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Stinking Hot Down Under

Stinking Hot Down Under.

The numbers are in: 2013 was the hottest year on record in Australia since records began.

WHO: Will Steffen, Australian National University, Canberra Australia

WHAT: A report on how many heat records were broken in Australia last year
WHEN: January 2014
WHERE: The Climate Council website
Last week in Australia it was stinking hot. I was texting with my brother (who is doing a PhD in Meteorology so is also a massive nerd like me) about the heatwave forecast and we came up with a new term for what an overnight minimum temperature should be called when it’s too high. We decided that an overnight low of 28.6oC should be called a ‘lower maximum’ because that’s too hot to sleep in.
Unfortunately, this is the new normal for Australia, which has just been shown in excellent infographic form by the Australian Climate Council. It was a banner year for Australia last year breaking all kinds of heat records and having the hottest average temperature since record keeping started in 1910.

It looks pretty, but it’s so hot the sand burns your feet. Mornington Peninsula, Vic (photo: Amy Huva)

Now, I know we Australians are a competitive people who always like to win, but breaking these records are not so much fun.
Nationally, the records broken were:
  • Highest average temperature across the country 1.20oC higher than the 1961-90 baseline years
  • Highest mean maximum temperature across the country 1.45oC above the baseline years
  • Mean minimum temperature across the country of 0.94oC above baseline years
  • Hottest January on record
  • Hottest summer on record (Dec 2012-Feb 2013)
  • Hottest winter day on record – August 31st 29.92oC
  • Hottest September on record of 2.75oC above baseline
  • Hottest spring on record
  • Hottest December on record
Locally, some of the notable records were:
  • South Australia broke their spring monthly average temperature record by 5.39oC
  • New South Wales broke their spring monthly average temperature record by 4.68oC
  • Alice Springs had their hottest October day ever of 42.6oC
  • Canberra’s October was 2.5oC above average
  • West Kimberly in Western Australia was a shocking 4oC above average for October
Sea Surface Temperatures were record highest for January and February 2013 and of the 21 days Australia has ever had with a country-wide average temperature above 39oC there were 8 of them in 2013 and 7 of them happened consecutively in January 2013! Remember in the news when Australia had to create a new colour on their temperature maps? That was then.
Even worse, this extreme heat was not pumped up with the influence of El Niño, which normally makes years warmer. The year had no strong El Niño or La Niña effect, so it was a climate-changed year.
Since 1950, the number of heat records has beaten the cold records in Australia at a rate of 3:1 and in true Australian style; we’ve exceeded expectations and broken all kinds of records. This is the new normal, and it’s only going to get worse unless we stop burning carbon.

Infographic by the Climate Council.

Why Canada Should Demand Sustainable Trade Practices From Its Partners | David R. Miller

Why Canada Should Demand Sustainable Trade Practices From Its Partners | David R. Miller.

The Trans-Pacific Partnership has been described by negotiation countries as one of the most ambitious 21st century trade agreements. However, today’s leak of the agreement’s draft environment chapter reveals deeply concerning limits to that ambition. And it is these limits that could significantly undermine the sustainable use of the world’s resources as well as the long-term economic benefits of trade.

For nearly four years, a dozen nations including Canada, the U.S., Mexico, and a number of Pacific Rim countries have been quietly negotiating this deal. Last fall, WWF along with 23 other environmental organizations called for the inclusion of a number of critical measures to ensure the long-term sustainability of the world’s seafood and timber, and to curb the illegal trade of wildlife. Even though legally enforceable environmental provisions are a mandatory part of all U.S. trade agreements, that’s precisely where the leaked chapter (penned, it turns out, by Canada) fails. In short, the environmental provisions have no teeth.

The global environmental issues cited by WWF and others are implicit in this trade agreement. The countries included in the Trans-Pacific Partnership represent about one-quarter of the world’s global seafood catch (Canada is both a major exporter and importer of seafood). They account for 34 per cent of world’s timber and pulp production. And they include some of the globe’s largest consumers of illegal wildlife products. In other words, this agreement represents a once-in-a-generation opportunity to significantly address the overfishing of our oceans, the devastation of our forests, and the illegal poaching and trafficking that is driving rhinos, elephants, sharks and other species to the brink of extinction.

That’s what’s slipping through our fingers here. And the implications are far-ranging. Unsustainable resource trade weakens the ability of law-abiding businesses to compete, and threatens jobs in countries who follow the rules. Take “pirate” fishing for example (fishing that’s illegal, unregulated, and unreported). This global epidemic accounts for about 20 per cent of the world’s seafood catch, costing the industry as much as $23 billion per year. It’s also a major driver of overfishing, which includes unsustainable shark finning.

Canada has actually become an international leader in the fight against “pirate” fishing. Shouldn’t we be demanding that same level of leadership from others? Shouldn’t we be at the table pushing for an agreement that makes strong, legally-binding environmental legislation the foundation for a prosperous and sustainable global economy? Doesn’t that speak both to our historic role in international negotiations as well as to our values as Canadians?

Sadly, today’s leaked report shows us doing the opposite: standing in the way of proposals for stronger environmental enforcements. That, too, is a very disappointing missed opportunity — for Canada, for the world, and for our country’s our place in it.

Follow David R. Miller on Twitter: www.twitter.com/@iamdavidmiller

Activist Post: No-Brainer Course In Derailing The Trans-Pacific Partnership

Activist Post: No-Brainer Course In Derailing The Trans-Pacific Partnership.

Heather Callaghan
Activist Post

If you don’t know what it is yet – that means it’s working. The secrecy, that is. But once Pandora’s Box is opened, there’s no putting anything back. It will go down in history as one of the worst, oppressive plagues to saturate the planet.

Like Spider Man trying to stop a train from going over with nothing but his strength and shooting threads; we are going to need all the Web we can get to stop the fast-tracking Trans-Pacific Partnership from running over us. Perhaps more aptly, it is a tangled web we’ll be left trapped in as prey if we do nothing.

Here’s a crash-course and the easiest approach – all guesswork removed. But first, here’s a sampling of what you can kiss goodbye if this mammoth piece of legislation goes through…

What’s left of our jobs, food safety, Internet freedom, natural medicine, small farming, choice in medicine, financial regulation, privacy and more. Basically, all your rights. It permeates every area of your life, it’s been ramrodded through the Senate, and the media is not saying anything. It grants the likes of Monsanto, Wall Street and other huge entities full reign with immunity.

Kiss any last American sovereignty goodbye and say hello to your new global crypto-corpocracy complete with international tribunals and the end of domestic law – from your newly refurbished prison cell, of course. After all, you clicked on the wrong Internet link! And your ISP was watching and reported you. In the near future, this article could be enough to jail me, ban my whole family from the Internet, have computers seized and delete the website. No more videos that piece other clips together, or anything that hints at “infringement,” no more fair use, so no more non-corporate news.

It’s been shrouded in secrecy, especially from the People and Congress, planned behind closed doors for years, and proponents are searching for sponsors to have the President push it through now that Congress is back from recess.

The Trans-Pacific Partnership n. 1. A “free trade” agreement that would set rules on non-trade matters such as food safety, internet freedom, medicine costs, financial regulation, and the environment. 2. A binding international governance system that would require the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and any other country that signs on to conform their domestic policies to its rules. 3. A secret trade negotiation that has included over 600 official corporate “trade advisors” while hiding the text from Members of Congress, governors, state legislators, the press, civil society, and the public.

Here’s your crash course link on the TPP. You’ll be ready for take-off in no time. They’ve made it that simple:

Expose the TPP

After being mind-blown and catching your breath, you can do the absolute easiest thing there is to do by using Twitter with the hashtag #NOFastTrackTPP (but wait, there’s more).

Don’t use social media? No problem, scroll down. For social media users, here are the easiest things you can do, besides sharing memes and links on Facebook. Share things to Reddit andStumbleUpon. Everyone should call their reps (below).

See the Twitter storm event – still going. Pull any memes – share. Only use this hashtag for social media:  #NOFastTrackTPP. Using other hashtags and adding more will split the trends.

Next, Tweet your little heart out to your reps and others. Easily find them by clicking the “Discover” button and typing “congressman” in the search. All their Twitter names appear. Find celebrities, they often re-tweet. Example: @repfitzpatrick or @RepBera

Example Tweet:

@RepBera NO to Fast Track Authority and TPP, or we will not re-elect!! ‪#‎NoFastTrackTPP‬

Here’s another: “Do NOT sponsor FastTrack! Vote NO on TPP! ‪#‎NoFastTrackTPP‬”

Some reps have stood against the TPP, so first you might want to see this:

Spank or Thank?

– OR –

Use a general message for everyone: “I will NEVER support the Trans-Pacific Partnership#NOFastTrackTPP”

Want to jump into the Twitter storm? Easy. Sign up at Twitter, it runs you through a few-second tour and you can figure out the rest, see Help, or ask friends. Use the hashtag #NOFastTrackTPP on Facebook statuses.

