{"id":1075,"date":"2012-02-05T21:35:58","date_gmt":"2012-02-06T02:35:58","guid":{"rendered":"http:\/\/www.hephaestusproject.com\/blog\/?page_id=1075"},"modified":"2012-02-05T21:40:39","modified_gmt":"2012-02-06T02:40:39","slug":"tpp-tppa-trans-pacific-strategic-economic-partnership-agreement-intellectual-property-chapter","status":"publish","type":"page","link":"https:\/\/www.hephaestusproject.com\/blog\/contentindustry\/billsandtradeagreements\/tpp-tppa-trans-pacific-strategic-economic-partnership-agreement-intellectual-property-chapter\/","title":{"rendered":"TPP – TPPA – Trans-Pacific Strategic Economic Partnership Agreement- Intellectual Property Chapter"},"content":{"rendered":"

TPP \u00a0–\u00a0Trans-Pacific Strategic Economic Partnership
\n<\/strong>also known as
\nTPPA –\u00a0Trans-Pacific Partnership Agreement<\/strong><\/p>\n

Intellectual Property Chapter<\/p>\n

This Document Contains TPP CONFIDENTIAL Information<\/p>\n

MODIFIED HANDLING AUTHORIZED*
\nCOVER PAGE
\nTRANS-PACIFIC PARTNERSHIP
\nINTELLECTUAL PROPERTY RIGHTS CHAPTER
\nDRAFT \u2013 FEBRUARY 10, 2011
\nDerived From: Classification Guidance
\ndated March 4, 2010
\nReason: 1.4(b)
\nDeclassify on: Four years from entry into
\nforce of the TPP agreement
\nor, if no agreement enters
\ninto force, four years from
\nthe close of the negotiations.
\n* This document must be protected from
\nunauthorized disclosure, but may be mailed
\nor transmitted over unclassified e-mail or
\nfax, discussed over unsecured phone lines,
\nand stored on unclassified computer
\nsystems. It must be stored in a locked or
\nsecured building, room, or container.<\/p>\n

This Document Contains TPP CONFIDENTIAL Information
\nMODIFIED HANDLING AUTHORIZED*
\nCHAPTER [ ]
\nINTELLECTUAL PROPERTY RIGHTS
\nARTICLE 1: GENERAL PROVISIONS<\/p>\n

1. Each Party shall, at a minimum, give effect to this Chapter.
\nInternational Agreements<\/p>\n

2. Further to Article 1, the Parties affirm their existing rights and obligations with
\nrespect to each other under the TRIPS Agreement.<\/p>\n

3. Each Party shall ratify or accede to the following agreements by the date of entry into
\nforce of this Agreement:<\/p>\n

(a) Patent Cooperation Treaty (1970), as amended in 1979;
\n(b) Paris Convention for the Protection of Industrial Property (1967);
\n(c) Berne Convention for the Protection of Literary and Artistic Works (1971);
\n(d) Convention Relating to the Distribution of Programme-Carrying Signals
\nTransmitted by Satellite (1974);
\n(e) Protocol Relating to the Madrid Agreement Concerning the International
\nRegistration of Marks (1989);
\n(f) Budapest Treaty on the International Recognition of the Deposit of
\nMicroorganisms for the Purposes of Patent Procedure (1977), as amended in
\n1980;
\n(g) International Convention for the Protection of New Varieties of Plants (1991)
\n(UPOV Convention);
\n(h) Singapore Treaty on the Law of Trademarks (2006);
\n(i) WIPO Copyright Treaty (1996); and
\n(j) WIPO Performances and Phonograms Treaty (1996).<\/p>\n

4. Each Party shall notify the WTO of its acceptance of the Protocol amending the TRIPS
\nAgreement done at Geneva on December 6, 2005.<\/p>\n

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5. Each Party shall make all reasonable efforts ratify or accede to the following
\nagreements by the date of entry into force of the Agreement:<\/p>\n

(a) Patent Law Treaty (2000); and
\n(b) Hague Agreement Concerning the International Registration of Industrial
\nDesigns (1999).<\/p>\n

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\nMore Extensive Protection and Enforcement<\/p>\n

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6. A Party may provide more extensive protection for, and enforcement of, intellectual
\nproperty rights under its law than this Chapter requires, provided that the more
\nextensive protection does not contravene this Chapter.
\nNational Treatment<\/p>\n

7. In respect of all categories of intellectual property covered in this Chapter, each Party
\nshall accord to nationals1 of the other Parties treatment no less favorable than it
\naccords to its own nationals with regard to the protection2 and enjoyment of such
\nintellectual property rights and any benefits derived from such rights.<\/p>\n

8. A Party may derogate from paragraph [7] in relation to its judicial and
\nadministrative procedures, including requiring a national of the other Party to
\ndesignate an address for service of process in its territory, or to appoint an agent in its
\nterritory, provided that such derogation is:<\/p>\n

(a) necessary to secure compliance with laws and regulations that are not
\ninconsistent with this Chapter; and
\n(b) not applied in a manner that would constitute a disguised restriction on
\ntrade.9. Paragraph [7] does not apply to procedures provided in multilateral agreements to\u00a0which any Party is a party and which were concluded under the auspices of the World\u00a0Intellectual Property Organization (WIPO) in relation to the acquisition or\u00a0maintenance of intellectual property rights.<\/p>\n

Application of Agreement to Existing Subject Matter and Prior Acts<\/p>\n

1 [For purposes of Articles [___(NT & Judicial\/Admin Procedures)___(GIs\/Nationals), and ___(Performers\/Phonograms\/Related Rights,] a national of a Party shall also mean, in respect of\u00a0the relevant right, an entity of that Party that would meet the criteria for eligibility for protection\u00a0provided for in the agreements listed in [Article 1.3] and the TRIPS Agreement.]<\/p>\n

2 [For purposes of this paragraph, \u201cprotection\u201d includes matters affecting the availability, acquisition, scope,\u00a0maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual\u00a0property rights specifically covered by this Chapter. Further, for purposes of this paragraph, \u201cprotection\u201d also\u00a0includes the prohibition on circumvention of effective technological measures set out in Article __.__ and the rights
\nand obligations concerning rights management information set out in Article __.__]<\/p>\n

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10. Except as it otherwise provides, including in Article __ (Berne 18\/TRIPS 14.6), this
\nChapter gives rise to obligations in respect of all subject matter existing at the date of
\nentry into force of this Agreement that is protected on that date in the territory of the
\nParty where protection is claimed, or that meets or comes subsequently to meet the
\ncriteria for protection under this Chapter.<\/p>\n

11. Except as otherwise provided in this Chapter, including Article ___ (Berne 18\/TRIPS
\n14.6), a Party shall not be required to restore protection to subject matter that on the
\ndate of entry into force of this Agreement has fallen into the public domain in its
\nterritory.<\/p>\n

12. This Chapter does not give rise to obligations in respect of acts that occurred before
\nthe date of entry into force of this Agreement.
\nTransparency<\/p>\n

13. Further to Article ___ (Publication), and with the object of making the protection and
\nenforcement of intellectual property rights transparent, each Party shall ensure that
\nall laws, regulations, and publicly available procedures concerning the protection or
\nenforcement of intellectual property rights are in writing and are published,3 or
\nwhere publication is not practicable, made publicly available, in a national language
\nin such a manner as to enable governments and right holders to become acquainted
\nwith them.<\/p>\n

ARTICLE 2: TRADEMARKS, INCLUDING GEOGRAPHICAL INDICATIONS
\nTrademarks<\/p>\n

1. No Party may require, as a condition of registration, that a sign be visually perceptible,
\nnor may a Party deny registration of a trademark solely on the grounds that the sign of which it is\u00a0composed is a sound or a scent.<\/p>\n

2. Each Party shall provide that trademarks shall include certification marks. Each Party
\nshall also provide that geographical indications are eligible for protection as trademarks.4<\/p>\n

3 A Party may satisfy requirement for publication by making the law, regulation, or procedure\u00a0available to the public on the Internet.<\/p>\n

4 For purposes of this Chapter, geographical indications means indications that identify a good\u00a0as originating in the territory of a Party, or a region or locality in that territory, where a given\u00a0quality, reputation, or other characteristic of the good is essentially attributable to its\u00a0geographical origin. Any sign or combination of signs (such as words, including geographical\u00a0and personal names, as well as letters, numerals, figurative elements, and colors, including single\u00a0colors), in any form whatsoever, shall be eligible to be a geographical indication. The term\u00a0\u201coriginating\u201d in this chapter does not have the meaning ascribed to that term in Article __._\u00a0(Definitions).<\/p>\n

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3. Each Party shall ensure that its measures mandating the use of the term customary in
\ncommon language as the common name for a good or service (\u201ccommon name\u201d) including, interalia, requirements concerning the relative size, placement or style of use of the trademark in\u00a0relation to the common name, do not impair the use or effectiveness of trademarks used in\u00a0relation to such good or service.<\/p>\n

4. Each Party shall provide that the owner of a registered trademark shall have the exclusive\u00a0right to prevent all third parties not having the owner\u2019s consent from using in the course of trade\u00a0identical or similar signs, including geographical indications, for goods or services that are\u00a0related to those goods or services in respect of which the owner’s trademark is registered, where\u00a0such use would result in a likelihood of confusion. In the case of the use of an identical sign,\u00a0including a geographical indication, for identical goods or services, a likelihood of confusion\u00a0shall be presumed.<\/p>\n

5. Each Party may provide limited exceptions to the rights conferred by a trademark, such as\u00a0fair use of descriptive terms, provided that such exceptions take account of the legitimate interest\u00a0of the owner of the trademark and of third parties.<\/p>\n

6. No Party may require as a condition for determining that a mark is a well-known mark
\nthat the mark has been registered in the Party or in another jurisdiction. Additionally, no Party\u00a0may deny remedies or relief with respect to well-known marks based solely on the lack of:<\/p>\n

(a) a registration;
\n(b) inclusion on a list of well-known marks; or
\n(c) prior recognition of the mark as well-known.<\/p>\n

7. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall
\napply, mutatis mutandis, to goods or services that are not identical or similar to those identified\u00a0by a well-known trademark,5 whether registered or not, provided that use of that trademark in\u00a0relation to those goods or services would indicate a connection between those goods or services\u00a0and the owner of the trademark, and provided that the interests of the owner of the trademark are\u00a0likely to be damaged by such use.<\/p>\n

8. Each Party shall provide for appropriate measures to refuse or cancel the registration and\u00a0prohibit the use of a trademark or geographical indication that is identical or similar to a well known\u00a0trademark, for related goods or services, if the use of that trademark or geographical\u00a0indication is likely to cause confusion, or to cause mistake, or to deceive or risk associating the\u00a0trademark or geographical indication with the owner of the well-known trademark, or constitutes\u00a0unfair exploitation of the reputation of the well-known trademark.<\/p>\n

5<\/p>\n

For purposes of determining whether a mark is well-known, no Party shall require that the\u00a0reputation of the trademark extend beyond the sector of the public that normally deals with the\u00a0relevant goods or services.<\/p>\n

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9. Each Party shall provide a system for the registration of trademarks, which shall include:<\/p>\n

(a) a requirement to provide to the applicant a communication in writing, which may
\nbe provided electronically, of the reasons for a refusal to register a trademark;
\n(b) an opportunity for the applicant to respond to communications from the
\ncompetent authorities, to contest an initial refusal, and to appeal judicially a final
\nrefusal to register;
\n(c) an opportunity for interested parties to oppose a trademark application and to seek
\ncancellation of a trademark registration after it has been granted; and
\n(d) a requirement that decisions in opposition and cancellation proceedings be
\nreasoned and in writing. Written decisions may be provided electronically.<\/p>\n

10. Each Party shall provide a:<\/p>\n

(a) system for the electronic application for, and electronic processing, registering,
\nand maintenance of, trademarks; and
\n(b) publicly available electronic database, including an online database, of trademark
\napplications and registrations.<\/p>\n

11. Each Party shall provide that:<\/p>\n

(a) each registration and publication that concerns a trademark application or registration that\u00a0indicates goods or services shall indicate the goods or services by their names, grouped\u00a0according to the classes of the classification established by the Nice Agreement
\nConcerning the International Classification of Goods and Services for the Purposes of
\nthe Registration of Marks (1979), as revised and amended (Nice Classification); and
\n(b) goods or services may not be considered as being similar to each other solely on
\nthe ground that, in any registration or publication, they are classified in the same
\nclass of the Nice Classification. Conversely, each Party shall provide that goods
\nor services may not be considered as being dissimilar from each other solely on
\nthe ground that, in any registration or publication, they are classified in different
\nclasses of the Nice Classification.<\/p>\n

12. Each Party shall provide that initial registration and each renewal of registration of a
\ntrademark shall be for a term of no less than ten years.<\/p>\n

13. No Party may require recordation of trademark licenses to establish the validity of the
\nlicense, to assert any rights in a trademark, or for other purposes.<\/p>\n

Geographical Indications<\/p>\n

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14. If a Party provides the means to apply for protection or petition for recognition of
\ngeographical indications, through a system of protection of trademarks or otherwise, it shall, withrespect to those applications or petitions, as relevant:<\/p>\n

(a) accept those applications and petitions without requiring intercession by a Party
\non behalf of its nationals;
\n(b) process those applications or petitions with a minimum of formalities;
\n(c) ensure that its regulations governing filing of those applications or petitions are
\nreadily available to the public and clearly set out the procedures for these actions;
\n(d) make available contact information sufficient to allow the general public to obtain
\nguidance concerning the procedures for filing applications or petitions and the
\nprocessing of those applications or petitions in general; and allow applicants,
\npetitioners, or their representatives to ascertain the status of, and to obtain
\nprocedural guidance concerning, specific applications and petitions; and
\n(e) ensure that applications or petitions for geographical indications are published for
\nopposition and provide procedures for opposing geographical indications that are
\nthe subject of applications or petitions.
\n(f) each Party shall also provide procedures to cancel a registration resulting from an
\napplication or a petition.15. (a) Each Party shall provide that the grounds for refusing protection or recognition of\u00a0a geographical indication and for allowing opposition to, and cancellation of, a\u00a0geographical indication shall include the following:<\/p>\n

(i) the geographical indication is likely to cause confusion with a trademarkor geographical indication that is the subject of a good faith pending application or registration in the territory of such Party and that has a priority date that predates the protection or recognition of the later geographical indication in such territory;
\n(ii) the geographical indication is likely to cause confusion with a trademarkor geographical indication, the rights to which have been acquired in the\u00a0territory of the Party through use in good faith, that has a priority date thatpredates the protection or recognition of the later geographical indicationin such territory;
\n(iii) the geographical indication is likely to cause confusion with a trademark\u00a0or geographical indication that has become well known in the territory of\u00a0the Party and that has a priority date that predates the protection or\u00a0recognition of the later geographical indication in such territory; and<\/p>\n

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(iv) the geographical indication is a generic term for the goods or services
\nassociated with the geographical indication in the Party\u2019s territory;
\n(b) For purposes of this section, the date of protection of the geographical indication
\nin a territory of a Party shall be:<\/p>\n

(i) in the case of protection or recognition provided as a result of an
\napplication or petition, the date of such application or petition was filed;
\nand
\n(ii) in the case of protection or recognition provided through other means, the
\ndate of protection or recognition specified under the Party\u2019s laws.<\/p>\n

16. If a Party elects to register or otherwise designate any sign as a geographical indication
\nby means other than an ordinary application for protection under the Party\u2019s domestic
\nprocedures, whether pursuant to an agreement with a government or a governmental entity or
\notherwise, that Party must:<\/p>\n

(a) provide, within its territory, an opportunity for interested parties to oppose
\nsuch designations or registrations, and to seek cancellations of such
\ndesignations or registrations;
\n(b) require that decisions in such oppositions and cancellations are reasoned and in
\nwriting; and
\n(c) provide that the grounds for such oppositions and cancellations include those set
\nforth in paragraph [15].<\/p>\n

17. No Party shall, whether pursuant to an agreement with a government or a governmental
\nentity or otherwise:<\/p>\n

(a) in the case of geographical indications for goods other than wines or spirits,
\nprohibit third parties from using translated versions of the geographical
\nindication;6
\n(b) prohibit third parties from using a term that is evoked by the geographical
\nindication; or
\n(c) prohibit third party uses of any component of a multi-component geographical
\nindication protected by virtue of the agreement, even if (i) such components are
\n6 For greater certainty, nothing in this Agreement shall prohibit a Party from barring third
\nparties from using translations of geographical indications if: (1) such uses give rise to a
\nlikelihood of confusion, and (2) the geographical indications became protected through means\u00a0other than an agreement between a Party and a government or governmental entity.<\/p>\n

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generic, or (ii) third- party use of such components would not give rise to a
\nlikelihood of confusion.<\/p>\n

18. For purposes of this Agreement, a term is generic if it is the term customary in common
\nlanguage as the common name for the goods or services associated with the trademark or
\ngeographical indication.7<\/p>\n

19. In connection with proceedings referred to in paragraphs [15 and 16], a Party\u2019s authorities
\nshall take into account the following factors:<\/p>\n

(a) whether the term is used to refer to the type of product in question in
\ndictionaries, newspapers, relevant websites, publicly-available research
\ndatabases, or any other competent sources, including but not limited to, the
\nHarmonized Commodity Description and Coding System;
\n(b) whether a standard promulgated by the Codex Alimentarius uses the term to
\nrefer to the type of product in question;
\n(c) whether persons other than the person who claims rights in the term use the
\nterm as the name for the type of product in question;
\n(d) whether the product in question is imported into the Party\u2019s territory, in
\nsignificant quantities, from outside the proposed protected region, and whether
\nthose imported products are named by the term; and
\n(e) whether the product associated with the term is manufactured or traded in
\nsignificant quantities outside the proposed protected region.<\/p>\n

20. [Placeholder for possible provision that may identify examples of particular outcomes
\nthat would result from the application of the factors enumerated in paragraph 19.]<\/p>\n

21. Where a determination is made that a multi-component term is protected as a
\ngeographical indication, each Party shall provide the possibility that particular components of the\u00a0compound term may, be considered generic, based upon the factors set forth in paragraph [19].<\/p>\n

22. Each Party shall permit the use, and as appropriate, shall provide for the registration, of\u00a0signs or indications that identify services or products other than wines or spirits, and that\u00a0reference a geographical area that is not the true place of origin of the services or of the product,provided that:<\/p>\n

(a) the sign or indication is used in a manner that does not mislead the public as to the
\ngeographical origin of the goods or services;\u00a07 No Party shall preclude the possibility that a term that it recognized as a trademark or geographical indication\u00a0may not, at a time following that designation, become a generic designation for the associated goods or services.
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(b) use of the sign or indication does not constitute an act of unfair competition
\nwithin the meaning of Article 10bis of the Paris Convention (1967);
\n(c) use of the sign or indication would not cause a likelihood of confusion with
\nrespect to an earlier-in-time similar or identical trademark or geographical
\nindication that is used for identical or similar goods or services; and
\n(d) where a request for registration is concerned, the sign or indication is not a
\ngeneric term for the associated goods or services.<\/p>\n

ARTICLE 3: DOMAIN NAMES ON THE INTERNET<\/p>\n

1. In order to address the problem of trademark cyber-piracy, each Party shall require that\u00a0the management of its country-code top-level domain (ccTLD) provide an appropriate procedure\u00a0for the settlement of disputes, based on the principles established in the Uniform Domain-Name\u00a0Dispute-Resolution Policy.
\n2. Each Party shall require that the management of its ccTLD provide online public access
\nto a reliable and accurate database of contact information concerning domain-name registrants.<\/p>\n

ARTICLE 4: COPYRIGHT AND RELATED RIGHTS<\/p>\n

1. Each Party shall provide that authors, performers, and producers of phonograms8 have the\u00a0right9 to authorize or prohibit all reproductions of their works, performances, and phonograms,10\u00a0in any manner or form, permanent or temporary (including temporary storage in electronic\u00a0form).
\n2. Each Party shall provide to authors, performers, and producers of phonograms the right to\u00a0authorize or prohibit the importation into that Party\u2019s territory of copies of the work,
\nperformance, or phonogram made without authorization, or made outside that Party\u2019s territory\u00a0with the authorization of the author, performer, or producer of the phonogram.11<\/p>\n

8 References to \u201cauthors, performers, and producers of phonograms\u201d refer also to any
\nsuccessors in interest.<\/p>\n

9 With respect to copyrights and related rights in this Chapter, the \u201cright to authorize or\u00a0prohibit\u201d and the \u201cright to authorize\u201d refer to exclusive rights.<\/p>\n

10 With respect to copyright and related rights in this Chapter, a \u201cperformance\u201d means a
\nperformance fixed in a phonogram unless otherwise specified.<\/p>\n

11 With respect to copies of works and phonograms that have been placed on the market by the relevant right\u00a0holder, the obligations described in Article [4.2] apply only to books, journals, sheet music, sound recordings,\u00a0computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted\u00a0material represents substantially all of the value of the product). Notwithstanding the foregoing, each Party may<\/p>\n

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3. Each Party shall provide to authors, performers, and producers of phonograms the right to\u00a0authorize or prohibit the making available to the public of the original and copies of their works,\u00a0performances, and phonograms through sale or other transfer of ownership.<\/p>\n

4. In order to ensure that no hierarchy is established between rights of authors, on the one
\nhand, and rights of performers and producers of phonograms, on the other hand, each Party shall\u00a0provide that in cases where authorization is needed from both the author of a work embodied in a \u00a0phonogram and a performer or producer owning rights in the phonogram, the need for the\u00a0authorization of the author does not cease to exist because the authorization of the performer or\u00a0producer is also required. Likewise, each Party shall provide that in cases where authorization is\u00a0needed from both the author of a work embodied in a phonogram and a performer or producer\u00a0owning rights in the phonogram, the need for the authorization of the performer or producer does\u00a0not cease to exist because the authorization of the author is also required.<\/p>\n

5. Each Party shall provide that, where the term of protection of a work (including a
\nphotographic work), performance, or phonogram is to be calculated:<\/p>\n

(a) on the basis of the life of a natural person, the term shall be not less than the life
\nof the author and 70 years after the author\u2019s death; and
\n(b) on a basis other than the life of a natural person, the term shall be:<\/p>\n

(i) not less than 95 years from the end of the calendar year of the first
\nauthorized publication of the work, performance, or phonogram, or
\n(ii) failing such authorized publication within 25 years from the creation of
\nthe work, performance, or phonogram, not less than 120 years from the
\nend of the calendar year of the creation of the work, performance, or
\nphonogram.<\/p>\n

6. Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary
\nand Artistic Works (1971) (Berne Convention) and Article 14.6 of the TRIPS Agreement, mutatis\u00a0mutandis, to the subject matter, rights, and obligations in this Article and Articles [5] and [6].<\/p>\n

7. Each Party shall provide that for copyright and related rights, any person acquiring or\u00a0holding any economic right in a work, performance, or phonogram:<\/p>\n

(a) may freely and separately transfer that right by contract; and
\n(b) by virtue of a contract, including contracts of employment underlying the creation
\nof works, performances, and phonograms, shall be able to exercise that right in
\nthat person\u2019s own name and enjoy fully the benefits derived from that right.
\nprovide the protection described in Article [4.2] to a broader range of goods.<\/p>\n

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8. [Placeholders for provision on (1) exceptions and limitations, (2) Internet
\nretransmission, and (3) any other appropriate copyright\/related rights provisions]
\nTechnological Protection Measures<\/p>\n

9. (a) In order to provide adequate legal protection and effective legal remedies against the
\ncircumvention of effective technological measures that authors, performers, and
\nproducers of phonograms use in connection with the exercise of their rights and that
\nrestrict unauthorized acts in respect of their works, performances, and phonograms, each
\nParty shall provide that any person who:<\/p>\n

(i) circumvents without authority any effective technological measure that
\ncontrols access to a protected work, performance, phonogram, or other
\nsubject matter; or\u00a0(ii) manufactures, imports, distributes, offers to the public, provides, or
\notherwise traffics in devices, products, or components, or offers to the
\npublic or provides services, that:\u00a0(A) are promoted, advertised, or marketed by that person, or by another\u00a0person acting in concert with that person and with that person\u2019s
\nknowledge, for the purpose of circumvention of any effective\u00a0technological measure,\u00a0(B) have only a limited commercially significant purpose or use other\u00a0than to circumvent any effective technological measure, or\u00a0(C) are primarily designed, produced, or performed for the purpose of\u00a0enabling or facilitating the circumvention of any effective\u00a0technological measure,\u00a0shall be liable and subject to the remedies set out in Article [12.12]. Each Party\u00a0shall provide for criminal procedures and penalties to be applied when any
\nperson, other than a nonprofit library, archive, educational institution, or public
\nnoncommercial broadcasting entity, is found to have engaged willfully and for
\npurposes of commercial advantage or private financial gain in any of the
\nforegoing activities. Such criminal procedures and penalties shall include the
\napplication to such activities of the remedies and authorities listed in
\nsubparagraphs (a), (b), and (f) of Article [15.5] as applicable to infringements,
\nmutatis mutandis. 12<\/p>\n

(b) In implementing subparagraph (a), no Party shall be obligated to require that the
\ndesign of, or the design and selection of parts and components for, a consumer
\n12 For purposes of greater certainty, no Party is required to impose liability under Articles 9 and\u00a010 for actions taken by a Party or a third party acting with the authorization or consent of a Party.
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\nMODIFIED HANDLING AUTHORIZED*<\/p>\n

electronics, telecommunications, or computing product provide for a response to
\nany particular technological measure, so long as the product does not otherwise
\nviolate any measures implementing subparagraph (a).<\/p>\n

(c) Each Party shall provide that a violation of a measure implementing this
\nparagraph is a separate cause of action, independent of any infringement that
\nmight occur under the Party\u2019s law on copyright and related rights.<\/p>\n

(d) Each Party shall confine exceptions and limitations to measures implementing
\nsubparagraph (a) to the following activities, which shall be applied to relevant
\nmeasures in accordance with subparagraph (e):<\/p>\n

(i) noninfringing reverse engineering activities with regard to a lawfully
\nobtained copy of a computer program, carried out in good faith with
\nrespect to particular elements of that computer program that have not been
\nreadily available to the person engaged in those activities, for the sole
\npurpose of achieving interoperability of an independently created
\ncomputer program with other programs;
\n(ii) noninfringing good faith activities, carried out by an appropriately
\nqualified researcher who has lawfully obtained a copy, unfixed
\nperformance, or display of a work, performance, or phonogram and who
\nhas made a good faith effort to obtain authorization for such activities, to
\nthe extent necessary for the sole purpose of research consisting of
\nidentifying and analyzing flaws and vulnerabilities of technologies for
\nscrambling and descrambling of information;
\n(iii) the inclusion of a component or part for the sole purpose of preventing the
\naccess of minors to inappropriate online content in a technology, product,
\nservice, or device that itself is not prohibited under the measures
\nimplementing subparagraph (a)(ii);
\n(iv) noninfringing good faith activities that are authorized by the owner of a
\ncomputer, computer system, or computer network for the sole purpose of
\ntesting, investigating, or correcting the security of that computer, computer
\nsystem, or computer network;
\n(v) noninfringing activities for the sole purpose of identifying and disabling a
\ncapability to carry out undisclosed collection or dissemination of
\npersonally identifying information reflecting the online activities of a
\nnatural person in a way that has no other effect on the ability of any person
\nto gain access to any work;
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(vi) lawfully authorized activities carried out by government employees,
\nagents, or contractors for the purpose of law enforcement, intelligence,
\nessential security, or similar governmental purposes;
\n(vii) access by a nonprofit library, archive, or educational institution to a work,
\nperformance, or phonogram not otherwise available to it, for the sole
\npurpose of making acquisition decisions; and
\n(viii) noninfringing uses of a work, performance, or phonogram in a particular
\nclass of works, performances, or phonograms when an actual or likely
\nadverse impact on those noninfringing uses is demonstrated in a legislative
\nor administrative proceeding by substantial evidence; provided that any
\nlimitation or exception adopted in reliance upon this clause shall have
\neffect for a renewable period of not more than three years from the date of
\nconclusion of such proceeding.<\/p>\n

(e) The exceptions and limitations to measures implementing subparagraph (a) for the
\nactivities set forth in subparagraph [4.9(d)] may only be applied as follows, and
\nonly to the extent that they do not impair the adequacy of legal protection or the
\neffectiveness of legal remedies against the circumvention of effective
\ntechnological measures:<\/p>\n

(i) Measures implementing subparagraph (a)(i) may be subject to exceptions
\nand limitations with respect to each activity set forth in subparagraph (d).
\n(ii) Measures implementing subparagraph (a)(ii), as they apply to effective
\ntechnological measures that control access to a work, performance, or
\nphonogram, may be subject to exceptions and limitations with respect to
\nactivities set forth in subparagraph (d)(i), (ii), (iii), (iv), and (vi).
\n(iii) Measures implementing subparagraph (a)(ii), as they apply to effective
\ntechnological measures that protect any copyright or any rights related to
\ncopyright, may be subject to exceptions and limitations with respect to
\nactivities set forth in subparagraph (d)(i) and (vi).<\/p>\n

(f) Effective technological measure means any technology, device, or component
\nthat, in the normal course of its operation, controls access to a protected work,
\nperformance, phonogram, or other protected subject matter, or protects any
\ncopyright or any rights related to copyright.<\/p>\n

Rights Management Information
\n10. In order to provide adequate and effective legal remedies to protect rights management\u00a0information:<\/p>\n

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(a) each Party shall provide that any person who without authority, and knowing, or,
\nwith respect to civil remedies, having reasonable grounds to know, that it would
\ninduce, enable, facilitate, or conceal an infringement of any copyright or related
\nright,<\/p>\n

(i) knowingly removes or alters any rights management information;
\n(ii) distributes or imports for distribution rights management information
\nknowing that the rights management information has been removed or
\naltered without authority; or
\n(iii) distributes, imports for distribution, broadcasts, communicates or makes
\navailable to the public copies of works, performances, or phonograms,
\nknowing that rights management information has been removed or altered
\nwithout authority,\u00a0shall be liable and subject to the remedies set out in Article [12.12 Each Party\u00a0shall provide for criminal procedures and penalties to be applied when any
\nperson, other than a nonprofit library, archive, educational institution, or public
\nnoncommercial broadcasting entity, is found to have engaged willfully and for
\npurposes of commercial advantage or private financial gain in any of the
\nforegoing activities. Such criminal procedures and penalties shall include the
\napplication to such activities of the remedies and authorities listed in
\nsubparagraphs (a), (b) and (f) of Article [15.5] as applicable to infringements,
\nmutatis mutandis.<\/p>\n

(b) each Party shall confine exceptions and limitations to measures implementing
\nsubparagraph (a) to lawfully authorized activities carried out by government
\nemployees, agents, or contractors for the purpose of law enforcement,
\nintelligence, essential security, or similar governmental purposes.<\/p>\n

(c) Rights management information means:<\/p>\n

(i) information that identifies a work, performance, or phonogram; the author
\nof the work, the performer of the performance, or the producer of the
\nphonogram; or the owner of any right in the work, performance, or
\nphonogram;
\n(ii) information about the terms and conditions of the use of the work,
\nperformance, or phonogram; or
\n(iii) any numbers or codes that represent such information,
\nwhen any of these items is attached to a copy of the work, performance, or
\nphonogram or appears in connection with the communication or making available
\nof a work, performance or phonogram, to the public.<\/p>\n

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(d) For greater certainty, nothing in this paragraph shall obligate a Party to require the
\nowner of any right in the work, performance, or phonogram to attach rights
\nmanagement information to copies of the work, performance, or phonogram, or to
\ncause rights management information to appear in connection with a
\ncommunication of the work, performance, or phonogram to the public.
\nARTICLE 5: COPYRIGHT<\/p>\n

Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and
\n14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive
\nright to authorize or prohibit the communication to the public of their works, by wire
\nor wireless means, including the making available to the public of their works in such
\na way that members of the public may access these works from a place and at a time
\nindividually chosen by them.<\/p>\n

ARTICLE 6: RELATED RIGHTS<\/p>\n

1. Each Party shall accord the rights provided for in this Chapter with respect to performers\u00a0and producers of phonograms to the performers and producers of phonograms who are nationals\u00a0of another Party and to performances or phonograms first published or first fixed in the territory\u00a0of another Party. A performance or phonogram shall be considered first published in the territory\u00a0of a Party in which it is published within 30 days of its original publication.13<\/p>\n

2. Each Party shall provide to performers the right to authorize or prohibit:<\/p>\n

(a) broadcasting and communication to the public of their unfixed performances,
\nexcept where the performance is already a broadcast performance; and
\n(b) fixation of their unfixed performances.<\/p>\n

3. (a) Each Party shall provide to performers and producers of phonograms the right to
\nauthorize or prohibit the broadcasting and any communication to the public of
\ntheir performances or phonograms, by wire or wireless means, including the
\nmaking available to the public of those performances and phonograms in such a
\nway that members of the public may access them from a place and at a time
\nindividually chosen by them.
\n(b) Notwithstanding subparagraph (a) and Article [4.8][exceptions and limitations],
\nthe application of this right to analog transmissions and non-interactive, free overthe-
\nair broadcasts, and exceptions or limitations to this right for such activity,
\nshall be a matter of each Party\u2019s law.<\/p>\n

13 For purposes of this Article, fixation includes the finalization of the master tape or its
\nequivalent.
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(c) Each Party may adopt limitations to this right in respect of other noninteractive
\ntransmissions in accordance with Article [4.8] [exceptions and limitations],
\nprovided that the limitations do not prejudice the right of the performer or
\nproducer of phonograms to obtain equitable remuneration.<\/p>\n

4. No Party may subject the enjoyment and exercise of the rights of performers and
\nproducers of phonograms provided for in this Chapter to any formality.<\/p>\n

5. For purposes of this Article and Article 4, the following definitions apply with respect to
\nperformers and producers of phonograms:<\/p>\n

(a) broadcasting means the transmission to the public by wireless means or satellite
\nof sounds or sounds and images, or representations thereof, including wireless
\ntransmission of encrypted signals where the means for decrypting are provided to
\nthe public by the broadcasting organization or with its consent; \u201cbroadcasting\u201d
\ndoes not include transmissions over computer networks or any transmissions
\nwhere the time and place of reception may be individually chosen by members of
\nthe public;
\n(b) communication to the public of a performance or a phonogram means the
\ntransmission to the public by any medium, other than by broadcasting, of sounds
\nof a performance or the sounds or the representations of sounds fixed in a
\nphonogram. For purposes of paragraph [3], \u201ccommunication to the public\u201d
\nincludes making the sounds or representations of sounds fixed in a phonogram
\naudible to the public;
\n(c) fixation means the embodiment of sounds, or of the representations thereof, from
\nwhich they can be perceived, reproduced, or communicated through a device;
\n(d) performers means actors, singers, musicians, dancers, and other persons who act,
\nsing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic
\nworks or expressions of folklore;
\n(e) phonogram means the fixation of the sounds of a performance or of other sounds,
\nor of a representation of sounds, other than in the form of a fixation incorporated
\nin a cinematographic or other audiovisual work;
\n(f) producer of a phonogram means the person who, or the legal entity which, takes
\nthe initiative and has the responsibility for the first fixation of the sounds of a
\nperformance or other sounds, or the representations of sounds; and
\n(g) publication of a performance or a phonogram means the offering of copies of
\nthe performance or the phonogram to the public, with the consent of the
\nrightholder, and provided that copies are offered to the public in reasonable
\nquantity.<\/p>\n

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ARTICLE 7: PROTECTION OF ENCRYPTED PROGRAM-CARRYING SATELLITE AND CABLE SIGNALS<\/p>\n

1. Each Party shall make it a criminal offense to:<\/p>\n

(a) manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute
\na tangible or intangible device or system, knowing or having reason to know that
\nthe device or system is primarily of assistance in decoding an encrypted programcarrying
\nsatellite or cable signal without the authorization of the lawful distributor
\nof such signal; and
\n(b) willfully receive and make use of,14 or willfully further distribute a programcarrying
\nsignal that originated as an encrypted satellite or cable signal knowing
\nthat it has been decoded without the authorization of the lawful distributor of the
\nsignal, or if the signal has been decoded with the authorization of the lawful
\ndistributor of the signal, willfully to further distribute the signal for purposes of
\ncommercial advantage knowing that the signal originated as an encrypted
\nprogram-carrying signal and that such further distribution is without the
\nauthorization of the lawful signal distributor.<\/p>\n

2. Each Party shall provide for civil remedies, including compensatory damages, for any
\nperson injured by any activity described in paragraph [1], including any person that holds an\u00a0interest in the encrypted programming signal or its content.<\/p>\n

ARTICLE 8: PATENTS<\/p>\n

1. Each Party shall make patents available for any invention, whether a product or process,
\nin all fields of technology, provided that the invention is new, involves an inventive step, and is\u00a0capable of industrial application.15 In addition, the Parties confirm that: patents shall be available\u00a0for any new forms, uses, or methods of using a known product; and a new form, use, or method\u00a0of using a known product may satisfy the criteria for patentability, even if such invention does\u00a0not result in the enhancement of the known efficacy of that product.
\n2. Each Party shall make patents available for inventions for the following:<\/p>\n

(a) plants and animals, and
\n(b) diagnostic, therapeutic, and surgical methods for the treatment of humans or
\nanimals.<\/p>\n

14 For greater certainty, \u201cmake use of\u201d includes viewing of the signal, whether private or
\ncommercial.<\/p>\n

15 For the purposes of this Article, a Party may treat the terms \u201cinventive step\u201d and \u201ccapable of\u00a0industrial application\u201d as being synonymous with the terms \u201cnon-obvious\u201d and \u201cuseful,\u201d\u00a0respectively. In determinations regarding inventive step (or non-obviousness), each Party shall\u00a0consider whether the claimed invention would have been obvious to a skilled artisan (or a person\u00a0having ordinary skill in the art) at the priority date of the claimed invention.
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3. Each Party may only exclude from patentability inventions, the prevention within its
\nterritory of the commercial exploitation of which is necessary to protect ordre public or morality,\u00a0including to protect human, animal, or plant life or health or to avoid serious prejudice to the\u00a0environment, provided that such exclusion is not made merely because the exploitation is\u00a0prohibited by law.<\/p>\n

4. Each Party may provide limited exceptions to the exclusive rights conferred by a patent,
\nprovided that such exceptions do not unreasonably conflict with a normal exploitation of the\u00a0patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking\u00a0account of the legitimate interests of third parties.<\/p>\n

5. [Placeholder for \u201cBolar\u201d provision]<\/p>\n

6. [Placeholder for provisions concerning patent term restoration\/adjustment]<\/p>\n

7. Each Party shall provide that a patent may be revoked only on grounds that would have
\njustified a refusal to grant the patent. A Party may also provide that fraud, misrepresentation or\u00a0inequitable conduct may be the basis for revoking a patent or holding a patent unenforceable.\u00a0Where a Party provides proceedings that permit a third party to oppose the grant of a patent, a\u00a0Party shall not make such proceedings available before the grant of the patent.<\/p>\n

8. Each Party shall disregard information contained in public disclosures used to determine
\nif an invention is novel or has an inventive step if the public disclosure:<\/p>\n

(a) was made or authorized by, or derived from, the patent applicant; and
\n(b) occurred within 12 months prior to the date of filing of the application in the
\nterritory of the Party.<\/p>\n

9. Each Party shall provide patent applicants with at least one opportunity to make
\namendments, corrections, and observations in connection with their applications. Each Party\u00a0shall permit applicants to make amendments to their patent claims prior to receipt of a first patent\u00a0office action or communication on the merits.<\/p>\n

10. Each Party shall provide that a disclosure of a claimed invention shall be considered to be\u00a0sufficiently clear and complete if it provides information that allows the invention to be made\u00a0and used by a person skilled in the art, without undue experimentation, as of the filing date.<\/p>\n

11. Each Party shall provide that a claimed invention is sufficiently supported by its
\ndisclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant\u00a0was in possession of the claimed invention as of the filing date.<\/p>\n

12. Each Party shall provide that a claimed invention is industrially applicable if it has a
\nspecific, substantial, and credible utility.<\/p>\n

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13. For published patent applications and issued patents, each Party shall make available to\u00a0the public the following information connected to the patent prosecution of such patent
\napplications and patents:<\/p>\n

(a) search and examination results, including any relevant prior art search histories;
\n(b) communications from applicants; and
\n(c) patent and non-patent related literature citations submitted by applicants, other
\npatent offices, and relevant third parties.
\nARTICLE 9: MEASURES RELATED TO CERTAIN REGULATED PRODUCTS
\nAgricultural Chemical Products
\n1. (a) If a Party requires or permits, as a condition of granting marketing approval for a
\nnew agricultural chemical product, the submission of information
\nconcerning safety or efficacy of the product, the Party shall not, without the
\nconsent of a person that previously submitted such safety or efficacy
\ninformation to obtain marketing approval in the Party, authorize another to market
\na same or a similar product based on:<\/p>\n

(i) the safety or efficacy information submitted in support of the marketing
\napproval; or
\n(ii) evidence of the marketing approval,
\nfor at least ten years from the date of marketing approval in the territory of
\nthe Party.<\/p>\n

(b) If a Party requires or permits, in connection with granting marketing approval for
\na new agricultural chemical product, the submission of evidence concerning the
\nsafety or efficacy of a product that was previously approved in another territory,
\nsuch as evidence of prior marketing approval in the other territory, the Party shall
\nnot, without the consent of a person that previously submitted the safety or
\nefficacy information to obtain marketing approval in another territory, authorize
\nanother to market a same or a similar product based on:<\/p>\n

(i) the safety or efficacy information submitted in support of the prior
\nmarketing approval in the other territory; or
\n(ii) evidence of prior marketing approval in the other territory,
\nfor at least ten years from the date of marketing approval of the new product in
\nthe territory of the Party.<\/p>\n

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Pharmaceutical Products<\/p>\n

2. [Placeholder for provisions related to data protection for pharmaceutical products]<\/p>\n

3. [Placeholder for provisions related to patent linkage]<\/p>\n

General Provisions<\/p>\n

4. [Placeholder for provisions related to patent term\/data protection relationship]<\/p>\n

5. [Placeholder for definitions of \u201cnew pharmaceutical product\u201d and \u201cnew agricultural
\nproduct\u201d]<\/p>\n

ARTICLE 10: GENERAL OBLIGATIONS RELATING TO THE ENFORCEMENT OF INTELLECTUAL
\nPROPERTY RIGHTS<\/p>\n

1. The Parties understand that a decision that a Party makes on the distribution of
\nenforcement resources shall not excuse that Party from complying with this Chapter.<\/p>\n

2. In civil, administrative, and criminal proceedings involving copyright or related rights,
\neach Party shall provide for a presumption that, in the absence of proof to the contrary, the
\nperson whose name is indicated in the usual manner as the author, producer, performer, or
\npublisher of the work, performance, or phonogram is the designated right holder in such work,\u00a0performance, or phonogram. Each Party shall also provide for a presumption that, in the absence\u00a0of proof to the contrary, the copyright or related right subsists in such subject matter. In civil,\u00a0administrative, and criminal proceedings involving trademarks, each Party shall provide for a\u00a0rebuttable presumption that a registered trademark is valid. In civil and administrative\u00a0proceedings involving patents, each Party shall provide for a rebuttable presumption that a patent\u00a0is valid, and shall provide that each claim of a patent is presumed valid independently of the\u00a0validity of the other claims.<\/p>\n

ARTICLE 11: ENFORCEMENT PRACTICES WITH RESPECT TO INTELLECTUAL PROPERTY\u00a0RIGHTS<\/p>\n

1. Each Party shall provide that final judicial decisions and administrative rulings of general
\napplication pertaining to the enforcement of intellectual property rights shall be in writing and\u00a0shall state any relevant findings of fact and the reasoning or the legal basis on which the\u00a0decisions and rulings are based. Each Party shall also provide that such decisions and rulings\u00a0shall be published16 or, where publication is not practicable, otherwise made available to the\u00a0public, in its national language in such a manner as to enable governments and right holders to\u00a0become acquainted with them.<\/p>\n

16 A Party may satisfy the requirement for publication by making the decision or ruling
\navailable to the public on the Internet.<\/p>\n

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2. Each Party shall promote the collection and analysis of statistical data and other relevant
\ninformation concerning intellectual property rights infringements as well as the collection of
\ninformation on best practices to prevent and combat infringements.<\/p>\n

3. Each Party shall publicize information on its efforts to provide effective enforcement of
\nintellectual property rights in its civil, administrative and criminal systems, including statistical\u00a0information that the Party collects for such purposes.<\/p>\n

4. Nothing in this Chapter shall require a Party to disclose confidential information the
\ndisclosure of which would impede law enforcement or otherwise be contrary to the public
\ninterest or would prejudice the legitimate commercial interests of particular enterprises, public or\u00a0private.
\nARTICLE 12: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES<\/p>\n

1. Each Party shall make available to right holders17 civil judicial procedures concerning the\u00a0enforcement of any intellectual property right.<\/p>\n

2. Each Party shall provide for injunctive relief consistent with Article 44 of the TRIPS
\nAgreement, and shall also make injunctions available to prevent the exportation of infringing\u00a0goods.
\n3. Each Party shall provide that:<\/p>\n

(a) in civil judicial proceedings, its judicial authorities shall have the authority to
\norder the infringer to pay the right holder:<\/p>\n

(i) damages adequate to compensate for the injury the right holder has
\nsuffered as a result of the infringement,18 and
\n(ii) at least in the case of copyright or related rights infringement and
\ntrademark counterfeiting, the profits of the infringer that are attributable to
\nthe infringement and that are not taken into account in computing the
\namount of the damages referred to in clause (i).<\/p>\n

(b) in determining damages for infringement of intellectual property rights, its
\njudicial authorities shall consider, inter alia, the value of the infringed good or<\/p>\n

17 For the purposes of this Article, the term \u201cright holder\u201d shall include exclusive licensees as well as federations\u00a0and associations having the legal standing and authority to assert such rights; the term \u201cexclusive licensee\u201d shall\u00a0include the exclusive licensee of any one or more of the exclusive intellectual property rights encompassed in a
\ngiven intellectual property.<\/p>\n

18 In the case of patent infringement, damages adequate to compensate for the infringement\u00a0shall not be less than a reasonable royalty.<\/p>\n

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service, measured by the suggested retail price or other legitimate measure of
\nvalue submitted by the right holder.<\/p>\n

4. In civil judicial proceedings, each Party shall, at least with respect to works, phonograms,
\nand performances protected by copyright or related rights, and in cases of trademark
\ncounterfeiting, establish or maintain a system that provides for pre-established damages, which\u00a0shall be available upon the election of the right holder. Pre-established damages shall be in an\u00a0amount sufficiently high to constitute a deterrent to future infringements and to compensate fully\u00a0the right holder for the harm caused by the infringement. In civil judicial proceedings\u00a0concerning patent infringement, each Party shall provide that its judicial authorities shall have\u00a0the authority to increase damages to an amount that is up to three times the amount of the injury\u00a0found or assessed.19<\/p>\n

5. Each Party shall provide that its judicial authorities, except in exceptional circumstances,
\nhave the authority to order, at the conclusion of civil judicial proceedings concerning copyright\u00a0or related rights infringement, trademark infringement, or patent infringement, that the prevailing\u00a0party shall be awarded payment by the losing party of court costs or fees and, at least in\u00a0proceedings concerning copyright or related rights infringement or willful trademark\u00a0counterfeiting, reasonable attorney\u2019s fees. Further, each Party shall provide that its judicial\u00a0authorities, at least in exceptional circumstances, shall have the authority to order, at the\u00a0conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party\u00a0shall be awarded payment by the losing party of reasonable attorneys\u2019 fees.
\n6. In civil judicial proceedings concerning copyright or related rights infringement and
\ntrademark counterfeiting, each Party shall provide that its judicial authorities shall have the\u00a0authority to order the seizure of allegedly infringing goods, materials and implements relevant to\u00a0the infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the\u00a0infringement.<\/p>\n

7. Each Party shall provide that in civil judicial proceedings:<\/p>\n

(a) at the right holder\u2019s request, goods that have been found to be pirated or counterfeit shall\u00a0be destroyed, except in exceptional circumstances;
\n(b) its judicial authorities shall have the authority to order that materials and
\nimplements that have been used in the manufacture or creation of such pirated or
\ncounterfeit goods be, without compensation of any sort, promptly destroyed or, in
\nexceptional circumstances, without compensation of any sort, disposed of outside
\nthe channels of commerce in such a manner as to minimize the risks of further
\ninfringements; and<\/p>\n

19 No Party shall be required to apply this paragraph to actions for infringement against a Party or a third party\u00a0acting with the authorization or consent of a Party.
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(c) in regard to counterfeit trademarked goods, the simple removal of the trademark
\nunlawfully affixed shall not be sufficient to permit the release of goods into the
\nchannels of commerce.<\/p>\n

8. Each Party shall provide that in civil judicial proceedings concerning the enforcement of
\nintellectual property rights, its judicial authorities shall have the authority to order the infringer\u00a0to provide any information that the infringer possesses or controls regarding any persons or\u00a0entities involved in any aspect of the infringement and regarding the means of production or\u00a0distribution channel of such goods or services, including the identification of third persons\u00a0involved in the production and distribution of the infringing goods or services or in their\u00a0channels of distribution, and to provide this information to the right holder.
\n9. Each Party shall provide that its judicial authorities have the authority to:<\/p>\n

(a) fine or imprison, in appropriate cases, a party to a civil judicial proceeding who
\nfails to abide by valid orders issued by such authorities; and
\n(b) impose sanctions on parties to a civil judicial proceeding their counsel, experts, or
\nother persons subject to the court\u2019s jurisdiction, for violation of judicial orders
\nregarding the protection of confidential information produced or exchanged in a
\nproceeding.<\/p>\n

10. To the extent that any civil remedy can be ordered as a result of administrative procedures\u00a0on the merits of a case, each Party shall provide that such procedures conform to principles\u00a0equivalent in substance to those set out in this Chapter.<\/p>\n

11. In the event that a Party\u2019s judicial or other authorities appoint technical or other experts in\u00a0civil proceedings concerning the enforcement of intellectual property rights and require that the\u00a0parties to the litigation bear the costs of such experts, that Party should seek to ensure that such\u00a0costs are closely related, inter alia, to the quantity and nature of work to be performed and do not\u00a0unreasonably deter recourse to such proceedings.<\/p>\n

12. In civil judicial proceedings concerning the acts described in Article 4.[9] (TPMs) and
\nArticle 4.[10] (RMI), each Party shall provide that its judicial authorities shall, at the least, have\u00a0the authority to:<\/p>\n

(a) impose provisional measures, including seizure of devices and products suspected
\nof being involved in the prohibited activity;
\n(b) provide an opportunity for the right holder to elect between actual damages it
\nsuffered (plus any profits attributable to the prohibited activity not taken into
\naccount in computing those damages) or pre-established damages;
\n(c) order payment to the prevailing right holder at the conclusion of civil judicial
\nproceedings of court costs and fees, and reasonable attorney\u2019s fees, by the party
\nengaged in the prohibited conduct; and<\/p>\n

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(d) order the destruction of devices and products found to be involved in the
\nprohibited activity.\u00a0No Party shall make damages available under this paragraph against a nonprofit library, archives,\u00a0educational institution, or public noncommercial broadcasting entity that sustains the burden of\u00a0proving that such entity was not aware and had no reason to believe that its acts constituted a\u00a0prohibited activity.
\nARTICLE 13: PROVISIONAL MEASURES<\/p>\n

1. Each Party shall act on requests for provisional relief inaudita altera parte expeditiously,
\nand shall, except in exceptional cases, generally execute such requests within ten days.<\/p>\n

2. Each Party shall provide that its judicial authorities have the authority to require the
\napplicant, with respect to provisional measures, to provide any reasonably available evidence in\u00a0order to satisfy themselves with a sufficient degree of certainty that the applicant\u2019s right is being\u00a0infringed or that such infringement is imminent, and to order the applicant to provide a\u00a0reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to\u00a0prevent abuse, and so as not to unreasonably deter recourse to such procedures.
\nARTICLE 14: SPECIAL REQUIREMENTS RELATED TO BORDER ENFORCEMENT<\/p>\n

1. Each Party shall provide that any right holder initiating procedures for its competent
\nauthorities to suspend release of suspected counterfeit or confusingly similar trademark goods, or\u00a0pirated copyright goods20 into free circulation is required to provide adequate evidence to satisfy\u00a0the competent authorities that, under the laws of the country of importation, there is prima facie\u00a0an infringement of the right holder’s intellectual property right and to supply sufficient\u00a0information that may reasonably be expected to be within the right holder\u2019s knowledge to make\u00a0the suspected goods reasonably recognizable by its competent authorities. The requirement to\u00a0provide sufficient information shall not unreasonably deter recourse to these procedures. Each\u00a0Party shall provide that the application to suspend the release of goods apply to all points of\u00a0entry to its territory and remain in force for a period of not less than one year from the date of<\/p>\n

20 For purposes of Article 14:<\/p>\n

(a) counterfeit trademark goods means any goods, including packaging, bearing without authorization a\u00a0trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be\u00a0distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the\u00a0trademark in question under the law of the country of importation; and
\n(b) pirated copyright goods means any goods that are copies made without the consent of the right holder\u00a0or person duly authorized by the right holder in the country of production and that are made directly or indirectly\u00a0from an article where the making of that copy would have constituted an infringement of a copyright or a related\u00a0right under the law of the country of importation.<\/p>\n

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application, or the period that the good is protected by copyright or the relevant trademark\u00a0registration is valid, whichever is shorter.
\n2. Each Party shall provide that its competent authorities shall have the authority to require a\u00a0right holder initiating procedures to suspend the release of suspected counterfeit or confusingly\u00a0similar trademark goods, or pirated copyright goods, to provide a reasonable security or\u00a0equivalent assurance sufficient to protect the defendant and the competent authorities and to\u00a0prevent abuse. Each Party shall provide that such security or equivalent assurance shall not\u00a0unreasonably deter recourse to these procedures. A Party may provide that such security may be\u00a0in the form of a bond conditioned to hold the importer or owner of the imported merchandise\u00a0harmless from any loss or damage resulting from any suspension of the release of goods in the\u00a0event the competent authorities determine that the article is not an infringing good.
\n3. Where its competent authorities have seized goods that are counterfeit or pirated, a Party\u00a0shall provide that its competent authorities have the authority to inform the right holder within\u00a030-days21 of the seizure of the names and addresses of the consignor, exporter, consignee, or\u00a0importer, a description of the merchandise, quantity of the merchandise, and, if known, the\u00a0country of origin of the merchandise.
\n4. Each Party shall provide that its competent authorities may initiate border measures ex
\nofficio22 with respect to imported, exported, or in-transit merchandise,23 or merchandise in free\u00a0trade zones, that is suspected of being counterfeit or confusingly similar trademark goods, or\u00a0pirated copyright goods.
\n5. Each Party shall adopt or maintain a procedure by which its competent authorities shall
\ndetermine, within a reasonable period of time after the initiation of the procedures described\u00a0under Article 14.1 whether the suspect goods infringe an intellectual property right. Where a\u00a0Party provides administrative procedures for the determination of an infringement, it shall also\u00a0provide its authorities with the authority to impose administrative penalties following a\u00a0determination that the goods are infringing.
\n6. Each Party shall provide that goods that have been determined by its competent
\nauthorities to be pirated or counterfeit shall be destroyed, except in exceptional circumstances.\u00a0In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed\u00a0shall not be sufficient to permit the release of the goods into the channels of commerce. In no\u00a0event shall the competent authorities be authorized, except in exceptional circumstances, to\u00a021 For purposes of this Article, \u201cdays\u201d shall mean \u201cbusiness days\u201d.<\/p>\n

22 For greater certainty, the parties understand that ex officio action does not require a formal\u00a0complaint from a private party or right holder.<\/p>\n

23 For purposes of Article 14.4, in-transit merchandise means goods under \u201cCustoms transit\u201d\u00a0and goods \u201ctranshipped,\u201d as defined in the International Convention on the Simplification and\u00a0Harmonization of Customs Procedures (Kyoto Convention).<\/p>\n

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permit the exportation of counterfeit or pirated goods or to permit such goods to be subject to\u00a0other customs procedures.<\/p>\n

7. Where an application fee, merchandise storage fee, or destruction fee is assessed in
\nconnection with border measures to enforce an intellectual property right, each Party shall
\nprovide that such fee shall not be set at an amount that unreasonably deters recourse to these\u00a0measures.<\/p>\n

8. A Party may exclude from the application of this Article (border measures), small\u00a0quantities of goods of a non-commercial nature contained in traveler\u2019s personal luggage.<\/p>\n

ARTICLE 15: CRIMINAL ENFORCEMENT<\/p>\n

1. Each Party shall provide for criminal procedures and penalties to be applied at least in
\ncases of willful trademark counterfeiting or copyright or related rights piracy on a commercial\u00a0scale. Willful copyright or related rights piracy on a commercial scale includes:
\n(a) significant willful copyright or related rights infringements that have no direct or
\nindirect motivation of financial gain; and
\n(b) willful infringements for purposes of commercial advantage or private financial
\ngain.24\u00a0Each Party shall treat willful importation or exportation of counterfeit or pirated goods as\u00a0unlawful activities subject to criminal penalties.<\/p>\n

25<\/p>\n

2. Each Party shall also provide for criminal procedures and penalties to be applied, even
\nabsent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of\u00a0knowing trafficking in:<\/p>\n

(a) labels or packaging, of any type or nature, to which a counterfeit trademark26 has
\nbeen applied, the use of which is likely to cause confusion, to cause mistake, or to
\ndeceive; and
\n(b) counterfeit or illicit labels27 affixed to, enclosing, or accompanying, or designed to
\nbe affixed to, enclose, or accompany the following:<\/p>\n

24 For greater certainty, \u201cfinancial gain\u201d for purposes of this Article includes the receipt or
\nexpectation of anything of value.<\/p>\n

25 A Party may comply with this obligation in relation to exportation of pirated goods through\u00a0its measures concerning distribution.<\/p>\n

26 Negotiator\u2019s Note: For greater certainty, the definition of \u201ccounterfeit trademark goods\u201d in\u00a0footnote [12] shall be used as context for this Article.<\/p>\n

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(i) a phonogram,
\n(ii) a copy of a computer program or a literary work,
\n(iii) a copy of a motion picture or other audiovisual work,
\n(iv) documentation or packaging for such items; and\u00a0(c) counterfeit documentation or packaging for items of the type described in\u00a0subparagraph (b).<\/p>\n

3. Each Party shall also provide for criminal procedures and penalties to be applied against
\nany person who, without authorization of the holder of copyright or related rights in a motion\u00a0picture or other audiovisual work, knowingly uses or attempts to use an audiovisual recording\u00a0device to transmit or make a copy of a motion picture or other audiovisual work, or any part\u00a0thereof, from a performance of such work in a public motion picture exhibition facility.<\/p>\n

4. With respect to the offenses for which this Article requires the Parties to provide for
\ncriminal procedures and penalties, Parties shall ensure that criminal liability for aiding and
\nabetting is available under its law.\u00a05. With respect to the offences described in Article 15.[1]-[4] above, each Party shall\u00a0provide:<\/p>\n

(a) penalties that include sentences of imprisonment as well as monetary fines
\nsufficiently high to provide a deterrent to future infringements, consistent with a
\npolicy of removing the infringer\u2019s monetary incentive. Each Party shall further
\nestablish policies or guidelines that encourage judicial authorities to impose those
\npenalties at levels sufficient to provide a deterrent to future infringements,<\/p>\n

27 For purposes of this Article, \u201cillicit label\u201d means a genuine certificate, licensing document,\u00a0registration card, or similar labeling component:<\/p>\n

(A) that is used by the copyright owner to verify that a phonogram, a copy of a computer
\nprogram or literary work, a copy of a motion picture or other audiovisual work, or
\ndocumentation or packaging for such phonogram or copies is not counterfeit or infringing
\nof any copyright; and
\n(B) that is, without the authorization of the copyright owner\u2014<\/p>\n

(i) distributed or intended for distribution not in connection with the phonogram
\nor copies to which such labeling component was intended to be affixed by the
\nrespective copyright owner; or
\n(ii) in connection with a genuine certificate or licensing document, knowingly
\nfalsified in order to designate a higher number of licensed users or copies than
\nauthorized by the copyright owner, unless that certificate or document is used by
\nthe copyright owner solely for the purpose of monitoring or tracking the copyright
\nowner\u2019s distribution channel and not for the purpose of verifying that a copy or
\nphonogram is noninfringing.<\/p>\n

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including the imposition of actual terms of imprisonment when criminal
\ninfringement is undertaken for commercial advantage or private financial gain;(b) that its judicial authorities shall have the authority to order the seizure of\u00a0suspected counterfeit or pirated goods, any related materials and implements used\u00a0in the commission of the offense, any assets traceable to the infringing activity,\u00a0and any documentary evidence relevant to the offense. Each Party shall provide\u00a0that items that are subject to seizure pursuant to any such judicial order need not\u00a0be individually identified so long as they fall within general categories specified\u00a0in the order;<\/p>\n

(c) that its judicial authorities shall have the authority to order, among other
\nmeasures, the forfeiture of any assets traceable to the infringing activity, and shall
\norder such forfeiture at least in cases of trademark counterfeiting;
\n(d) that its judicial authorities shall, except in exceptional cases, order<\/p>\n

(i) the forfeiture and destruction of all counterfeit or pirated goods, and any
\narticles consisting of a counterfeit mark; and
\n(ii) the forfeiture or destruction of materials and implements that have been
\nused in the creation of pirated or counterfeit goods.
\nEach Party shall further provide that forfeiture and destruction under this
\nsubparagraph and subparagraph (c) shall occur without compensation of any kind
\nto the defendant;<\/p>\n

(e) that its judicial authorities have the authority to order the seizure or forfeiture of
\nassets the value of which corresponds to that of the assets derived from, or
\nobtained directly or indirectly through, the infringing activity.
\n(f) that, in criminal cases, its judicial or other competent authorities shall keep an
\ninventory of goods and other material proposed to be destroyed, and shall have
\nthe authority temporarily to exempt such materials from the destruction order to
\nfacilitate the preservation of evidence upon notice by the right holder that it
\nwishes to bring a civil or administrative case for damages28; and
\n(g) that its authorities may initiate legal action ex officio with respect to the offenses
\ndescribed in this Chapter, without the need for a formal complaint by a private
\nparty or right holder.<\/p>\n

28 For greater certainty, a notice from the right holder that it wishes to bring a civil or
\nadministrative case for damages is not the sole basis for the authority to exempt materials from\u00a0the destruction order.<\/p>\n

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ARTICLE 16: SPECIAL MEASURES RELATING TO ENFORCEMENT IN THE DIGITAL
\nENVIRONMENT<\/p>\n

1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil
\nand criminal enforcement sections of this Chapter, are available under its law so as to permit\u00a0effective action against an act of trademark, copyright or related rights infringement which takes\u00a0place in the digital environment, including expeditious remedies to prevent infringement and\u00a0remedies which constitute a deterrent to further infringement.<\/p>\n

2. Each Party shall provide appropriate laws, orders, regulations, government-issued
\nguidelines, or administrative or executive decrees providing that its central government agencies\u00a0not use infringing computer software and other materials protected by copyright or related rights\u00a0and only use computer software and other materials protected by copyright or related rights as\u00a0authorized by the relevant license. These measures shall provide for the regulation of the\u00a0acquisition and management of software and other materials for government use that are\u00a0protected by copyright or related rights.<\/p>\n

3. For the purpose of providing enforcement procedures that permit effective action against\u00a0any act of copyright infringement covered by this Chapter, including expeditious remedies to\u00a0prevent infringements and criminal and civil remedies that constitute a deterrent to further\u00a0infringements, each Party shall provide, consistent with the framework set out in this Article:<\/p>\n

(a) legal incentives for service providers to cooperate with copyright29 owners in\u00a0deterring the unauthorized storage and transmission of copyrighted materials; and
\n(b) limitations in its law regarding the scope of remedies available against serviceproviders for copyright infringements that they do not control, initiate or direct,\u00a0and that take place through systems or networks controlled or operated by them or\u00a0on their behalf, as set forth in this subparagraph (b).30<\/p>\n

(i) These limitations shall preclude monetary relief and provide reasonable
\nrestrictions on court-ordered relief to compel or restrain certain actions for
\nthe following functions, and shall be confined to those functions:
\n(A) transmitting, routing, or providing connections for material without
\nmodification of its content, or the intermediate and transient
\nstorage of such material in the course thereof;
\n(B) caching carried out through an automatic process;<\/p>\n

29 For purposes of this paragraph, \u201ccopyright\u201d includes related rights.<\/p>\n

30 This subparagraph is without prejudice to the availability of defenses to copyright
\ninfringement that are of general applicability.<\/p>\n

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(C) storage, at the direction of a user, of material residing on a system
\nor network controlled or operated by or for the service provider;
\nand
\n(D) referring or linking users to an online location by using
\ninformation location tools, including hyperlinks and directories.<\/p>\n

(ii) These limitations shall apply only where the service provider does not
\ninitiate the chain of transmission of the material, and does not select the
\nmaterial or its recipients (except to the extent that a function described in
\nclause (i)(D) in itself entails some form of selection).
\n(iii) Qualification by a service provider for the limitations as to each function
\nin clauses (i)(A) through (D) shall be considered separately from
\nqualification for the limitations as to each other function, in accordance
\nwith the conditions for qualification set forth in clauses (iv) through (vii).
\n(iv) With respect to functions referred to in clause (i)(B), the limitations shall
\nbe conditioned on the service provider:<\/p>\n

(A) permitting access to cached material in significant part only to\u00a0users of its system or network who have met conditions on user
\naccess to that material;
\n(B) complying with rules concerning the refreshing, reloading, or other
\nupdating of the cached material when specified by the person
\nmaking the material available online in accordance with a
\ngenerally accepted industry standard data communications protocol
\nfor the system or network through which that person makes the
\nmaterial available;
\n(C) not interfering with technology consistent with industry standards
\naccepted in the Party\u2019s territory used at the originating site to
\nobtain information about the use of the material, and not modifying
\nits content in transmission to subsequent users; and
\n(D) expeditiously removing or disabling access, on receipt of an
\neffective notification of claimed infringement, to cached material
\nthat has been removed or access to which has been disabled at the
\noriginating site.\u00a0(v) With respect to functions referred to in clauses (i)(C) and (D), the
\nlimitations shall be conditioned on the service provider:
\n(A) not receiving a financial benefit directly attributable to the
\ninfringing activity, in circumstances where it has the right and
\nability to control such activity;
\n(B) expeditiously removing or disabling access to the material residing
\non its system or network on obtaining actual knowledge of the
\ninfringement or becoming aware of facts or circumstances from
\nwhich the infringement was apparent, such as through effective<\/p>\n

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notifications of claimed infringement in accordance with clause\u00a0(ix); and
\n(C) publicly designating a representative to receive such notifications.
\n(vi) Eligibility for the limitations in this subparagraph shall be conditioned on
\nthe service provider:
\n(A) adopting and reasonably implementing a policy that provides for
\ntermination in appropriate circumstances of the accounts of repeat
\ninfringers; and
\n(B) accommodating and not interfering with standard technical
\nmeasures accepted in the Party\u2019s territory that protect and identify
\ncopyrighted material, that are developed through an open,
\nvoluntary process by a broad consensus of copyright owners and
\nservice providers, that are available on reasonable and
\nnondiscriminatory terms, and that do not impose substantial costs
\non service providers or substantial burdens on their systems or
\nnetworks.
\n(vii) Eligibility for the limitations in this subparagraph may not be conditioned
\non the service provider monitoring its service, or affirmatively seeking
\nfacts indicating infringing activity, except to the extent consistent with
\nsuch technical measures.
\n(viii) If the service provider qualifies for the limitations with respect to the
\nfunction referred to in clause (i)(A), court-ordered relief to compel or
\nrestrain certain actions shall be limited to terminating specified accounts,
\nor to taking reasonable steps to block access to a specific, non-domestic
\nonline location. If the service provider qualifies for the limitations with
\nrespect to any other function in clause (i), court-ordered relief to compel
\nor restrain certain actions shall be limited to removing or disabling access
\nto the infringing material, terminating specified accounts, and other
\nremedies that a court may find necessary, provided that such other
\nremedies are the least burdensome to the service provider among
\ncomparably effective forms of relief. Each Party shall provide that any
\nsuch relief shall be issued with due regard for the relative burden to the
\nservice provider and harm to the copyright owner, the technical feasibility
\nand effectiveness of the remedy and whether less burdensome, comparably
\neffective enforcement methods are available. Except for orders ensuring
\nthe preservation of evidence, or other orders having no material adverse
\neffect on the operation of the service provider\u2019s communications network,
\neach Party shall provide that such relief shall be available only where the
\nservice provider has received notice of the court order proceedings
\nreferred to in this subparagraph and an opportunity to appear before the
\njudicial authority.<\/p>\n

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(ix) For purposes of the notice and take down process for the functions
\nreferred to in clauses (i)(C) and (D), each Party shall establish appropriate
\nprocedures in its law or in regulations for effective notifications of claimed
\ninfringement, and effective counter-notifications by those whose material
\nis removed or disabled through mistake or misidentification. Each Party
\nshall also provide for monetary remedies against any person who makes a
\nknowing material misrepresentation in a notification or counternotification
\nthat causes injury to any interested party as a result of a\u00a0service provider relying on the misrepresentation.
\n(x) If the service provider removes or disables access to material in good faith
\nbased on claimed or apparent infringement, each Party shall provide that
\nthe service provider shall be exempted from liability for any resulting
\nclaims, provided that, in the case of material residing on its system or
\nnetwork, it takes reasonable steps promptly to notify the person making
\nthe material available on its system or network that it has done so and, if
\nsuch person makes an effective counter-notification and is subject to
\njurisdiction in an infringement suit, to restore the material online unless
\nthe person giving the original effective notification seeks judicial relief
\nwithin a reasonable time.
\n(xi) Each Party shall establish an administrative or judicial procedure enabling
\ncopyright owners who have given effective notification of claimed
\ninfringement to obtain expeditiously from a service provider information
\nin its possession identifying the alleged infringer.
\n(xii) For purposes of the function referred to in clause (i)(A), service provider
\nmeans a provider of transmission, routing, or connections for digital online
\ncommunications without modification of their content between or among
\npoints specified by the user of material of the user\u2019s choosing, and for
\npurposes of the functions referred to in clauses (i)(B) through (D) service
\nprovider means a provider or operator of facilities for online services or
\nnetwork access.<\/p>\n

[Placeholder for additional provisions on enforcement measures, including optical disk
\nproduction]<\/p>\n

[Placeholder for provision on understanding regarding certain public health measures]<\/p>\n

Side Letter 1\u00a0In connection with the signing on this date of the Trans-Pacific Partnership Agreement\u00a0(the \u201cAgreement\u201d), I have the honor to confirm the following understandings reached between<\/p>\n

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the [Parties] and [Party] during the course of the negotiations of Chapter ## (Intellectual Property\u00a0Rights) of the Agreement:
\nIn meeting the obligations of Article 16.3(ix), the United States shall apply the pertinent
\nprovisions of its law31 and [x Party] shall adopt requirements for:
\n(a) effective written notice to\u00a0service providers with respect to materials that are claimed to be infringing, and (b) effective\u00a0written counter-notification by those whose material is removed or disabled and who claim that it\u00a0was disabled through mistake or misidentification, as set forth in this letter. Effective written\u00a0notice means notice that substantially complies with the elements listed in section (a) of this\u00a0letter, and effective written counter-notification means counter-notification that substantially\u00a0complies with the elements listed in section (b) of this letter.
\n(a) Effective Written Notice, by a Copyright32 Owner or Person Authorized to Act on Behalf\u00a0of an Owner of an Exclusive Right, to a Service Provider\u2019s Publicly Designated
\nRepresentative33\u00a0In order for a notice to a service provider to comply with the relevant requirements set out\u00a0in Article 16.3(ix), that notice must be a written communication, which may be provided\u00a0electronically, that includes substantially the following:<\/p>\n

1. the identity, address, telephone number, and electronic mail address of the
\ncomplaining party (or its authorized agent);
\n2. information reasonably sufficient to enable the service provider to identify the
\ncopyrighted work(s)34 claimed to have been infringed;
\n3. information reasonably sufficient to permit the service provider to identify and
\nlocate the material residing on a system or network controlled or operated by it or for it
\nthat is claimed to be infringing, or to be the subject of infringing activity, and that is to be
\nremoved, or access to which is to be disabled;35\u00a031 17 U.S.C. Sections 512(C)(3)(A) and 512(g)(3).<\/p>\n

32 All references to copyright in this letter are understood to include related rights, and all references to works are\u00a0understood to include the subject matter of related rights.<\/p>\n

33 The Parties understand that a representative is publicly designated to receive notification on behalf of a service\u00a0provider if the representative\u2019s name, physical and electronic address, and telephone number are posted on a\u00a0publicly accessible portion of the service provider\u2019s website, and also in a register accessible to the public throughthe Internet, or designated in another form or manner appropriate for [insert Party name].<\/p>\n

34 If multiple copyrighted works at, or linked to from, a single online site on a system or network controlled or\u00a0operated by or for the service provider are covered by a single notification, a representative list of such works at, or\u00a0linked to from, that site may be provided.<\/p>\n

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4. a statement that the complaining party has a good faith belief that use of the material in the\u00a0manner complained of is not authorized by the copyright owner, its agent, or the law;<\/p>\n

5. a statement that the information in the notice is accurate;<\/p>\n

6. a statement with sufficient indicia of reliability (such as a statement under penalty of\u00a0perjury or\u00a0equivalent legal sanctions) that the complaining party is the holder of an exclusive right that is allegedly\u00a0infringed, or is authorized to act on the owner\u2019s behalf; and<\/p>\n

7. the signature of the person giving notice.36<\/p>\n

(b) Effective Written Counter-Notification by a Subscriber37 Whose Material Was Removed
\nor Disabled as a Result of Mistake or Misidentification of Material
\nIn order for a counter-notification to a service provider to comply with the relevant
\nrequirements set out in Article 16.3(ix), that counter-notification must be a written
\ncommunication, which may be provided electronically, that includes substantially the following:<\/p>\n

1. the identity, address, and telephone number of the subscriber;
\n2. the identity of the material that has been removed or to which access has been
\ndisabled;
\n3. the location at which the material appeared before it was removed or access to it
\nwas disabled;
\n4. a statement with sufficient indicia of reliability (such as a statement under penalty
\nof perjury or equivalent legal sanctions) that the subscriber has a good faith belief that the
\nmaterial was removed or disabled as a result of mistake or misidentification of the
\nmaterial;
\n5. a statement that the subscriber agrees to be subject to orders of any court that has
\njurisdiction over the place where the subscriber\u2019s address is located, or, if that address is
\nlocated outside the Party\u2019s territory, any other court with jurisdiction over any place in<\/p>\n

35 In the case of notices regarding an information location tool pursuant to paragraph (b)(i)(D) of Article 16.3, the\u00a0information provided must be reasonably sufficient to permit the service provider to locate the reference or link\u00a0residing on a system or network controlled or operated by or for it, except that in the case of a notice regarding a\u00a0substantial number of references or links at a single online site residing on a system or network controlled or
\noperated by or for the service provider, a representative list of such references or links at the site may be provided, if\u00a0accompanied by information sufficient to permit the service provider to locate the references or links.<\/p>\n

36 A signature transmitted as part of an electronic communication satisfies this requirement.<\/p>\n

37 All references to \u201csubscriber\u201d in this letter refer to the person whose material has been removed or disabled by a\u00a0service provider as a result of an effective notice described in part (a) of this letter.<\/p>\n

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the Party\u2019s territory where the service provider may be found, and in which a copyright
\ninfringement suit could be brought with respect to the alleged infringement;<\/p>\n

6. a statement that the subscriber will accept service of process in any such suit; and<\/p>\n

7. the signature of the subscriber.38
\nI have the honor to propose that this letter and your letter in reply confirming that your
\nGovernment shares this understanding shall constitute an integral part of the Agreement.
\n38 A signature transmitted as part of an electronic communication satisfies this requirement.<\/p>\n

38<\/p>\n","protected":false},"excerpt":{"rendered":"

TPP \u00a0–\u00a0Trans-Pacific Strategic Economic Partnership also known as TPPA –\u00a0Trans-Pacific Partnership Agreement Intellectual Property Chapter This Document Contains TPP CONFIDENTIAL Information MODIFIED HANDLING AUTHORIZED* COVER PAGE TRANS-PACIFIC PARTNERSHIP INTELLECTUAL PROPERTY RIGHTS CHAPTER DRAFT \u2013 FEBRUARY 10, 2011 Derived From: Classification Guidance dated March 4, 2010 Reason: 1.4(b) Declassify on: Four years from entry into force […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":607,"menu_order":0,"comment_status":"open","ping_status":"open","template":"","meta":{"footnotes":""},"class_list":["post-1075","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/P29Kla-hl","_links":{"self":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/1075","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/comments?post=1075"}],"version-history":[{"count":5,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/1075\/revisions"}],"predecessor-version":[{"id":1083,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/1075\/revisions\/1083"}],"up":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/607"}],"wp:attachment":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/media?parent=1075"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}