Each Party may provide an applicant with accelerated examination for the patent application in accordance with its laws and regulations.
Section D. Measures Related to Certain Regulated Products
Article 15.20. MEASURES RELATED TO CERTAIN REGULATED PRODUCTS
1. The Parties agree that undisclosed data concerning safety and efficacy that is submitted as a condition of approving the marketing of new pharmaceutical or agricultural chemical products shall be protected through the principle of national treatment.
2. By providing protection periods of at least five years (8) for pharmaceutical products and 10 years for agricultural chemical products, in their legislation, the Parties afford a satisfactory level of protection that corresponds to the relevant obligations they have entered into.
Section E. Designs
Article 15.21. DESIGNS PROTECTION
1. The Parties shall ensure in their laws adequate and effective protection of industrial designs.
2. The owner of a protected design shall have the right to prevent third parties not having the owner’s consent, at least from making, offering for sale, selling, importing, or using articles bearing or embodying the protected design when such acts are undertaken for commercial purposes.
3. The Parties may provide the legal means to prevent the use of the unregistered appearance of a product, in cases where the contested use results from copying the unregistered appearance of such product.
Article 15.22. EXCEPTIONS
Each Party may provide limited exceptions to the protection of designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking into account the legitimate interests of third parties.
Section F. Unfair Competition and Undisclosed Information
Article 15.23. UNFAIR COMPETITION
For the purposes of this Agreement, as regards to unfair competition, protection will be granted in accordance with Article 10bis of the Stockholm Act.
Article 15.24. UNDISCLOSED INFORMATION
Each Party shall ensure in its laws and regulations adequate and effective protection of undisclosed information in accordance with Article 39 of the TRIPS Agreement.
Section G. Copyright and Related Rights
Subsection A. Copyright and Related Rights
Article 15.25. COPYRIGHT AND RELATED RIGHTS
The Parties shall comply with the following agreements: (9)
(a) the Berne Convention for the Protection of Literary and Artistic Works (1971) (hereinafter referred to as the “Berne Convention”);
(b) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) (hereinafter referred to as the “Rome Convention”);
(c) the WIPO Copyright Treaty (1996); and
(d) the WIPO Performances and Phonograms Treaty (1996).
Article 15.26. RIGHT OF REPRODUCTION
Each Party shall provide that authors, performers and producers of phonograms have the right to authorize or prohibit (10) all reproductions of their works, performances, (11) phonograms and broadcasts in any manner or form, permanent or temporary (including temporary storage in electronic form).
Article 15.27. RIGHT OF DISTRIBUTION
Each Party shall provide to authors, performers, and producers of phonograms the right to authorize 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 15.28. TERM OF PROTECTION
Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:
(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death; and
(b) on a basis other than the life of a natural person, the term shall be:
(i) not less than 70 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram; or
(ii) failing such authorized publication within 50 years from the creation of the work, performance, or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.
Article 15.29. 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 the subject matter, rights, and obligations in this Section.
Article 15.30. NO FORMALITY
Neither Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.
Article 15.31. CONTRACTUAL TRANSFERS
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram:
(a) may freely and separately transfer that right by contract; and
(b) by virtue of a contract, including contracts of employment underlying the creation of works, performances, and production of phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.
Article 15.32. TECHNOLOGICAL PROTECTION MEASURES
1. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of any effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms.
2. Each Party shall provide adequate legal protection and effective legal remedies against the manufacture, import, distribution, sale, rental 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;
(b) have only a limited commercially significant purpose or use, other than to circumvent of; or
(c) are primarily designed, produced, or performed, for the purpose of enabling or facilitating the circumvention of, any effective technological measure.
3. Effective technological measure means any technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other protected subject matter, or protects any copyright or related rights.
