Article 14.42. Introduction of International Classification System for Industrial Designs
Each Party shall endeavour to use a classification system for industrial designs that is consistent with the Locarno Agreement Establishing an International Classification for Industrial Designs signed at Locarno on 8 October 1968, and any amendments thereto.
Article 14.43. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by an industrial design, provided that such exceptions do not unreasonably conflict with a normal exploitation of the industrial design and do not unreasonably prejudice the legitimate interests of the right holder, taking account of the legitimate interests of third parties.
Section G. Copyright and Related Rights
Article 14.44. Exclusive Rights of Authors, Performers, Producers of Phonograms, and Broadcasting Organisations
1. Without prejudice to the obligations set out in the international agreements to which the Parties are parties and in accordance with its laws and regulations, each Party shall provide to authors of works the exclusive right to authorise any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
2. Without prejudice to the obligations set out in the international agreements to which the Parties are parties and in accordance with its laws and regulations, each Party shall provide to performers and producers of phonograms the exclusive right to authorise the making available to the public of their performances fixed in phonograms and phonograms, respectively, 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.
3. Without prejudice to the obligations set out in the international agreements to which the Parties are parties and in accordance with its laws and regulations, each Party shall provide to authors, performers, and producers of phonograms the exclusive right to authorise or prohibit the reproduction of their works, performances fixed in phonograms, and phonograms in any manner or form.
4. The Parties shall, in accordance with their respective laws and regulations and international agreements to which the Parties are parties, provide adequate and effective protection of rights and interests pertaining to broadcasting organisations for their broadcasts.
Article 14.45. Term of Protection for Copyright and Related Rights
The Parties shall provide that the term of protection of a work, performance or phonogram is to be calculated according to the international agreements to which the Parties are parties and their respective laws and regulations.
Article 14.46. Limitations and Exceptions
1. Each Party shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.(20)
2. Nothing in paragraph 1 shall reduce or extend the scope of applicability of the limitations and exceptions available to a Party as a party to the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT or the WPPT.
3. Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise print-disabled.
Article 14.47. Contractual Transfers
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right (21) in a work, performance or phonogram:
(a) may freely and separately transfer that right by contract; and
(b) by virtue of contract, including contracts of employment underlying the creation of works, performances or phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right. (22)
Article 14.48. Circumvention of Effective Technological Measures
Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers, or producers of phonograms in connection with the exercise of their rights referred to in this Section and that restrict acts, in respect of their works, performances, or phonograms, which are not authorised by the authors, the performers, or the producers of phonograms concerned or permitted by the laws and regulations of that Party.
Article 14.49. Protection for Electronic Rights Management Information
To protect electronic rights management information (RMI), (23) each Party shall provide adequate and effective legal remedies against any person knowingly performing without authority any of the following acts knowing, or with respect to civil remedies with reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related rights referred to in this Chapter:
(a) removing or altering any electronic RMI; or
(b) distributing, importing for distribution, broadcasting, communicating, or making available to the public copies of works, performances fixed in phonograms, or phonograms, knowing that electronic RMI has been removed or altered without authority.
Article 14.50. Limitations and Exceptions to Providing Protection and Remedies for Technological Measures and RMI
1. Each Party may provide for appropriate limitations and exceptions to measures implementing Article 14.48 (Circumvention of Effective Technological Measures) and Article 14.49 (Protection for Electronic Rights Management Information) in accordance with its laws and regulations.
2. The obligations set out in Article 11.48 (Circumvention of Effective Technological Measures) and Article 14.49 (Protection for Electronic Rights Management Information) are without prejudice to the rights, limitations, exceptions, or defences to infringement of any copyright or related right under a Party’s laws and regulations.
Article 14.51. Collective Management Organisations
1. Each Party shall endeavour to foster the establishment of appropriate organisations for the collective management of copyright and related rights. Each Party shall encourage such organisations to operate in a manner that is fair, efficient, publicly transparent, and accountable to their members, which may include open and transparent record keeping of the collection and distribution of royalties. (24)
2. The Parties recognise the importance of fostering cooperation between their respective collective management organisations for the purposes of mutually ensuring easier licensing of content among the Parties, as well as encouraging (25) mutual transfer of royalties for use of works or other copyright-protected subject matters of the nationals of another Party.
Section H. Enforcement
Article 14.52. General Obligation In Enforcement
1. The Parties shall provide in their respective laws for the enforcement of intellectual property rights consistent with the TRIPS Agreement, in particular Articles 41 through 61.
2. Each Party shall ensure that enforcement procedures as specified in this Section are available under its 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 that constitute a deterrent to future infringements. These procedures 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. (26)
3. Each Party shall take measures to curtail infringement of copyright on the Internet or other digital environment. (27)
Article 14.53. Border Measures
1. Each Party shall, in conformity with its laws and regulations and the provisions of Part III, Section 4 of the TRIPS Agreement adopt or maintain procedures to enable a right holder, who has valid grounds for suspecting that the importations of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with the competent authorities, in the Party in which the border measure procedures are applied, for the suspension by that Party’s customs authorities of the release into free circulation of such goods.
2. A Party may enable an application to be made in respect of goods which involve infringements of other intellectual property rights, provided that the requirements of Part III, Section 4 of the TRIPS Agreement are met. A Party may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from its territory in accordance with its laws and regulations.
Chapter 15. GOVERNMENT PROCUREMENT
Article 15.1. Objectives
The Parties, as an objective of this Chapter, recognise the importance of promoting the transparency of laws, regulations, and procedures, and ensuring integrity regarding government procurement trade relations between the Parties. Both Parties affirm the importance of reciprocal access to government procurement markets to provide competitive opportunities for suppliers of the Parties.
Article 15.2. Definitions
For the purposes of this Chapter:
build-operate-transfer contract and public works concession contract mean a contractual arrangement, the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plants, buildings, facilities or other government-owned works and under which, as consideration for a supplier’s execution of a contractual arrangement, a procuring entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of those works for the duration of the contract;
construction service means a service that has as its objective the realisation by whatever means of civil or building works, based on Division 51 of the United Nations Provisional Central Product Classification;
electronic auction means an iterative process that involves the use of electronic means for the presentation by suppliers of either new prices, or new values for quantifiable non-price elements of the tender related to the evaluation criteria, or both, resulting in a ranking or re-ranking of tenders;
government procurement means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale;
in writing or written means any worded or numbered expression that can be read, reproduced and later communicated. It may include electronically transmitted and stored information;
limited tendering means a procurement method whereby the procuring entity contacts a supplier or suppliers of its choice;
multi-use list means a list of suppliers that a procuring entity has determined satisfy the conditions for participation in that list, and that the procuring entity intends to use more than once;
notice of intended procurement means a notice published by a procuring entity inviting interested suppliers to submit a request for participation, a tender, or both;
offset means any condition or undertaking that encourages local development or improves a Party’s balance-of-payments accounts, such as the use of domestic content, the licensing of technology, investment, counter-trade and similar action or requirement;
open tendering means a procurement method whereby all interested suppliers may submit a tender;
person means a natural person or a juridical person;
procuring entity means an entity listed in Annex 15A (Schedule of the Parties);
qualified supplier means a supplier that a procuring entity recognises as having satisfied the conditions for participation;
selective tendering means a procurement method whereby the procuring entity invites only qualified suppliers to submit a tender;
services includes construction services, unless otherwise specified;
standard means a document approved by a recognised body that provides for common and repeated use, rules, guidelines or characteristics for goods or services, or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a good, service, process or production method;
supplier means a person or group of persons that provides or could provide a good or service to a procuring entity; and
technical specification means a tendering requirement that:
(a) sets out the characteristics of:
(i) goods to be procured, including quality, performance, safety and dimensions, or the processes and methods for their production; or
(ii) services to be procured, or the processes or methods for their provision, including any applicable administrative provisions; or
(b) addresses terminology, symbols, packaging, marking or labelling requirements, as they apply to a good or service.
Article 15.3. Scope and Coverage
Application of Chapter
1. This Chapter applies to any measure regarding covered procurement.
2. For the purposes of this Chapter, “covered procurement” means government procurement:
(a) of a good, service, or any combination thereof as specified in each Party’s Schedule to Annex 15A (Schedule of the Parties);
(b) by any contractual means, including: purchase; rental, lease or hire purchase, with or without an option to buy; build-operate-transfer contracts and public works concessions contracts;
(c) for which the value, as estimated in accordance with paragraphs 9, 10 and 11, equals or exceeds the relevant threshold specified in a Party’s Schedule to Annex 15A (Schedule of the Parties), at the time of publication of a notice in accordance with Article 15.7 (Notices of Intended Procurement);
(d) by a procuring entity; and
(e) that is not otherwise excluded from coverage under this Agreement.
Activities Not Covered
3. Unless otherwise provided in a Party’s Schedule to Annex 15A (Schedule of the Parties), this Chapter does not apply to:
(a) the acquisition or rental of land, existing buildings, or other immovable property or the rights thereon;
(b) non-contractual agreements or any form of assistance that a Party, including its procuring entities, provides, including cooperative agreements, grants, loans, equity infusions, guarantees, subsidies, fiscal incentives and sponsorship arrangements;
(c) the procurement or acquisition of fiscal agency or depository services, liquidation and management services for regulated financial institutions or services related to the sale, redemption, and distribution of public debt, including loans and government bonds, notes, and other securities;
(d) public employment contracts;
(e) procurement conducted:
(i) for the specific purpose of providing international assistance, including development aid;
(ii) under the particular procedure or condition of an international agreement relating to the stationing of troops or relating to the joint implementation by the signatory countries of a project; or
(iii) under the particular procedure or condition of an international organisation, or funded by international grants, loans or other assistance if the applicable procedure or condition would be inconsistent with this Chapter.
Schedules
4. Each Party shall specify the following information in its Schedule to Annex 15A (Schedule of the Parties):
(a) in Section A, the central government entities whose procurement is covered by this Chapter;
(b) in Section B, the goods covered by this Chapter;
(c) in Section C, the services, other than construction services, covered by this Chapter;
(d) in Section D, the construction services covered by this Chapter;
(e) in Section E, General Notes;
(f) in Section F, the applicable Threshold Adjustment Formula;
(g) in Section G, the publication of information required under paragraph 2 of Article 15.6 (Publication of Procurement Information); and
(h) in Section H, the applicable Time Periods.
5. Where a procuring entity, in the context of covered procurement, requires persons not covered in Section A to procure in accordance with particular requirements, Article 15.5 (General Principles) shall apply, mutatis mutandis, to such requirements.
Compliance
6. Each Party shall ensure that its procuring entities comply with this Chapter in conducting covered procurements.
7. A procuring entity shall not prepare or design a procurement, or otherwise structure or divide a procurement into separate procurements in any stage of the procurement, or use a particular method to estimate the value of a procurement, in order to avoid the obligations of this Chapter.
8. Nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, from developing new procurement policies, procedures or contractual means, provided they are not inconsistent with this Chapter.
Valuation
9. In estimating the value of a procurement for the purposes of ascertaining whether it is a covered procurement, a procuring entity shall include the estimated maximum total value of the procurement over its entire duration, taking into account:
(a) all forms of remuneration, including any premium, fee, commission, interest or other revenue stream that may be provided for under the contract;
(b) the value of any option clause; and
(c) any contract awarded at the same time or over a given period to one or more suppliers under the same procurement.
10. If an individual requirement for a procurement results in the award of more than one contract, or in the award of contracts in separate parts (hereinafter referred to as “recurring contracts”), the calculation of the estimated maximum total value shall be based on:
(a) the total maximum value of the procurement over its entire duration;
(b) the value of recurring contracts of the same type of good or service awarded during the preceding 12 months or the procuring entity’s preceding fiscal year, adjusted, where possible, to account for anticipated changes in the quantity or value of the good or service being procured over the following 12 months; or
(c) the estimated value of recurring contracts of the same type of good or service to be awarded during the 12 months following the initial contract award or the procuring entity’s fiscal year.
11. If the total estimated maximum value of a procurement over its entire duration is not known, the procurement shall be deemed a covered procurement, unless otherwise excluded under this Agreement.
Article 15.4. Exceptions
1. Subject to the requirement that the measure is not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on international trade between the Parties, nothing in this Chapter shall be construed to prevent a Party, including its procuring entities, from adopting or maintaining a measure:
(a) necessary to protect public morals, order or safety;
(b) necessary to protect human, animal or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to the good or service of a person with disabilities, of philanthropic institutions or of prison labour.
2. The Parties understand that paragraph 1(b) includes environmental measures necessary to protect human, animal or plant life or health.
3. Nothing in this Chapter shall be construed to:
(a) require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 15.5. General Principles
National Treatment and Non-Discrimination
1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of the other Party and to the suppliers of the other Party, treatment no less favourable than the treatment that the Party, including its procuring entities, accords to domestic goods, services, and suppliers.
2. With respect to any measure regarding covered procurement, the Parties, including their procuring entities, shall not:
(a) treat a locally established supplier less favourably than another locally established supplier on the basis of the degree of foreign affiliation or ownership by a person of the other Party; or
(b) discriminate against a locally established supplier on the basis that the good or service offered by that supplier for a particular procurement is a good or service of the other Party.
3. All orders under contracts awarded for covered procurement shall be subject to paragraphs 1 and 2.
Conduct of Procurement
4. A procuring entity shall use an open tendering procedure for covered procurement unless Article 15.9 (Qualification of Suppliers) or Article 15.11 (Limited Tendering) applies.
5. A procuring entity shall conduct covered procurement in a transparent and impartial manner that:
(a) is consistent with this Chapter, using methods such as open tendering, selective tendering, and limited tendering;
(b) avoids conflicts of interest; and
(c) prevents corrupt practices.
Rules of Origin
6. For purposes of covered procurement, a Party shall not apply rules of origin to goods or services imported from or supplied from the other Party that are different from the rules of origin the Party applies at the same time in the normal course of trade to imports or supplies of the same goods or services from the same Party.
Measures Not Specific to Procurement
7. Paragraphs 1 and 2 shall not apply to customs duties and charges of any kind imposed on, or in connection with, importation, the method of levying those duties and charges, other import regulations or formalities, and measures affecting trade in services other than measures governing covered procurement.
Use of Electronic Means
8. The Parties shall endeavour to use and promote electronic means to the widest extent practicable for the publication of notices, tender documentation, information exchange and communication, and the submission of tenders.
9. When conducting covered procurement, a procuring entity shall use electronic means: