Publication
2. The Parties shall ensure that all intended procurements are published in an appropriate media in a manner that is sufficient:
(a) to enable the market to be opened up to competition; and
(b) to allow any interested economic operator to have appropriate access to information regarding the intended procurement prior to the award of the contract and to express its interest in obtaining the contract.
3. The publication shall be appropriate to the economic interest of the contract to economic operators.
4. The publication shall contain at least the essential details of the contract to be awarded, the criteria for qualitative selection, the award method, the contract award criteria and any other additional information that the economic operators reasonably need to make a decision on whether to express their interest in obtaining the contract.
Award of Contracts
5. All contracts shall be awarded through transparent and impartial award procedures that prevent corruptive practices. This impartiality shall be ensured especially through the non-discriminatory description of the subject matter of the contract, equal access for all economic operators, appropriate time limits and a transparent and objective approach.
6. When describing the characteristics of the required work, supply or service, the contracting entities shall use general descriptions of performance and functions and international or national standards.
7. The description of the characteristics required of a work, supply or service should not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production unless such a reference is justified by the subject matter of the contract and accompanied by the words "or equivalent". Preference shall be given to the use of general descriptions of performance or functions.
8. Contracting entities shall not impose conditions resulting in direct or indirect discrimination against the economic operators of the other Party, such as the requirement that economic operators interested in the contract must be established in the same country, region or territory as the contracting entity.
Notwithstanding the above, in cases where it is justified by the specific circumstances of the contract, the successful applicant may be required to establish certain business infrastructure at the place of performance.
9. The time limits for expression of interest and for submission of offers shall be sufficiently long to allow economic operators from the other Party to make a meaningful assessment of the tender and prepare their offer.
10. All participants must be able to know the applicable rules, selection criteria and award criteria in advance. These rules must apply equally to all participants.
11. Contracting entities may invite a limited number of applicants to submit an offer, provided that:
(a) this is done in a transparent and non-discriminatory manner; and
(b) the selection is based only on objective factors such as the experience of the applicants in the sector concerned, the size and infrastructure of their businesses or their technical and professional abilities.
In inviting a limited number of applicants to submit an offer, account should be taken of the need to ensure adequate competition.
12. Contracting entities may use negotiated procedures only in exceptional defined cases when the use of such a procedure effectively does not distort competition.
13. Contracting entities may use qualification systems only on condition that the list of qualified operators is compiled by means of a sufficiently advertised, transparent and open procedure. Contracts falling within the scope of such systems shall be awarded also on a non discriminatory basis.
14. The Parties shall ensure that contracts are awarded in a transparent manner to the applicant who has submitted the economically most advantageous offer or the offer with the lowest price, based on the tender criteria and the procedural tules established and communicated in advance. The final decisions are to be communicated to all applicants without undue delay. Upon request of an unsuccessful applicant, reasons must be provided in sufficient detail to allow a review of the decision.
Judicial Protection
15. The Parties shall ensure that any person having or having had an interest in obtaining a particular contract and who has been, or risks, being harmed by an alleged infringement is entitled to effective, impartial judicial protection against any decision of the contracting entity related to the award of that contract. The decisions taken in the course and at the end of such review procedure shall be made public in a manner that is sufficient to inform all interested economic operators.
Article 144. Market Access
The Parties agree that the effective and reciprocal opening of their respective markets shall be attained gradually and simultaneously in accordance with the timetable in Annex XVI-A to this Agreement.
The Parties will examine the possibility to mutually grant market access with regard to procurements even below the value thresholds set out in Article 141(3) of this Agreement.
Article 145. Information
1. The Parties shall ensure that contracting entities and economic operators are well informed about public procurement procedures, including through the publication of all relevant legislation and administrative rulings.
2. The Parties shall ensure the effective dissemination of information on tendering opportunities.
Article 146. Cooperation
1. The Parties shall enhance their cooperation through exchange of experience and information relating to their best practices and regulatory frameworks.
2. The United Kingdom shall facilitate the implementation of this Chapter, including through technical assistance where appropriate. In line with the provisions on financial cooperation in Title VI (Financial Co-operation, with Anti-fraud Provisions) of this Agreement, specific decisions on financial assistance shall be taken by both Parties.
3. An indicative list of issues for cooperation is included in Annex XVI-B to this Agreement.
Chapter 9. INTELLECTUAL PROPERTY
Section 1. GENERAL PROVISIONS
Article 147. Objectives
The Objectives of this Chapter are to:
(a) facilitate the production and commercialisation of innovative and creative products in the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights.
Article 148. Nature and Scope of Obligations
1. The Parties shall ensure the adequate and effective implementation of the international treaties dealing with intellectual property to which they are parties including the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement (hereinafter referred to as the "TRIPS Agreement"). The provisions of this Chapter shall complement and further specify the rights and obligations between the Parties under the TRIPS Agreement and other international treaties in the field of intellectual property.
2. For the purposes of this Agreement, intellectual property rights embody copyright, including copyright in computer programs and in databases, and rights related to copyright, rights related to patents including patents for bio-technological inventions, trade marks, trade names in so far as these are protected as exclusive property rights in the domestic law concerned, designs, layout-designs (topographies) of integrated circuits, geographical indications, including designations of origin, indications of source, plant varieties, protection of undisclosed information and protection against unfair competition as referred to in Article 10 bis of the Paris Convention for the Protection of Industrial Property (1967) (hereinafter referred to as the "Paris Convention").
Article 149. Transfer of Technology
1. The Parties agree to exchange views and information on their domestic and international practices and policies affecting transfer of technology. This shall in particular include measures to facilitate information flows, business partnerships, and licensing and subcontracting deals on a voluntary basis. Particular attention shall be paid to the conditions necessary to create an adequate enabling environment for technology transfer in the host countries, including issues such as the relevant legal framework and development of human capital.
2. The Parties shall ensure that the legitimate interests of the intellectual property right-holders are protected.
Article 150. Exhaustion
The Parties shall be free to establish their own regime for exhaustion of intellectual property rights, subject to the provisions of the TRIPS Agreement.
Section 2. STANDARDS CONCERNING INTELLECTUAL PROPERTY RIGHTS
Subsection 1. COPYRIGHT AND RELATED RIGHTS
Article 151. Protection Granted
The Parties shall comply with:
(a) Articles 1 to 22 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) (hereinafter referred to as the "Rome Convention");
(b) Articles 1 to 18 of the Berne Convention for the Protection of Literary and Artistic Works (1886, last amended in 1979) (hereinafter referred to as the "Berne Convention");
(c) Articles 1 to 14 of the World Intellectual Property Organisation (hereinafter referred to as 'WIPO') Copyright Treaty (1996) (hereinafter referred to as the "WCT"); and
(d) Articles 1 to 23 of the WIPO Performances and Phonograms Treaty (1996).
Article 152. Duration of Authors' Rights
1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for not less than 70 years after his/her death, irrespective of the date when the work is lawfully made available to the public.
2. In the case of a work of joint authorship, the term referred to in paragraph 1 shall be calculated from the death of the last surviving author.
3. Inthe case of anonymous or pseudonymous works, the term of protection shall run for not less than 70 years after the work is lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his/her identity, or if the author discloses his/her identity during the period referred to in the first sentence, the term of protection applicable shall be that laid down in paragraph 1.
4. Where a work is published in volumes, parts, instalments, issues or episodes and the term of protection runs from the time when the work was lawfully made available to the public, the term of protection shall run for each such item separately.
5. In the case of works for which the term of protection is not calculated from the death of the author or authors and which have not been lawfully made available to the public within 70 years of their creation, the protection shall terminate.
6. Notwithstanding paragraph 5, where a term of protection is longer than the corresponding term provided by this Agreement or is already running in the territory of a Party (as defined under Article 416 of this Agreement) on the date of entry into force of this Agreement, this Agreement shall not have the effect of reducing that term of protection in the territory of that Party.
Article 153. Duration of Protection of Cinematographic or Audiovisual Works
1. The principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. The Parties shall be free to designate other co-authors.
2. The term of protection of cinematographic or audiovisual works shall expire not less than 70 years after the death of the last of a group of specified persons to survive, whether or not these persons are designated as co-authors. This group should at a minimum include the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.
Article 154. Duration of Related Rights
1. The rights of performers shall expire not less than 50 years after the date of the performance. However, if a fixation of the performance is lawfully published or lawfully communicated to the public within this period, the rights shall expire not less than 50 years from the date of the first such publication or the first such communication to the public, whichever is earlier.
2. The rights of producers of phonograms shall expire not less than 50 years after the fixation is made. However, if the phonogram has been lawfully published within this period, the said rights shall expire not less than 50 years from the date of the first lawful publication. If no lawful publication has taken place within the period mentioned in the first sentence, and if the phonogram has been lawfully communicated to the public within this period, the said rights shall expire no less than 50 years from the date of the first lawful communication to the public.
3. | The rights of producers of the first fixation of a film shall expire not less than 50 years after the fixation is made. However, if the film is lawfully published or lawfully communicated to the public during this period, the rights shall expire not less than 50 years from the date of the first such publication or the first such communication to the public, whichever is earlier. The term "film" shall designate a cinematographic or audiovisual work or moving images, whether or not accompanied by sound.
4. The rights of broadcasting organisations shall expire not less than 50 years after the first transmission of a broadcast, whether this broadcast is transmitted by wire or over the air, including by cable or satellite.
Article 155. Protection of Previously Unpublished Works
Any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The term of protection of such rights shall be 25 years from the time when the work was first lawfully published or lawfully communicated to the public.
Article 156. Critical and Scientific Publications
The Parties may also protect critical and scientific publications of works which have come into the public domain. The maximum term of protection of such rights shall be 30 years from the time when the publication was first lawfully published.
Article 157. Protection of Photographs
Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 152 of this Agreement. Parties may provide for the protection of other photographs.
Article 158. Cooperation on Collective Management of Rights
The Parties recognise the necessity of establishing agreements between their respective collecting societies for the purpose of mutually ensuring easier access to and delivery of content between the territories of the Parties, as well as ensuring mutual transfer of royalties for use of the Parties' works or other protected subject matter. The Parties recognise the need for their respective collecting societies to achieve a high level of rationalisation and transparency with respect to the execution of their tasks.
Article 159. Fixation Right
1. For the purpose of this Article, fixation means the embodiment of sounds and images, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device.
2. The Parties shall provide performers with the exclusive right to authorise or prohibit the fixation of their performances.
3. The Parties shall provide broadcasting organisations with the exclusive right to authorise or prohibit the fixation of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
4. Accable distributor shall not have the right provided for in paragraph 2 where it merely retransmits by cable the broadcasts of broadcasting organisations.
Article 160. Broadcasting and Communication to the Public
1. For the purposes of this Article:
(a) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite; and transmission of encrypted signals, where the means for decrypting are provided to the public by the broadcasting organisation or with its consent;
(b) "communication to the public" means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of paragraph 3, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.
2. The Parties shall provide performers with the exclusive right to authorise or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.
3. The Parties shall provide performers and producers of phonograms 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 any communication to the public, and ensure that this remuneration is shared among the relevant performers and phonogram producers. 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 among them.
4. The Parties shall provide broadcasting organisations with the exclusive right to authorise or prohibit re-broadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
Article 161. Distribution Right
1. The Parties shall provide authors, in respect of the original of their works or of copies thereof, with the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.
2. The Parties shall provide the exclusive right to make available to the public, by sale or otherwise, the objects indicated in subparagraphs (a) to (d) of this paragraph, including copies thereof:
(a) for performers, in respect of fixations of their performances;
(b) for phonogram producers, in respect of their phonograms;
(c) for producers of the first fixation of films, in respect of the original and copies of their films;
(d) for broadcasting organisations, in respect of fixations of their broadcasts as set out in Article 159(3) of this Agreement.
Article 162. Limitations
1. Parties may provide for limitations on the rights referred to in Articles 159, 160 and 161 of this Agreement in respect of:
(a) private use;
(b) use of short excerpts in connection with the reporting of current events;
(c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research.
2. Notwithstanding paragraph 1, Parties may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and producers of the first fixations of films, as they provide for in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with the Rome Convention.
3. The limitations set out in paragraphs 1 and 2 of this Article shall be applied only in certain special cases which do not conflict with a normal exploitation of the subject matter and do not unreasonably prejudice the legitimate interests of the right-holder.
Article 163. Reproduction Right
The Parties shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;
(b) for performers, of fixations of their performances;
(c) for phonogram producers, of their phonograms;
(d) for the producers of the first fixations of films, in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.
Article 164. Right of Communication to the Public of Works and Right of Making Available to the Public other Subject Matter
1. The Parties shall provide authors with the exclusive right to authorise or prohibit any 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 them from a place and at a time individually chosen by them.
2. The Parties shall provide for the exclusive right to authorise or prohibit the making available of works to the public, 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, namely:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. Both Parties agree that the rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making them available to the public as set out in this Article.
Article 165. Exceptions and Limitations
1. The Parties shall provide that temporary acts of reproduction referred to in Article 163 of this Agreement, which are transient or incidental, which are an integral and essential part of a technological process and the sole purpose of which is to enable:
(a) transmission in a network between third parties by an intermediary; or
(b) lawful use of a work or other subject matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 163.
2. Where the Parties provide for an exception or limitation to the right of reproduction provided for in Article 163, they may provide similarly for an exception or limitation to the right of distribution provided for in Article 161(1) of this Agreement to the extent justified by the purpose of the authorised act of reproduction.
3. The Parties may provide for exceptions and limitations to the rights set out in Articles 163 and 164 of this Agreement only in certain special cases which do not conflict with normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right-holder.
Article 166. Protection of Technological Measures
1. The Parties shall provide adequate legal protection against the circumvention of effective technological measures which the person concerned carries out in the knowledge, or with reasonable grounds for knowing, that he/she is pursuing that objective.
2. The Parties shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of; or
(b) have only a limited commercially significant purpose or use other than to circumvent; or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
3. For the purposes of this Section, the expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the right-holder of any copyright or any right related to copyright as provided for by each Party's legislation. Technological measures shall be deemed "effective" where the use of a protected work or other subject matter is controlled by the right-holders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the protection objective.
4. Where Parties provide for limitations to the rights set out in Articles 162 and 165 of this Agreement, they may also ensure that right-holders make available to a beneficiary of an exception or limitation the means of benefiting from that exception or limitation to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject matter concerned.
5. The Parties may provide that the provisions of Article 166(4) of this Agreement shall not apply to works or other subject matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 167. Protection of Rights-Management Information
1. The Parties shall provide for adequate legal protection against any person knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject matter protected under this Agreement from which electronic rights-management information has been removed or altered without authority,
if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any rights related to copyright as provided by the law of the relevant Party.
2. For the purposes of this Agreement, the expression "rights-management information" means any information provided by right-holders which identifies the work or other subject matter referred to in Sub-section 1, the author or any other right-holder, or information about the terms and conditions of use of the work or other subject matter, and any numbers or codes that represent such information.
The first paragraph shall apply when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subject matter referred to in Sub-section 1.
Article 168. Right-Holders and Subject Matter of Rental and Lending Right
1. The Parties should provide the exclusive right to authorise or prohibit rental and lending for the following:
(a) the author in respect of the original and copies of his/her work;
(b) the performer in respect of fixations of his/her performance;
(c) the phonogram producer in respect of his/her phonograms;
(d) the producer of the first fixation of a film in respect of the original and copies of his film.
2. These provisions shall not cover rental and lending rights in relation to buildings and to works of applied art.
3. The Parties may derogate from the exclusive right provided for in paragraph 1 in respect of public lending, provided that at least authors obtain remuneration for such lending. The Parties shall be free to determine this remuneration, taking account of their cultural promotion objectives.