(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 (119) with respect to goods under customs control (120) that are:
(a) imported;
(b) destined for export; (121) or
(c) in transit, (122) (123)
and that are suspected of being counterfeit trademark goods or pirated copyright goods.
6. 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 paragraph 1, paragraph 5(a), paragraph 5(b) and, if applicable, paragraph 5(c), whether the suspect goods infringe an intellectual property right. (124) 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.
7. 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 any 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.
8. If a Party establishes or assesses, in connection with the procedures described in this Article, an application fee, storage fee or destruction fee, that fee shall not be set at an amount that unreasonably deters recourse to these procedures.
9. This Article also shall apply 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 travellers' personal luggage. (125)
Article 18.77. Criminal Procedures and Penalties
1, Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of wilful copyright or related rights piracy, "on a commercial scale" includes at least:
(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. (126) (127)
2. Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties. (128)
3. Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful importation (129) and domestic use, in the course of trade and on a commercial scale, of a label or packaging: (130)
(a) to which a trademark has been applied without authorisation 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. Recognising the need to address the unauthorised copying (131) of a cinematographic work from a performance in a movie theatre that causes significant harm to a right holder in the market for that work, and recognising the need to deter such harm, each Party shall adopt or maintain measures, which shall at a minimum include, but need not be limited to, appropriate criminal procedures and penalties.
5. With respect to the offences 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 offences described in paragraphs 1 through 5, each Party shall provide the following:
(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. (132)
(b) 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 ot safety. (133)
(c) 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 offence, documentary evidence relevant to the alleged offence 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) Its judicial authorities have the authority to order the forfeiture, at least for serious offences, of any assets derived from or obtained through the infringing activity.
(e) 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 offence.
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 (c) shall occur without compensation of any kind to the defendant.
(f) 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 (134) infringement proceedings.
(g) 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. (135)
7. With respect to the offences 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 18.78. Trade Secrets (136)
1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state-owned enterprises) without their consent in a manner contrary to honest commercial practices. (137) As used in this Chapter, trade secrets encompass, at a minimum, undisclosed information as provided for in Article 39.2 of the TRIPS Agreement.
2. Subject to paragraph 3, each Party shall provide for criminal procedures and penalties for one or more of the following:
(a) the unauthorised and wilful access to a trade secret held in a computer system;
(b) the unauthorised and wilful misappropriation (138) of a trade secret, including by means of a computer system; or
(c) the fraudulent disclosure, or alternatively, the unauthorised and wilful disclosure, of a trade secret, including by means of a computer system.
3. With respect to the relevant acts referred to in paragraph 2, a Party may, as appropriate, limit the availability of its criminal procedures, or limit the level of penalties available, to one or more of the following cases in which:
(a) the acts are for the purposes of commercial advantage or financial gain;
(b) the acts are related to a product or service in national or international commerce;
(c) the acts are intended to injure the owner of such trade secret;
(d) the acts are directed by or for the benefit of or in association with a foreign economic entity; or
(e) the acts are detrimental to a Party's economic interests, international relations, or national defence or national security.
Article 18.80. Government Use of Software
1. Each Party recognises 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 authorised by the relevant licence. These measures shall apply to the acquisition and management of the software for government use. (147)
Section J. Internet Service Providers (148)
Article 18.81. Definitions
For the purposes of this Section: the term copyright includes related rights; and Internet Service Provider means:
(a) a provider of online services for the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, undertaking the function in Article 18.82.2(a) (Legal Remedies and Safe Harbours); or
(b) a provider of online services undertaking the functions in Article 18.82.2(c) or Article 18.82.2(d) (Legal Remedies and Safe Harbours).
For greater certainty, Internet Service Provider includes a provider of the services listed above that engages in caching carried out through an automated process.
Section K. Final Provisions
Article 18.83. Final Provisions
1. Except as otherwise provided in Article 18.10 (Application of Chapter to Existing Subject Matter and Prior Acts) and paragraphs 2, 3 and 4, each Party shall give effect to the provisions of this Chapter on the date of entry into force of this Agreement for that Party. (160)
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. This Section does not affect the rights and obligations of a Party under an international agreement to which it and another Party are party.
3. With respect to works of any Party that avails itself of a transition period permitted to it with regard to implementation of Article 18.63 (Term of Protection for Copyright and Related Rights) as it relates to the term of copyright protection (transition Party), Japan and Mexico shall apply at least the term of protection available under the transition Party's law for the relevant works during the transition period and apply Article 18.8.1 (National Treatment) with respect to copyright term only when that Party fully implements Article 18.63.
4. With regard to obligations subject to a transition period, a Party 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 for that Party.
(a) In the case of Brunei Darussalam, with respect to:
(i) Article 18.7.2(d) (International Agreements), UPOV 1991, three years;
(ii) Article 18.18 (Types of Signs Registrable as Trademarks), with respect to sound marks, three years;
(iii) Article 18.47 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), 18 months;
(iv) Article 18.50 (Protection of Undisclosed Test or Other Data), four years; ++
(v) Article 18.51 (Biologics), four years; ++
(vi) Article 18.53 (Measures Relating to the Marketing of Certain Pharmaceutical Products), two years; and
(vi) With respect to Section J (Internet Service Providers), three years.