Non-Social Media Users:

Find all your representatives’ info/forms in one-click. Just click on your state:
Contacting the Congress

Or use this:
Call President Obama: 202-456-6213
Call your Representative: 202-225-3121
or Toll Free (877) 762-8762

E A S Y  S C R I P T:

(Breathe and talk slowly. You will do just fine. Be polite and confident.)

“Hi, this is (your full name). I am a constituent of Rep/Senator (name). I live in (name of city). I am calling to request that Rep/Sen (name) vote NO on Fast Track Authority. It is important to me that Congress follows the Constitutional directive to negotiate international trade and that all trade agreements are given full consideration, debate and amendments as needed.

Do you know Rep/Sen (name) position on Fast Track Authority? Will he/she vote Yes or No? (wait for an answer)

Do you know Rep/Sen (name) position on the Trans Pacific Partnership Agreement? Will he/she vote Yes or No? (wait for an answer)

(regardless of their response, just continue)

Once again, I am requesting that Rep/Sen (name) vote NO on Fast Track Authority and NO on the TPP! Please be sure he/she gets my message. Thank you.”

Go to the Crash-Course site and print off PDFs to share. Actually, that whole website is designed to help you take action, online and off. You can still share the hashtag in any way you choose – it gets the point across fast.

URGENT:

If you can target these two reps, you could stop the fast-track today:

1) MIKE QUIGLY (IL-05)
D.C. 202-225-4061
District: (773) 267-5926
Twitter: @RepMikeQuigley
https://www.facebook.com/repmikequigley

2) GREG MEEKS (NY-05)
D.C. (202) 225-3461
District: 347-230-4032 & 718-725-6000
Twitter: Gregory Meeks
https://www.facebook.com/gregorymeeksny05

Lastly, if you have done something, no matter how small to derail the TPP fast track – THANK YOU!!

Special thanks also to Andrew Pontbriand, Emily Laincz and Nick Bernabe for their tireless organizing, efforts and information  – and to all those who joined them. Without them, this article wouldn’t be – nor will it with the TPP!

The smallest action is bigger than the greatest intention.

 

Heather Callaghan is a natural health blogger and food freedom activist. You can see her work at NaturalBlaze.com and ActivistPost.com. Like at Facebook.

Recent posts by Heather Callaghan:

Thanks to Dredging and Coal, the Great Barrier Reef Is More Threatened Than Ever | Motherboard

Thanks to Dredging and Coal, the Great Barrier Reef Is More Threatened Than Ever | Motherboard.

By Jason Louv

Satellite image of the reef, courtesy NASA

On December 10, the Australian government approved the expansion of a coal port at Abbot Point in Northern Queensland. A victory for Australia’s booming coal economy, it may also massively wound the nearby Great Barrier Reef.

That decision, however, has proved so massively controversial that the Great Barrier Reef Marine Park Authority has now delayed its decision on whether to grant permits to dump the dredge spoil in the Great Barrier Reef Marine Park until January 31.

Expansion of the coal port will entail dredging 3 million cubic meters of mud from the site, which will then be dumped into land infill projects. Australia’s environment minister Greg Hunt told Reuters that the current agreement was reduced from 38 million cubic meters of dredging to protect the environment, while Greenpeace countered that any dredging on this scale will have disastrous effects on the reef. Adding to the environmental toll is the 120 million tonnes of added coal shipping capacity the port’s four new terminals will provide.

Abbot Point will handle exports from the Galilee Basin, a geological depression that boasts massive coal reserves, but which up to now has lacked export infrastructure. The project will also create a coal-shipping highway directly through the Great Barrier Reef for thousands of ships to export coal to energy-hungry Asia. According to the Christian Science Monitor, Australia’s coal exports, already the largest in the world, have increased by 30 percent within the last year alone.

Indian firm Adani Group, seeking resources for the subcontinent’s similarly massive energy demands, will helm the Abbot Point project. Greenpeace estimates that the number of ships passing through the reef will increase from 1,700 a year to 10,150 by 2020. An $18 billion liquid gas facility and pipeline will also be built at nearby Curtis Island.

Construction of the Abbot Point coal port reached provisional approval directly following the election of Prime Minister Tony Abbott—a climate denier—whose conservative Liberal-National coalition took power in September amid promises of mining and gas industry expansion. Hunt approved the construction of the coal port along with the proviso that it will be built with the “strictest conditions in Australian history.”

Despite those assurances, both environmentalists and the Australian tourism industry were enraged by the December 11 decision. According to a report from the reef’s government authority, the Great Barrier Reef boosted the Australian economy by $5.68 billion from 2011-2012, and created 69,000 full-time jobs, mostly in tourism. Those numbers, however, are dwarfed by the $20 billion a year in tax revenues paid by Australia’s coal industry into federal and state budgets.

If the dumping permits are granted, it’s just the latest blow to the Great Barrier Reef. The world’s largest structure constructed by living beings, the reef stretches 1,400 miles along the east coast of Australia, and can be seen from space. It’s also a Unesco World Heritage Site. The Great Barrier Reef, and coral reefs like it, are among the world’s most diverse ecosystems, playing host to about a quarter of marine life, despite only covering 0.2 percent of the ocean’s total area.

While the dredging problem will likely remain relatively localized, the Great Barrier Reef has already been hit hard by climate change, and massive growth in the Australian coal industry will only make the problem worse. The reef’s coral cover has declined by 50 percent over the last three decades due to pollution, ocean acidification, floods, cyclones and the epidemic spread of the crown-of-thorns starfish, which eats coral. Atmospheric carbon dioxide has also made it increasingly difficult for marine animals, including corals, to produce shells. That’s on top of nearly a century of reef-killing agricultural runoff and development. Charlie Veron, chief scientist of the Australian Institute of Marine Science, has predicted that the Great Barrier Reef has no more than 20 years left.

@jasonlouv

 

What Is The TPP? A Primer

What Is The TPP? A Primer.

This article was written by Kimberly Paxton and originally published at The Daily Sheeple

If you keep hearing about the TPP and really only have a general idea of what this is, there is a good reason for that. The negotiations have been kept a closely guarded secret, and those participating don’t want you to know what it is until it’s too late to change it.

Read on for a TPP primer.

What is the TPP?

TPP stands for Trans-Pacific Partnership. The countries involved in this proposed partnership are the US, Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. It boils down to being a massive free trade agreement, which would eliminate tariffs on goods and services and harmonize various regulations between the partner countries. If the agreement goes through, it will affect more than 40% of the imports and exports of the United States.

Why are so many people against the TPP?

One of the major issues with the TPP is its effect on Freedom of Speech. Remember how everyone was concerned about the potential ramifications of SOPA and PIPA back when the US government was trying to crack down on “internet piracy”? Well, multiply that times a billion and then don’t run it through Congress, and you have, in a nutshell, the future effects of the TPP on the Internet.

Under the guise of protecting intellectual copyrights, if the TPP goes through, the Internet will change dramatically. It could turn Internet Service Providers into watchdogs, and threaten our ability to communicate unfettered on blogs, forums, websites and social media platforms.

ISPs will be forced to monitor the content of their customers (without warrants) because it is they who will face huge liability if copyrights are “infringed” upon.

“Fair Use” policies will be restricted, existing copyrights will be greatly lengthened, and adopt criminal sanctions against those who infringe on copyrights, even without monetary motivations.

Our own Constitutional checks and balances will no longer apply. There will be no right to privacy and no due process. Webpages can be taken down based on only a complaint – proof will not be required. Innocent until proven guilty will not apply.

So, this will aid Big Businesses like the pharmaceutical industry or the entertainment industry, while it restricts the ability of citizen journalists and every day people to share information. (Learn more HERE)

How does the TPP have the potential to cause tension with China?

Did you notice the major missing participant in the TPP?

All those Asian countries are in like Flynn, but China is notably not playing ball.

When everyone signs this agreement, and no tariffs apply, then Chinese goods will go from the cheapest to the most expensive. Their entire economy is based on exports. Their entire economy is at risk.

The provisions deliberately exclude China. For example, yarn for clothing must come from member countries, and not from China.

This could potentially invite retaliation from China, an economic superpower in their own right.

Why is it all so secret?

And now we come to the scariest part of the TPP. No one really knows what is in it.

All of the information we have comes from documents that were leaked. We know that it has 29 chapters with regulations regarding food safety, who you can buy what product from, financial services, copyrights, and much more.

We must always be suspect of the negotiation of potentially life-altering things that are done in secret. Generally this occurs because those making the plans know that the public will adamantly oppose what they are planning. According to a spokesman from the Office of theUnited States Trade Representative, the general public just isn’t bright enough to grasp the finer points of the TPP, and thus should be kept in the dark until it is fait accompli.

Will you be affected?

This agreement could negatively affect everyone in the United States who works in manufacturing. It will affect those who share information on the Internet. One analysis has said that a small percentage of the wealthy will prosper, while the rest of the population will see their finances dwindle even more. It would ban “Buy American” or “Buy Local” purchasing and marketing practices. It will allow Big Pharma to increase the price of medicine and will disallow the sale of many generic medications. It will override environmental protection laws and policies that have been put in place by member countries.

The list goes on and on.

So yes, you will be affected, and unless you happen to be the owner of a major pharmaceutical company or financial institution, this will not be positive for you.

 

DailyCensored.com – Breaking Censored News, World, Independent, Liberal NewsTPP: NAFTA on Steroids – DailyCensored.com – Breaking Censored News, World, Independent, Liberal News

DailyCensored.com – Breaking Censored News, World, Independent, Liberal NewsTPP: NAFTA on Steroids – DailyCensored.com – Breaking Censored News, World, Independent, Liberal News.

PREDATORY CAPITALISM FOR PIGS

The Trans-Pacific Partnership (TPP) is a trade deal from hell. It’s a stealth corporate coup d’etat.

It’s a giveaway to banksters. It’s a global neoliberal ripoff. It’s a business empowering Trojan horse. It’s a freedom and ecosystem destroying nightmare.

The Electronic Frontier Foundation (EFF) calls it “a secretive, multi-national trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement.”

More on TPP below. New York Times editors support it. Two decades ago, they endorsed NAFTA.

On January 1, 1994, its destructive life began. It’s anti-labor, anti-environment, anti-consumer and anti-democratic.

Corporate giants love it. Why not? They wrote it. Hundreds of pages of one-size-fits-all rules benefit them.

They override domestic laws. A race to the bottom followed. NAFTA was a disastrous experiment. In November 1993, New York editors headlined “The ‘Great Debate’ Over NAFTA,” saying:

“The laboriously constructed agreement to phase out trade barriers among the US, Mexico and Canada, which this page has strongly supported, is likely to have a positive, though small, impact on US living standards and provide a modest boost to the Mexican economy.”

“Some American jobs would be lost to cheaper Mexican labor, other jobs would be gained because American exports would increase as Mexico’s high tariffs gradually disappeared.”

“Economics aside, Nafta’s defeat would suggest that the US had abandoned its historical commitment to free trade and would thus discourage other Latin and South American countries thathave moved toward more market-oriented economies in the expectation of freer world trade.

So-called “free trade” is one-sided. It isn’t fair. NAFTA proponents promised tens of thousands of newly created US jobs.

Ordinary famers would export their way to wealth. Mexican living standards would rise. Economic opportunities would reduce regional immigration to America.

NAFTA’s promises never materialized. Reality proved polar opposite hype. A decade later, about a million US jobs were lost.

America’s Mexican trade deficit alone cost around 700,000 jobs by 2010.

Official government data show nearly five million US manufacturing disappeared since 1994.

NAFTA alone wasn’t responsible. It reflected broken promises, lost futures, and other trade deals from hell to follow. TPP stands out. It’s NAFTA on steroids.

Since 2008, multiple negotiating rounds were held. They continue secretly. Twelve nations are involved.

They include America, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Others are invited to join.

At issue is agreeing on unrestricted trade in goods, services, rules of origin, trade remedies, sanitary and phytosanitary measures, technical barriers, government procurement and competition policies, and intellectual property (IP).

It’s about eliminating fundamental freedoms. It’s circumventing sovereign independent rights. Corporate power brokers want unchallenged control.

They want global rules and standards rewritten. They want supranational powers. They want them overriding national sovereignty. They want investor rights prioritized over public ones.

They already rule the world. Imagine giving them more power. Imagine no way to stop them.

Imagine a duplicitous president. Obama’s in lockstep with their wish list. He intends giving them everything they want.

Public Citizen is independent. It’s our voice. Its work entails “ensur(ing) that all citizens are represented in the halls of power.”

Its Global Trade Watch (GTW) monitors TPP developments. It calls it “a stealthy policy being pressed by corporate America. (It’s) a dream of the 1%.” It’ll:

• “offshore millions of American jobs,

• free the banksters from oversight,

• ban Buy America policies needed to create green (and many other) jobs (as well as) rebuild out economy,

• decrease access to medicine,

• flood the US with unsafe food and products,

• and empower corporations to attack our environment and health safeguards.”

Hyped benefits are fake. Reality is polar opposite what corporate shysters claim. Everything accruing from TPP benefits them. It does so by undermining what matters most to ordinary people.

Lori Wallach heads GTW. Ben Beachy is research director. Last June, they headlined their New York Times op-ed “Obama’s Covert Trade Deal.”

He’s committed to open government, he claims. His policies reflect otherwise. He’s negotiating TPP secretly.

It’s “the most significant international commercial agreement since the” World Trade Organization’s 1995 creation, said Wallach and Beachy.

Congress has exclusive “terms of trade” authority. Obama systematically refuses repeated congressional requests to release the entire draft agreement being negotiated.

He “denied requests from members to attend (sessions) as observers.” He “revers(ed) past practice” snubbing them.

He “rejected demands by outside groups” to release the draft text. George Bush never went that far.

Obama’s “wall of secrecy” had one exception. About “600 trade ‘advisors,’ dominated by representatives of big business,” got access to what Congress was denied.

TPP overrides American laws. It requires changing them. Otherwise trade sanctions on US exports can be imposed.

Wall Street loves TPP. It prohibits banning risky financial products. It lets banksters operate any way they want without oversight.

Congress has final say. Both houses will vote on TPP. Ahead of doing so, they’ll have access to its full text.

Why later? Why not now? Why not earlier? Why not without enough time for discussion and public debate?

Members won’t get enough time to examine TPP carefully. Maintaining secrecy as long as possible prevents public debate.

Obama wants TPP fast-tracked. He wants it approved by yearend. Until March, Ron Kirk was Obama’s trade representative.

He was remarkably candid. He said revealing TPP’s text would raise enormous opposition. Doing so might make adopting it impossible.

According to Wallach and Beachy:

“Whatever one thinks about ‘free trade,’ (TPP secrecy) represents a huge assault on the principles and practice of democratic governance.”

“That is untenable in the age of transparency, especially coming from an administration that is otherwise so quick to trumpet its commitment to open government.”

On October 30, a newly formed Friends of TPP caucus was formed. Four House co-chairman head it. They include Reps. David Reichert (R. WA), Charles Boustany (R. LA), Ron Kind (D. WI) and Gregory Meeks (D. NY).

They sound like earlier NAFTA supporters. They claim TPP is important for US jobs, exports and economic growth. They lied saying so.

Wallach commented separately. TPP is hugely hugely destructive, she said. It’s more than about trade. It’s a “corporate Trojan horse.” It has 29 chapters. Only five relate to trade.

The others “either handcuff our domestic governments, limit food safety, environmental standards, financial regulation, energy and climate policy, or establish new powers for corporations.”

They promote offshoring jobs to low-wage countries. They ban Buy America. Corporations can do whatever they please. Instead of investing domestically, they can use “our tax dollars” to operate abroad.

They can exploit national resources freely. They’ll have “rights for min(ed) (commodities), oil, gas” and others “without approval.”

TPP includes all sorts of “worrisome issues relating to Internet freedom.”

It provides a back door to earlier failed legislation. It resurrects SOPA, PIPA, ACTA and CISPA provisions. It tramples on fundamental freedoms and national sovereignty.

“Think about all the things that would be really hard to get into effect as a corporation in public, a lot of them rejected here and in the other 11 countries, and that is what’s bundled in to the TPP,” said Wallach.

“And every country would be required to change its laws domestically to meet these rules.”

“The binding provision is each country shall ensure the conformity of domestic laws, regulations and procedures.”

Negotiations are secret. Nothing is discussed publicly. Details leaked out. TPP includes hugely unpopular policies. It forces them on member countries.

It overrides domestic laws protecting people and ecosystems. It’s predatory capitalism at its worst writ large. Obama fully supports it. Lawmakers hadn’t seen it until last year.

They got access to a single chapter. Examining it is severely restricted. Their office is denied a copy. They alone can read it. Their staff is denied permission.

They can’t take detailed notes. They can’t publicly discuss what’s in it. Technical language makes it hard to understand what they read.

Congressional approval is likely. Lobby pressure is intense. “Everything is bought and sold,” said Wallach. “Honor is no exception.”

The reason there’s no deal so far “is because a lot of other countries are standing up to the worst of US corporate demands,” Wallach explained.

For how long remains to be seen. If TPP is adopted, public interest no longer will matter. The worst of all possible worlds will replace it. Corporate rights will supersede human ones. A global race to the bottom will intensify.

Signatory countries will be legally bound to support loss of personal freedoms. Sovereign laws won’t protect against poisoned food, water and air.

Ecosystems will be destroyed. Millions more jobs will shift from developed to under or less developed nations.

Corporate power will grow more exponentially. Fundamental human and civil rights may erode altogether. Not according to Times editors.

On November 5, they headlined “A Pacific Trade Deal.”

A dozen nations want a deal by yearend, they said. They want it to “help all of our economies and strengthen relations between the United States and several important Asian allies.”

It bears repeating. TPP is a trade deal from hell. It’s a stealth corporate coup d’etat. It’s a freedom and ecosystem destroying nightmare. Times editors didn’t explain.

They lied to readers. They betrayed them. They repeated their 1993 duplicity. Millions affected understand best.

An October 8 White House press release lied. It called TPP “a comprehensive, next-generation model for addressing both new and traditional trade and investment issues, supporting the creation and retention of jobs and promoting economic development in our countries.”

“The deepest and broadest possible liberalization of trade and investment will ensure the greatest benefits for countries’ large and small manufacturers, service providers, farmers, and ranchers, as well as workers, innovators, investors, and consumers.”

Times editors endorsed what they haven’t read. TPP provisions remain secret. Leaked information alone is known.

Times editors willingly accept Obama misinformation as fact. Twenty years ago, they got NAFTA wrong. Here they go again.

They’re mindless about secret negotiations. Public concerns don’t matter. Corporate interests alone count.

Subverting national sovereignty is OK. So is empowering transnational giants without oversight. They’ll be able sue countries for potentially undermining future profits.

Times editors support the worst of corporate excess. Doing so shows which side they’re on.

Fundamental freedoms aren’t important. Corporate rights drive The Times’ agenda. Its editors explained nothing about fast-track authority.

Max Baucus (D. MT) chairs the Senate Finance Committee. He supports fast-tracking. Doing so hands congressional authority to Obama.

Proper hearings are restricted. Debate is limited. Amendments can’t be introduced. The Senate can’t filibuster. Congress can only vote up or down.

It can happen virtually out of sight and mind. It can happen with scant media coverage. It can happen with none at all. It can become law with practically no public awareness.

Imagine corporate America getting coup d’etat authority with hardly anyone knowing what happened. Imagine the consequences if it does. Imagine today’s America becoming worse than ever.

Times editors stressed how Obama wants TPP to be “an example for the rest of the world to follow.”

Imagine one more than ever unfit to live in. Imagine a president promising change to believe in promoting it.

Imagine Times editors endorsing what demands condemnation. Imagine not explaining what readers most need to know.

Imagine substituting misinformation for truth and full disclosure. Imagine all the news they call fit to print not fit to read.

A Final Comment

On November 13, Public Citizen headlined “Leaked Documents Reveal Obama Administration Push for Internet Freedom Limits, Terms That Raise Drug Prices in Closed-Door Trade Talks.”

“US Demands in Trans-Pacific Partnership Agreement Text, Published Today by WikiLeaks, Contradict Obama Policy and Public Opinion at Home and Abroad.”

TPP’s leaked text reveals Obama demands limiting Internet freedom. He wants restricted access to lifesaving medicines.

He wants all TPP signatory countries bound the the same deplorable rules.

He lied claiming TPP reduces health care costs. It has nothing to do with advancing online freedom as he promised. It’s polar opposite on both counts.

According to Public Citizen:

“It is clear from the text obtained by WikiLeaks that the US government is isolated and has lost this debate.”

“Our partners don’t want to trade away their people’s health. Americans don’t want these measures either.”

Obama’s in the pocket of Big Pharma. He’s a Wall Street tool. He represents other corporate interests. He spurns popular ones. He lies claiming otherwise. He repeatedly avoids truth and full disclosure.

He lied about Obamacare. It’s an abomination. It’s a scam. It’s a scheme to enrich insurers and other healthcare giants.

TPP is a global scam. It’s an assault on fundamental freedoms.

Reports indicate around half the House members strongly oppose it. Others lean that way. According to Lori Wallach:

“This could be the end of TPP.”

“All these other countries are like, ‘Wait, you have no trade authority and nothing you’ve promised us means anything. Why would we give you our best deal?’ Why would you be making concessions to the emperor who has no clothes?”

It bears repeating. TPP is a trade bill from hell. It’s a stealth corporate coup d’ etat. Killing it is essential.

The alternative is losing fundamental freedoms. It’s destroying national sovereignty. It’s making healthcare less affordable. It’s undermining what ordinary people value most.

Stephen Lendman lives in Chicago. He can be reached at lendmanstephen@sbcglobal.net.

His new book is titled “Banker Occupation: Waging Financial War on Humanity.”

http://www.claritypress.com/LendmanII.html

Visit his blog site at sjlendman.blogspot.com.

Listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network.

It airs Fridays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

http://www.progressiveradionetwork.com/the-progressive-news-hour

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Indonesia recalls Canberra ambassador over Yudhoyono phone tapping attempt | World news | theguardian.com

Indonesia recalls Canberra ambassador over Yudhoyono phone tapping attempt | World news | theguardian.com.

 

Indonesia’s foreign minister, Marty Natalegawa, demands an explanation from Australia over spying revelations. Australia’s prime minister, Tony Abbott, is asked about the affair

Indonesia has recalled its ambassador to Australia following Guardian Australia’s revelations that Australian spy agencies attempted to listen to the private phone calls of the Indonesian president and targeted the phones of other senior figures in Jakarta, including his wife.

The Indonesian foreign minister, Marty Natalegawa, confirmed on Monday that he and the president had contacted the ambassador in Canberra and told him to return to Jakarta for “consultations”. He added that Indonesia was reviewing all information-sharing agreements between the two nations, a damning move given the new Australian government’s pledge to combat people-smuggling in the region.

Natalegawa said any tapping of Indonesian politicians’ personal phones “violates every single decent and legal instrument I can think of – national in Indonesia, national in Australia, international as well”.

He added: “It is nothing less than an unfriendly act which is already having a very serious impact on bilateral relations.”

Natalegawa said summoning the ambassador was “not considered a light step” but was the “minimum” that could be done to “consolidate the situation”.

“The ball is very much in Australia’s court,” he said, calling for an official, public explanation from Canberra.

He expressed frustration at the response he had received from the Australian capital, adding he would be speaking with the Australian foreign minister, Julie Bishop, later on Monday. Natalegawa dismissed any suggestion that phone surveillance was “common practice between countries”, saying: “I have news for you: we don’t do it, we certainly should not be doing it among friends.”

Natalegawa said he would be examining whether the phone tapping revelations were in violation of the Lombok treaty signed by the two nations in 2006, which aimed to enhance bilateral security co-operation.

The foreign minister, known for his reserved demeanour, spoke in an unusually forthright manner. He said he would be “quite flabbergasted” if tapping the private phone calls of the president had relevance to Australia’s security interests.

“I need quite desperately an explanation how a private conversation involving the president of the Republic of Indonesia, involving the first lady of the Republic of Indonesia, how they can even have a hint, even a hint of relevance impacting on the security of Australia,” he said.

Earlier on Monday, the deputy Australian ambassador to Indonesia, David Engel, was called to the foreign ministry for talks. After a 20-minute meeting, he described talks as “very good”.

 

Obama’s Secret Treaty Which Will Merge America More Deeply Into The Emerging One World Economic System

Obama’s Secret Treaty Which Will Merge America More Deeply Into The Emerging One World Economic System.

id you know that the Obama administration is negotiating a super secret “trade agreement” that is so sensitive that he isn’t even allowing members of Congress to see it?  The Trans-Pacific Partnership is being called the “NAFTA of the Pacific” and “NAFTA on steroids”, but the truth is that it is so much more than just a trade agreement.  This treaty has 29 chapters, but only 5 of them have to do with trade.  Most Americans don’t realize this, but this treaty will fundamentally change our laws regarding Internet freedom, health care, the trading of derivatives, copyright issues, food safety, environmental standards, civil liberties and so much more.  It will also merge the United States far more deeply into the emerging one world economic system.  Initially, twelve nations will be a party to this treaty including the United States, Mexico, Canada, Japan, Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore and Vietnam.  Together, those nations represent approximately 40 percent of global GDP.  It is hoped that additional nations such as the Philippines, Thailand and Colombia will join the treaty later on.

There are some very good reasons why Obama does not want the American people to know anything about what is in this treaty.  This agreement will impose very strict Internet copyright rules on the American people, it will ban all “Buy American” laws, it will give Wall Street banks much more freedom to trade risky derivatives and it will force even more domestic manufacturing offshore.

It contains a whole host of things that Obama would be unable to get through Congress on his own.  But he is hoping to spring this on Congress at the last minute and get them to agree to this “free trade agreement” before they realize all of the things that are contained in it.

The secrecy surrounding these treaty negotiations have really been unprecedented.  The following is an excerpt from a recent article by Kurt Nimmo

“Since the beginning of the TPP negotiations, the process of drafting and negotiating the treaty’s chapters has been shrouded in an unprecedented level of secrecy,” Wikileaks notes in a statement on the release of the TPP draft. “Access to drafts of the TPP chapters is shielded from the general public. Members of the US Congress are only able to view selected portions of treaty-related documents in highly restrictive conditions and under strict supervision. It has been previously revealed that only three individuals in each TPP nation have access to the full text of the agreement, while 600 ’trade advisers’ – lobbyists guarding the interests of large US corporations such as Chevron, Halliburton, Monsanto and Walmart – are granted privileged access to crucial sections of the treaty text.”

And Obama reportedly is seeking “trade promotion authority” which would give him the ability to sign this treaty before Congress even votes on it…

Normally free -trade agreements must be authorized by a majority of the House and Senate, usually in lengthy proceedings.

However, the White House is seeking what is known as “trade promotion authority” which would fast track approval of the TPP by requiring Congress to vote on the likely lengthy trade agreement within 90 days and without any amendments.

The authority also allows Obama to sign the agreement before Congress even has a chance to vote on it, with lawmakers getting only a quick post-facto vote.

This is so insidious that it is hard to find the words to describe it.

In essence, Obama is trying to make a giant end run around Congress on dozens of different issues that are addressed by this treaty.

Fortunately, there are at least some members of Congress that are waking up to this.  Earlier this week, a small group of Republicans and a small group of Democrats both sent Obama a letter condemning this “free trade” agreement…

Separate groups of House Republicans and Democrats on Tuesday condemned the Obama administration’s proposed sweeping free trade agreement with 11 Pacific nations, known as the Trans-Pacific Partnership.

Strongly worded letters to President Barack Obama Tuesday were signed by hardline tea partiers, true-blue progressives, and moderate, corporate-friendly lawmakers in both parties, indicating political trouble for a trade deal the administration had hoped to seal by year end.

This is one of the most important political issues facing our nation here at the end of 2013, and yet you hear next to nothing about this treaty on the mainstream news.  If this treaty is approved, the United States will be permanently bound by the provisions of this treaty and will never be able to change them unless all of the other countries agree

Countries would be obliged to conform all their domestic laws and regulations to the TPP’s rules—in effect, a corporate coup d’état. The proposed pact would limit even how governments can spend their tax dollars. Buy America and other Buy Local procurement preferences that invest in the US economy would be banned, and “sweat-free,” human rights or environmental conditions on government contracts could be challenged. If the TPP comes to fruition, its retrograde rules could be altered only if all countries agreed, regardless of domestic election outcomes or changes in public opinion. And unlike much domestic legislation, the TPP would have no expiration date.

Are you starting to understand just how dangerous this treaty is?

Let me give you just one example of how this treaty could directly affect you.

Do you remember SOPA?

There was a huge public backlash when the very strict Internet copyright provisions of SOPA were revealed to the public, and the American people loudly expressed their displeasure to members of Congress.

But now the provisions of SOPA are back.  Most of them have reportedly been very quietly inserted into this treaty.  If this treaty is enacted, those provisions will become law and the American people will not be able to do a thing about it.

And according to an article in the New York Times, there are all sorts of other disturbing things that have been slipped into this treaty…

And yet another leak revealed that the deal would include even more expansive incentives to relocate domestic manufacturing offshore than were included in Nafta — a deal that drained millions of manufacturing jobs from the American economy.

The agreement would also be a boon for Wall Street and its campaign to water down regulations put in place after the 2008 financial crisis. Among other things, it would practically forbid bans on risky financial products, including the toxic derivatives that helped cause the crisis in the first place.

Are you starting to grasp why the Obama administration is so determined to keep this treaty such a secret?

In addition, this “free trade” agreement will push the ongoing deindustrialization of America into overdrive.  Every year, we buy hundreds of billions of dollars more stuff from the rest of the world than they buy from us.  Tens of thousands of American businesses have been lost as a result, and millions of good jobs have been shipped overseas.

If you are not familiar with our “trade deficit”, you really should be.  It is one of the issues at the very heart of our economic problems.  Posted below is a short 3 minute video that briefly discusses the trade deficit and why it is so important…

Slowly merging our economy with the rest of the planet has been absolutely disastrous for America.  Just consider the following statistics…

-Overall, the United States has run a trade deficit of more than 8 trillion dollars with the rest of the world since 1975.

-The United States has lost more than 56,000 manufacturing facilities since 2001.

-Back in the year 2000, there were more than 17 million Americans working in manufacturing.  Now there are less than 12 million.

-There are less Americans working in manufacturing today than there was in 1950 even though the population of the country has more than doubled since then.

-Back in 1950, more than 80 percent of all men in the United States had jobs.  Today, less than 65 percent of all men in the United States have jobs.

-When NAFTA was pushed through Congress in 1993, the United States had a trade surplus with Mexico of 1.6 billion dollars.  By 2010, we had a trade deficit with Mexico of 61.6 billion dollars.

-Back in 1985, our trade deficit with China was approximately milliondollars (million with a little “m”) for the entire year.  In 2012, our trade deficit with China was 315 billion dollars.  That was the largest trade deficit that one nation has had with another nation in the history of the world.

-According to the Economic Policy Institute, America is losing half a million jobs to China every single year.

-According to Professor Alan Blinder of Princeton University, 40 millionmore U.S. jobs could be sent offshore over the next two decades if current trends continue.

Once upon a time, our great manufacturing cities were the envy of the entire planet.  In fact, at one time Detroit actually had the highest per capita income in the United States.

But now Detroit is a rotting, decaying, festering hellhole that is completely bankrupt.  And there are dozens of other formerly great manufacturing cities that are heading down the exact same path.

These “free trade” agreements are neither “free” nor “fair” when you really examine them, and they are absolutely eviscerating the middle class.

Please urge your representatives in Congress to block the Trans-Pacific Partnership.  If this treaty does get approved, it is going to make a lot of our problems a whole lot worse.

Leaked Treaty: Worse Than SOPA and ACTA Washington’s Blog

Leaked Treaty: Worse Than SOPA and ACTA Washington’s Blog.

Treaty Threatens Global Government … Run by Giant Corporations

We noted last year:

An international treaty being negotiated in secret which would not only crack down on Internet privacy much more than SOPA or ACTA, but would actually destroy the sovereignty of the U.S. and all other signatories.

It is called the Trans-Pacific Partnership (TPP).

We also noted that even Congressmen are furious that the bill was being kept secret from the American public.

And that the TPP is an anti-American power grab by big corporations.

Wikileaks has now leaked the intellectual property chapter of the secret treaty … and it’s as bad as we feared.

Public Citizen explains how the TPP would limit people’s access to affordable medicine.

And International Business Times explains:

The TPP’s chapter on IP deals with a host of issues, but its potential impacts on basic Internet freedom and usage are perhaps the ones that would directly impact the most people in the short term. One of the biggest concerns about the agreement raised by the Internet freedom advocacy group the Electronic Frontier Foundation centers around the concept of “temporary copies.” Here’s the text of the relevant section of the TPP’s intellectual property chapter leaked Wednesday:

“Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).”

The EFF wrote in a July analysis of the language – which has not been amended in the intervening months — that the provision “reveals a profound disconnect with the reality of the modern computer,” which relies on temporary copies to perform routine operations, during which it must create temporary copies of programs and files in order to carry out basic functions. This is particularly so while a computer is connected to the Internet, when it will use temporary copies to buffer videos, store cache files to ensure websites load quickly and more.

“Since it’s technically necessary to download a temporary version of everything we see on our devices, does that mean—under the US proposed language—that anyone who ever views content on their device could potentially be found liable of infringement?” the EFF wrote. “For other countries signing on to the TPP, the answer would be most likely yes.”

And see this.

TPP would literally act to destroy the sovereignty of the U.S. and the other nations which sign the bill.

Postscript: Will the powers-that-be renew their labeling of Wikileaks as criminals for leaking an anti-American bill which would gut our nation’s sovereignty?

 

Secret Trans-Pacific Partnership Agreement (TPP)

Secret Trans-Pacific Partnership Agreement (TPP).

Secret Trans-Pacific Partnership Agreement (TPP)

Today, 13 November 2013, WikiLeaks released the secret negotiated draft text for the entire TPP (Trans-Pacific Partnership) Intellectual Property Rights Chapter. The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. The WikiLeaks release of the text comes ahead of the decisive TPP Chief Negotiators summit in Salt Lake City, Utah, on 19-24 November 2013. The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.

The TPP is the forerunner to the equally secret US-EU pact TTIP (Transatlantic Trade and Investment Partnership), for which President Obama initiated US-EU negotiations in January 2013. Together, the TPP and TTIP will cover more than 60 per cent of global GDP. Read full press release here

 

Download the full secret TPP treaty IP chapter as a PDF here

WikiLeaks Release of Secret Trans-Pacific Partnership Agreement (TPP)

Advanced Intellectual Property Chapter for All 12 Nations with Negotiating Positions (August 30 2013 consolidated bracketed negotiating text)

 

 

 

 

 


 

 

 

 

 

 

This Document Contains TPP CONFIDENTIAL Information TPP Negotiations, R18
MODIFIED HANDLING AUTHORIZED IP Group
  Intellectual Property [Rights] Chapter
  30 August
2013

 

 

 

 

 

 

 

 

COVER PAGE

 

INTELLECTUAL PROPERTY [RIGHTS] CHAPTER

 

CONSOLIDATED TEXT

 

 

 

 

 


 

 

 

 

 

CHAPTER QQ1

 

{INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL PROPERTY}

 

{GENERAL PROVISIONS}

 

{Section A: General Provisions}

 

Article QQ.A.1: {Definitions}

 

For the purposes of this Chapter:

 

Intellectual property2 refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement [3].