4. The Parties shall confine exceptions and limitations to measures implementing paragraphs 1 and 2 to the following activities:
(a) noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs;
(b) noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, unfixed performance, or display of a work, performance or phonogram, and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of technologies for scrambling and descrambling of information;
(c) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing paragraph 2;
(d) noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network;
(e) noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work;
(f) lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes;
(g) access by a nonprofit library, archive, or educational institution to a work, performance, phonogram, or broadcast not otherwise available to it, for the sole purpose of making acquisition decisions; and
(h) noninfringing uses of a work, performance, or phonogram, in a particular class of works, performances, or phonograms when an actual or likely adverse impact on those noninfringing uses is demonstrated in a legislative or administrative proceeding, provided that any limitation or exception adopted in reliance on this clause shall have effect for a renewable period of not more than four years from the date the proceeding concludes.
Article 15.33. RIGHTS MANAGEMENT INFORMATION
In order to provide adequate legal protection and effective legal remedies to protect rights management information:
(a) each Party shall provide that any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of any copyright or related right:
(i) knowingly removes or alters any rights management information;
(ii) distributes or imports for distribution rights management information knowing that the rights management information has been removed or altered without authority; or
(iii) distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances, or phonograms knowing that rights management information has been removed or altered without authority, shall be liable and subject to the remedies set out in Article 15.55. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, educational institution, or public noncommercial broadcasting entity, is found to have engaged willfully and for the purposes of commercial advantage or private financial gain in any of the foregoing activities;
(b) each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, national defense, essential security, or similar governmental purposes;
(c) rights management information means:
(i) information that identifies a work, performance, or phonogram; the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram;
(ii) information about the terms and conditions of the use of the work, performance, or phonogram; or
(iii) any numbers or codes that represent such information, when any of these items is attached to a copy of the work, performance, or phonogram, or appears in connection with the communication or making available of a work, performance, phonogram, or broadcast to the public; and
(d) for greater certainty, nothing in this paragraph shall be construed to obligate a Party to require the owner of any right in the work, performance, phonogram, or broadcast to attach rights management information to copies of the work, performance, phonogram, or broadcast, or to cause rights management information to appear in connection with a communication of the work, performance, phonogram, or broadcast to the public.
Article 15.34. LIMITATIONS AND EXCEPTIONS
The Parties may, in their legislation, provide for limitations and exceptions to, the rights granted to the right holders referred to in this Section in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holders.
Article 15.35. PROTECTION OF ENCRYPTED PROGRAM-CARRYING SATELLITE SIGNALS
1. Each Party shall make it a criminal offense:
(a) to manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or system is primarily of assistance in decoding an encrypted program-carrying satellite signal without the authorization of the lawful distributor of such signal; and
(b) willfully to receive and make use of, or further distribute, a programcarrying signal that originated as an encrypted satellite signal knowing that it has been decoded without the authorization of the lawful distributor of the signal, or if the signal has been decoded with the authorization of the lawful distributor of the signal, willfully to further distribute the signal for the purposes of commercial advantage knowing that the signal originated as an encrypted program-carrying signal and that such further distribution is without the authorization of the lawful signal distributor.
2. Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1, including any person that holds an interest in the encrypted programming signal or its content.
Article 15.36. COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS
The Parties recognize the importance of the performance of the collecting societies, and the establishment of arrangements between them, with the purpose of mutually ensuring easier access to and delivery of content between the territories of the Parties, and the achievement of a high level of development with regard to the execution of their tasks. In this regard, each Party shall endeavor to achieve a high level of effectiveness and to improve transparency with respect to the execution of the task of their respective collecting societies.
Subsection B. Copyright
Article 15.37. RIGHT OF COMMUNICATION TO THE PUBLIC
Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorize 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.
Subsection C. Related Rights
Article 15.38. PROTECTED SUBJECT MATTER
With respect to the rights accorded under this Chapter to performers, producers of phonograms, and broadcasting organizations, each Party shall accord those rights:
(a) to the performers and producers of phonograms who are nationals of the other Party;
(b) with respect to performances and phonograms that are first published or first fixed in the territory of the other Party; (13) and
(c) to broadcasting organizations if they have their headquarters on its territory and the broadcasts are transmitted from transmitters situated on the same territory.
Article 15.39. RIGHTS OF PERFORMERS
Each Party shall provide to performers the right to authorize or prohibit:
(a) the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance;
(b) the fixation of their unfixed performances; and
(c) making available to the public of those performances in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 15.40. RIGHT OF PHONOGRAM PRODUCERS
Each Party shall provide to phonogram producers the right to authorize or prohibit the making available to the public of their phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 15.41. RIGHT TO REMUNERATION OF PERFORMERS AND PHONOGRAM PRODUCERS
Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes, for broadcasting or for any communication to the public. The Parties may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between both categories of right holders.
Article 15.42. RIGHT OF BROADCASTING ORGANIZATIONS
1. Each Party shall provide broadcasting organizations with the right to authorize or prohibit:
(a) the re-broadcasting of their broadcasts;
(b) the reproduction of fixations of their broadcasts; and
(c) the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of a entrance fee. It shall be a matter for each Party’s law where protection of this right is claimed to determine the conditions under which it may be exercised.
2. Each Party shall provide that the term of protection of a broadcast shall not be less than 50 years after the taking place of the broadcast.
3. Notwithstanding Article 15.35, neither Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal. (14)
Article 15.43. DEFINITIONS
For the purposes of Sub-Sections A and C, the following definitions shall apply with respect to performers, producers of phonograms and broadcasting organizations:
broadcasting means the transmission to the public by wireless means or satellite for public reception of sounds or sounds and images, or representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent;
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 audiovisual work;
producer of a phonogram means the person who, or the legal entity which, 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 a phonogram means the offering of copies of the fixed 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.
Section H. Enforcement of Intellectual Property Rights
Subsection A. General Obligations
Article 15.44. ENFORCEMENT PRACTICES WITH RESPECT TO INTELLECTUAL PROPERTY RIGHTS
1. Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights be in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based. Each Party shall also provide that those decisions and rulings be published (15) or, where publication is not practicable, otherwise made available to the public, in its national language in such a manner as to enable governments and right holders to become acquainted with them.
2. Each Party shall publicize information that it may collect on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal systems, including any statistical information. (16)
Article 15.45. PRESUMPTIONS
In civil, administrative, and criminal proceedings involving copyright or related rights, each Party shall provide for a presumption that, in the absence of proof to the contrary, the person whose name is indicated in the usual manner is the designated right holder in such work or other subject matter. Each Party shall also provide for a presumption that, in the absence of proof to the contrary, the copyright or related right subsists in such subject matter.
Subsection B. Civil and Administrative Procedures and Remedies
Article 15.46. ENTITLED RIGHT HOLDERS
Each Party shall make available to right holders (17) civil judicial procedures concerning the enforcement of any intellectual property right.
Article 15.47. DAMAGES
Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder:
(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or
(ii) at least in the case of copyright or related rights infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement, which may be presumed to be the amount of damages referred to in sub-subparagraph (i); and
(b) in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the suggested retail price, or other legitimate measure of value submitted by the right holder.
Article 15.48. PRE-ESTABLISHED DAMAGES
In civil judicial proceedings, each Party, at least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, may establish or maintain pre-established damages, which shall be available on the election of the right holder.
Article 15.49. LEGAL COSTS
Each Party shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or related rights infringement, or trademark infringement, that the prevailing party shall be awarded payment by the losing party of court costs or fees and, at least in proceedings concerning copyright or related rights infringement or trademark counterfeiting, reasonable attorney’s fees. Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment by the losing party of reasonable attorney’s fees.
Article 15.50. SEIZURE
In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure of allegedly infringing goods, materials, and implements relevant to the act of infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement.
Article 15.51. DESTRUCTION
Each Party shall provide that:
(a) its judicial authorities shall have the authority to order, at their discretion or, at the right holder’s request, the destruction of the goods that have been found to be pirated or counterfeit;
(b) its judicial authorities shall have the authority to order that materials and implements that have been used in the manufacture or creation of such pirated or counterfeit goods be, without compensation of any sort, promptly destroyed or, in exceptional circumstances, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements; and
(c) in regard to counterfeit trademarked goods, the simple removal of the trademark unlawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce