(a) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done at Rome on 26 October 1961 (hereinafter referred to as the "Rome Convention");
(b) the Berne Convention for the Protection of Literary and Artistic Works (1971), done at Paris on 24 July 1971 (hereinafter referred to as the "Berne Convention"); (c) the WIPO Copyright Treaty, done at Geneva on 20 December 1996 (hereinafter referred to as the "WCT"); and (d) the WPPT.
Rights of Copyright Holder
2. Each Party shall provide (6) that authors, performers, and producers of phonograms have the right to authorise or prohibit all reproductions of their works and other subject matters including performances (7) and phonograms in any manner or form. (8) (9)
Right to Remuneration for Broadcasting and Communication to the Public
3. Each Party shall provide to 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. (10)
(6) The Parties reaffirm that it is a matter for each Party's law to prescribe that works in general or any specified categories of works, performances and phonograms shall not be protected by copyright or related rights unless they have been fixed in some material form.
Protection of Technological Measures
4. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures (11) that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorised by the authors, performers or producers of phonograms concerned or permitted by law.
5. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 4, each Party shall provide protection against at least:
(a) to the extent provided by its law:
(i) the unauthorised circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and
(ii) the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and
(b) the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that:
(i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or
(ii) has only a limited commercially significant purpose other than circumventing an effective technological measure.
6. In implementing paragraphs 4 and 5, a Party is not obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to a particular technological measure, so long as the product does not otherwise contravene that Party's measures implementing these paragraphs. This Agreement does not require a Party to mandate interoperability in that Party's law, i.e., there is no obligation for the Information Communication Technology industry to design devices, products, components, or services to correspond to certain technological protection measures.
7. In providing adequate legal protection and effective legal remedies pursuant to paragraph 4, a Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraphs 4 and 5. The obligations set forth in paragraphs 4 and 5 are without prejudice to the rights, limitations, exceptions, or defences to copyright or related rights infringement under a Party's domestic law.
Protection of Rights Management Information
8. To protect electronic rights management information (12) , each Party shall provide adequate legal protection and effective legal remedies against any person knowingly performing without authority any of the following acts knowing, or having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related rights:
(a) to remove or alter any electronic rights management information;
(b) to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.
9. In providing adequate legal protection and effective legal remedies pursuant to paragraph 8, a Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraph 8. The obligations set forth in paragraph 8 are without prejudice to the rights, limitations, exceptions, or defences to copyright or related rights infringement under a Party's law.
Protection of Encrypted Program-Carrying Satellite Signals
10. Each Party shall make it a criminal or civil offense:
(a) to manufacture, import, sell, lease, or otherwise make available a device or system that is primarily of assistance in decoding an encrypted program-carrying satellite signal without the authorisation of the lawful distributor of such signal; and
(b) to receive, in connection with commercial activities, or further distribute, an encrypted program-carrying satellite signal that has been decoded without the authorisation of the lawful distributor of the signal.
Each Party shall provide that any civil offense established under subparagraph (a) or (b) is actionable by any person that holds an interest in the content of the signal.
Article 16.12. Patents
1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application (13) . In addition, each Party confirms that patents shall be available for any new uses or methods of using a known product, provided that the invention is new, involves an inventive step, and is capable of industrial application.
Exclusion from Patentability
2. Each Party may exclude from patentability:
(a) inventions, the prevention within that Party's territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by that Party's domestic law;
(b) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals; and
(c) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, each Party shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.
