1. The Parties recognize that each Party may have its own regulatory requirements regarding the use of computing facilities, including requirements that seek to ensure the security and confidentiality of communications.
2. Neither Party shall require a covered person to use or locate computing facilities in that Party’s territory as a condition for conducting business in that territory.
3. Nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 2 to achieve a legitimate public policy objective, provided that the measure:
(a) is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade; and
(b) does not impose restrictions on the use or location of computing facilities greater than are required to achieve the objective.
Article 9.15. Open Government Data
1. The Parties recognize that facilitating public access to and use of government information may foster economic and social development, competitiveness, and innovation.
2. To the extent that a Party makes government information, including data, available to the public, it shall endeavor to ensure that the information is made available as open data.
3. The Parties shall endeavor to cooperate to identify ways in which the Parties can expand access to and use of open data, with a view to enhancing and generating business opportunities.
Article 9.16. Digital Government
1. The Parties recognize that technology can enable more efficient and agile government operations, improve the quality and reliability of government services, and enable governments to better serve the needs of their citizens and other stakeholders.
2. To this end, each Party shall endeavor to develop and implement strategies to digitally transform its government operations and services, which may include:
(a) adopting open and inclusive government processes focusing on accessibility, transparency, and accountability in a manner that overcomes digital divides;
(b) promoting cross-sectoral and cross-governmental coordination and collaboration on digital agenda issues;
(c) shaping government processes, services and policies with digital inclusivity in mind;
(d) providing a unified digital platform and common digital enablers for government service delivery;
(e) leveraging emerging technologies to build capabilities in anticipation of disasters and crises and facilitating proactive responses;
(f) generating public value from government data by applying it in the planning, delivering and monitoring of public policies, and adopting rules and ethical principles for the trustworthy and safe use of data;
(g) making government data and policy-making processes (including algorithms) available for the public to engage with; and
(h) promoting initiatives to raise the level of digital capabilities and skills of both the populace and the government workforce.
3. Recognizing that the Parties can benefit by sharing their experiences with digital government initiatives, the Parties shall endeavor to cooperate on activities relating to the digital transformation of government and government services, which may include:
(a) exchanging information and experiences on digital government strategies and policies;
(b) sharing best practices on digital government and the digital delivery of government services; and
(c) providing advice or training, including through exchange of officials, to assist the other Party in building digital government capacity.
Article 9.17. Electronic Invoicing
1. The Parties recognize the importance of electronic invoicing to increase the efficiency, accuracy, and reliability of commercial transactions. Each Party also recognizes the benefits of ensuring that the systems used for electronic invoicing within its territory are interoperable with the systems used in the other Party’s territory.
2. Each Party shall endeavor to ensure that the implementation of measures related to electronic invoicing in its territory supports cross-border interoperability between the Parties’ electronic invoicing frameworks. To this end, each Party shall endeavor to base its measures relating to electronic invoicing on international frameworks.
3. The Parties recognize the economic importance of promoting the global adoption of interoperable electronic invoicing systems, including interoperable international frameworks. To this end, the Parties shall endeavor to:
(a) promote, encourage, support, or facilitate the adoption of electronic invoicing by enterprises;
(b) promote the existence of policies, infrastructure, and processes that support electronic invoicing;
(c) generate awareness of, and build capacity for, electronic invoicing; and
(d) share best practices and promote the adoption of interoperable international electronic invoicing systems.
Article 9.18. Electronic Payments
1. Recognizing the rapid growth of electronic payments, in particular those provided by non-bank, non-financial institutions and financial technology (FinTech) enterprises, the Parties shall endeavor to support the development of efficient, safe, and secure cross-border electronic payments by:
(a) fostering the adoption and use of internationally accepted standards for electronic payments;
(b) promoting interoperability and the interlinking of electronic payment infrastructures; and
(c) encouraging innovation and competition in electronic payments services.
2. To this end, each Party shall endeavor to:
(a) make publicly available its laws and regulations of general applicability relating to electronic payments, including in relation to regulatory approval, licensing requirements, procedures and technical standards;
(b) finalize decisions on regulatory or licensing approvals relating to electronic payments in a timely manner;
(c) not arbitrarily or unjustifiably discriminate between financial institutions and non-financial institutions in relation to access to services and infrastructure necessary for the operation of electronic payment systems;
(d) adopt or utilize international standards for electronic data exchange between financial institutions and services suppliers to enable greater interoperability between electronic payment systems;
(e) facilitate the use of open platforms and architectures such as tools and protocols provided for through Application Programming Interfaces (APIs) and encourage payment service providers to safely and securely make APIs for their products and services available to third parties, where possible, to facilitate greater interoperability, innovation, and competition in electronic payments; and
(f) facilitate innovation and competition and the introduction of new financial and electronic payment products and services in a timely manner, such as through adopting regulatory and industry sandboxes.
3. In view of paragraph 1, the Parties recognize the importance of upholding safety, efficiency, trust, and security in electronic payment systems through regulations, and that the adoption and enforcement of regulations and policies should be proportionate to the risks undertaken by the payment service providers.
Article 9.19. Digital Identities
1. Recognizing that cooperation between the Parties on digital identities for natural persons and enterprises will promote connectivity and further growth of digital trade, and recognizing that each Party may take different legal and technical approaches to digital identities, the Parties shall endeavor to pursue mechanisms to promote compatibility between their respective digital identity regimes. This may include:
(a) developing appropriate frameworks and common standards to foster technical interoperability between each Party’s implementation of digital identities;
(b) developing comparable protection of digital identities under each Party’s respective legal frameworks, or the recognition of their legal effects, whether accorded autonomously or by agreement;
(c) supporting the development of international frameworks on digital identity regimes; and
(d) exchanging knowledge and expertise on best practices relating to digital identity policies and regulations, technical implementation and security standards, and the promotion of the use of digital identities.
2. For greater certainty, nothing in this Article shall prevent a Party from adopting or maintaining measures inconsistent with paragraph 1 to achieve a legitimate public policy objective.
Article 9.20. Cooperation
Recognizing the importance of digital trade to their economies, the Parties shall endeavor to maintain a dialogue on regulatory matters relating to digital trade with a view to sharing information and experiences, as appropriate, including on related laws, regulations, and their implementation, and best practices with respect to digital trade, including in relation to:
(a) online consumer protection;
(b) personal data protection;
(c) anti-money laundering and sanctions compliance for digital trade;
(d) unsolicited commercial electronic messages;
(e) electronic authentication;
(f) intellectual property concerns with respect to digital trade;
(g) challenges for small and medium-sized enterprises in digital trade;
(h) digital government;
(i) open government data; and
(j) any other area mutually agreed by the Parties.
Article 9.21. Cybersecurity
The Parties have a shared vision to promote secure digital trade and recognize that threats to cybersecurity undermine confidence in digital trade. Accordingly, the Parties recognize the importance of:
(a) building the capabilities of their appropriate competent authorities responsible for cybersecurity incident response;
(b) strengthening existing collaboration mechanisms and further cooperation through exchanging experiences and best practices; and
(c) cooperating on identification and mitigation of malicious intrusions or dissemination of malicious code that affect the electronic networks of the Parties.
Article 9.22. FinTech Cooperation
The Parties shall promote cooperation between their FinTech industries. The Parties recognize that effective cooperation regarding FinTech will require involvement of businesses. To this end, the Parties shall:
(a) promote development of FinTech solutions for business or financial sectors; and
(b) encourage collaboration of entrepreneurship or start-up talent between the Parties in FinTech, consistent with their respective laws and regulations.
Article 9.23. Artificial Intelligence
1. The Parties recognize that the use and adoption of Artificial Intelligence (AI) technologies are becoming increasingly important within a digital economy offering significant social and economic benefits to natural persons and enterprises.
2. The Parties also recognize the importance of developing ethical governance frameworks for the trusted, safe, and responsible use of AI technologies that will help realize the benefits of AI. In view of the cross-border nature of the digital economy, the Parties further acknowledge the benefits of ensuring that such frameworks are internationally aligned as far as possible.
3. To this end, the Parties shall endeavor to:
(a) collaborate on and promote the development and adoption of frameworks that support the trusted, safe, and responsible use of AI technologies (AI Governance Frameworks), through relevant regional, multilateral, and international fora;
(b) take into consideration internationally-recognized principles or guidelines when developing such AI Governance Frameworks; and
(c) cooperate through promoting dialogue and sharing experiences on regulations, policies and initiatives relating to the use and adoption of AI technologies.
Chapter TEN. INTELLECTUAL PROPERTY
Section A: General Provisions
Article Article 10.1: Definitions
For the purposes of this Chapter:
intellectual property embodies:
copyright, including copyright in computer programs and in databases, and related rights;
patents and utility models;
trademarks;
industrial designs;
layout-designs (topographies) of integrated circuits;
geographical indications;
plant varieties; and
protection of undisclosed information;
national means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the agreements listed in Article 10.5 or the TRIPS Agreement; and
WIPO means the World Intellectual Property Organization.
The protection and enforcement of intellectual property rights should contribute to the promotion of trade, investment and 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.
Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that
unreasonably restrain trade or adversely affect the international transfer of technology, provided that such measures are consistent with this Chapter.
A Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
Each Party shall give effect to the provisions of this Chapter. 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 the provisions of 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.
The Parties reaffirm their obligations set out in the following multilateral agreements:
the TRIPS Agreement;
the Patent Cooperation Treaty, done on 19 June 1970, as modified on 3 October 2001;
the Paris Convention for the Protection of Industrial Property, done on 20 March 1883, as amended on 28 September 1979 (hereinafter referred to as the “Paris Convention”);
the Berne Convention for the Protection of Literary and Artistic Works, done on 9 September 1886, as amended on 24 July 1971 (hereinafter referred to as the “Berne Convention”);
the Protocol relating to the Madrid Agreement concerning the International Registration of Marks, done on 27 June 1989;
the WIPO Performances and Phonograms Treaty, done on 20 December 1996 (hereinafter referred to as the “WPPT”);
the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done on 26 October 1961 (hereinafter referred to as the “Rome Convention”);
the WIPO Copyright Treaty, done on 20 December 1996 (hereinafter referred to as the “WCT”);
the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done on 28 April 1977, as amended on 26 September 1980;
the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done on 27 June 2013 (hereinafter referred to as the “Marrakesh Treaty”); and
the International Convention for the Protection of New Varieties of Plants, done on 19 March 1991.
The Parties recognize the principles established in the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 (hereinafter referred to as the “Doha Declaration”) by the Ministerial Conference of the WTO and confirm that the provisions of this Chapter are without prejudice to the Doha Declaration.
In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection1 of intellectual property rights in accordance with Article 3.1 of the TRIPS Agreement.
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 such derogation is:
necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter; and
not applied in a manner that would constitute a disguised restriction on trade.
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.
1 For the purposes of this paragraph, “protection” includes (1) matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter, and (2) the prohibition on circumvention of effective technological measures, and the rights and obligations concerning rights management information set out in Article 10.43.
Each Party shall make available on the Internet its laws and regulations regarding the protection and enforcement of intellectual property rights.
Each Party shall, subject to its legal system and practice, endeavor to make information concerning applications for, and registration of, trademarks, geographical indications, industrial designs, patents, and plant variety rights accessible for the general public.
The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.
Each Party shall, to the extent possible, endeavor to make available such information in English language.
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 for a Party 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 without unreasonably impairing the fair interest of third parties.
Unless provided in this Chapter, 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.
Without prejudice to any provisions addressing the exhaustion of intellectual property rights in international agreements to which a Party is a member, 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 Article 10.11: Cooperation Activities and Initiatives
The Parties shall endeavor to cooperate on the subject matter covered by this Chapter, such as through appropriate coordination, training, and exchange of information between the respective intellectual property offices of the Parties, or other institutions, as determined by each Party. Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources of the Parties, on request of a Party, and on terms and conditions mutually agreed upon between the Parties. Cooperation may cover areas such as:
developments in domestic and international intellectual property policy;
patent examination quality and efficiency;
intellectual property administration and registration systems;
education and awareness relating to intellectual property;
intellectual property issues relevant to:
small and medium-sized enterprises;
science, technology and innovation activities;
the generation, transfer and dissemination of technology; and
empowering women and youth;
policies involving the use of intellectual property for research, innovation and economic growth;
implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO;
capacity-building;
enforcement of intellectual property rights; and
other activities and initiatives as may be mutually determined between the Parties.
Article Article 10:12 Types of Signs Registrable as Trademarks
No Party shall require, as a condition of registration, that a sign be visually perceptible, nor shall a Party deny registration of a trademark only on the ground that the sign of which it is composed is a sound. Additionally, each Party shall make best efforts to register scent marks. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Each Party shall provide that trademarks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its law, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system.
Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent third parties that do not have the owner’s consent from using in the course of trade
identical or similar signs for goods or services that are identical or similar to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed.
A Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trademark and of third parties.