Each Party shall ensure that criminal or administrative penalties exist to sanction:
(a) a procurement official of that Party who solicits or accepts, directly or indirectly, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of that procurement official's procurement functions;
(b) any person who offers or grants, directly or indirectly, to a procurement official of that Party, any article of monetary value or other benefit, for that procurement official or for another person, in exchange for any act or omission in the performance of that procurement official's procurement functions; and
(c) any person intentionally offering, promising or giving any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign procurement official, for that foreign procurement official or a third party, in order that the foreign procurement official act or refrain from acting in relation to the performance of procurement duties, in order to obtain or retain business or other improper advantage.
Article 12.15. Domestic Review Procedures
1. In the event of a complaint by a supplier of a Party that there has been a failure to apply the other Party's measures implementing this Chapter in the context of a covered procurement in which the supplier has or had an interest, the Party of the procuring entity shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord timely and impartial consideration to any such complaint and ensure that the making of any such complaint is not prejudicial to the supplier's participation in ongoing or future procurement or right to seek corrective measures under administrative or judicial review procedures.
2. Each Party shall maintain at least one impartial administrative or judicial authority that is independent of its procuring entities to receive and review, in a non-discriminatory, timely, transparent and effective manner, complaints that a supplier of the other Party submits, in accordance with the laws and regulations of the Party of the procuring entity, relating to a covered procurement.
3. Each Party shall make information on complaint mechanisms generally available.
Article 12.16. Rectifications and Modifications to Coverage
1. A Party may modify its coverage under this Chapter, provided that:
(a) it notifies the other Party in writing and simultaneously offers acceptable compensatory adjustments to the other Party to maintain a level of coverage comparable to that existing prior to the modification, except as provided in paragraphs 2 and 3; and
(b) the other Party does not object in writing within 30 days of the notification.
2. Each Party may make rectifications of a purely formal nature to its coverage under this Chapter, or minor amendments to its Government Procurement Schedules referred to in Annex 12-A, provided that it notifies the other Party in writing and the other Party does not object in writing within 30 days of the notification. A Party that makes such a rectification or minor amendment need not provide compensatory adjustments.
3. A Party need not provide compensatory adjustments in those circumstances where the Parties agree that the proposed modification covers a procuring entity over which a Party has effectively eliminated its control or influence. Where the Parties do not agree that such government control or influence has been effectively eliminated, the objecting Party may request further information or consultations with a view to clarifying the nature of any government control or influence and reaching agreement on the procuring entity's continued coverage under this Chapter.
Article 12.17. Definitions
For the purposes of this Chapter:
build-operate-transfer contract and public works concession contract means any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government owned works and under which, as consideration for a supplier's execution of a contractual arrangement, a procuring entity grants the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for the use of, such works for the duration of the contract;
conditions for participation means registration, qualification, and other pre-requisites for participation in a procurement;
in writing or written means any worded or numbered expression that can be read, reproduced, and later communicated. This may include electronically transmitted and stored information;
limited tendering procedures means those tendering procedures covered by Article 12.11;
multi-use list means a list of suppliers that a Party or procuring entity has determined satisfy the conditions for participation in that list, and that the Party or procuring entity intends to use more than once;
offset means any condition or undertaking that encourages local development or improves a Party's balance of payments accounts such as the use of domestic content, the licensing of technology, investment, counter-trade, and similar actions or requirements;
open tendering procedures means a procurement method where all interested suppliers may submit a tender;
procuring entity means an entity listed in Sections A, B or C of Annex 12-A;
selective tendering procedures means a procurement method where only suppliers qualified to tender or satisfying the conditions for participation are invited by the procuring entity to submit a tender; services includes construction services unless otherwise specified; supplier means a person that provides or could provide goods or services; and technical specification means a tendering requirement that:
(a) sets out the characteristics of goods or services to be procured, including quality, performance, safety, and dimensions, or the processes and methods for their production or provision; or
(b) addresses terminology, symbols, packaging, marking, or labelling requirements, as they apply to a good or service.