Limited Exceptions to Patent Rights
3. Each Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that those exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 16.13. Enforcement of Intellectual Property Rights
General Obligations
1. Each Party shall provide that enforcement procedures are available under that Party's domestic law so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in a manner so as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
2. Each Party shall provide that the procedures adopted, maintained, or applied to implement this Chapter are fair and equitable, and provide for the rights of all participants subject to such procedures to be appropriately protected. Each Party shall also provide that these procedures are not unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
3. In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies, and penalties.
4. This Chapter is not to be construed to require a Party to make its officials subject to liability for acts undertaken in the performance of their official duties. Presumption of Authorship or Ownership
5. In civil proceedings involving copyright or related rights, each Party shall provide for a presumption that, in the absence of proof to the contrary, the person whose name is indicated as the author, performer, or producer of the work, performance, or phonogram in the usual manner is the designated right holder in such work, performance, or phonogram. Each Party shall also provide for a presumption that, in the absence of proof to the contrary, the copyright or related rights subsist in such subject matter.
Civil and Administrative Procedures and Remedies (14)
6. Each Party shall make available to right holders (15) civil judicial procedures concerning the enforcement of any intellectual property right.
7. To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that those procedures conform to principles equivalent in substance to those set forth in this Article.
Injunctions
8. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, that Party's judicial authorities have the authority to issue an order against a person to desist from an infringement, inter alia, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce.
9. Notwithstanding the other provisions of this Article, a Party may limit the remedies available against use by governments or by third parties authorised by a government, without the authorisation of the right holder, to the payment of remuneration, provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing that use. In other cases, the remedies under this Article shall apply or, where these remedies are inconsistent with a Party's law, declaratory judgments and adequate compensation shall be available.
Damages (16) (17)
10. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, that Party's judicial authorities have the authority to order the infringer who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement (18) . In determining the amount of damages for infringement of intellectual property rights, a Party shall provide that its judicial authorities have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits or the value of the infringed goods or services measured by the market price or the suggested retail price.
11. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, that Party's judicial authorities have the authority to order the infringer to pay the right holder the infringer's profits that are attributable to the infringement. A Party may presume those profits to be the amount of damages referred to in paragraph 10.
12. At least with respect to infringement of copyright or related rights protecting works, phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following:
(a) pre-established damages;
(b) presumptions (19) for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or (c) at least for copyright, additional damages.
13. If a Party provides the remedy referred to in paragraph 12(a) or the presumptions referred to in paragraph 12(b), that Party shall ensure that either its judicial authorities or the right holder has the right to choose such a remedy or presumptions as an alternative to the remedies referred to in paragraphs 10 and 11.
14. Each Party shall provide that its judicial authorities, where appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, trademarks, and patents, that the prevailing party be awarded payment by the losing party of court costs or fees, appropriate lawyer's fees, or other expenses as provided for under that Party's domestic law.
Other Remedies
15. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that, in civil judicial proceedings, at the right holder's request, that Party's judicial authorities have the authority to order that the infringing goods be destroyed, except in exceptional circumstances, without compensation of any sort.
16. Each Party shall further provide that, in civil judicial proceedings, its judicial authorities have the authority to order that materials and implements that have been used in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in a manner so as to minimise the risks of further infringements.
17. A Party may provide for the remedies described in paragraphs 15 and 16 to be carried out at the infringer's expense.
Information related to Infringement
18. Without prejudice to each Party's domestic law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, that Party's judicial authorities have the authority, in accordance with that Party's domestic law, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in that Party's applicable domestic law that the infringer or alleged infringer possesses or controls. This information may include information regarding a person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.
19. Each Party shall provide that in relation to a civil judicial proceeding concerning the enforcement of intellectual property rights, that Party's judicial or other authorities have the authority to impose sanctions on a party, counsel, experts, or other persons subject to the court's jurisdiction, for violation of judicial orders concerning the protection of confidential information produced or exchanged in connection with that proceeding.
Provisional Measures
20. Each Party shall provide that its judicial authorities have the authority to order prompt and effective provisional measures:
(a) against a party or, if appropriate, a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property right from occurring, and in particular, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce; and
(b) to preserve relevant evidence in regard to the alleged infringement.
21. Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte if appropriate, 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. In proceedings conducted inaudita altera parte, each Party shall provide that Party's judicial authorities with the authority to act expeditiously on requests for provisional measures and to make a decision without undue delay.
22. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, that Party's judicial authorities have the authority to order the seizure or other taking into custody of suspect goods, and of materials and implements relevant to the act of infringement, and, at least for trademark counterfeiting, documentary evidence, either originals or copies thereof, relevant to the infringement.
23. Each Party shall provide that its authorities have the authority to require the applicant, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse. Each Party shall provide that such security or equivalent assurance does not unreasonably deter recourse to procedures for such provisional measures.
24. Each Party may provide that if the provisional measures are revoked, if they lapse due to any act or omission by the applicant, or if it is subsequently found that there has been no infringement of an intellectual property right, the judicial authorities have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.
Article 16.14. Special Requirements Related to Border Measures
Scope of Border Measures
1. For the purposes of this Article, goods infringing an intellectual property right include goods that are subject to footnote 14 of Article 51 of the TRIPS Agreement.
2. The provisions in this Article may apply to in-transit (20) shipments or goods.
3. A Party may apply the provisions set forth in this Article to goods put on the market in another country by or with the consent of the right holder.
Provision of Information from the Right Holder
4. Each Party shall permit that Party's competent authorities to request that a right holder supply relevant information to assist the competent authorities in taking the border measures referred to in this Article. A Party may also allow a right holder to supply relevant information to that Party's competent authorities.
Ex Officio Action
5. Each Party shall adopt or maintain procedures with respect to import and export shipments under which that Party's competent authorities may action upon their own initiative to suspend the release of, or to detain, goods suspected of infringing an intellectual property right.
Application by the Right Holder
6. Each Party shall adopt or maintain procedures with respect to import and export shipments under which a right holder may request the competent authorities of the Party providing the procedures to suspend the release of, or to detain, goods suspected of infringing an intellectual property right.
7. Each Party may provide that, if the applicant has abused the procedures described in this Article or if there is due cause, that Party's competent authorities have the authority to deny, suspend, or void the application.
Security or Equivalent Assurance
8. Each Party shall provide that its competent authorities have the authority to require a right holder that requests the procedures provided for in paragraph 6 to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that this security or equivalent assurance does not unreasonably deter recourse to these procedures. A Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of, or detention of, the goods in the event the competent authorities determine that the goods are not infringing.
Determination as to Infringement
9. Each Party shall adopt or maintain procedures by which that Party's competent authorities may determine, within a reasonable period after the initiation of the procedures described in paragraphs 5, 6, and 7, if the goods suspected of infringing an intellectual property right infringe an intellectual property right.
Remedies
10. Each Party shall provide that its competent authorities have the authority to order the destruction of goods following a determination referred to in paragraph 9 that the goods are infringing. In cases where those goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, those goods are disposed of outside the channels of commerce in a manner so as to avoid harm to the right holder.
11. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed is not sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.
12. A Party may provide that its competent authorities have the authority to impose administrative penalties following a determination referred to in paragraph 9 that the goods are infringing.
Fees
13. Each Party shall provide that an application fee, storage fee, or destruction fee to be assessed by that Party's competent authorities in connection with the procedures described in this Article not be used to unreasonably deter recourse to these procedures. Disclosure of Information
14. Each Party may, without prejudice to that Party's law pertaining to the privacy or the confidentiality of information, authorise that Party's competent authorities, where they have detained, or seized, goods suspected of infringing an intellectual property right, to provide a right holder who has filed a request for assistance with information about goods that could assist them in pursuing a remedy. This information may include the description and quantity of the goods, the name and address of the consignor, importer, exporter or consignee, and, if known, the country of origin of the goods and the name and address of the manufacturer of the goods.
Small Consignment and Personal Luggage
15. Each Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers' personal luggage or sent in small consignments.
Article 16.15. Criminal Procedures and Remedies
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.
2. Each Party shall provide for criminal procedures and penalties to be applied in accordance with that Party's laws and regulations for the unauthorised copying of a cinematographic work, or any part thereof, from a performance in a movie theatre.
Penalties
3. For offences specified in paragraphs 1 and 2, each Party shall provide penalties that include imprisonment as well as monetary fines (21) sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity.
Seizure, Forfeiture, and Destruction
4. With respect to the offences specified in paragraphs 1 and 2 for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence, and the assets derived from, or obtained directly or indirectly through, the alleged infringing activity.
5. If a Party requires the identification of items subject to seizure as a prerequisite for issuing an order referred to in paragraph 4, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure.
6. With respect to the offences specified in paragraphs 1 and 2 for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the forfeiture or destruction of all counterfeit trademark goods or pirated copyright goods. In cases where counterfeit trademark goods and pirated copyright goods are not destroyed, the competent authorities shall ensure that, except in exceptional circumstances, those goods are disposed of outside the channels of commerce in a manner so as to avoid causing harm to the right holder. Each Party shall provide that the forfeiture or destruction of those goods occur without compensation of any sort to the infringer.
7. With respect to the offences specified in paragraphs 1 and 2 for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the forfeiture or destruction of materials and implements predominantly used in the creation of counterfeit trademark goods or pirated copyright goods and, at least for serious offences, of the assets derived from, or obtained directly or indirectly through, the infringing activity. Each Party shall provide that the forfeiture or destruction of such materials, implements, or assets shall occur without compensation of any sort to the infringer.
8. With respect to the offences specified in paragraphs1 and 2 for which a Party provides criminal procedures and penalties, that Party may provide that its judicial authorities have the authority to order:
(a) the seizure of assets, the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the allegedly infringing activity; and
(b) the forfeiture of assets, the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity.
Ex Officio Criminal Enforcement
9. Each Party shall provide that, in appropriate cases, that Party's competent authorities may act upon their own initiative to initiate investigation or legal action with respect to the criminal offences specified in paragraphs 1 and 2 for which that Party provides criminal procedures and penalties.
Article 16.16. Special Measures Against Copyright Infringers on the Internet
1. Each Party's civil and criminal enforcement procedures to the extent set forth in this Chapter shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.
2. A Party may provide, in accordance with that Party's domestic law, that Party's competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, if that right holder has filed a legally sufficient claim for copyright or related rights infringement, and if that information is being sought for the purpose of protecting or enforcing those rights.
3. Each Party shall endeavour to promote cooperative efforts within the business community to effectively address copyright or related rights infringement while preserving legitimate competition and, consistent with that Party's domestic law, preserving fundamental principles such as freedom of expression, fair process, and privacy.
4. Each Party shall provide measures to curtail copyright and related right infringement on the Internet or other digital network.
5. Each Party shall implement these procedures in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce and, consistent with that Party's domestic law, preserves fundamental principles such as freedom of expression, fair process, and privacy. (22)
Article 16.17. Cooperation
1. To further the objectives in Article 16.1, the Parties agree to increase opportunities for cooperation in the field of intellectual property. Areas of cooperation may include:
(a) patents, trade secrets, industrial design and related rights;
(b) trademarks and related rights, including geographical indications;
(c) copyright and related rights;
(d) intellectual property management, registration and exploitation;
(e) intellectual property protection in the digital environment to facilitate the growth and development of e-commerce;
(f) intellectual property education and awareness programmes;
(g) issues related to non-parties, particularly with respect to shared mutual concerns such as anti-counterfeiting and piracy;
(h) issues related to the implementation of paragraph 6 of the Doha Declaration;
(i) intellectual property and development; and
(j) other issues of mutual interest concerning intellectual property.
2. This cooperation may include:
(a) promoting the development of contacts among the Parties' respective agencies which have an interest in the field of intellectual property; (b) exchanging information on:
(i) each Party's policies, legislative provisions, activities, and experiences in the field of intellectual property;