prevent third parties not having the owner’s consent at least from making, offering for sale, selling, using or importing products bearing or embodying a design which is identical or similar18 to the registered industrial design, when such acts are undertaken for commercial purposes.
Duration of protection
Each Party shall ensure that the total duration of protection available for registered industrial designs amounts to at least 10 years from the date of filing of the application.
Unregistered appearance of products
The Parties recognise that the appearance of a product may be protected through industrial designs, copyright or unfair competition law.
Each Party shall provide legal means to prevent the use of the unregistered appearance of a product if such use results from copying the unregistered appearance of the product, to the extent provided by its laws and regulations.
16 For the purposes of this Article, a Party may consider that a design that is distinctive or that has individual character is original.
17 For greater certainty, for the purposes of this Sub-Section, Australia may interpret "registration" as "registration and certification".
18 For greater certainty, for the purposes of this Sub-Section, Australia may interpret "similar" as "substantial similarity in overall impression".
Exceptions
Each Party may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of registered industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected industrial design, taking account of the legitimate interests of third parties.
Article ARTICLE 17.38
Scope and procedures
This Sub-Section applies to the protection of geographical indications originating in the territory of a Party. A Party shall protect the geographical indications of the other Party listed in Annex 17 (Lists of geographical indications) according to the level of protection provided in this Agreement.
For the purposes of this Sub-Section:
"geographical indications" means indications which identify a good as originating in the territory of a Party, or a region or locality in that Party's territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin; and
"product specification" means, in relation to the relevant product for a geographical indication, the approved requirements for the use of that geographical indication in marketing that product.
Geographical indications of a Party, which are to be protected by the other Party, shall only be subject to this Sub-Section:
if they are protected as geographical indications in accordance with the system referred to in Article 17.39 (System of registration and protection of geographical indications) in the territory of the Party of origin; and
if the associated goods for those geographical indications fall within the scope of the relevant laws or regulations of the Party in which protection is sought; and
following the completion of an objection procedure and an examination by the Party in which protection is sought.
System of registration and protection of geographical indications
Each Party recognises that geographical indications may be protected through a trademark or
sui generis system or other legal means.
Each Party shall maintain a system for the registration and protection, at least at the level of protection provided for in Article 17.41(1) (Protection of geographical indications), of geographical indications in its territory. The system shall include at least the following elements:
accepting requests for the protection of geographical indications without requiring intercession by a Party on behalf of its nationals;
publishing registered geographical indications in the territory of a Party;
processing requests for the protection of geographical indications without requiring compliance with unreasonable procedures or formalities;
ensuring that its laws and regulations governing the protection of geographical indications are readily available to the public and clearly set out procedures relating to their protection including procedures for the filing of requests;
making available sufficient information to allow any person to ascertain the status of specific requests for protection;
ensuring that all requests for protection of geographical indications are published for objection;
providing procedures for objecting to the protection of a geographical indication which shall allow the legitimate interests of third parties to be taken into account and include an opportunity and a reasonable period of time to object before the geographical indication is protected. Such objections shall be accepted without requiring intercession by a Party on behalf of its nationals. In assessing objections for protection, each Party shall base those assessments on the situation existing in that Party's territory; and
providing for the cancellation of the protection of a geographical indication.
Amendment of the lists of geographical indications
The Parties may amend the lists of protected geographical indications in Annex 17 (Lists of geographical indications) in accordance with the procedure set out in Article 17.69 (Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property Rights). Amendments may include the addition of geographical indications or the removal of geographical indications which have ceased to be protected in their place of origin.
Without prejudice to paragraph 1, after the date of entry into force of this Agreement, up to four amendments may take place, in accordance with paragraph 1, based on the transmission by Australia of a request to add a cumulative total of 40 geographical indications to Annex 17 (Lists of geographical indications). These shall be processed and protected in the Union in accordance with Article 17.38(3).
The Parties recognise the value, for Australia, of geographical indications that protect, preserve or promote the indigenous knowledge of Australian First Nations peoples, and shall give
such geographical indications due consideration when considering amendments to Annex 17 (Lists of geographical indications).
Protection of geographical indications
Each Party shall, in respect of geographical indications of the other Party listed in Annex 17 (Lists of geographical indications), provide the legal means for interested parties to prevent in its territory:
the commercial use of a geographical indication identifying a good for a like good not meeting the applicable product specifications of the geographical indication even if:
the true origin of the good is indicated;
the geographical indication is used in translation or transliteration; or
the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation", or the like;
the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin or nature of the good; and
any other use of a geographical indication which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention, which may include when used as an ingredient.