Chapter 13. Intellectual Property Rights
Article 13.1. General Provisions
Nature and Scope of Obligation
1. Each Party recognises the importance of adequate and effective protection of intellectual property rights, while ensuring that measures to enforce those rights do not themselves become barriers to legitimate trade.
2. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within their own legal system and practice.
Observance of International Obligations
3. Each Party affirms its rights and obligations under the TRIPS Agreement, the agreements administered by the WIPO and any other multilateral agreement related to intellectual property to which the Parties are party.
4. Each Party shall undertake reasonable efforts to ratify or accede to the Patent Law Treaty, done at Geneva on 1 June 2000 and the Singapore Treaty on the Law of Trademarks, done at Singapore on 27 March 2006, in a manner consistent with its law and subject to the fulfilment of its necessary internal requirements.
More Extensive Protection and Enforcement
5. A Party may provide more extensive protection for, and enforcement of, intellectual property rights under its law than this Chapter requires, provided that the more extensive protection does not contravene this Chapter.
National Treatment
6. 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 and enjoyment of such intellectual property rights and any benefits derived from such rights, subject to the exceptions provided in multilateral intellectual property agreements to which either Party is, or becomes, a contracting party.
7. A Party may derogate from paragraph 6 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 and regulations that are not inconsistent with this Chapter; and
(b) not applied in a manner that would constitute a disguised restriction on trade.
8. Paragraph 6 shall not apply to procedures provided in multilateral agreements to which either Party is a party concluded under the auspices of the WIPO in relation to the acquisition or maintenance of intellectual property rights.
Application of Agreement to Existing Subject Matter and Prior Acts
9. Unless otherwise provided in this Chapter, including in Article 13.5.7, this Chapter shall give rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement 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.
10. Unless otherwise provided in this Chapter, including in Article 13.5.7, 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 the territory of the Party where the protection is claimed.
11. This Chapter shall not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.
Transparency
12. Further to Article 19.1 (Publication), and with the object of making the protection and enforcement of intellectual property rights transparent, each Party shall ensure that all laws, regulations, and procedures concerning the protection or enforcement of intellectual property rights are in writing and are published, or where publication is not practicable, made publicly available in its national language and in such a manner as to enable governments and right holders to become acquainted with them.
Article 13.2. Trademarks
Trademark Protection
1. Neither Party shall require, as a condition of registration, that trademarks bevisually 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.
2. Each Party shall provide that trademarks shall include collective marks and certification marks. Each Party shall also provide that geographical indications are eligible for protection as trademarks.
3. Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs, including geographical indications, 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.
Exceptions to Trademark Rights
4. Each 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 interests of the owner of the trademark and of third parties.
Well-Known Trademarks
5. Neither Party shall require, as a condition for determining that a trademark is a well-known mark, that the trademark has been registered in the territory of that Party or in another jurisdiction.
6. Article 6bis of the Paris Convention for the Protection of Industrial Property, done at Paris on 20 March 1883, shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark, 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.
7. Each Party shall provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, for related goods or services, if the use of that trademark is likely to cause confusion or is likely to deceive.
Trademark Applications and Registrations
8. Each Party shall provide:
(a) a system for the registration of trademarks, in which the reasons for a refusal to register a trademark shall be communicated in writing and may be provided electronically to the applicant, who will have the opportunity to contest such refusal and to appeal a final refusal judicially. Each Party shall provide a publicly available electronic database of trademark applications and registrations;
(b) an opportunity for interested parties to oppose trademark applications; and
(c) a system that permits owners of registered trademarks to assert their rights in trademarks, and interested parties to challenge rights in trademarks, through administrative or judicial means, or both.
9. Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years.
Recordation of Trademark Licences
10. Neither Party shall require recordation of trademark licences to establish the validity of the licence, to assert any rights in a trademark, or for any other purpose.
