5. The Parties shall actively participate in relevant international fora to promote initiatives for advancing digital inclusion in digital trade.
Article 12.19. Cooperation
1. The Parties recognise the fast-paced and evolving nature of digital trade, and the role of cooperation between the Parties in increasing and enhancing opportunities for businesses, consumers, and society at large.
2. In addition to areas of cooperation between the Parties identified in this Chapter, the Parties shall exchange information on, and share experiences and best practices on, laws, regulations, policies, and compliance relating to digital trade.
3. The Parties shall, where appropriate, cooperate and actively participate in relevant international fora to promote the development and adoption of international frameworks for digital trade.
4. The Parties shall encourage the development, by the private sector, of methods of self-regulation that foster digital trade.
5. The Parties shall endeavour to:
(a) work together to address challenges for SMEs, including start-ups, in the use of digital trade;
(b) promote and facilitate collaboration between government entities, juridical persons, and other non-governmental entities on digital technologies, including digital innovation and emerging technologies, relating to trade, investment, and research and development opportunities; and
(c) facilitate participation by women in digital trade, acknowledging the objectives in Chapter 23 (Trade and Gender Equality).
Article 12.20. Forward Review Mechanism
1. After the date of entry into force of this Agreement, if a Party enters into a regional trade agreement (13) with a non-Party establishing disciplines within the scope of the following subparagraphs, that Party, upon request of the other Party, shall enter into consultations to extend appropriate equivalent disciplines (14) under this Agreement to those agreed with the non-party addressing:
(a) the adoption or maintenance of a legal framework for the protection of the data of natural persons;
(b) the prohibition or restriction of the cross-border transfer of information for the purposes of trade or investment; and
(c) the prohibition of the imposition of requirements to store or process commercial data in that Party’s territory as a condition for doing business in that territory.
2. This Article shall not affect the protection of personal data provided for under each Party’s law.
3. This Article shall not be construed as to oblige a Party to extend to the other Party the benefit of any commitments resulting from regulatory cooperation measures, in particular measures relating to the standards or criteria for the authorisation, licencing, or certification of a natural or juridical person to supply a service, or of prudential measures as referred to in paragraph 3 of the GATS Annex on Financial Services.
Article 12.21. Review
1. The Parties shall undertake a review of this Chapter within the five years following the date of entry into force of this Agreement.
2. A review pursuant to paragraph 1 shall be undertaken to ensure that the disciplines contained in this Chapter remain relevant to the digital trade issues and challenges confronting the Parties.
3. A review pursuant to paragraph 1 shall be concluded within a reasonable period of time.
4. The Subcommittee on Trade in Services, in pursuance of paragraph 2, may:
(a) identify the disciplines or provisions; and
(b) make recommendations to the Joint Committee.
Chapter 13. INTELLECTUAL PROPERTY RIGHTS
Article 13.1. Definitions
For the purposes of this Chapter:
“Beijing Treaty” means the Beijing Treaty on Audiovisual Performances done at Beijing on 24 June 2012;
“Berne Convention” means the Berne Convention for the Protection of Literary and Artistic Works done at Berne on 9 September 1886, as revised at Paris on 24 July 1971 and amended on 28 September 1979;
“broadcasting” means the transmission by wire or wireless means, including by cable or satellite, for public reception of images, sounds or of images and sounds or of the representations thereof, and including transmission of encrypted signals if the means for decrypting are provided to the public by the transmitting broadcasting organisation or with its consent, and “broadcast” shall be construed accordingly;
“Budapest Treaty” means the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure done at Budapest on 28 April 1977, as amended on 26 September 1980;
“ccTLDs” means country-code top level domains;
“competent authority” includes the appropriate judicial, administrative or law enforcement authorities under a Party’s law;
“covered subject matter” means each and all of the subject matter categories covered in Section G (Copyright and Related Rights), being works, performances, phonograms and broadcasts;
“Declaration on TRIPS and Public Health” means the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) adopted at Doha on 14 November 2001;
“fixation” means the embodiment of sounds, moving images or representations thereof, in each case, from which they can be perceived, reproduced or communicated through a device;
“geographical indication” means an indication that identifies a good as originating (1) in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin;
“intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement;
“Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks” means the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO in 1999;
“Locarno Agreement” means the Locarno Agreement Establishing an International Classification for Industrial Designs done at Locarno on 8 October 1968, as amended on 28 September 1979;
“Madrid Protocol” means the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks done at Madrid on 27 June 1989, as amended on 3 October 2006 and on 12 November 2007;
“Marrakesh Treaty” means the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled done at Marrakesh on 27 June 2013;
“Nice Agreement” means the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks done at Nice on 15 June 1957, as revised at Geneva on 13 May 1977 and amended on 28 September 1979;
“Nice Classification” means the international system for the classification of goods and services for the purpose of the registration of marks established under the Nice Agreement;
“Paris Convention” means the Paris Convention for the Protection of Industrial Property done at Paris on 20 March 1883, as revised at Stockholm on 14 July 1967 and as amended on 28 September 1979;
“PCT” means the Patent Cooperation Treaty done at Washington on 19 June 1970, as amended on 28 September 1979, and modified on 3 February 1984 and on 3 October 2001;
“performers” means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore, and “performances” shall be construed accordingly;
“phonogram” means the fixation of the sounds of a performance or of other sounds other than in the form of a fixation incorporated in a cinematographic or other audio- visual work;
“producer of a phonogram” means a person that takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds;
“Rome Convention” means the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done at Rome on 26 October 1961;
“trade secret” means information that:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;
“trade secret holder” means any person lawfully in control of a trade secret;
“Vienna Agreement” means the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks done at Vienna on 12 June 1973, as amended on 1 October 1985;
“Washington Treaty” means the Treaty on Intellectual Property in Respect of Integrated Circuits done at Washington on 26 May 1989;
“WCT” means the WIPO Copyright Treaty, done at Geneva on 20 December 1996; “WIPO” means the World Intellectual Property Organization;
for greater certainty, “work” includes a cinematographic work, photographic work, and computer program; and
“WPPT” means the WIPO Performances and Phonograms Treaty, done at Geneva on 20 December 1996.
Article 13.2. Objectives
1. The objectives of this Chapter are:
(a) that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations; and
(b) to reduce distortion and impediments to trade and investment by promoting deeper economic integration and cooperation through effective and adequate creation, utilisation, protection and enforcement of intellectual property rights.
Article 13.3. Principles
1. A Party may, in formulating or amending its law, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that those measures are consistent with the provisions of this Chapter.
2. Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
Article 13.4. Understandings In Respect of this Chapter
1. Having regard to the underlying public policy objectives of their national systems, while recognising the different levels of economic development and capacity and differences in national legal systems, which are reflected in this Chapter, the Parties recognise the need to:
(a) promote innovation and creativity;
(b) facilitate the diffusion of information, knowledge, technology, content, culture and the arts;
(c) foster competition and open and efficient markets;
(d) maintain an appropriate balance between the rights of intellectual property right holders and the legitimate interests of users and the public interest;
(e) establish and maintain transparent intellectual property systems; and
(f) promote and maintain adequate and effective protection and enforcement of intellectual property rights to provide confidence to right holders and users, through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including right holders, service providers, users, and the general public.
Article 13.5. Nature and Scope of Obligations
1. Each Party affirms its rights and obligations under the TRIPS Agreement, including their commitment to the Declaration on TRIPS and Public Health. This Chapter complements and further specifies the rights and obligations between the Parties under the TRIPS Agreement and other international treaties in the field of intellectual property to which both Parties are a party.
2. Each Party shall give effect to the provisions of this Chapter and provide in its territory to the nationals of the other Party adequate and effective protection and enforcement of intellectual property rights. A Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 13.6. Understandings Regarding TRIPS and Public Health Measures
1. The Parties recognise the preferable and optimal route to promote and ensure access to medicines is through voluntary mechanisms, such as voluntary licensing which may include technology transfer on mutually agreed terms.
2. The Parties reaffirm the Declaration on TRIPS and Public Health. In particular, the Parties have reached the following understandings regarding this Chapter:
(a) the Parties affirm the right to fully use the flexibilities as duly recognised in the Declaration on TRIPS and Public Health;
(b) the Parties agree that this Chapter does not and should not prevent a Party from taking measures to protect public health; and
(c) the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party’s right to protect public health and, in particular, to promote access to medicines for all.
3. Each Party has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, and other epidemics, can represent a national emergency or other circumstances of extreme urgency.
Article 13.7. International Agreements
1. Each Party affirms that it has ratified or acceded to the following international agreements and reaffirms its obligations under each agreement:
(a) Berne Convention;
(b) Budapest Treaty;
(c) Locarno Agreement;
(d) Madrid Protocol;
(e) Marrakesh Treaty;
(f) Nice Agreement;
(g) Paris Convention;
(h) PCT;
(i) Vienna Agreement;
(j) WCT; and
(k) WPPT.
2. Each Party shall give due consideration to ratifying or acceding to the Beijing Treaty if it is not already a party to that agreement.
Article 13.8. National Treatment
1. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals (2) of the other Party treatment no less favourable than it accords to its own nationals with regard to the protection (3) of intellectual property rights subject to the exceptions already provided in, respectively, the Paris Convention, the Berne Convention, the Rome Convention, the WPPT and the Washington Treaty. In respect of performers, producers of phonograms and broadcasting organisations, this obligation only applies in respect of the rights provided under this Chapter.
2. A Party may derogate from paragraph 1 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 the derogation is:
(a) necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
3. Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 13.9. Transparency
1. Each Party shall endeavour to publish online its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights.
2. Each Party shall, subject to its law, endeavour to publish online information that it makes public concerning applications for trade marks, geographical indications, registered designs, patents, and plant variety rights. (4) (5)
3. Each Party shall, subject to its law, publish online information that it makes public concerning registered or granted trade marks, geographical indications, designs, patents, and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights. (6)
Article 13.10. Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided in this Chapter, this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement and that is protected on that date in the territory of a Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
2. A Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory.
3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Article 13.11. Exhaustion of Intellectual Property Rights
Nothing in this Agreement prevents a Party from determining whether or under what conditions the exhaustion of intellectual property rights applies under its legal system.
Article 13.12. Certain Applicants and Right Holders
A Party may provide support to certain categories of applicants and right holders such as SMEs, start-ups, or educational institutions. Support may include guidance to applicants and right holders, other initiatives, or concessions in the fee to be paid in respect of filing, processing, registration, grant and maintenance of intellectual property in accordance with the law of the Party providing that support. (7)
Section B. Cooperation
Article 13.13. Contact Points
Each Party shall designate and notify the other Party of one or more contact points for communication on all matters covered by this Chapter no later than 60 days after the date of entry into force of this Agreement.
Article 13.14. Cooperation
1. The Parties recognise the growing importance of the protection of intellectual property and shall endeavour to cooperate on the subject matter covered by this Chapter, including through appropriate coordination and exchange of information between the relevant agencies or institutions of the Parties. The areas of cooperation may include:
(a) the establishment of arrangements between their respective collecting societies;
(b) engagement with SMEs, start-ups and educational institutions including at SME and start-up focused events and through public-private engagement with SMEs and start-ups, particularly in relation to the use, protection and enforcement of intellectual property rights;
(c) the exchange of information on issues of interest to SMEs and start-ups seeking intellectual property protection;
(d) educational and awareness campaigns relating to intellectual property rights aimed at the public and businesses;
(e) the exchange of information in relation to intellectual property policy and law relevant to new and emerging technologies, such as artificial intelligence and clean and green technology;
(f) sharing of best practices on aspects of intellectual property policy and law with the aim of supporting the development and deployment of environmentally friendly and low-emissions technologies, clean and renewable energy and enabling infrastructure, and energy-efficient goods and services;
(g) collaboration on best practices, projects and programmes aimed at reducing intellectual property right infringement, including:
(i) coordination to prevent counterfeiting and piracy of goods;
(ii) sharing of experience of intellectual property rights enforcement between customs, law enforcement and judicial bodies; and
(iii) voluntary stakeholder initiatives to reduce intellectual property right infringement, including over the internet and other marketplaces;
(h) capacity-building and technical assistance, particularly in relation to intellectual property administration and registration systems, reducing intellectual property right infringement and improving enforcement of intellectual property rights; and
(i) the exchange of information on developments in domestic and international intellectual property policy, including policies involving the use of intellectual property for research, innovation and economic growth.
2. In addition, the Parties shall endeavour to cooperate in relation to activities for improving the international intellectual property regulatory framework, including by:
(a) fostering international harmonisation, administration and enforcement of intellectual property rights; and
(b) working together at the WTO and WIPO on relevant activities including in relation to relevant multilateral intellectual property agreements.
3. The Parties shall cooperate and share best practices on legal protection and effective legal remedies against the unauthorised circumvention of technological protection measures, which includes the manufacturing and trafficking of devices that may be used for the circumvention of any effective technological measures.
Article 13.15. Working Group on Intellectual Property Rights
1. The Parties hereby establish a Working Group on Intellectual Property Rights composed of government representatives of each Party. The Working Group may also invite experts to attend meetings and advise the Working Group on any matter falling within its functions.
2. The Working Group may meet physically or virtually, as agreed by the Parties.