4. The term of protection for rights in phonograms shall be not Jess than 50 years after the making of the phonogram, and, if published within this period, no less than 70 years after the first lawful publication of the phonogram.
5. The term of protection for rights in broadcasts shall be not less than 50 years after the first transmission or the making of the broadcast.
6. The terms laid down in this Article shall be calculated from the first of January of the year following the event which gives rise to them.
Article 10.6. Producers of Phonograms
Each Party shall provide producers of phonograms (38) with the right to a single equitable remuneration if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for public performance (39) (40).
Article 10.7. Resale Rights
The Parties agree to exchange views and information on practices and policies with regard to the resale rights of artists.
Article 10.8. Cooperation on Collective Management of Rights
The Parties shall endeavour to promote dialogue and cooperation among their respective collective management societies for the purpose of ensuring easier access and delivery of content between the territories of the Parties, and ensuring the transfer of royalties arising from the use of works or other copyright-protected subject matter.
Article 10.9. Protection of Technological Measures
1. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of any effective technological measures (41) that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorised by the authors, the performers or the producers of phonograms concerned or permitted by domestic law (42).
2. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 1, each Party shall provide protection at least against:
(a) to the extent provided by its domestic law:
(i) the unauthorised circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and;
(ii) the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and
(b) the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that:
(i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or
(ii) has only a limited commercially significant purpose other than circumventing an effective technological measure (43).
3. In providing adequate legal protection and effective legal remedies pursuant to paragraph 1, a Party may adopt or maintain appropriate limitations, or exceptions to, measures implementing paragraphs 1 and 2. The obligations under paragraphs 1 and 2 are without prejudice to the rights, limitations, exceptions, or defences to copyright or related rights infringement under each Party's domestic law.
Article 10.10. Protection of Rights Management Information
1. To protect electronic rights management information (44), each Party shall provide adequate legal protection and effective legal remedies against any person knowingly performing without authority any of the following acts knowing or, with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any copyright or related rights. Such acts are:
(a) the removal or alteration of any electronic rights management information; and
(b) the distribution, import for distribution, broadcast, communication, or making available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority.
2. In providing adequate legal protection and effective legal remedies pursuant to paragraph 1, a Party may adopt or maintain appropriate limitations, or exceptions to, measures implementing paragraph 1. The obligations under paragraph 1 are without prejudice to the rights, limitations, exceptions or defences to copyright or related rights infringement under a Party's domestic law.
Article 10.11. Exceptions and Limitations
The Parties may provide for limitations or exceptions to the rights under Article 10.6 (Producers of Phonograms) only in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holders.
Subsection B. TRADEMARKS
Article 10.12. International Agreements
Each Party shall make all reasonable efforts to comply with the Trademark Law Treaty, done at Geneva on 27 October 1994, and with the Singapore Treaty on the Law of Trademarks, adopted in Singapore on 27 March 2006 (45).
Article 10.13. Registration Procedure
Each Party shall provide for a system for the registration of trademarks in which the relevant trademark administration shall give reasons in writing for any refusal to register a trademark. The applicant shall have the opportunity to appeal against such refusal before a judicial authority. Each Party shall introduce the possibility for third parties to oppose trademark applications. Each Party shall provide a publicly available electronic database of trademark applications and trademark registrations.
Article 10.14. Well-Known Trademarks
The Parties shall protect well-known trademarks in accordance with the TRIPS Agreement. In determining whether a trademark is well-known, the Parties shall give consideration to the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks, adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO on 20 to 29 September 1999.
Article 10.15. Exceptions to the Rights Conferred by a Trademark Each Party:
(a) shall provide for the fair use of descriptive terms (46) as a limited exception to the rights conferred by trademarks; and
(b) may provide for other limited exceptions,
provided that these exceptions take account of the legitimate interests of the owners of the trademarks and of third parties.
Subsection C. GEOGRAPHICAL INDICATIONS (47)
Article 10.16. Scope
1. Sub-Section C (Geographical Indications) applies to the recognition and protection of geographical indications for wines, spirits, agricultural products and foodstuffs which are originating in the territories of the Parties.
2. Geographical indications of a Party that are to be protected by the other Party shall only be subject to Sub-Section C (Geographical Indications) if they are recognised and declared as geographical indications in their country of origin.
Article 10.17. System of Protection of Geographical Indications
1. Upon the entry into force of this Agreement, each Party shall establish systems for the registration and protection of geographical indications in its territory for such categories of wines and spirits and agricultural products and food-stuffs as it deems appropriate.
2. The systems referred to in paragraph 1 shall contain elements such as:
(a) a domestic register;
(b) an administrative process to verify that the geographical indications entered, or to be entered, on the domestic register referred to in subparagraph 2(a), identify a good as originating in the territory of a Party, or a region or locality in that Party's territory, where a given quality, reputation or other characteristic of the good is essentially attributable to their geographical origin;
(c) an objection procedure that allows the legitimate interests of third parties to be taken into account; and
(d) legal means that permit the rectification and cancellation of entries on the domestic register referred to in sub-paragraph 2(a), that take into account the legitimate interests of third parties and the right holders of the registered geographical indications in question.
3. The Parties shall, as soon as practicable after the procedures for protection of geographical indications in each Party (48) have been concluded for all the names listed in Annex 10-A, meet to adopt a decision in the Trade Committee referred to under Article 16.1 (Trade Committee) regarding the listing in Annex 10-B of the names from Annex 10-A of each Party that have been and remain protected as geographical indications under the respective Party's system referred to in paragraph 2.
Article 10.18. Amendment of List of Geographical Indications
The Parties agree on the possibility of amending the list of geographical indications for wines, spirits, agricultural products and foodstuffs listed in Annex 10-B to be protected by each Party under Sub-Section C (Geographical Indications). Such amendments to Annex 10-B shall be subject to the geographical indications having been and remaining protected as geographical indications under the respective Party's system referred to in paragraph 2 of Article 10.17 (System of Protection of Geographical Indications).
Article 10.19. Scope of Protection of Geographical Indications
1. Subject to Article 10.22 (General Rules), in respect of geographical indications for wines, spirits, agricultural products and foodstuffs listed in Annex 10-B that remain protected as geographical indications under its system as referred to in paragraph 2 of Article 10.17 (System of Protection of Geographical Indications), each Party shall provide the legal means for interested parties to prevent:
(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than its true place of origin in a manner which misleads the public as to the geographical origin of the good; and
(b) any other use which constitutes an act of unfair competition within the meaning of Article 10bis (Unfair Competition) of the Paris Convention.
2. Subject to Article 10.22 (General Rules), in respect of geographical indications for wines and spirits listed in Annex 10-B that remain protected as geographical indications under its system as referred to in paragraph 2 of Article 10.17 (System of Protection of Geographical Indications), each Party shall provide the legal means for interested parties to prevent the use of any such geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where:
(a) the true origin of the good is indicated;
(b) the geographical indication is used in translation; or
(c) the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation", or the like.
3. Subject to Article 10.22 (General Rules), in respect of geographical indications for agricultural products and food- stuffs listed in Annex 10-B that remain protected as geographical indications under the Party's system as referred to in paragraph 2 of Article 10.17 (System of Protection of Geographical Indications), each Party shall provide the legal means for interested parties to prevent the use of any such geographical indication identifying a good for a like good (49) not originating in the place indicated by the geographical indication in question, even where:
(a) the true origin of the good is indicated;
(b) the geographical indication is used in translation (50); or
(c) the geographical indication is accompanied by expressions such as "kind", "type", "style", "imitation", or the like.
4. Nothing in Sub-Section C (Geographical Indications) shall require a Party to apply its provisions in respect of a geographical indication in the case of the failure of a right holder to:
(a) renew the registration of the geographical indication in that Party's market; or
(b) maintain minimal commercial activity or interest in the geographical indication in that Party's market, including commercialisation, promotion or market monitoring.
5. Without prejudice to paragraph 3 of Article 23 of the TRIPS Agreement, each Party shall determine the practical conditions under which homonymous geographical indications will be differentiated from each other in its territory, taking into account the need to ensure equitable treatment of the producers concerned and the need to ensure that consumers are not misled.
6. Where a Party receives an application for registration or protection of a geographical indication that is homonymous with one of the geographical indications in Annex 10-B, that Party will take into consideration the views and submissions of the applicant and the producers concerned (51) in determining the conditions under which the homonymous geographical indications will be differentiated from each other.
Article 10.20. Right of Use of Geographical Indications
The persons who may use a geographical indication protected under Sub-Section C (Geographical Indications) are not limited to the applicant, provided that such use relates to the goods as identified by that geographical indication.
Article 10.21. Relationship with Trademarks
1. Subject to Article 10.22 (General Rules), in respect of geographical indications listed in Annex 10-B that remain protected as geographical indications under a Party's system as referred to in paragraph 2 of Article 10.17 (System of Protection of Geographical Indications), the registration of a trademark for goods which contains or consists of a geographical indication that identifies like goods shall be refused or invalidated ex officio if that Party's domestic law so permits, or at the request of an interested party, with respect to goods not having the origin of the geographical indication concerned, provided that the application to register the trademark is submitted after the date of application for the registration of the geographical indication in the territory concerned.
2. Without prejudice to paragraph 4, the Parties acknowledge that the existence of a prior conflicting trademark in the territory of a Party would not completely preclude the registration of a subsequent geographical indication for like goods in that Party (52).
3. Where a trademark has been applied for or has been registered in good faith, or where rights to a trademark have been acquired through use in good faith, if that possibility is provided by the Parties' respective domestic laws, and such application, registration or acquisition takes place either:
(a) before the date of application for protection of the geographical indication in the territory concerned; or
(b) before the geographical indication is protected in its country of origin,
any measures adopted to implement Sub-Section C (Geographical Indications) shall not prejudice the eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication.
4. The Parties shall have no obligation to protect a geographical indication pursuant to Sub-Section C (Geographical Indications) where, in the light of a reputed or well-known trademark, such protection is liable to mislead consumers as to the true identity of the product.
Article 10.22. General Rules
1. The conditions for import, export and commercialisation of the products referred to in Sub-Section C (Geographical Indications) in the territory of a Party shall be governed by the domestic law of that Party.
2. For agricultural products and foodstuffs, nothing in Sub-Section C (Geographical Indications) shall require a Party to prevent the continued and similar use by any of its nationals or domiciliaries of any geographical indication of the other Party in connection with goods or services, where those nationals or domiciliaries have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Party either:
(a) for at least ten years preceding 1st January 2004; or
(b) in good faith preceding that date.
3. In relation to the geographical indications to be listed in Annex 10-B, where prior use has been determined pursuant to:
(a) the opposition proceedings during the domestic registration procedures; or
(b) any legal proceedings, such prior use shall be listed in Annex 10-B, in respect of the geographical indication in question, in accordance with:
(i) the mechanism established in paragraph 3 of Article 10.17 (System of Protection of Geographical Indications), in the case of subparagraph 34a); and
(ii) the mechanism established in Article 10.18 (Amendment of List of Geographical Indications), in the case of subparagraph 3(b).
4. Each Party may determine the practical conditions under which such prior use will be differentiated from the geographical indication in its territory, taking into account the need to ensure that consumers are not misled.
5. Nothing in Sub-Section C (Geographical Indications) shall require a Party to apply its provisions in respect of a geographical indication of the other Party with respect to goods or services for which the relevant indication is identical to the term customary in common language as the common name for such goods or services in the territory of that Party.
6. Nothing in Sub-Section C (Geographical Indications) shall require a Party to apply its provisions in respect of any name contained in a geographical indication of the other Party with respect to goods or services for which the name is identical to the term customary in common language as the common name for such goods or services in the territory of that Party.
7. Nothing in Sub-Section C (Geographical Indications) shall require a Party to apply its provisions in respect of a geographical indication of the other Party with respect to products of the vine for which the relevant indication is identical to the customary name of a grape variety existing in the territory of that Party as of the date of entry into force of the WTO Agreement in that Party.
8. Nothing in Sub-Section C (Geographical Indications) shall prevent a Party from protecting as a geographical indication, in accordance with its domestic law, a term that conflicts with the name of a plant variety or animal breed.
9. A Party may provide that any request made under Sub-Section C (Geographical Indications) in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Party or within five years after the date of registration of the trademark in that Party, provided that the trademark has been published by that date, if the date of registration is earlier than the date on which the adverse use became generally known in that Party, and provided that the geographical indication is not used. or registered in bad faith.
10. Nothing in Sub-Section C (Geographical Indications) shall prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public.
11. Nothing in Sub-Section C (Geographical Indications) shall oblige a Party to protect a geographical indication of the other Party which is not or has ceased to be protected in accordance with the domestic law of its country of origin. The Parties shall notify each other if a geographical indication ceases to be protected in its country of origin.
Article 10.23. Relation to Trade Committee
The Trade Committee established pursuant to Article 16.1 (Trade Committee) shall have the authority to:
(a) adopt decisions regarding the listing in Annex 10-B referred to in paragraph 3 of Article 10.17 (System of Protection of Geographical Indications); and
(b) amend Annex 10-B in accordance with Article 10.18 (Amendment of List of Geographical Indications).
Subsection D. DESIGNS
Article 10.24. Requirements for Protection of Registered Designs (53)
1. The Parties shall provide for the protection of independently created designs that are new or original (54). This protection shall be provided by registration and shall confer exclusive rights upon their holders in accordance with the provisions of Sub-Section D (Designs) (55).
2. Design protection shall not extend to designs dictated essentially by technical or functional considerations.
3. A design right shall not subsist in a design which is contrary to public policy or to accepted principles of morality (56).
Article 10.25. Rights Conferred by Registration
The owner of a protected design shall have the right to prevent third parties who do not have the owner's consent from at least making, offering for sale, selling or importing articles that bear or embody a design which is a copy, or is substantially a copy, of the protected design, where such acts are undertaken for commercial purposes.
Article 10.26. Term of Protection
The available term of protection shall be at least ten years from the date of application.
Article 10.27. 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.
Article 10.28. Relationship to Copyright
Each Party shall offer the possibility that a design registered in the territory of a Party in accordance with Sub-Section D (Designs) is not completely precluded from enjoying protection under the domestic law of copyright of that Party. The extent to which, and the conditions under which, such protection is enjoyed shall be determined by that Party (57).
Subsection E. PATENTS
Article 10.29. International Agreements
The Parties recall the obligations under the Patent Cooperation Treaty (done at Washington on 19 June 1970, amended on 28 September 1979, and modified on 3 February 1984). The Parties shall, where appropriate, make all reasonable efforts to comply with Article 1 to Article 16 of the Patent Law Treaty, adopted in Geneva on 1 June 2000, in a manner consistent with their domestic law and procedures.
Article 10.30. Patents and Public Health
1. The Parties recognise the importance of the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 by the Ministerial Conference of the WTO at Doha. In interpreting and implementing the rights and obligations under Sub-Section E (Patents) and Sub-Section F (Protection of Test Data Submitted to Obtain an Administrative Marketing Approval to put a Pharmaceutical Product on the Market), the Parties shall ensure consistency with this Declaration.
2. Each Party shall respect the Decision of the WTO General Council of 30 August 2003 on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, as well as the Decision of the WTO General Council of 6 December 2005 on Amendment of the TRIPS Agreement, adopting the Protocol Amending the TRIPS Agreement.
Article 10.31. Extension of the Duration of the Rights Conferred by a Patent
The Parties recognise that pharmaceutical products (58) protected by a patent in their respective territories may be subject to an administrative marketing approval process before being put on their respective markets. The Parties shall make available an extension of the duration of the rights conferred by the patent protection to compensate the patent owner for the reduction in the effective patent life as a result of the administrative marketing approval process (59). The extension of the duration of the rights conferred by the patent protection may not exceed five years (60).
Article 10.32. Cooperation
The Parties agree to cooperate on initiatives to facilitate:
(a) the granting of patents on the basis of applications filed by applicants of a Party in the other Party; and
(b) the qualification and recognition of patent agent professionals of a Party in the territory of the other Party.