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CHAPTER: COPYRIGHT AND RELATED RIGHTS

ARTICLE 1:  COPYRIGHT AND RELATED RIGHTS

1.   Subject to the provisions of Article 6, each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit reproductions of their works, performances, or phonograms.

2.   Subject to the provisions of Article 6, each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies of their works, performances, and phonograms through sale or other transfer of ownership.

3.   Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (2) applies after the first sale or other transfer of ownership of the original or a copy of the work.

4.   Each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required.  Likewise, each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required.  

5.   With respect to the term of protection, each Party affirms its existing obligations under Article 12 of the Agreement on Trade Related Aspects of Intellectual Property Rights.

6.   Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram:

a.   may freely and separately transfer that right by contract subject to any termination of transfer rights granted to the transferor; and 

b.   by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.

7.   Each party may establish

a.   Which contracts of employment underlying the creation of works or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and

b.   Reasonable limits to the provisions in paragraph 6(b) to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.

8.   Each Party shall provide that ownership of copyright in a literary, artistic, or musical work shall vest initially in the author or authors of the work. 

ARTICLE 2:  COPYRIGHT

1.   Subject to the provisions of Article 6 and without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis of the Berne Convention, each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

ARTICLE 3:  RELATED RIGHTS 

1.   With respect to the rights accorded under this Chapter to performers and producers of phonograms, each Party shall: 

a.   accord those rights to the performers and producers of phonograms who are nationals of the other Parties; and

b.   accord those rights with respect to performances and phonograms that are first published or first fixed in the territory of the other Parties.  

2.  

a.   Subject to the provisions of Article 6, each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting and any communication to the public of their performances or phonograms.

b.   Notwithstanding subparagraph (a) the application of this right to analog transmissions and free over-the-air broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party’s law.

3.   For purposes of this Article and Article 1, the following definitions apply with respect to performers and producers of phonograms:

a.   broadcasting means the transmission to the public by wireless means or satellite of sounds or sounds and images, or representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent; “broadcasting” does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public;

b.   communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram including transmission in such a manner that members of the public may access them from a place and time individually chosen by them;

c.   fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device; 

d.   performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore; 

e.   phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

f.   producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and 

g.   publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity.

ARTICLE 4:  PROTECTION OF ENCRYPTED PROGRAM-CARRYING SATELLITE AND CABLE SIGNALS 

1.   Each Party shall make it a criminal offense:

a.   to manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or system is primarily of assistance in decoding an encrypted program-carrying satellite or cable signal without the authorization of the lawful distributor of such signal; and

b.   willfully to receive and make use of, or further distribute, a program- carrying signal that originated as an encrypted satellite or cable signal knowing that it has been decoded without the authorization of the lawful distributor of the signal, or if the signal has been decoded with the authorization of the lawful distributor of the signal, willfully to further distribute the signal for purposes of commercial advantage knowing that the signal originated as an encrypted program-carrying signal and that such further distribution is without the authorization of the lawful signal distributor.

2.   Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1.

3.   The remedies provided by this Article shall not be applicable if acts proscribed in paragraphs (1) and (2) were committed in order to facilitate limitations and exceptions described in Article 6.

ARTICLE 5: TECHNOLOGICAL PROTECTION MEASURES

1.   Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

2.   In implementing paragraph (1), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing paragraph (1). 

3.   In order to provide adequate and effective legal remedies to protect rights management information:

a.   Each Party shall prohibit any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of any copyright or related right, from

(i) knowingly removing or altering any rights management information; 

(ii) distributing, importing for distribution, broadcasting, communicating, making available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority.

4. Rights management information means: 

a.   information that identifies a work, performance, or phonogram; the

b.   author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram;

c.   information about the terms and conditions of the use of the work,

d.   any numbers or codes that represent such information, when any of these items is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, performance, or phonogram to the public.

5.   For greater certainty, nothing in this paragraph shall be construed to obligate a Party to require the owner of any right in the work, performance, or phonogram to attach rights management information to copies of the work, performance, or phonogram, or to cause rights management information to appear in connection with a communication of the work, performance, or phonogram to the public.

ARTICLE 6: LIMITATIONS AND EXCEPTIONS

1.   Consistent with Article 13 of the Agreement on Trade Related Aspects of Intellectual Property Rights and with a view to achieving a balance between the rights of rights holders and the legitimate interests of users and the community with regard to protected subject matter, each party shall provide limitations and exceptions to the rights provided in this chapter.

2.   In particular, each party shall provide for limitations and exceptions to the rights granted in Articles 1 to 5 in order to:

a.   facilitate preservation of works by libraries, museums and archives;

b.   promote educational uses of works including by face to face teaching and   transmission over wired or wireless networks;

c.   promote uses of works by people with disabilities;

d.   promote fair use or fair dealing in works to permit their utilization to the extent justified by the purpose of free expression (including commentary, criticism, news reporting and parody), participation in the cultural life of the community, teaching (including multiple copies for classroom use), scholarship, research, personal use,  functioning of innovation in the digital environment (including interoperability of products and services and the operation of Internet services such as online access, hosting and information location). Consistent with the foregoing, each party shall provide that its competent authorities have the authority to permit unauthorized uses upon due consideration of appropriate factors including:

i.    the purpose and character of the use, including whether such use is of a commercial nature or is for private or nonprofit purposes;

ii.   the nature of the copyrighted work;

iii.  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

iv.  the effect of the use upon the potential market for or value of the work.

3.   Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology, provided that such measures are consistent with this Agreement.  In particular, nothing in this Chapter shall prevent a Party from adopting measures necessary to prevent anti-competitive practices that may result from the abuse of intellectual property rights.

4.   Subject to each Party’s international obligations the Parties affirm that they may:

a.   provide for the international exhaustion of intellectual property rights; 

b.   establish that provisions in standard form non-negotiated licenses for products do not prevent consumers from exercising the limitations and exceptions recognized in domestic intellectual property laws; and 

c.   establish appropriate measures to protect traditional knowledge.

CHAPTER: FAIR USE IN THE TRADEMARK SECTION OF THE IP CHAPTER

1.   Each Party shall provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, nominative use of trademarks, and other uses to sustain free expression and avoid the creation of barriers to legitimate activity, including electronic commerce and innovation, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.

CHAPTER: ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

ARTICLE 1: GENERAL OBLIGATIONS

1.   Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights be in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based.  Each Party shall also provide that those decisions and rulings be published or, where publication is not practicable, otherwise made available to the public, in its national language in such a manner as to enable governments, right holders, and the public to become acquainted with them.

2.   Each Party shall publicize information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal systems, including any statistical information that the Party may collect for such purposes.

3.   In civil, administrative, and criminal proceedings involving trademarks, each Party shall provide for a rebuttable presumption that a registered trademark is valid.  In civil and administrative proceedings involving patents, each Party shall provide for a rebuttable presumption that a patent is valid, and shall provide that each claim of a patent is presumed valid independently of the validity of the other claims.

4.   Procedures adopted, maintained, or applied to implement this section shall be fair, equitable, and Parties shall provide for the appropriate protection of the rights of all participants subject to such procedures.  Procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays, and shall be applied in a manner so as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. 

5.   In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement and the applicable measures, remedies, and penalties. Parties shall also take into account the interests of third parties affected by enforcement of intellectual property rights.  

6.   It is understood that this part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.

ARTICLE 2: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES

1.   Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right.

2.   Each Party shall provide that:

a.   in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder:

i.   damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or

ii.   at least in the case of copyright or related rights infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement and that are not taken into account in computing the amount of damages referred to in clause (i) and

3.   In civil judicial proceedings, each Party may with respect to works, phonograms, and performances protected by copyright or related rights at least with respect to entities that were aware and had reason to believe that their acts constituted an infringement of copyright, establish or maintain pre-established damages, which shall be available on the election of the right holder. Parties choosing to establish such a system may provide that such damages shall not be available under this paragraph against an entity that believed or had reasonable grounds for believing that a use of the copyrighted work was subject to an exception under that Party’s laws.

4.   Each Party shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or related rights infringement that the prevailing party shall be awarded payment by the losing party court costs or fees and reasonable attorney’s fees.  Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment by the losing party of reasonable attorneys’ fees.

5.   To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that such procedures conform to principles equivalent in substance to those set out in this Article.

6.   In civil judicial proceedings concerning the enforcement of intellectual property rights, each Party shall provide that its judicial authorities shall have the authority to order a party to desist from an infringement.

7.   Notwithstanding the provision in paragraph 6 of this Article and provided that provisions addressing use by governments, or by third parties authorized by a government, without authorization of the right holder are complied with, each Party may limit the remedies available against infringement to payment of remuneration.

8.  In the event that a Party’s judicial or other competent authorities appoint technical or other experts in civil proceedings concerning the enforcement of intellectual property rights and require that the parties to the litigation bear the costs of such experts, the Party should seek to ensure that such costs are closely related, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings.

ARTICLE 3: ALTERNATIVE DISPUTE RESOLUTION

1.   Each Party may permit use of alternative dispute resolution procedures to resolve civil disputes concerning intellectual property rights.

ARTICLE 4: PROVISIONAL MEASURES

1.   Each Party shall act on requests for provisional measures inaudita altera parte expeditiously.

2.   Each Party shall provide that its judicial authorities have the authority to require the plaintiff, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the plaintiff’s right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures.

ARTICLE 5: CRIMINAL PROCEDURES AND REMEDIES

1.   Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or willful copyright or related rights infringement on a commercial scale. 

2.   Each Party shall treat willful importation or exportation of counterfeit or pirated goods on a commercial scale as unlawful activities subject to criminal penalties.

3.   Each Party shall also provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright piracy, at least in cases of knowing trafficking in:

a.   Counterfeit labels or illicit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany: a phonogram, a copy of a computer program or other literary work, a copy of a motion picture or other audiovisual work, or documentation or packaging for such items; and

b.   Counterfeit documentation or packaging for items of the type described in subparagraph (a).

ARTICLE 6: LIABILITY FOR SERVICE PROVIDERS AND LIMITATIONS

1.   Each Party shall provide for limitations on the liability of, or on the remedies available against, online service providers for at least copyright or related rights infringements that they do not initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, while preserving the legitimate interests of right holders in effective action against an act of copyright or related rights infringement that takes place in the digital environment.  Parties shall implement this provision in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and preserves fundamental principles such as freedom of expression, fair process, and privacy.

2.   An online service provider means a provider or operator of facilities for online services or network access. The Parties understand that this definition includes entities engaged in at least the following activities: transmitting, routing, or providing connections for material without modification of its content, or the intermediate and transient storage of such material in the course thereof; caching; hosting; and referring or linking users to an online location by using information location tools. The Parties further understand that the limitations in their law should apply to entities engaged in activities of a similar nature identified after the date this Agreement enters into force.

3.   Such limitations shall preclude monetary relief and restrict injunctive relief to removing or disabling access to the infringing material and other remedies that a court may find necessary or domestic laws may provide. Such remedies shall be least burdensome to the service provider among comparably effective forms of relief.  Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available.  Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the judicial authority.

4.   No Party may condition the limitations in paragraph 1 on an obligation that an online service provider monitors its services or actively or affirmatively seeks facts indicating that infringing activity is occurring.

5.   Any Party choosing to meet the obligations under this provision by requiring that online service providers, upon receipt of notice from a rightholder, remove or disable access to certain information shall establish appropriate procedures in its law or in regulations for effective notifications of claimed infringement, and effective counter-notifications by those whose material is removed or disabled through mistake or misidentification.  These procedures shall require that a legally sufficient notice or counter-notice must, at minimum, contain information sufficient to enable the online service provider to identify the disputed work and the online location of the allegedly infringing material.  Each Party shall also provide for monetary remedies against any person who makes a knowing material misrepresentation in a notification or counter-notification that causes injury to any interested party as a result of a service provider relying on the misrepresentation.

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CHAPTER: COPYRIGHT AND RELATED RIGHTS

ARTICLE 1:  COPYRIGHT AND RELATED RIGHTS

1.   Subject to the provisions of Article 6, each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit reproductions of their works, performances, or phonograms.

