Section H. Copyright and Related Rights
Article 15.56. Authors
1. Each Party shall provide authors with the exclusive right to authorise or prohibit:
(a) the reproduction in any manner or form, in whole or in part, of their works;
(b) the distribution to the public, by sale or otherwise, of the original and copies (20) of their works;
(c) the 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 them from a place and at a time individually chosen by them; and
(d) the commercial rental (21) to the public of their works.
2. For the purposes of this Article, "communication to the public" shall be construed in accordance with Article 8 of the WCT.
Article 15.57. Performers
1. Each Party shall provide performers with the exclusive right to authorise or prohibit:
(a) the fixation of their unfixed performances;
(b) the reproduction by any means and in any form, in whole or in part, of fixations of their performances;
(c) the distribution to the public, by sale or otherwise, of the original and copies of their performances fixed in phonograms;
(d) the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and ata time individually chosen by them;
(e) the broadcasting and the communication to the public of their unfixed performances except where the performance is itself already a broadcast performance; and
(f) the commercial rental to the public of the originals and copies of their performances fixed in phonograms even after distribution of them by, or pursuant to authorisation by, the performer.
2. For the purposes of this Article, "communication to the public" means the transmission to the public by any medium, other than by broadcasting. (22)
Article 15.58. Producers of Phonograms
Each Party shall provide producers of phonograms with the exclusive right to authorise or prohibit:
(a) the reproduction in any manner or form, in whole or in part, of their phonograms;
(b) the distribution to the public, by sale or otherwise, of the original or copies of their phonograms;
(c) the making available to the public of their phonograms, 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; and
(d) the commercial rental to the public of the original and copies of their phonograms, even after distribution of them by, or pursuant to authorisation by the producer of the phonogram.
Article 15.59. Broadcasting Organisations
Each Party shall provide broadcasting organisations with the exclusive right to authorise or prohibit:
(a) the fixation of their broadcasts;
(b) the reproduction in any manner or form, in whole or in part, of fixations of their broadcasts; and
(c) the rebroadcasting of their broadcasts.
Article 15.60. Broadcasting and Communication to the Public of Phonograms Published for Commercial Purposes
The Parties agree to discuss measures to ensure adequate remuneration for performers and producers of phonograms when phonograms published for commercial purposes are used for broadcasting or for any communication to the public.
Article 15.61. Artist's Resale Right
1. Each Party shall provide, for the benefit of the author of an original work of art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.
2. Each Party may determine the procedure for collection of the royalty, its amount and the criteria for the works, resales and authors eligible to receive the royalty under its law.
3. The Parties shall enter into consultations to conclude, as soon as reasonably practicable after entry into force of this Agreement, reciprocal arrangements for authors of a Party to receive royalties from eligible resales of works referred to in paragraph 1 in the territory of the other Party. The Parties shall endeavour to facilitate the participation of relevant stakeholders in such consultations, including collective management organisations responsible for the collection and distribution of the resale royalty, and other relevant art sector stakeholders. (23)
Article 15.62. Limitations and Exceptions
1. With respect to works, performances, and phonograms, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that 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.
2. This Article is without prejudice to the limitations and exceptions to any rights permitted by the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT, or the WPPT.
Article 15.63. Balance In Copyright and Related Rights Systems
Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 15.62 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism, comment, news reporting, teaching, scholarship, research, and other similar purposes, and facilitating access to published works for people with disability. (24)
Article 15.64. Term of Protection
1. Each Party shall provide that the rights of an author of a work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after the author's death.
2. In the case of a work of joint authorship, each Party shall provide that the term referred to in paragraph 1 shall be calculated from the death of the last surviving author.
3. Notwithstanding paragraphs 1 and 2, where the term of protection of a work is not determined by reference to the life of a natural person, each Party shall provide that the term of protection shall run for 70 years from the creation of the work or, if lawfully made available to the public within 50 years from creation, 70 years from the first such making available. (25)
4. Each Party shall provide that the rights of broadcasting organisations shall run for 50 years from the first transmission of a broadcast.
5. Each Party shall provide that the rights of performers for their performances in phonograms shall run for 50 years from fixation in phonogram of the performance or, if lawfully made available to the public during this time, 70 years from the first such making available. (26)
6. Each Party shall provide that the rights of producers of phonograms shall run for 50 years from the fixation in phonogram being made or, if lawfully made available to the public during this time, 70 years from the first such making available. Each Party may adopt effective measures to ensure that the profit generated during the 20 years of protection beyond 50 years is shared fairly between the performers and the producers of phonograms.
7. Each Party shall provide that the terms laid down in this Article shall be calculated from 1 January of the year following the event.
8. Each Party may provide for longer terms of protection than those provided for in this Article.
9. For greater certainty, 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. A Party shall not be required to extend the term of protection for subject matter that already exists on the date of entry into force of this Agreement.
Article 15.65. Collective Management Organisations
1. The Parties shall endeavour to promote cooperation between the collective management organisations established in their respective territories for the purpose of facilitating licensing of content between the Parties, as well as encouraging the transfer of rights revenue between the respective collective management organisations for the use of such content.
2. The Parties shall endeavour to promote the transparency of collective management organisations established in their respective territories, particularly in relation to the collection of rights revenues, the deductions they make from the rights revenue collected, their distribution policies, and the repertoire they represent.
3. Each Party shall endeavour to promote the non-discriminatory treatment by collective management organisations of rights holders these organisations represent either directly or via another collective management organisation.
4. Each Party shall encourage collective management organisations established in its territory to regularly, diligently and accurately distribute amounts due to represented collective management organisations in a timely manner.
Article 15.66. Technological Protection Measures
1. Each Party shall provide adequate legal protection and effective legal remedies against the unauthorised circumvention of effective technological measures, where carried out knowingly or with reasonable grounds to know.
2. Each Party shall provide adequate legal protection and effective legal remedies against the manufacture, import, distribution, sale, rental, offer or advertisement for sale or rental, of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of any effective technological measures;
(b) have only a limited commercially significant purpose or use other than to circumvent any effective technological measures; or
(c) are primarily designed, produced, or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
3. The obligations in this Article do not apply in respect of effective technological measures applied to computer programs.
4. Each Party may provide for exceptions and limitations to measures implementing paragraphs 1 and 2 in accordance with its law and the relevant international agreements referred to in Article 15.7 (International Agreements) provided that they do not significantly impair the adequacy of legal protection of those measures and the effectiveness of legal remedies against the acts prescribed in paragraphs 1 and 2.
5. For the purposes of this Article, "effective technological measures" means any technology, device, or component which, in the normal course of its operation, is used by authors, performers, or producers of phonograms in connection with the exercise of their rights under this Section and which restricts acts, in respect of their works, performances, or phonograms, that are not authorised by the authors, performers, or producers of phonograms.
Article 15.67. Rights Management Information
1. Each Party shall provide adequate 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 protected works, performances or phonograms:
(a) to remove or alter any electronic rights management information; or
(b) to distribute, import for distribution, broadcast, communicate, or make available to the public copies of protected works, performances or phonograms knowing that electronic rights management information has been removed or altered without authority.
2. A Party may adopt or maintain appropriate limitations or exceptions to measures implementing paragraph 1. The obligations set forth in this Article are without prejudice to the limitations and exceptions to infringement of copyright and related rights under a Party's law.
Article 15.68. Application of Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement
Each Party shall apply Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement, mutatis mutandis, to works, performances and phonograms, and the rights in and protections afforded to that subject matter as required by this Section.
Section I. Trade Secrets
Article 15.69. Trade Secrets
1. In the course ofensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that trade secret holders have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others without their consent in a mamner contrary to honest commercial practices.
2. Subject to paragraphs 3 and 4, each Party shall provide that at least each of the following shall be considered contrary to honest commercial practices:
(a) the acquisition ofa trade secret without the consent of the trade secret holder, whenever carried out by unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
(b) the use or disclosure of a trade secret whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
(i) having acquired the trade secret in a manner referred to in subparagraph (a);
(ii) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret; or
(iii) being in breach of a contractual or any other duty to limit the use of the trade secret;
(c) the acquisition, use or disclosure of a trade secret whenever carried out by a person who, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known (27) that the trade secret had been obtained directly or indirectly from another person who was disclosing the trade secret in a mamner referred to in subparagraph (b).
3. Neither Party shall provide that the acquisition, use and disclosure of a trade secret is considered contrary to honest commercial practices:
(a) if the trade secret is obtained through:
(i) independent discovery or creation;
(ii) reverse engineering of a product by a person who is lawfully in possession of it and who is free from any legally valid duty to limit the acquisition of the relevant information; or
(iii) the exercise of the right of workers or workers' representatives to information and consultation in accordance with the Party's law; or
(b) if the acquisition, use or disclosure is required or permitted by the Party's law.
4. Each Party may provide for limited exceptions and limitations to the rights of trade secret holders in circumstances where the legitimate interests of third parties, the general public or the Party outweigh the legitimate interests of trade secret holders, such as in the following cases:
(a) for exercising the right to freedom of expression and information, including respect for the freedom and pluralism of the media; and
(b) for revealing misconduct, wrongdoing or illegal activity, provided
that the person acquiring, using, and disclosing the trade secret did so for the purpose of protecting the general public interest.
Section J. Enforcement
Subsection J.1. General Obligations
Article 15.70. General Obligations
1. Each Party shall provide for the procedures set out in this Section in respect of the enforcement of intellectual property rights.
2. Each Party shall ensure that the procedures provided for in this Section shall:
(a) be fair and equitable;
(b) not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays;
(c) permit effective action against any act of infringement, including expeditious remedies to prevent infringements and remedies that constitute a deterrent to future infringements;
(d) be applied in such a manner as to avoid the creation of barriers to legitimate trade, including electronic commerce, and to provide for safeguards against their abuse;
(e) be implemented in a manner consistent with the Party's law concerning freedom of expression, fair process, and privacy; and
(f) be implemented in a manner that takes into account the need for proportionality between the seriousness of the infringement of the intellectual property right and the applicable remedies and penalties, as well as the interest of third parties.
3. The Parties recognise the importance of ensuring that right holders (28) have access to justice and each Party shall ensure that it has in place a judicial system and alternative dispute resolution mechanisms to allow right holders to enforce their intellectual property rights.
4. This Section does not create any obligation:
(a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of laws and regulations in general, nor does it affect the capacity of each Party to enforce its laws and regulations in general; or
(b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of laws and regulations in general.
Subsection J.2. Enforcement - Civil Remedies
Article 15.71. Availability of Civil Enforcement
Each Party shall make available to a right holder civil judicial procedures concerning the enforcement of any intellectual property right covered under this Chapter.
Article 15.72. Measures for Preserving Evidence
1. Each Party shall provide that its judicial authorities have the authority, on application by a person who has presented reasonably available evidence sufficient to support their claim that their intellectual property right has been infringed or is about to be infringed, to order prompt and effective provisional measures to preserve relevant evidence in relation to the alleged infringement, subject to appropriate safeguards and the protection of confidential information.
2. Each Party shall provide that its judicial authorities have the authority to adopt provisional measures, where appropriate, in particular if any delay is likely to cause irreparable harm to the right holder or if there is a demonstrable risk of evidence being destroyed, in the absence of a party.
3. Those provisional measures may include the detailed description or the physical seizure of:
(a) suspected infringing goods;
(b) materials and implements predominantly used in the production or distribution of these goods; or
(c) documentary evidence relevant to the infringement.
Article 15.73. Provisional and Precautionary Measures
1. Each Party shall provide that its judicial authorities have the authority to, on request of the applicant:
(a) issue against the alleged infringer or, where appropriate and subject to the Party's law, a third party over whom the relevant judicial authority exercises jurisdiction and whose services are used to infringe an intellectual property right, an interlocutory injunction intended to prevent any imminent infringement of an intellectual property right, or forbid, on a provisional basis, the continuation of the alleged infringement of that right; and
(b) order, where appropriate, the seizure or delivery up of goods suspected of infringing an intellectual property right, so as to prevent their entry into or movement within the channels of commerce.
2. In the case of an alleged infringement, each Party shall provide that if the applicant demonstrates circumstances likely to endanger the recovery of damages, its judicial authorities shall have the authority to order, subject to the Party's law, the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of the alleged infringer's bank accounts and other assets.
Article 15.74. Right to Information
1. Each Party shall provide that, during civil proceedings concerning an infringement of an intellectual property right and in response to a justified request of the applicant, the judicial authorities have the authority to order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided by:
(a) the infringer or an alleged infringer; and
(b) any other person involved in the distribution and production of infringing goods or services on a commercial scale.
2. This Article applies without prejudice to other provisions in a Party's law governing privilege, the protection of confidentiality of information sources, or the processing of personal data.
Article 15.75. Injunctions
1. Each Party shall provide that where its judicial authorities have found an infringement of an intellectual property right, its judicial authorities have the authority to issue an injunction aimed at prohibiting or stopping the infringement. (29)
2. The injunction referred to in paragraph 1 shall be available against:
(a) the infringer; and
(b) where appropriate and subject to the Party's law, a third party over whom the relevant judicial authority exercises jurisdiction and whose services are used to infringe the intellectual property right.
Article 15.76. Corrective Measures
1. Each Party shall provide that, on request of the applicant and without prejudice to any damages due to the right holder by reason of the infringement, its judicial authorities have the authority to order that goods found to be infringing an intellectual property right are definitively removed from the channels of commerce, or destroyed. In regard to counterfeit trade mark goods, the simple removal of the trade mark unlawfully affixed is not sufficient, other than in exceptional circumstances, to permit the release of goods into the channels of commerce. Each Party shall also provide that its judicial authorities have the authority to also order, as appropriate, the destruction of materials and implements predominantly used in the creation or manufacture of those goods.
2. Each Party shall provide that its judicial authorities have the authority to order that the measures referred to in paragraph 1 are to be carried out at the expense of the infringer.
Article 15.77. Damages
1. Each Party shall provide that its judicial authorities have the authority to order an infringer who, knowingly or with reasonable grounds to know, engaged in an 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.
2. Each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer, at least in cases described in paragraph 1, to pay the right holder the infringer's profits that are attributable to the infringement.
Article 15.78. Costs
Each Party shall provide that its judicial authorities have the authority to order, in accordance with its law, that court costs or fees and appropriate attorney fees and other expenses incurred by the successful party in legal proceedings concerning the infringement of intellectual property rights shall be borne by the unsuccessful party. (30)