6. With respect to the offences described in paragraphs 1 through 5, each Party shall provide the following:
(a) Penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity. (132)
(b) Its judicial authorities have the authority, in determining penalties, to account for the seriousness of the circumstances, which may include circumstances that involve threats to, or effects on, health ot safety. (133)
(c) Its judicial or other competent authorities have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence and assets derived from, or obtained through the alleged infringing activity. If a Party requires identification of items subject to seizure as a prerequisite for issuing a judicial order referred to in this subparagraph, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure.
(d) Its judicial authorities have the authority to order the forfeiture, at least for serious offences, of any assets derived from or obtained through the infringing activity.
(e) Its judicial authorities have the authority to order the forfeiture or destruction of:
(i) all counterfeit trademark goods or pirated copyright goods;
(ii) materials and implements that have been predominantly used in the creation of pirated copyright goods or counterfeit trademark goods; and
(iii) any other labels or packaging to which a counterfeit trademark has been applied and that have been used in the commission of the offence.
In cases in which counterfeit trademark goods and pirated copyright goods are not destroyed, the judicial or other competent authorities shall ensure that, except in exceptional circumstances, those goods are disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder. Each Party shall further provide that forfeiture or destruction under this subparagraph and subparagraph (c) shall occur without compensation of any kind to the defendant.
(f) Its judicial or other competent authorities have the authority to release or, in the alternative, provide access to, goods, material, implements, and other evidence held by the relevant authority to a right holder for civil (134) infringement proceedings.
(g) Its competent authorities may act upon their own initiative to initiate legal action without the need for a formal complaint by a third person or right holder. (135)
7. With respect to the offences described in paragraphs 1 through 5, a Party may provide that its judicial authorities have the authority to order the seizure or forfeiture of assets, or alternatively, a fine, the value of which corresponds to the assets derived from, or obtained directly or indirectly through, the infringing activity.
Article 18.78. Trade Secrets (136)
1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state-owned enterprises) without their consent in a manner contrary to honest commercial practices. (137) As used in this Chapter, trade secrets encompass, at a minimum, undisclosed information as provided for in Article 39.2 of the TRIPS Agreement.
2. Subject to paragraph 3, each Party shall provide for criminal procedures and penalties for one or more of the following:
(a) the unauthorised and wilful access to a trade secret held in a computer system;
(b) the unauthorised and wilful misappropriation (138) of a trade secret, including by means of a computer system; or
(c) the fraudulent disclosure, or alternatively, the unauthorised and wilful disclosure, of a trade secret, including by means of a computer system.
3. With respect to the relevant acts referred to in paragraph 2, a Party may, as appropriate, limit the availability of its criminal procedures, or limit the level of penalties available, to one or more of the following cases in which:
(a) the acts are for the purposes of commercial advantage or financial gain;
(b) the acts are related to a product or service in national or international commerce;
(c) the acts are intended to injure the owner of such trade secret;
(d) the acts are directed by or for the benefit of or in association with a foreign economic entity; or
(e) the acts are detrimental to a Party's economic interests, international relations, or national defence or national security.
Article 18.79. Protection of Encrypted Program-Carrying Satellite and Cable Signals
1. Each Party shall make it a criminal offence to:
(a) manufacture, assemble, modify, (139) import, export, sell, lease or otherwise distribute a tangible or intangible device or system knowing or having reason to know (140) that the device or system meets at least one of the following conditions:
(i) it is intended to be used to assist;
(ii) it is primarily of assistance; or
(iii) its principal function is solely to assist,
in decoding an encrypted program-carrying satellite signal without the authorisation of the lawful distributor (141) of such signal; (142) and
(b) with respect to an encrypted program-carrying satellite signal, wilfully:
(i) receive (143) such a signal; or
(ii) further distribute (144) such signal,
knowing that it has been decoded without the authorisation of the lawful distributor of the signal.
2. Each Party shall provide for civil remedies for a person that holds an interest in an encrypted program-carrying satellite signal or its content and that is injured by an activity described in paragraph 1.
3. Each Party shall provide for criminal penalties or civil remedies (145) for wilfully:
(a) manufacturing or distributing equipment knowing that the equipment is intended to be used in the unauthorised reception of any encrypted program-carrying cable signal; and
(b) receiving, or assisting another to receive, (146) an encrypted program-carrying cable signal without authorisation of the lawful distributor of the signal.
Article 18.80. Government Use of Software
1. Each Party recognises the importance of promoting the adoption of measures to enhance government awareness of respect for intellectual property rights and of the detrimental effects of the infringement of intellectual property rights.
2. Each Party shall adopt or maintain appropriate laws, regulations, policies, orders, government-issued guidelines, or administrative or executive decrees that provide that its central government agencies use only non-infringing computer software protected by copyright and related rights, and, if applicable, only use that computer software in a manner authorised by the relevant licence. These measures shall apply to the acquisition and management of the software for government use. (147)
Section J. Internet Service Providers (148)
Article 18.81. Definitions
For the purposes of this Section: the term copyright includes related rights; and Internet Service Provider means:
(a) a provider of online services for the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, undertaking the function in Article 18.82.2(a) (Legal Remedies and Safe Harbours); or
(b) a provider of online services undertaking the functions in Article 18.82.2(c) or Article 18.82.2(d) (Legal Remedies and Safe Harbours).
For greater certainty, Internet Service Provider includes a provider of the services listed above that engages in caching carried out through an automated process.
Article 18.82. Legal Remedies and Safe Harbours (149)
1. The Parties recognise the importance of facilitating the continued development of legitimate online services operating as intermediaries and, in a manner consistent with Article 41 of the TRIPS Agreement, providing enforcement procedures that permit effective action by right holders against copyright infringement covered under this Chapter that occurs in the online environment. Accordingly, each Party shall ensure that legal remedies are available for right holders to address such copyright infringement and shall establish or maintain appropriate safe harbours in respect of online services that are Internet Service Providers. This framework of legal remedies and safe harbours shall include:
(a) legal incentives (150) for Internet Service Providers to cooperate with copyright owners to deter the unauthorised storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorised storage and transmission of copyrighted materials; and
(b) limitations in its law that have the effect of precluding monetary relief against Internet Service Providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf. (151)
2. The limitations described in paragraph 1(b) shall include limitations in respect of the following functions:
(a) transmitting, routing or providing connections for material without modification of its content! or the intermediate and transient storage of that material done automatically in the course of such a technical process;
(b) caching carried out through an automated process;
(c) storage (153), at the direction of a user, of material residing on a system or network controlled or operated by or for the Internet Service Provider; (154) and
(d) referring or linking users to an online location by using information location tools, including hyperlinks and directories.
3. To facilitate effective action to address infringement, each Party shall prescribe in its law conditions for Internet Service Providers to qualify for the limitations described in paragraph 1(b), or, alternatively, shall provide for circumstances under which Internet Service Providers do not qualify for the limitations described in paragraph 1(b): (155) (156)
(a) With respect to the functions referred to in paragraph 2(c) and paragraph 2(d), these conditions shall include a requirement for Internet Service Providers to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the copyright infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as through receiving a notice (157) of alleged infringement from the right holder or a person authorised to act on its behalf,
(b) An Internet Service Provider that removes or disables access to material in good faith under subparagraph (a) shall be exempt from any liability for having done so, provided that it takes reasonable steps in advance or promptly after to notify the person whose material is removed or disabled. (158)
4. If a system for counter-notices is provided under a Party's law, and if material has been removed or access has been disabled in accordance with paragraph 3, that Party shall require that the Internet Service Provider restores the material subject to a counter-notice, unless the person giving the original notice seeks judicial relief within a reasonable period of time.
5. Each Party shall ensure that monetary remedies are available in its legal system against any person that makes a knowing material misrepresentation in a notice or counter-notice that causes injury to any interested party (159) as a result of an Internet Service Provider relying on the misrepresentation.
6. Eligibility for the limitations in paragraph 1 shall not be conditioned on the Internet Service Provider monitoring its service or affirmatively seeking facts indicating infringing activity.
7. Each Party shall provide procedures, whether judicial or administrative, in accordance with that Party's legal system, and consistent with principles of due process and privacy, that enable a copyright owner that has made a legally sufficient claim of copyright infringement to obtain expeditiously from an Internet
Service Provider information in the provider's possession identifying the alleged infringer, in cases in which that information is sought for the purpose of protecting or enforcing that copyright.
8. The Parties understand that the failure of an Internet Service Provider to qualify for the limitations in paragraph 1(b) does not itself result in liability. Further, this Article is without prejudice to the availability of other limitations and exceptions to copyright, or any other defences under a Party's legal system.
9. The Parties recognise the importance, in implementing their obligations under this Article, of taking into account the impacts on right holders and Internet Service Providers.
Section K. Final Provisions
Article 18.83. Final Provisions
1. Except as otherwise provided in Article 18.10 (Application of Chapter to Existing Subject Matter and Prior Acts) and paragraphs 2, 3 and 4, each Party shall give effect to the provisions of this Chapter on the date of entry into force of this Agreement for that Party. (160)
2. During the relevant periods set out below, a Party shall not amend an existing measure or adopt a new measure that is less consistent with its obligations under the Articles referred to below for that Party than relevant measures that are in effect on the date of signature of this Agreement. This Section does not affect the rights and obligations of a Party under an international agreement to which it and another Party are party.
3. With respect to works of any Party that avails itself of a transition period permitted to it with regard to implementation of Article 18.63 (Term of Protection for Copyright and Related Rights) as it relates to the term of copyright protection (transition Party), Japan and Mexico shall apply at least the term of protection available under the transition Party's law for the relevant works during the transition period and apply Article 18.8.1 (National Treatment) with respect to copyright term only when that Party fully implements Article 18.63.
4. With regard to obligations subject to a transition period, a Party shall fully implement its obligations under the provisions of this Chapter no later than the expiration of the relevant time period specified below, which begins on the date of entry into force of this Agreement for that Party.
(a) In the case of Brunei Darussalam, with respect to:
(i) Article 18.7.2(d) (International Agreements), UPOV 1991, three years;
(ii) Article 18.18 (Types of Signs Registrable as Trademarks), with respect to sound marks, three years;
(iii) Article 18.47 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), 18 months;
(iv) Article 18.50 (Protection of Undisclosed Test or Other Data), four years; ++
(v) Article 18.51 (Biologics), four years; ++
(vi) Article 18.53 (Measures Relating to the Marketing of Certain Pharmaceutical Products), two years; and
(vi) With respect to Section J (Internet Service Providers), three years.
(b) In the case of Malaysia, with respect to:
(i) Article 18.7.2(a) (International Agreements), Madrid Protocol, four years;
(ii) Article 18.7.2(b) (International Agreements), Budapest Treaty, four years;
(iii) Article 18.7.2(c) (International Agreements), Singapore Treaty, four years;
(iv) Article 18.7.2(d) (International Agreements), UPOV 1991, four years;
(v) Article 18.18 (Types of Signs Registrable as Trademarks), with respect to sound marks, three years;
(vi) Article 18.48.2 (Patent Term Adjustment for Unreasonable Curtailment), 4.5 years;
(vii) Article 18.51 (Biologics), five years;
(viii) Article 18.53 (Measures Relating to the Marketing of Certain Pharmaceutical Products), 4.5 years;
(ix) Article 18.63(a) (Term of Protection for Copyright and Related Rights), with respect to life-based works, two years;
(x) Article 18.76 (Special Requirements Related to Border Measures), with respect to applications to suspend the release of, or to detain, âconfusingly similarâ trademark goods, four years;
(xi) Article 18.76.5(b) and (c) (Special Requirements Related to Border Measures), with respect to ex officio border enforcement for in transit and export, four years; and
(xii) Article 18.79.2 (Protection of Encrypted Program-Carrying Satellite and Cable Signals), four years.
(c) In the case of Mexico, with respect to:
(i) Article 18.7.2(d) (International Agreements), UPOV 1991, four years;
(ii) Article 18.47 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), five years;
(iii) Article 18.48.2 (Patent Term Adjustment for Unreasonable Curtailment), 4.5 years;
(iv) Article 18.50 (Protection of Undisclosed Test or Other Data), five years; (++)
(v) Article 18.51 (Biologics), five years; (++) and
(vi) Section J (Internet Service Providers), three years.
(d) In the case of New Zealand, with respect to Article 18.63 (Term of Protection for Copyright and Related Rights), eight years. Except that from the date of entry into force of this Agreement for New Zealand, New Zealand shall provide that the term of protection for a work, performance or phonogram that would, during that eight years, have expired under the term that was provided in New Zealand law before the entry into force of this Agreement, instead expires 60 years from the relevant date in Article 18.63 that is the basis for calculating the term of protection under this Agreement. The Parties understand that, in applying Article 18.10 (Application of Chapter to Existing Subject Matter and Prior Acts), New Zealand shall not be required to restore or extend the term of protection to the works, performances and phonograms with a term provided pursuant to the previous sentence, once these works, performances and phonograms fall into the public domain in its territory.
(e) In the case of Peru, with respect to:
(i) Article 18.50.2 (Protection of Undisclosed Test or Other Data), five years; and
(ii) Article 18.51 (Biologics), 10 years.
(f) In the case of Viet Nam, with respect to:
(i) Article 18.7.2(b) (International Agreements), Budapest Treaty, two years;
(ii) Article 18.7.2(e) (International Agreements), WCT, three years;
(iii) Article 18.7.2(f) (International Agreements), WPPT, three years;
(iv) Article 18.18 (Types of Signs Registrable as Trademarks), with respect to sound marks, three years;
(v) Article 18.463 and Article 18.46.4 (Patent Term Adjustment for Unreasonable Granting Authority Delays), with respect to patents claiming pharmaceutical products, five years; (^)
(vi) Article 18.46.3 and Article 18.46.4 (Patent Term Adjustment for Unreasonable Granting Authority Delays), with respect to patents claiming agricultural chemical products, five years; (^)
(vii) Article 18.463 and Article 18.464 (Patent Term Adjustment for Unreasonable Granting Authority Delays), three years; (161)
(viii) Article 18.47 (Protection of Undisclosed Test or Other Data for Agricultural Chemical Products), five years;
(ix) Article 18.48.2 (Patent Term Adjustment for Unreasonable Curtailment), five years;
(x) Article 18.50 (Protection of Undisclosed Test or Other Data), 10 years; (*/++)
(xi) Article 18.51 (Biologics), 10 years; (*/++)