2.   Subject to the provisions of Article 6, each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies of their works, performances, and phonograms through sale or other transfer of ownership.

3.   Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (2) applies after the first sale or other transfer of ownership of the original or a copy of the work.

4.   Each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required.  Likewise, each Party shall provide that in cases where authorization is needed from both the author of a work embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required.  

5.   With respect to the term of protection, each Party affirms its existing obligations under Article 12 of the Agreement on Trade Related Aspects of Intellectual Property Rights.

6.   Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram:

a.   may freely and separately transfer that right by contract subject to any termination of transfer rights granted to the transferor; and 

b.   by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.

7.   Each party may establish

a.   Which contracts of employment underlying the creation of works or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and

b.   Reasonable limits to the provisions in paragraph 6(b) to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.

8.   Each Party shall provide that ownership of copyright in a literary, artistic, or musical work shall vest initially in the author or authors of the work. 

ARTICLE 2:  COPYRIGHT

1.   Subject to the provisions of Article 6 and without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis of the Berne Convention, each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

ARTICLE 3:  RELATED RIGHTS 

1.   With respect to the rights accorded under this Chapter to performers and producers of phonograms, each Party shall: 

a.   accord those rights to the performers and producers of phonograms who are nationals of the other Parties; and

b.   accord those rights with respect to performances and phonograms that are first published or first fixed in the territory of the other Parties.  

2.  

a.   Subject to the provisions of Article 6, each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting and any communication to the public of their performances or phonograms.

b.   Notwithstanding subparagraph (a) the application of this right to analog transmissions and free over-the-air broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party’s law.

3.   For purposes of this Article and Article 1, the following definitions apply with respect to performers and producers of phonograms:

a.   broadcasting means the transmission to the public by wireless means or satellite of sounds or sounds and images, or representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent; “broadcasting” does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public;

b.   communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram including transmission in such a manner that members of the public may access them from a place and time individually chosen by them;

c.   fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device; 

d.   performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore; 

e.   phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

f.   producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and 

g.   publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity.

ARTICLE 4:  PROTECTION OF ENCRYPTED PROGRAM-CARRYING SATELLITE AND CABLE SIGNALS 

1.   Each Party shall make it a criminal offense:

a.   to manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing or having reason to know that the device or system is primarily of assistance in decoding an encrypted program-carrying satellite or cable signal without the authorization of the lawful distributor of such signal; and

b.   willfully to receive and make use of, or further distribute, a program- carrying signal that originated as an encrypted satellite or cable signal knowing that it has been decoded without the authorization of the lawful distributor of the signal, or if the signal has been decoded with the authorization of the lawful distributor of the signal, willfully to further distribute the signal for purposes of commercial advantage knowing that the signal originated as an encrypted program-carrying signal and that such further distribution is without the authorization of the lawful signal distributor.

2.   Each Party shall provide for civil remedies, including compensatory damages, for any person injured by any activity described in paragraph 1.

3.   The remedies provided by this Article shall not be applicable if acts proscribed in paragraphs (1) and (2) were committed in order to facilitate limitations and exceptions described in Article 6.

ARTICLE 5: TECHNOLOGICAL PROTECTION MEASURES

1.   Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

2.   In implementing paragraph (1), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing paragraph (1). 

3.   In order to provide adequate and effective legal remedies to protect rights management information:

a.   Each Party shall prohibit any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of any copyright or related right, from

(i) knowingly removing or altering any rights management information; 

(ii) distributing, importing for distribution, broadcasting, communicating, making available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority.

4. Rights management information means: 

a.   information that identifies a work, performance, or phonogram; the

b.   author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram;

c.   information about the terms and conditions of the use of the work,

d.   any numbers or codes that represent such information, when any of these items is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, performance, or phonogram to the public.

5.   For greater certainty, nothing in this paragraph shall be construed to obligate a Party to require the owner of any right in the work, performance, or phonogram to attach rights management information to copies of the work, performance, or phonogram, or to cause rights management information to appear in connection with a communication of the work, performance, or phonogram to the public.

ARTICLE 6: LIMITATIONS AND EXCEPTIONS

1.   Consistent with Article 13 of the Agreement on Trade Related Aspects of Intellectual Property Rights and with a view to achieving a balance between the rights of rights holders and the legitimate interests of users and the community with regard to protected subject matter, each party shall provide limitations and exceptions to the rights provided in this chapter.

2.   In particular, each party shall provide for limitations and exceptions to the rights granted in Articles 1 to 5 in order to:

a.   facilitate preservation of works by libraries, museums and archives;

b.   promote educational uses of works including by face to face teaching and   transmission over wired or wireless networks;

c.   promote uses of works by people with disabilities;

d.   promote fair use or fair dealing in works to permit their utilization to the extent justified by the purpose of free expression (including commentary, criticism, news reporting and parody), participation in the cultural life of the community, teaching (including multiple copies for classroom use), scholarship, research, personal use,  functioning of innovation in the digital environment (including interoperability of products and services and the operation of Internet services such as online access, hosting and information location). Consistent with the foregoing, each party shall provide that its competent authorities have the authority to permit unauthorized uses upon due consideration of appropriate factors including:

i.    the purpose and character of the use, including whether such use is of a commercial nature or is for private or nonprofit purposes;

ii.   the nature of the copyrighted work;

iii.  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

iv.  the effect of the use upon the potential market for or value of the work.

3.   Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology, provided that such measures are consistent with this Agreement.  In particular, nothing in this Chapter shall prevent a Party from adopting measures necessary to prevent anti-competitive practices that may result from the abuse of intellectual property rights.

4.   Subject to each Party’s international obligations the Parties affirm that they may:

a.   provide for the international exhaustion of intellectual property rights; 

b.   establish that provisions in standard form non-negotiated licenses for products do not prevent consumers from exercising the limitations and exceptions recognized in domestic intellectual property laws; and 

c.   establish appropriate measures to protect traditional knowledge.

CHAPTER: FAIR USE IN THE TRADEMARK SECTION OF THE IP CHAPTER

1.   Each Party shall provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, nominative use of trademarks, and other uses to sustain free expression and avoid the creation of barriers to legitimate activity, including electronic commerce and innovation, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.

CHAPTER: ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

ARTICLE 1: GENERAL OBLIGATIONS

1.   Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights be in writing and state any relevant findings of fact and the reasoning or the legal basis on which the decisions and rulings are based.  Each Party shall also provide that those decisions and rulings be published or, where publication is not practicable, otherwise made available to the public, in its national language in such a manner as to enable governments, right holders, and the public to become acquainted with them.

2.   Each Party shall publicize information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative, and criminal systems, including any statistical information that the Party may collect for such purposes.

3.   In civil, administrative, and criminal proceedings involving trademarks, each Party shall provide for a rebuttable presumption that a registered trademark is valid.  In civil and administrative proceedings involving patents, each Party shall provide for a rebuttable presumption that a patent is valid, and shall provide that each claim of a patent is presumed valid independently of the validity of the other claims.

4.   Procedures adopted, maintained, or applied to implement this section shall be fair, equitable, and Parties shall provide for the appropriate protection of the rights of all participants subject to such procedures.  Procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays, and shall be applied in a manner so as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. 

5.   In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement and the applicable measures, remedies, and penalties. Parties shall also take into account the interests of third parties affected by enforcement of intellectual property rights.  

6.   It is understood that this part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.

ARTICLE 2: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES

1.   Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right.

2.   Each Party shall provide that:

a.   in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer to pay the right holder:

i.   damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or

ii.   at least in the case of copyright or related rights infringement and trademark counterfeiting, the profits of the infringer that are attributable to the infringement and that are not taken into account in computing the amount of damages referred to in clause (i) and

3.   In civil judicial proceedings, each Party may with respect to works, phonograms, and performances protected by copyright or related rights at least with respect to entities that were aware and had reason to believe that their acts constituted an infringement of copyright, establish or maintain pre-established damages, which shall be available on the election of the right holder. Parties choosing to establish such a system may provide that such damages shall not be available under this paragraph against an entity that believed or had reasonable grounds for believing that a use of the copyrighted work was subject to an exception under that Party’s laws.

4.   Each Party shall provide that its judicial authorities, except in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning copyright or related rights infringement that the prevailing party shall be awarded payment by the losing party court costs or fees and reasonable attorney’s fees.  Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment by the losing party of reasonable attorneys’ fees.

5.   To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that such procedures conform to principles equivalent in substance to those set out in this Article.

6.   In civil judicial proceedings concerning the enforcement of intellectual property rights, each Party shall provide that its judicial authorities shall have the authority to order a party to desist from an infringement.

7.   Notwithstanding the provision in paragraph 6 of this Article and provided that provisions addressing use by governments, or by third parties authorized by a government, without authorization of the right holder are complied with, each Party may limit the remedies available against infringement to payment of remuneration.

8.  In the event that a Party’s judicial or other competent authorities appoint technical or other experts in civil proceedings concerning the enforcement of intellectual property rights and require that the parties to the litigation bear the costs of such experts, the Party should seek to ensure that such costs are closely related, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings.

ARTICLE 3: ALTERNATIVE DISPUTE RESOLUTION

1.   Each Party may permit use of alternative dispute resolution procedures to resolve civil disputes concerning intellectual property rights.

ARTICLE 4: PROVISIONAL MEASURES

1.   Each Party shall act on requests for provisional measures inaudita altera parte expeditiously.

2.   Each Party shall provide that its judicial authorities have the authority to require the plaintiff, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the plaintiff’s right is being infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse, and so as not to unreasonably deter recourse to such procedures.

ARTICLE 5: CRIMINAL PROCEDURES AND REMEDIES

1.   Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or willful copyright or related rights infringement on a commercial scale. 

2.   Each Party shall treat willful importation or exportation of counterfeit or pirated goods on a commercial scale as unlawful activities subject to criminal penalties.

3.   Each Party shall also provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright piracy, at least in cases of knowing trafficking in:

a.   Counterfeit labels or illicit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany: a phonogram, a copy of a computer program or other literary work, a copy of a motion picture or other audiovisual work, or documentation or packaging for such items; and

b.   Counterfeit documentation or packaging for items of the type described in subparagraph (a).

ARTICLE 6: LIABILITY FOR SERVICE PROVIDERS AND LIMITATIONS

1.   Each Party shall provide for limitations on the liability of, or on the remedies available against, online service providers for at least copyright or related rights infringements that they do not initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, while preserving the legitimate interests of right holders in effective action against an act of copyright or related rights infringement that takes place in the digital environment.  Parties shall implement this provision in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and preserves fundamental principles such as freedom of expression, fair process, and privacy.

2.   An online service provider means a provider or operator of facilities for online services or network access. The Parties understand that this definition includes entities engaged in at least the following activities: transmitting, routing, or providing connections for material without modification of its content, or the intermediate and transient storage of such material in the course thereof; caching; hosting; and referring or linking users to an online location by using information location tools. The Parties further understand that the limitations in their law should apply to entities engaged in activities of a similar nature identified after the date this Agreement enters into force.

3.   Such limitations shall preclude monetary relief and restrict injunctive relief to removing or disabling access to the infringing material and other remedies that a court may find necessary or domestic laws may provide. Such remedies shall be least burdensome to the service provider among comparably effective forms of relief.  Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available.  Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider’s communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the judicial authority.

4.   No Party may condition the limitations in paragraph 1 on an obligation that an online service provider monitors its services or actively or affirmatively seeks facts indicating that infringing activity is occurring.

5.   Any Party choosing to meet the obligations under this provision by requiring that online service providers, upon receipt of notice from a rightholder, remove or disable access to certain information shall establish appropriate procedures in its law or in regulations for effective notifications of claimed infringement, and effective counter-notifications by those whose material is removed or disabled through mistake or misidentification.  These procedures shall require that a legally sufficient notice or counter-notice must, at minimum, contain information sufficient to enable the online service provider to identify the disputed work and the online location of the allegedly infringing material.  Each Party shall also provide for monetary remedies against any person who makes a knowing material misrepresentation in a notification or counter-notification that causes injury to any interested party as a result of a service provider relying on the misrepresentation.