(b) In the case of Malaysia, with respect to:
(i) Article 18.7.2(a) (International Agreements), Madrid Protocol, four years;
(ii) Article 18.7.2(b) (International Agreements), Budapest Treaty, four years;
(iii) Article 18.7.2(c) (International Agreements), Singapore Treaty, four years;
(iv) Article 18.7.2(d) (International Agreements), UPOV 1991, four years;
(v) Article 18.18 (Types of Signs Registrable as Trademarks), with respect to sound marks, three years;
(vi) Article 18.48.2 (Patent Term Adjustment for Unreasonable Curtailment), 4.5 years;
(vii) Article 18.51 (Biologics), five years;
(viii) Article 18.53 (Measures Relating to the Marketing of Certain Pharmaceutical Products), 4.5 years;
(ix) Article 18.63(a) (Term of Protection for Copyright and Related Rights), with respect to life-based works, two years;
(x) Article 18.76 (Special Requirements Related to Border Measures), with respect to applications to suspend the release of, or to detain, âconfusingly similarâ trademark goods, four years;
(xi) Article 18.76.5(b) and (c) (Special Requirements Related to Border Measures), with respect to ex officio border enforcement for in transit and export, four years; and
(xii) Article 18.79.2 (Protection of Encrypted Program-Carrying Satellite and Cable Signals), four years.
(c) In the case of Mexico, with respect to:
(i) Article 18.7.2(d) (International Agreements), UPOV 1991, four years;
(ii) Article 18.47 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), five years;
(iii) Article 18.48.2 (Patent Term Adjustment for Unreasonable Curtailment), 4.5 years;
(iv) Article 18.50 (Protection of Undisclosed Test or Other Data), five years; (++)
(v) Article 18.51 (Biologics), five years; (++) and
(vi) Section J (Internet Service Providers), three years.
(d) In the case of New Zealand, with respect to Article 18.63 (Term of Protection for Copyright and Related Rights), eight years. Except that from the date of entry into force of this Agreement for New Zealand, New Zealand shall provide that the term of protection for a work, performance or phonogram that would, during that eight years, have expired under the term that was provided in New Zealand law before the entry into force of this Agreement, instead expires 60 years from the relevant date in Article 18.63 that is the basis for calculating the term of protection under this Agreement. The Parties understand that, in applying Article 18.10 (Application of Chapter to Existing Subject Matter and Prior Acts), New Zealand shall not be required to restore or extend the term of protection to the works, performances and phonograms with a term provided pursuant to the previous sentence, once these works, performances and phonograms fall into the public domain in its territory.
(e) In the case of Peru, with respect to:
(i) Article 18.50.2 (Protection of Undisclosed Test or Other Data), five years; and
(ii) Article 18.51 (Biologics), 10 years.
(f) In the case of Viet Nam, with respect to:
(i) Article 18.7.2(b) (International Agreements), Budapest Treaty, two years;
(ii) Article 18.7.2(e) (International Agreements), WCT, three years;
(iii) Article 18.7.2(f) (International Agreements), WPPT, three years;
(iv) Article 18.18 (Types of Signs Registrable as Trademarks), with respect to sound marks, three years;
(v) Article 18.463 and Article 18.46.4 (Patent Term Adjustment for Unreasonable Granting Authority Delays), with respect to patents claiming pharmaceutical products, five years; (^)
(vi) Article 18.46.3 and Article 18.46.4 (Patent Term Adjustment for Unreasonable Granting Authority Delays), with respect to patents claiming agricultural chemical products, five years; (^)
(vii) Article 18.463 and Article 18.464 (Patent Term Adjustment for Unreasonable Granting Authority Delays), three years; (161)
(viii) Article 18.47 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), five years;
(ix) Article 18.48.2 (Patent Term Adjustment for Unreasonable Curtailment), five years;
(x) Article 18.50 (Protection of Undisclosed Test or Other Data), 10 years; (*/++)
(xi) Article 18.51 (Biologics), 10 years; (*/++)
(xii) Article 18.53 (Measures Relating to the Marketing of Certain Pharmaceutical Products), three years;
(xiii) Article 18.63(a) (Term of Protection for Copyright and Related Rights), with respect to life-based works, five years;
(xiv) Article 18.68 (TPMs), three years;
(xv) Article 18.69 (RMI), three years;
(xvi) Article 18.76.5(b) (Special Requirements Related to Border Measures), with respect to ex officio border measures for export, three years;
(xvii) Article 18.76.5(c) (Special Requirements Related to Border Measures), with respect to ex officio border measures for in transit, two years;
(xviii) Article 18.77.1(b) (Criminal Procedures and Penalties), three years;
(xix) Article 18.77.2 (Criminal Procedures and Penalties), with respect to importation of pirated copyright goods, three years;
(xx) Article 18.77.2 (Criminal Procedures and Penalties), with respect to exportation, three years;
(xxi) Article 18.77.4 (Criminal Procedures and Penalties), with respect to camcording, three years;
(xxii) Article 18.77.6(g) (Criminal Procedures and Penalties), with respect to enforcement without the right holder's request for rights other than copyright, three years;
(xxiii) Article 18.78.2 and Article 18.78.3 (Trade Secrets), three years;
(xxiv) Article 18.79.1 (Protection of Encrypted Program-Carrying Satellite and Cable Signals), with respect to criminal remedies, three years;
(xxv) Article 18.79.3 (Protection of Encrypted Program-Carrying Satellite and Cable Signals), with respect to cable signals, three years; and
(xxvi) Section J (Internet Service Providers), three years.