Each Party affirms that it has ratified or acceded to the following agreements:
(a) PCT;
(b) Paris Convention;
(c) Berne Convention;
(d) Budapest Treaty;
(e) UPOV 1991;
(f) WCT;
(g) WPPT; and
(h) Marrakesh Treaty.
Article 17.8. National Treatment
1. 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 favourable than it accords to its own nationals with regard to the protection (1) of intellectual property rights, subject to the exceptions provided under the TRIPS Agreement and multilateral agreements concluded or administered under the auspices of WIPO to which either Party is a party.
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 such 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 17.9. Transparency
1. Further to Article 25.2 (Publication) and Article 17.39, each Party shall endeavour to make available on the Internet 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, make available on the Internet information that it makes public concerning applications for trademarks, geographical indications, designs, patents and plant variety rights. (2)
3. Each Party shall, subject to its law, make available on the Internet information that it makes public concerning registered or granted trademarks, geographical indications, designs, patents and plant variety rights, sufficient to enable the public to become acquainted with those registered or granted rights. (3)
Article 17.10. Application of Chapter to Existing Subject Matter and Prior Acts
1. Unless otherwise provided, 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 the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.
2. Neither Party shall 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 shall not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Article 17.11. Exhaustion of Intellectual Property Rights
Each Party shall be free to establish its own regime for the exhaustion of intellectual property rights.
Section B. Cooperation
Article 17.12. Contact Points for Cooperation
Further to Article 20.3 (Contact Points for Cooperation and Capacity Building), each Party may designate and notify under Article 26.5.2 (Contact Points) one or more contact points for the purpose of cooperation under this Section.
Article 17.13. Cooperation Activities and Initiatives
The Parties shall endeavour 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, to be determined by each Party. Cooperation may cover areas such as:
(a) developments in domestic and international intellectual property policy;
(b) intellectual property administration and registration systems;
(c) education and awareness relating to intellectual property;
(d) implementation of multilateral intellectual property agreements, such as those concluded or administered under the auspices of WIPO; and
(e) technical assistance.
Article 17.14. Patent Cooperation and Work Sharing
1. The Parties recognise the importance of improving the quality and efficiency of their respective patent registration systems as well as simplifying and streamlining the procedures and processes of their respective patent offices for the benefit of all users of the patent system and the public as a whole.
2. Further to paragraph 1, the Parties shall endeavour to cooperate between their patent offices to facilitate the sharing and use of their search and examination work. This may include:
(a) making search and examination results available to the patent office of the other Party; (4) and
(b) exchanging information on quality assurance systems and quality standards relating to patent examination.
3. In order to reduce the complexity and cost of obtaining the grant of a patent, the Parties shall endeavour to cooperate to reduce differences in the procedures and processes of their respective patent offices.
Article 17.15. Plant Varieties
The Parties shall endeavour to cooperate to promote and ensure the protection of plant varieties based on UPOV 1991.
Article 17.16. Cooperation on Genetic Resources and Traditional Knowledge
1. The Parties shall endeavour to cooperate through their respective agencies responsible for intellectual property, or other relevant institutions, to enhance the understanding of issues connected with traditional knowledge associated with genetic resources, and genetic resources. Such cooperation may include information about publicly available patent databases, as well as, upon request Party, the provision of publicly available regarding applications related to genetic resources or traditional knowledge associated with genetic resources.
2. The Parties shall endeavour to pursue quality patent examination, which may include:
(a) that in determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account;
(b) an opportunity for third parties to cite, in writing, to the competent examining authority prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources;
(c) if applicable and appropriate, the use of databases or digital libraries containing traditional knowledge associated with genetic resources; and
(d) cooperation in the training of patent examiners in the examination of patent applications related to genetic resources and traditional knowledge associated with genetic resources, including the determination of prior art.
Article 17.17. Cooperation on Request
Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request, and on terms and conditions mutually agreed by the Parties.
Section C. Genetic Resources and Traditional Knowledge
Article 17.18. General Provisions
1. The Parties recognise the relevance of intellectual property systems and traditional knowledge associated with genetic resources to each other, when that traditional knowledge is related to those intellectual property systems.
2. The Parties further affirm their continuing commitment to working towards a multilateral outcome on intellectual property including patent-related aspects of traditional knowledge associated with genetic resources through the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).
3. Subject to each Party's international obligations, each Party may establish appropriate measures to protect genetic resources, traditional knowledge and traditional cultural expressions.
Section D. Trademarks
Article 17.19. Types of Signs Registrable as Trademarks
Neither Party shall require, as a condition of registration, that trademarks be visually perceptible, nor deny registration of a trademark solely on the grounds that the sign of which it is composed is a sound or a scent. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.
Article 17.20. Collective and Certification Marks
Each Party shall provide that trademarks include collective marks and certification marks. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trademark system.
Article 17.21. Use of Identical or Similar Signs
Each Party shall provide that the owner of a registered trademark has 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, including subsequent geographical indications, (5) for goods or services that are related 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.
Article 17.22. Exceptions
A Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interest of the owner of the trademark and of third parties.
Article 17.23. Well-known Trademarks
1. Neither Party shall require as a condition for determining that a trademark is well- known that the trademark has been registered in the Party or in another jurisdiction.
2. Article 6bis of the Paris Convention shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, (6) whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.