Article 13.3. Cooperation
1. The Parties shall cooperate and collaborate with a view to ensuring protection of intellectual property rights and that such protection is consistent with promoting trade in goods and services between the Parties, subject to their respective laws, regulations and policies. Such cooperation may include:
(a) exchange of information concerning infringement of intellectual property rights between relevant agencies responsible for the enforcement of intellectual property rights;
(b) promotion of contacts and cooperation among their respective agencies, including enforcement agencies, educational institutions and other organisations with an interest in the field of intellectual property rights; and
(c) sharing information and experiences on relations of the Parties with non-Parties on matters concerning intellectual property rights.
2. A Party shall, on request of the other Party, give proper consideration to any specific cooperation proposal made by the other Party relating to the protection and enforcement of intellectual property rights.
Article 13.4. Domain Names on the Internet
1. Each Party shall require that the management of its country-code top-level domain (hereinafter referred to as "ccTLD") provide an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy.
2. Each Party shall require that the management of its ccTLD provide online public access to a reliable and accurate database of domain-name registrations in accordance with its law regarding protection of personal data.
Article 13.5. Copyright and Related Rights
1. Each Party shall provide that authors, performers, producers of phonograms and broadcasting organisation have the right to authorise or prohibit all reproductions of their works, performances, phonograms and broadcasts in any manner or form, permanent or temporary (including temporary storage in electronic form).
2. Each Party shall provide authors, performers and producers of phonograms with the right to authorise or prohibit the making available to the public of the original and copies of their works, performances and phonograms through sale or other transfer of ownership.
3. Neither Party shall subject the enjoyment and exercise of the rights of authors, performers, producers of phonograms and broadcasting organisations provided in this Chapter to any formality.
Hierarchy of Rights
4. In order to ensure that no hierarchy is established between rights of authors, on the one hand, and rights of performers, producers of phonograms and broadcasting organisations, on the other hand, each Party shall provide that in cases where authorisation is needed from both the author of a work embodied in a phonogram or a broadcast and a performer, producer or broadcasting organisation owning rights in the phonogram or broadcast, the need for the authorisation of the author shall not cease to exist because the authorisation of the performer, producer or broadcasting organisation is also required. Likewise, each Party shall provide that in cases where authorisation is needed from both the author of a work embodied in a phonogram or broadcast and a performer, producer or broadcasting organisation owning rights in the phonogram or broadcast, the need for the authorisation of the performer, producer or broadcasting organisation shall not cease to exist because the authorisation of the author is also required.
Term of Protection
5. 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 authorised publication of the work, performance or phonogram; or
(ii) failing such authorised 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.
6. Each Party shall provide that the term of protection of a broadcast shall not be less than 50 years after the first broadcast took place.
7. Article 18 of the Berne Convention for the Protection of Literary and Artistic Works, done at Berne on 9 September 1886 (hereinafter referred to as the "Berne Convention"), and Article 14.6 of the TRIPS Agreement, shall apply, mutatis mutandis, to the subject matter, rights, and obligations in this Article and Articles 13.6 and 13.7.
8. Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, phonogram or broadcast:
(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, phonograms and broadcasts, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right.
Protection of Effective Technological Measures
9. Each Party shall provide for adequate legal protection and effective legal remedies against:
(a) the circumvention of any effective technological measures that control access to a protected work, performance, phonogram, broadcast or other subject matter, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that such person is pursuing that objective;
(b) the manufacture, import, distribution, offering to the public, provision, or otherwise trafficking of devices, products, or components, or the offering to the public, or provision of services, that:
(i) are promoted, advertised, or marketed for the purpose of circumvention of any effective technological measure;
(ii) shave only a limited commercially significant purpose or use other than to circumvent any effective technological measure; or
(iii) are primarily designed, produced, or performed for the purposes of enabling or facilitating the circumvention of any effective technological measure.
Protection of Rights Management Information
10. Each Party shall provide for adequate legal protection and effective legal remedies against any person knowingly performing any of the following acts:
(a) the removal or alteration of any electronic rights management information without authority; or
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public, without authority, of works or copies of the works or other subject matter protected under this Chapter knowing that electronic rights management information has been removed or altered without authority,
if such person knows, or has reasonable grounds to know, that by doing so it is inducing, enabling, facilitating or concealing an infringement of any copyright or related rights as provided by the law of the Party.
Application of Criminal Procedures and Penalties
11. Each Party shall also provide for criminal procedures and penalties to be applied when any person, other than a non-profit library, archive, educational institution, or public non-commercial broadcasting entity, is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the activities prescribed in paragraphs 9 and 10.
Exceptions and Limitations
12. Each Party may provide for exceptions and limitations to measures implementing paragraphs 9 and 10 in accordance with its law and the relevant international agreements referred to in Article 13.1.3, 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 9 and 10.
Exceptions to Copyright and Related Rights
13. With respect to this Article and Articles 13.6 and 13.7, 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, phonogram or broadcast, and do not unreasonably prejudice the legitimate interests of the right holder.
14. Notwithstanding paragraph 13, neither Party shall permit the retransmission of television signals (whether terrestrial, cable or satellite) on the Internet without the authorisation of the right holder or right holders of the content of the signal and, if any, of the signal.
Article 13.6. Copyright
Without prejudice to Articles 11(1)Gi), 11 bis(1)@) and 11dis(1)Gi), 1 1ter(1)Gii), 14(1) Gi), and 14bis of the Berne Convention, each Party shall provide authors with 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.
Article 13.7. Related Rights
1. With respect to the rights accorded under this Chapter:
(a) to performers and producers of phonograms, each Party shall accord those rights to the performers and producers of phonograms who are nationals of the other Party, and accord those rights with respect to performances and phonograms that are first published or first fixed in the territory of the other Party; and
(b) to broadcasting organisations, each Party shall accord those rights to the broadcasting organisations if the headquarters of the broadcasting organisations are situated in the other Party or the broadcast was transmitted from a transmitter situated in the other Party.
Rights of Performers
2. Each Party shall provide performers with the right to authorise or prohibit:
(a) the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and
(b) the fixation of their unfixed performances. Rights of Performers and Producers of Phonograms
3. Each Party shall provide performers and producers of phonograms with the right to authorise or prohibit:
(a) with respect to performers, the commercial rental to the public of the original and copies of their performances fixed in phonograms, even after distribution of them by, or pursuant to, authorisation by the performer, and with respect to producers of phonograms, 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 phonogram; and
(b) the making available to the public of their performances fixed in phonograms, with respect to performers, or their phonograms, with respect to producers of 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.
4. Each Party shall provide performers and producers of phonograms with the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes in accordance with its law.
Rights of Broadcasting Organisations
5. Each Party shall provide that broadcasting organisations shall have the exclusive right to authorise or prohibit:
(a) the rebroadcasting of their broadcasts;
(b) the fixation of their broadcasts; and
(c) the reproduction of fixations.
Article 13.8. Patents
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. In addition, each Party confirms that patents shall be available for any new uses or methods of using a known product.
Exclusion from Patentability
2. Each Party may only exclude from patentability:
(a) inventions, the prevention within its territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its law; and
(b) diagnostic, therapeutic and surgical methods for the treatment of humans or animals.
Limited Exceptions to Patent Rights
3. Each 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.
Revocation of Patent
4. Each Party shall provide that a patent may be revoked on grounds that would have justified a refusal to grant the patent. A Party may also provide that fraud, misrepresentation or inequitable conduct may be the basis for revoking a patent or holding a patent unenforceable.
Grace Period for Patents
5. Each Party shall disregard information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure:
(a) was made or authorised by, or derived from, the patent applicant; and
(b) occurred within 12 months prior to the date of filing in the territory of the Party of the application.
6. Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections and observations in connection with their applications.
Disclosure of Claimed Invention
7. Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.
8. Each Party shall provide that a claimed invention: