Each Party shall ensure that any enterprise that it authorizes to operate a submarine cable system in its territory as a public telecommunications service accords reasonable and nondiscriminatory treatment with respect to access to that system (including landing facilities) to suppliers of public telecommunications services of another Party.
Article 14.6. Conditions for the Supply of Information Services
1. No Party may require an enterprise in its territory that it classifies as a supplier of information services (7) and that supplies those services over facilities that it does not own to:
(a) supply those services to the public generally;
(b) cost-justify its rates for those services;
(c) file a tariff for those services;
(d) connect with any particular customer for the supply of those services; or
(e) conform with any particular standard or technical regulation for connecting to any network, other than a public telecommunications network.
2. Notwithstanding paragraph 1, a Party may take the actions described in subparagraphs (a) through (e) to remedy a practice of a supplier of information services that the Party has found in a particular case to be anti-competitive under its law or regulations, or to otherwise promote competition or safeguard the interests of consumers.
Article 14.7. Independent Regulatory Bodies and Government-owned Telecommunications Suppliers
1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. To this end, each Party shall ensure that its telecommunications regulatory body does not hold a financial interest or maintain an operating role in any such supplier.
2. Each Party shall ensure that the decisions and procedures of its telecommunications regulatory body are impartial with respect to all interested persons. To this end, each Party shall ensure that any financial interest that it holds in a supplier of public telecommunications services does not influence the decisions and procedures of its telecommunications regulatory body.
3. No Party may accord more favorable treatment to a supplier of public telecommunications services or to a supplier of information services than that accorded to a like supplier of another Party on the basis that the supplier receiving more favorable treatment is owned, wholly or in part, by the central level of government of the Party.
Article 14.8. Universal Service
Each Party has the right to define the kind of universal service obligations it wishes to maintain and shall administer those obligations in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.
Article 14.9. Licenses and other Authorizations
1. Where a Party requires a supplier of public telecommunications services to have a license, concession, permit, registration, or other type of authorization, the Party shall make publicly available:
(a) all applicable licensing or authorization criteria and procedures;
(b) the time it normally requires to reach a decision concerning an application for a license, concession, permit, registration, or other type of authorization; and
(c) the terms and conditions of all licenses or authorizations it has issued.
2. Each Party shall ensure that, on request, an applicant receives the reasons for the denial of a license, concession, permit, registration, or other type of authorization.
Article 14.10. Allocation and Use of Scarce Resources
1. Each Party shall administer its procedures for the allocation and use of scarce telecommunications resources, including frequencies, numbers, and rights-of-way, in an objective, timely, transparent, and non-discriminatory manner.
2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies allocated for specific government uses.
3. A Party's measures allocating and assigning spectrum and managing frequencies are not measures that are per se inconsistent with Article 11.4 (Market Access), either as it applies to cross-border trade in services or, through the operation of Article 11.1.3 (Scope and Coverage), to a covered investment of another Party. Accordingly, each Party retains the right to establish and apply its spectrum and frequency management policies that may have the effect of limiting the number of suppliers of public telecommunications services, provided that it does so in a manner that is consistent with other provisions of this Agreement. This includes the ability to allocate frequency bands, taking into account current and future needs and spectrum availability.
4. When making a spectrum allocation for non-government telecommunications services, each Party shall endeavor to rely on an open and transparent public comment process that considers the overall public interest. Each Party shall endeavor to rely generally on market-based approaches in assigning spectrum for terrestrial non-government telecommunications services.
Article 14.11. Enforcement
Each Party shall provide its competent authority with the authority to enforce compliance with the Party's measures relating to the obligations set out in Articles 14.2 through 14.5. Such authority shall include the ability to impose effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), or the modification, suspension, and revocation of licenses or other authorizations.
Article 14.12. Resolution of Telecommunications Disputes
Further to Articles 19.4 (Administrative Proceedings) and 19.5 (Review and Appeal), each Party shall ensure the following:
Recourse to Telecommunications Regulatory Bodies
(a) (i) Enterprises of another Party may seek review by a telecommunications regulatory body or other relevant body to resolve disputes regarding the Party's measures relating to a matter set out in Articles 14.2 through 14.5.
(ii) Suppliers of public telecommunications services of another Party that have requested interconnection with a major supplier in the Party's territory may seek review, within a reasonable and publicly specified period after the supplier requests interconnection, by a telecommunications regulatory body (8) to resolve disputes regarding the terms, conditions, and rates for interconnection with such major supplier.
Reconsideration
(b) Any enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may petition the body to reconsider (9) that determination or decision. No Party may permit such a petition to constitute grounds for non-compliance with the determination or decision of the telecommunications regulatory body unless an appropriate authority stays such determination or decision. (10)
Judicial Review
(c) Any enterprise that is aggrieved or whose interests are adversely affected by a determination or decision of the Party's telecommunications regulatory body may obtain judicial review of such determination or decision by an independent judicial authority. An application for judicial review shall not constitute grounds for non-compliance with such a determination or decision unless stayed by the relevant judicial body.
Article 14.13. Transparency
Further to Articles 19.2 (Publication) and 19.3 (Notification and Provision of Information), each Party shall ensure that:
(a) rulemakings, including the basis for such rulemakings, of its telecommunications regulatory body and end-user tariffs filed with its telecommunications regulatory body are promptly published or otherwise made publicly available;
(b) interested persons are provided, to the extent possible, with adequate advance public notice of, and the opportunity to comment on, any rulemaking that its telecommunications regulatory body proposes; and
(c) its measures relating to public telecommunications services are made publicly available, including measures relating to:
(i) tariffs and other terms and conditions of service;
(ii) procedures relating to judicial and other adjudicatory proceedings;
(iii) specifications of technical interfaces;
(iv) bodies responsible for preparing, amending, and adopting standards-related measures affecting access and use; (v) conditions for attaching terminal or other equipment to the public telecommunications network; and (vi) notification, permit, registration, or licensing requirements, if any.
Article 14.14. Flexibility In the Choice of Technologies
No Party may prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile wireless services, subject to requirements necessary to satisfy legitimate public policy interests.
Article 14.15. Forbearance
The Parties recognize the importance of relying on market forces to achieve wide choices in the supply of telecommunications services. To this end, each Party may forbear from applying a regulation to a service that the Party classifies as a public telecommunications service, if its telecommunications regulatory body determines that:
(a) enforcement of that regulation is not necessary to prevent unreasonable or discriminatory practices;
(b) enforcement of that regulation is not necessary for the protection of consumers; and
(c) forbearance is consistent with the public interest, including promoting and enhancing competition between suppliers of public telecommunications services.
Article 14.16. Relationship to other Chapters
In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of the inconsistency.
Article 14.17. Definitions
For purposes of this Chapter:
co-location (physical) means physical access to and control over space in order to install, maintain, or repair equipment, at premises owned or controlled and used by a major supplier to supply public telecommunications services;
commercial mobile services means public telecommunications services supplied through mobile wireless means;
cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
dialing parity means the ability of an end-user to use an equal number of digits to access a particular public telecommunications service, regardless of the public telecommunications service supplier chosen by such end-user;
end-user means a final consumer of or subscriber to a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
enterprise means an "enterprise" as defined in Article 1.3 (Definitions of General Application) and includes a branch of an enterprise;
enterprise of another Party means both an enterprise constituted or organized under the law of another Party and an enterprise owned or controlled by a person of another Party;
essential facilities means facilities of a public telecommunications network or service that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers, and
(b) cannot feasibly be economically or technically substituted in order to supply a service;
information service means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service;
interconnection means linking with suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
leased circuits means telecommunications facilities between two or more designated points that are set aside for the dedicated use of or availability to a particular customer or other users of the customer's choosing;
major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:
(a) control over essential facilities or
(b) use of its position in the market;
network element means a facility or equipment used in supplying a public telecommunications service, including features, functions, and capabilities provided by means of such facility or equipment;
non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications services in like circumstances;
number portability means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers without impairment of quality, reliability, or convenience when switching between like suppliers of public telecommunications services;
private network means a telecommunications network that is used exclusively for intra-enterprise communications;
public telecommunications network means telecommunications infrastructure which a Party requires to provide public telecommunications services between defined network termination points;
public telecommunications service means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include, inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information, but does not include information services;
reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body that is sufficiently detailed to enable a supplier of public telecommunications services that is willing to accept its rates, terms, and conditions to obtain interconnection without having to engage in negotiations with the major supplier;
telecommunications means the transmission and reception of signals by any electromagnetic means, including by photonic means;
telecommunications regulatory body means a national body responsible for the regulation of telecommunications; and
user means an end-user or a supplier of public telecommunications services.
Chapter Fifteen. Electronic Commerce
Article 15.1. General
1. The Parties recognize the economic growth and opportunity that electronic commerce provides, the importance of avoiding barriers to its use and development, and the applicability of the WTO Agreement to measures affecting electronic commerce.
2. For greater certainty, nothing in this Chapter shall be construed to prevent a Party from imposing internal taxes or other internal charges on the domestic sale of digital products, provided that such taxes or charges are imposed in a manner consistent with this Agreement.
Article 15.2. Electronic Supply of Services
For greater certainty, the Parties affirm that measures affecting the supply of a service delivered or performed electronically fall within the scope of the obligations contained in the relevant provisions of Chapters Ten (Investment), Eleven (Cross-Border Trade in Services), and Twelve (Financial Services), subject to any exceptions or non-conforming measures set out in this Agreement that are applicable to such obligations.
Article 15.3. Digital Products
1. No Party may apply customs duties, fees, or other charges on or in connection with the importation or exportation of digital products by electronic transmission.
2. For purposes of determining applicable customs duties, each Party shall determine the customs value of an imported carrier medium bearing a digital product based on the cost or value of the carrier medium alone, without regard to the cost or value of the digital product stored on the carrier medium.
3. No Party may accord less favorable treatment to some digital products than it accords to other like digital products:
(a) on the basis that
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms outside its territory, or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of another Party or a non-Party, or
(b) so as otherwise to afford protection to other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in its territory.
4. (a) No Party may accord less favorable treatment to digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of another Party than it accords to like digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of a non-Party.
(b) No Party may accord less favorable treatment to digital products whose author, performer, producer, developer, or distributor is a person of another Party than it accords to like digital products whose author, performer, producer, developer, or distributor is a person of a non-Party.
5. Paragraphs 3 and 4 do not apply to measures adopted or maintained in accordance with Articles 10.13 (Non-Conforming Measures), 11.6 (Non-Conforming Measures), and 12.9 (Non-Conforming Measures).
Article 15.4. Transparency
Each Party shall publish or otherwise make publicly available its laws, regulations, and other measures of general application that pertain to electronic commerce.
Article 15.5. Consumer Protection
1. The Parties recognize the importance of maintaining and adopting transparent and effective measures to protect consumers from fraudulent and deceptive commercial practices when they engage in electronic commerce.
2. The Parties recognize the importance of cooperation between their respective national consumer protection agencies on activities related to cross-border electronic commerce in order to enhance consumer protection.
Article 15.6. Authentication
No Party may adopt or maintain legislation for electronic authentication that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods for that transaction; or
(b) prevent parties from having the opportunity to establish before judicial or administrative authorities that their electronic transaction complies with any legal requirements with respect to authentication.
Article 15.7. Paperless Trade Administration
1. Each Party shall endeavor to make all trade administration documents available to the public in electronic form.
2. Each Party shall endeavor to accept trade administration documents submitted electronically as the legal equivalent of the paper version of such documents.
Article 15.8. Definitions
For purposes of this Chapter:
authentication means the process or act of establishing the identity of a party to an electronic communication or transaction or ensuring the integrity of an electronic communication;
carrier medium means any physical object designed principally for use in storing a digital product by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes, but is not limited to, an optical medium, a floppy disk, or a magnetic tape;
digital products means computer programs, text, video, images, sound recordings, and other products that are digitally encoded, regardless of whether they are fixed on a carrier medium or transmitted electronically; (1)
electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and
trade administration documents means forms that a Party issues or controls that must be completed by or for an importer or exporter in connection with the import or export of goods.
Chapter Sixteen. Intellectual Property Rights
Article 16.1. General Provisions
1. Each Party shall, at a minimum, give effect to this Chapter.
International Agreements
2. Each Party shall ratify or accede to the following agreements by the date of entry into force of this Agreement:
(a) the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
(b) the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
(c) the WIPO Copyright Treaty (1996); and
(d) the WIPO Performances and Phonograms Treaty (1996).
3. Each Party shall ratify or accede to the following agreements by January 1, 2008, or the date of entry into force of this Agreement, whichever is later:
(a) the Patent Cooperation Treaty (1970), as amended in 1979;
(b) the Trademark Law Treaty (1994); and
(c) the International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention).
4. Except as otherwise provided in Annex 16.1, each Party shall make all reasonable efforts to ratify or accede to the following agreements:
(a) the Patent Law Treaty (2000);
(b) the Hague Agreement Concerning the International Registration of Industrial Designs (1999); and
(c) the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989).
5. Nothing in this Chapter shall be construed to prevent a Party from adopting measures necessary to prevent anticompetitive practices that may result from the abuse of the intellectual property rights set forth in this Chapter, provided that such measures are consistent with this Chapter.
6. Further to Article 1.2 (Relation to Other Agreements), the Parties affirm their existing rights and obligations under the TRIPS Agreement and intellectual property agreements concluded or administered under the auspices of the World Intellectual Property Organization (WIPO) to which they are party. More Extensive Protection and Enforcement
7. A Party may, but shall not be obliged to, implement in its domestic law more extensive protection and enforcement of intellectual property rights than is required under this Chapter, provided that such protection and enforcement do not contravene this Chapter.
National Treatment
8. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals 1 of the other Parties treatment no less favorable than it accords to its own nationals with regard to the protection 2 and enjoyment of such intellectual property rights and any benefits derived from such rights.
9. A Party may derogate from paragraph 8 in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter and is not applied in a manner that would constitute a disguised restriction on trade.
10. Paragraph 8 does not apply to procedures provided in multilateral agreements to which the Parties are party concluded under the auspices of the WIPO in relation to the acquisition or maintenance of intellectual property rights.
Application of this Agreement to Existing Subject Matter and Prior Acts
11. Except as it provides otherwise, including in Article 16.7.2, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.