Section E. Geographical Indications
Article 17.24. Protection of Geographical Indications
1. The Parties recognise that geographical indications may be protected through a trademark or sui generis system or other legal means.
2. Where a Party is considering protecting or recognising a geographical indication, that Party shall:
(a) make its regulations governing filing of such applications, as relevant, readily available to the public;
(b) provide that the grounds for objecting to or refusing an application for protection or recognition of a geographical indication shall include the following (7):
(i) the geographical indication is likely to cause confusion with a trademark that is the subject of a pre-existing good faith pending application or registration in the territory of the Party; and
(ii) the geographical indication is likely to cause confusion with a pre-existing trademark, the rights to which have been acquired in accordance with the Party's law; and
(c) publish geographical indications which have been protected or recognised.
3. The Parties shall exchange information concerning procedural requirements for the protection or recognition of geographical indications under their respective intellectual property systems including, for Australia, procedural requirements with respect to any proposed protection or recognition of Pisco and Pisco Peru.
4. The Parties may, through the contact points referred to Article 17.12, exchange views on issues relating to the protection and recognition of geographical indications, including with respect to any proposed protection and recognition of Pisco and Pisco Peru.
5. The Parties shall review this Article two years after the date of entry into force of this agreement, or before if the Parties otherwise agree, with a view to considering further provisions governing the protection or recognition of geographical indications. The Parties shall undertake a further review two years after the date of the first review. Such reviews shall consider the Parties' interests and sensitivities in seeking the protection or recognition of certain terms including, for Peru, protection or recognition of Pisco and Pisco Peru.
Section F. Patents
Article 17.25. Patentable Subject Matter
1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step and is capable of industrial application.(8)
2. Nothing in this Chapter shall be construed to prevent a Party from excluding inventions from patentability as set out in Articles 27.2 and 27.3 of the TRIPS Agreement.
Article 17.26. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 17.27. Other Use without Authorisation of the Right Holder
The Parties understand that nothing in this Agreement shall limit a Party's rights and obligations pursuant to Article 31 and Article 31 bis of the TRIPS Agreement, and the Annex and Appendix to the Annex to the TRIPS Agreement.
Section G. Copyright and Related Rights
Article 17.28. Definitions
For the purposes of Article 17.29, Article 17.31, Article 17.32, Article 17.33, Article 17.34, Article 17.35 and Article 17.36, the following definitions apply with respect to performers and producers of phonograms:
broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" if the means for decrypting are provided to the public by the broadcasting organisation or with its consent;
communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram;
fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
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;
phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of 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, or the representations of sounds; and
publication of a performance or phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity.
Article 17.29. Right of Reproduction
Each Party shall provide (9) to authors, performers and producers of phonograms (10) the exclusive right to authorise or prohibit all reproduction of their works, performances or phonograms in any manner or form, including in electronic form.
Article 17.30. Right of Communication to the Public
Without prejudice to Article 11(1)(i), Article 11bis(1)G) and (ii), Article 11ter(1)(ii), Article 14(1)(ii), and Article 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorise or prohibit 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 these works from a place and at a time individually chosen by them. (11)
Article 17.31. Right of Distribution
Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorise or prohibit the making available to the public of the original and copies (12) of their works, performances and phonograms through sale or other transfer of ownership.
Article 17.32. Related Rights
1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms: to the performers and producers of phonograms that are nationals (13) of the other Party; and to performances or phonograms first published or first fixed (14) in the territory of the other Party. (15) A performance or phonogram shall be considered first published in the territory of a Party if it is published in the territory of that Party within 30 days of its original publication.
2. Each Party shall provide to performers the exclusive right to authorise or prohibit:
(a) the broadcasting and communication to the public of their unfixed performances, unless the performance is already a broadcast performance; and
(b) the fixation of their unfixed performances.
3. Each Party shall provide to performers and producers of phonograms the exclusive right to authorise or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means, (16) (17) and the making available to the public of those performances or phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
4. Notwithstanding paragraph 3 and Article 17.34, the application of the right referred to in paragraph 3 to analog transmissions and non-interactive free over-the-air broadcasts, and exceptions or limitations to this right for those activities, is a matter for each Party's law. (18)
Article 17.33. 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.
Article 17.34. Limitations and Exceptions
1. With respect to this Section, 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 does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT or the WPPT.
Article 17.35. 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 17.34, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.
Article 17.36. Collective Management
The Parties recognise the important role of collective management societies for copyright and related rights in collecting and distributing royalties based on practices that are fair, efficient, transparent and accountable, which may include appropriate record keeping and reporting mechanisms.
Section H. Enforcement
Article 17.37. General Obligations
1. Each Party shall ensure that enforcement procedures as specified in this Section are available 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.
2. Each Party shall ensure that its procedures concerning the enforcement of intellectual property rights are fair and equitable. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time limits or unwarranted delays.
3. 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 law in general, nor does it affect the capacity of each Party to enforce its law in general; or
(b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of law in general.
4. In implementing the provisions of this Section in its intellectual property system, each Party shall take 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 interests of third parties.
Article 17.38. Presumptions
In civil, criminal and, if applicable, administrative proceedings involving copyright or related rights, each Party shall provide for a presumption'? that, in the absence of proof to the contrary:
4. In implementing the provisions of this Section in its intellectual property system, each Party shall take 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 interests of third parties.