 

 

 

Article QQ.A.2: {Objectives}4

 

[NZ/CL/PE/VN/BN/MY/SG/CA5/MX6 propose; US/JP oppose: The objectives of this Chapter are:

 

  1. Enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;
  2. reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems;
  3. maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property.
  4. protect the ability of Parties to identify, promote access to and preserve the public domain;
  5. Ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
  6. Promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.]
    [NZ/CA/SG/CL/MY/VN propose. g. The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
  1. Support each Party’s right to protect public health, including by facilitating timely access to affordable medicines.]

 

 

[Article QQ.A.2bis: {Principles}

 

[NZ/CA/SG/CL/MY propose : 1. Each Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.

 

2. Each Party may adopt or maintain appropriate measures, provided that they are consistent with the provisions of this Chapter, to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

 

3. Each Party may adopt or maintain, consistently with the other provisions of this Chapter, appropriate measures to prevent or control practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market.]]

 

Article QQ.A.3: {General Provisions}

 

Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection and enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.

 

 

Article QQ.A.4: {Declaration on the TRIPS Agreement and Public Health}

 

The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2).

 

 

Article QQ.A.5: {Understandings Regarding Certain Public Health Measures7}

 

The Parties have reached the following understandings regarding this Chapter:

 

(a) The obligations of this Chapter do not and should not prevent a Party from taking measures to protect public health by promoting access to medicines for all, in particular concerning cases such as HIV/AIDS, tuberculosis, malaria, [US oppose: chagas] and other epidemics as well as circumstances of extreme urgency or national emergency. Accordingly, while reiterating their commitment to this Chapter, the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party’s right to protect public health and, in particular, to promote access to medicines for all.8

 

(b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the General Council of 30 August 2003 on the Implementation of Paragraph Six of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540) and the WTO General Council Chairman’s statement accompanying the Decision (JOB(03)/177, WT/GC/M/82) [SG/BN/VN/PE/CL/CA/MY/NZ/US/AU9/MX/JP: , as well as the Decision on the Amendment of the TRIPS Agreement, adopted by the General Council, 6 December 2005 US/MY propose: and the WTO General Council Chairperson’s statement accompanying the Decision (WT/GC/M/100)] (collectively, the “TRIPS/health solution”), this Chapter does not and should not prevent the effective utilization of the TRIPS/health solution.

 

(c) With respect to the aforementioned matters, if [US oppose: any waiver of any provision of the TRIPS Agreement, or any] [US propose: an] amendment of the TRIPS Agreement, enters into force with respect to the Parties, and a Party’s application of a measure in conformity with that [US oppose: waiver or] amendment [US oppose: is contrary to the obligations of] [US propose: violates] this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the [US oppose: waiver or] amendment.

 

 

Article QQ.A.6: {Existing Rights and Obligations / International Agreements}

 

1. [US: Further to Article -AA.2,] the Parties affirm their existing rights and obligations with respect to each other under the TRIPS Agreement [CL/PE: and any other multilateral agreements relating to intellectual property to which they are party] [MX propose: The TRIPS Agreement is incorporated into and made part of this Agreement, mutatis mutandis.][CA Propose: 1. Except as otherwise provided in this Chapter, nothing in this Chapter shall be construed as a limitation to the flexibilities, exceptions and limitations set out on the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party.]

 

[CL/NZ propose; US/AU/JP/MX oppose: 2. Nothing in this Chapter shall derogate from existing rights and obligations that Parties have to each other under the TRIPS Agreement or other multilateral agreements, such as those concluded or administered under the auspices of the World Intellectual Property Organization (WIPO), the World Health Organization (WHO) and United Nations Educational, Scientific and Cultural Organization (UNESCO).]10

 

[CA propose; MX/US oppose: 2. Except as otherwise provided in this Chapter, the Parties shall interpret this Chapter in such a way as to be [complementary to / compatible with] their rights and obligations under multilateral treaties concluded or administered under the auspices of the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the World Health Organization (WHO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) to which they are party, especially with regards to measures aimed at protecting public health and protecting equal access to knowledge and food.]

 

[CL/NZ/VN/BN/MY/PE:11 3. [Except as otherwise provided in this Chapter,] Nothing in this Chapter shall be construed as a limitation to the flexibilities, exceptions and limitations set out on the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party, especially with regards to measures aimed at protecting equal access to knowledge, food and public health.]]

 

[US/AU propose; CL/NZ/MY/PE/BN/VN/CA/JP/MX12 oppose:13 4. Each Party shall ratify or accede to the following agreements by the date of entry into force of this Agreement:

 

  1. Patent Cooperation Treaty (1970), as amended in 1979;
  2. Paris Convention for the Protection of Industrial Property (1967);
  3. Berne Convention for the Protection of Literary and Artistic Works (1971);
  4. Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
  5. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
  6. Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
  7. International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);
  8. Singapore Treaty on the Law of Trademarks (2006);
  9. WIPO Copyright Treaty (1996); and
  10. WIPO Performances and Phonograms Treaty (1996).]

 

 

[US/AU/NZ/PE/CA/JP/SG/MX14 propose : 5. Each Party shall notify the WTO of its acceptance of the Protocol amending the TRIPS Agreement done at Geneva on December 6, 2005.]

 

 

[US/SG propose; CL/MY/NZ/PE//VN/BN/CA/JP/MX 15 oppose: 6. Each Party shall make all reasonable efforts to ratify or accede to the following agreements by the date of entry into force of the Agreement:

 

 

[SG oppose: (a) Patent Law Treaty (2000); and]

 

(b) Hague Agreement Concerning the International Registration of Industrial Designs (1999).]

 

 

 

Article QQ.A.7: {National Treatment}

 

116. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals [17] of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection [18] [NZ/BN/MY/CA/JP/SG/VN oppose: and enjoyment of such intellectual property rights, and any benefits derived from such rights.][NZ/VN/BN/MY/CL/PE/JP/SG19 propose20; US/AU21 oppose: of intellectual property, subject to the exceptions provided in the TRIPS Agreement and in those multilateral agreements concluded under the auspices of WIPO.] [CL/AU/NZ/BN/PE22 propose: With respect to secondary uses of phonograms by means of analog communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of the other Party.]23

 

[VN: Articles 3 and 5 of the TRIPS shall apply with necessary modifications to the protection of intellectual property in this Chapter.]

 

  1. A Party may derogate from paragraph 1 [national treatment] in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:

 

  1. necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
  2. not applied in a manner that would constitute a disguised restriction on trade.

 

[CL:3 Paragraphs 1 and 2 do] [US: Paragraph [X national treatment/judicial and administrative procedures] does] not apply to procedures in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

 

Article QQ.A.8: {Most-Favoured-Nation Treatment}

 

[PE/CL: With regards to the protection and defence of intellectual property referred to in this chapter, any advantage, favour, privilege or immunity granted by a Party to the nationals of any other country will be accorded immediately and unconditionally to the nationals of the other Parties. The exceptions to this obligation shall be in conformity with the pertinent dispositions referred to in articles 4 and 5 of the TRIPS Agreement.]

 

[VN: Articles 4 and 5 of the TRIPS shall apply with necessary modifications to the protection of intellectual property in this Chapter.]

 

 

Article QQ.A.9: {Implementation of this Chapter}

 

[CL/NZ/VN/AU/BN/SG/PE/MY/MX/CA24 propose; US/JP oppose: 1. Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent: (a) 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; and (b) anticompetitive practices that may result from the abuse of intellectual property rights;, provided that such measures are consistent with this Agreement. [PE propose; CL/AU oppose: Nothing in this Chapter shall be construed to reduce the protection that the Parties agree on or have agreed on in benefit of the conservation or sustainable use of biodiversity.]]

 

 

Article QQ.A.10: {Transparency}

 

[NZ/AU25/US/SG26/MY/PE/VN/JP/MX propose: 1. [US: Further to Article ___ (Publication), and with the object of making the protection and enforcement of intellectual property rights transparent,] Each Party shall ensure that its laws, regulations and procedures [VN: or administrative rulings of general application] concerning the protection and enforcement of intellectual property rights [US: are in writing and are] [US oppose: shall be] published[27], or where such publication is not [US/PE oppose: practical] [US/PE: practicable], are made publicly available [US/AU/NZ: in a national language in such a manner as to enable [AU oppose: governments and right holders] [AU: interested persons and Parties] to become acquainted with them.] [US/AU/NZ oppose: in at least the national language of that Party or in the English language.]]28

[NZ/AU/SG/MY/CA29/MX/CL propose; VN/PE oppose: 2. Each Party shall endeavour to make available on the Internet [AU/NZ:

 

  1. its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights; and]
  2. [JP oppose: those details of patent, trademark, design, plant variety protection and geographical indication applications that are open to public inspection under national law.]]

 

[US/MX propose; BN oppose: 430. Nothing in this Chapter shall require a Party to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest [PE oppose: or would prejudice the legitimate commercial interests of particular enterprises, public or private].]31

 

 

Article QQ.A.11: {Application of Agreement to Existing Subject Matter and Prior Acts}

 

[US propose: 1. Except as it otherwise provides, including in Article QQ.G.8__ (Berne 18/TRIPS 14.6), this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.32]

 

2. 33 [CL/NZ/PE/MY/BN/VN/CA/MX oppose: Except as otherwise provided in this Chapter, including Article QQ.G.8____ (Berne 18/TRIPS 14.6),] a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory.

 

3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.

 

 

Article QQ.A.12: {International Exhaustion of Rights}

 

[CL/MY/NZ/VN/SG/BN/PE propose; US/AU/JP/MX oppose: The Parties are encouraged to establish international exhaustion of rights.]

 

 

Article QQ.A.13 {Public Domain}

 

[CL/VN/PE propose: Each Party shall endeavour to provide relevant information to disseminate public domain, including appropriate tools that help to identify the [CL: extension] [VN: expiration] of the terms of protection of intellectual property rights.]

 

[CL/VN propose: 1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.

 

2. For purposes of paragraph 1, each Party shall endeavor to:

  1. identify subject matter that has fallen into the public domain within their respective jurisdictions;
  2. promote access to the public domain; and
  3. preserve the public domain.

 

3. Actions to achieve the purposes referred to in paragraph 2, may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.

 

4. Each Party shall make its best efforts to promote cooperation among the Parties to identify and facilitate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]

 

[CL/VN Alternative Proposal:

 

1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.

 

2. For this purpose, Parties may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.

 

3. Each Party shall make its best efforts to promote cooperation among the Parties to identify and faciliate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]

COOPERATION

 

Note: We have not introduced braces into this section because party attributions are not clear based on the text.

 

Section B: Cooperation

 

 

Article QQ.B.1: {Contact Points}

 

Each Party shall designate at least one contact point for the purpose of cooperation under this section.

 

Article QQ.B.2: [NZ/CL/SG/VN/MY/BN/MX propose: Cooperation in the implementation of international agreements

 

[NZ/CL/SG/BN/AU/MY/PE/VN/MX propose: 1. [AU/US oppose: Where a Party is a member of any of the following agreements, that Party shall, where appropriate and upon request by another Party, support that Party in implementing any of the following agreements] [AU/CA/JP/SG: A Party may seek to cooperate with other Parties to support its accession to, and implementation of, the agreements X-X ]:

 

(a) Patent Cooperation Treaty;

 

[PE/CA oppose: (b) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks;

 

(c) Singapore Treaty on the Law of Trademarks;] and

 

(d) Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.]

 

[JP/SG/PE propose: (e) International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention)]

 

[AU: 2. Each Party shall endeavor to provide such cooperation as appropriate and upon request.]

 

 

Article QQ.B.3 {Cooperation Activities}

 

[AU/CL/NZ/PE/SG/BN/MX/VN/MY/US/CA propose: The Parties shall endeavour to cooperate on the subject matter covered by this Chapter through appropriate cooordination, training and exchange of information between the intellectual property offices, [or other relevant institutions]34, of the Parties. Cooperation may cover such areas as:

 

  1. developments in domestic and international intellectual property policy
  2. intellectual property administration and registration systems

 

  1. education and awareness relating to intellectual property
  2. intellectual property issues relevant to:
    1. small and medium-sized enterprises
    2. science, technology & innovation activities[PE propose: , which may include generation, transfer and dissemination of technology.]
  3. policies involving the use of intellectual property for research, innovation and economic growth
  4. such other areas as may be agreed among [AU/NZ oppose: the] Parties.]

 

 

Article QQ.B.4: {Patent Cooperation}

 

[[AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: In order to improve quality and efficiency in the Parties’ patent systems,] The Parties shall endeavour to [US/SG propose: cooperate] [US oppose: establish a framework for cooperation] among their respective patent offices to facilitate the [AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP oppose: exploitation] [AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: sharing and use] of search and examination work of other Parties. This may include:

 

  1. making search and examination results available to the patent offices of other Parties, and
  2. exchanges of information on quality assurance systems and quality standards relating to patent searching and examination;

[JP propose; CL/PE oppose: (c) implementing and promoting the Patent Prosecution Highway;]

 

[CL/AU/MY/NZ/SG/PE/VN/CA/MX/BN oppose: which may, among other things, facilitate work sharing.]35]36

[JP proposal: 2. In the course of the cooperation referred to Paragraph 1, the Parties are encouraged not to require the applicants to submit search and examination results, including cited documents, made available by the patent offices of other Parties, with a view to reducing the procedural costs of the applicants.]

 

Article QQ.B.5:

Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request and on terms and conditions mutually agreed upon between the Parties involved.[VN propose: , including the technical assistance for developing countries.]

 

 

 

 

{TRADEMARKS}

 

{Section C: Trademarks}

 

Article QQ.C.1: {Types of Signs Registrable as Trademarks}

 

[NZ/US/AU/CL/PE/SG/CA/JP/MY37 propose: 1. [VN/BN/MX oppose: No] Party may require, as a condition of registration, that a sign be visually perceptible, [VN/BN/MX oppose: nor may a Party] [VN/BN/MX propose: and] deny registration of a trademark solely on the ground that the sign of which it is composed is a sound [CL/CA/JP/MY oppose: or a scent] [CL/CA/MX/MY propose: Each Party may provide trademark protection for scents].] A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.

 

 

Article QQ.C.2: {Collective and Certification Marks}

 

1. Each Party shall provide that trademarks shall include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its domestic law, provided that such marks are protected.

 

Each Party [JP/MX propose: may][ JP oppose: shall] also provide that signs that may serve as geographical indications are eligible for protection under its trademark system [38]39[PE/NZ/MX/CL/BN/AU/US/JP/SG oppose; VN propose40: A Party may provide that Signs descriptive of geographical origin of goods or services, including geographical indication as defined in Article 22 of the TRIPS Agreement, may not be protected as trademarks other than collective and certification marks, unless they have acquired distinctiveness through use.]

 

[US/PE/MX41/SG propose; AU/NZ/ VN/BN/MY/CL/CA oppose: 2. Pursuant to Article 20 of the TRIPS Agreement, each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good or service (“common name”) including, inter alia, requirements concerning the relative size, placement or style of use of the trademark in relation to the common name, do not impair the use or effectiveness of trademarks used in relation to such good or service. [42]]43[44]

 

 

Article QQ.C.3: {Use of Identical or Similar Signs}

 

Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent third parties not having the owner’s consent from using in the course of trade identical or similar signs, [PE/MY/VN/CA/MX oppose45: including subsequent geographical indications,] for goods or services that are related to those goods or services in respect of which the owner’s trademark is registered, where such use would result in a likelihood of confusion.

 

In the case of the use of an identical sign, [PE/MY/SG/CL/CA/MX/VN oppose46: including a geographical indication,] for identical goods or services, a likelihood of confusion shall be presumed.

 

 

Article QQ.C.4:

 

Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trademark and of third parties.

 

[VN propose; AU/US/NZ/SG/MY/CL/PE/CA/JP/BN oppose: The owner of a registered trademark shall not have the right to prevent third parties from using geographical indications or other signs descriptive of goods and services even though they are identical or similar to the trademark unless such use would result in confusion.]47

 

Article QQ.C.5: {Well Known Trademarks}

 

1. No Party may require as a condition for determining that a trademark is well-known that the trademark has been registered in the Party or in another jurisdiction, included on a list of well-known trademarks, or given prior recognition as a well-known trademark.

 

2. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark,[48] [BN oppose: whether registered or not49,] provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.

 

3. Each Party recognizes the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks(1999) as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO.

 

[US/BN/CL/PE/MX/CA/JP/NZ/SG/VN propose; AU/MY oppose: 450. Each Party shall [PE/BN/MX/CA51 propose: according to domestic laws] provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, [SG/VN propose: as being already well-known before the registration or use of the first-mentioned trademark,] for related goods or services, if the use of that trademark is likely to cause confusion [CA/SG/VN oppose:52 or to deceive or risk associating the trademark with the owner of the well-known trademark, or constitutes unfair exploitation of the reputation of the well-known trademark.]]

 

 

Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural Aspects}

 

Each Party shall provide a system for the examination and registration of trademarks which shall include, inter alia:

 

  1. providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trademark;
  2. providing the opportunity for the applicant to respond to communications from the competent authorities, to contest an initial refusal, and to appeal judicially any final refusal to register a trademark;
  3. providing an opportunity to oppose the registration of a trademark or to seek cancellation53 of a trademark; and
  1. requiring that administrative decisions in oppositions and cancellation proceedings be reasoned and in writing. Written decisions may be provided electronically.

 

 

Article QQ.C.7: {Electronic Trademarks System}

 

Each Party shall provide:

 

  1. a system for the electronic application for, and maintenance of, trademarks; and
  2. a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks.

 

 

Article QQ.C.8: {Classification of Goods and Services}

 

Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice Classification) of [June 15, 1957], as revised and amended. Each Party shall provide that:

 

[CA oppose: (a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification 54; and]

 

  1. goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classfied in the same class of the Nice Classification. Conversely, each Party shall provide that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification.

 

 

Article QQ.C.9: {Term of Protection for Trademarks}

 

Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years.

 

Article QQ.C.1055:

 

No Party may require recordal of trademark licenses:

 

a. to establish the validity of the license;

 

[US/CA/NZ/SG/JP/AU propose; VN/MX/BN/PE/CL/MY oppose: b. as a condition for the right of a licensee to join infringement proceedings initiated by the holder, or to obtain by way of such proceedings damages resulting from an infringement of the trademark which is subject to the license; or

 

c. as a condition for use of a trademark by a licensee, to be deemed to constitute use by the holder in proceedings relating to the acquisition, maintenance and enforcement of trademarks.]

 

Article QQ.C.11: {International Exhaustion of Rights}

 

[CL/NZ/SG/VN/PE/MY/BN/AU/CA/MX propose; US/JP oppose: The Parties are encouraged to establish international exhaustion of trademark rights. For this purpose, the registration of a trademark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in any country under that trademark by the proprietor or with his consent.]

 

 

Article QQ.C.12: {Domain Names on the Internet}

 

1.56 In order to address the problem of trademark [VN/MX propose: geographical indication and trade name] cyber-piracy, each Party shall adopt or maintain a system for the management of its country-code top-level domain (ccTLD) that provides:

 

 

(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation;

 

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants57;

 

in accordance with each Party’s laws regarding protection of privacy58 and personal data. 59

 

2. [PE/SG/CL/AU/NZ/MY/BN/CA oppose; US/VN/JP/MX propose: Each party shall provide [VN: oppose adequate and effective] [VN propose: appropriate] remedies against the registration trafficking60, or use in any ccTLD, with a bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark [VN/MX propose: , geographical indication or trade name].]

 

 

 

{GEOGRAPHICAL INDICATIONS}

 

{Section D: Geographical Indications}

 

 

Article QQ.D.1: {Recognition of Geographical Indications}

 

The Parties recognize that [US propose; CL/PE/CA/MX/SG/MY/BN/VN/JP oppose: , subject to Article QQ.C.2(1),61 (Gls eligible for protection as trademarks)] geographical indications may be protected through a trademark or sui generis system or other legal means.

 

 

Article QQ.D.2:

Where a Party provides administrative procedures for the protection or recognition of geographical indications, through a system of trademarks or a sui generis system, the Party shall with respect to applications for such protection or petitions for such recognition:

 

  1. accept those applications or petitions without requiring intercession by a Party on behalf of its nationals62;
  2. process those applications or petitions without imposition of overly burdensome formalities;
  3. ensure that its regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions;
  4. make available information sufficient to allow the general public to obtain guidance concerning the procedures for filing applications or petitions and the processing of those applications or petitions in general; and allow applicants, petitioners, or their representatives to ascertain the status of specific applications and petitions;
  5. ensure that those applications or petitions are published for opposition and provide procedures for opposing geographical indications that are the subject of applications or petitions; and
  6. provide for cancellation, annulment, or revocation of the protection or recognition afforded to a geographical indication63

 

Article QQ.D.3:

Each Party shall, whether protection or recognition is provided to a geographical indication through [SG/CA/MY oppose: its domestic measures] [SG/CA/MY propose: the system referred to in article QQ.D.2] [CL/PE/MY/SG/VN/BN/CA/MX oppose64: or pursuant to an agreement with another government or government entity], provide a process that allows interested persons to object to the protection or recognition of a geographical indication, [CA oppose: and for protection or recognition to be65 refused annulled66 or, [AU propose: where appropriate,] cancelled] [MY/VN/SG/MX oppose67: , at least on the following grounds:

 

  1. the geographical indication is likely to cause confusion with a trademark or geographical indication that is the subject of a pre-existing good faith pending application or registration in the territory of such Party[68];
  2. [BN oppose: the geographical indication is likely to cause confusion with a pre-existing trademark or geographical indication, the rights to which have been acquired in accordance with the Party’s law[69];] and
  3. the geographical indication is a term customary in common language as the common name for such goods or services in that Party’s territory.]]

 

Article QQ.D.4:

[US propose;70 CL/PE/NZ/AU/SG/MY/MX/CA/BN/VN oppose: No Party shall, whether pursuant to an agreement with a government or a governmental entity or otherwise:

 

(a) in the case of geographical indications for goods other than wines or spirits, prohibit third parties from using or registering translated versions of the geographical indication;[71] or

 

(b) prohibit third parties from using a term that is evoked by the geographical indication.]

 

 

Article QQ.D.5:

[NZ/AU/BN/US propose;72 VN/PE/SG/CL/MY/CA/MX oppose: A Party may provide the means to protect a geographical indication against use in translation by third parties only if such use would, with respect to a geographical indication for goods other than wines and spirits:

 

(a) give rise to a likelihood of confusion with a prior trademark or geographical indication in the territory of that Party;

(b) mislead the public as to the geographical origin of the good; or

(c) constitute an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

 

 

Article QQ.D.6:

[US/NZ/AU/CL/SG propose;73 MX/VN/PE/MY oppose: If a Party grants protection or recognition to a geographical indication through the systems described in Article QQ.D.2 or through an agreement with another government or government entity, such protection or recognition shall commence no earlier than [CL oppose: (i) the filing date in the Party[74],] (ii) the date on which such agreement enters into force, or (iii) if a Party implements such protection or recognition on a date after entry into force of the agreement, on that later date75.]

 

Article QQ.D.7:

[NZ/AU/US propose;76 PE/CL/VN/SG/MY/BN/CA/MX oppose: No Party shall preclude the possibility that a term that it recognized as a trademark or geographical indication may become a term customary in the common language as the common name for the associated goods or services.]

 

 

Article QQ.D.8:

[CL/PE/AU/US/NZ/MX/CA/VN/JP propose 77 ; BN oppose: In determining whether a term is the term customary in the common language as the common name for the relevant goods or services in a Party’s territory, a Party’s authorities shall have the authority to take into account how consumers understand the term in that Party’s territory. Factors relevant to such consumer understanding may include [SG/CL/PE/MX/VN propose: if appropriate]:

 

  1. whether the term is used to refer to the type of product in question, as indicated by competent sources such as dictionaries, newspapers, and relevant websites;
  2. how the product referenced by the term is marketed and used in trade in the territory of that Party; and
  3. [CL/PE/MX/CA oppose78: whether the term is used in relevant international standards to refer to a class or type of product].]

 

 

Article QQ.D.9:

[NZ/AU/US/VN/BN/CL propose79; PE/MY/MX oppose: An individual component of a multi-component term that is protected as a geographical indication in a Party shall remain available for the public to use in that Party if the individual component is a term customary in the common language as the common name for the associated goods.]

 

[SG propose80: For greater certainty, nothing in this section shall require a Party to apply its provisions in respect of any individual component contained in a GI for which that individual component is identical with the term customary in common language as the common name of such goods in the territory of that Party.]

 

Article QQ.D.10:

[US propose;81 AU/CL/SG/PE/MY/NZ/BN/VN/MX/CA oppose: The existence of a geographical indication shall not be a ground upon which a Party may:

 

  1. refuse a trademark owner’s otherwise permissible request to renew the registration of its trademark; or
  2. refuse a trademark owner’s request to register an otherwise permissible modification of its registered trademark.]

 

Article QQ.D.11: [CL/SG/BN/VN/MX propose82; AU/PE/US/NZ/CA/JP oppose: List of Geographical Indications

 

The terms listed in Annex […] are recognized as geographical indications of the respective Party, within the meaning of paragraph 1 of Article 22 of the TRIPS Agreement. Subject to domestic laws [83], in a manner that is consistent with the TRIPS Agreement, such terms will be protected as geographical indications in the territories of the other Parties.]

 

Article QQ.D.12: {Homonymous Geographical Indications}

 

[NZ/CL/VN/MY/BN/SG/MX propose84; PE/US/AU oppose: 1. Each Party may provide protection to homonymous geographical indications. Where a Party provides protection to homonymous geographical indications, that Party may, where necessary, lay down the practical conditions of use to make a distinction between the homonymous geographical indications, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.]

 

[CL propose; AU/US/PE/NZ/VN/SG/MY/BN/MX/CA/JP oppose: 2. The Parties recognize the geographical indication Pisco for the exclusive use for products from Chile and Peru.]

 

[CL/SG/BN/MX propose; AU/PE/US/NZ/CA/JP oppose: Annex […] Lists of Geographical Indications]

Article QQ.D.13: {Country Names}

 

[CL/AU/NZ/SG/BN/VN/MY/PE/CA/MX/JP propose85 : The Parties shall provide the legal means for interested parties to prevent commercial use of country names of the Parties in relation to goods in a manner which misleads consumers as to the origin of such goods.]

 

Article QQ.D.14:

[US propose86; CL/PE/VN/MY/CA oppose: Each Party shall permit the use, and as appropriate, allow the registration, of signs orindications that identify goods other than wines or spirits, and that reference a geographical area that is not the place of origin of the goods, unless such use is misleading, would constitute an act of unfair competition, or would cause a likelihood of confusion with a prior trademark or geographical indication that identifies the same or similar goods. The foregoing shall not be understood to prevent a Party from denying registration of such a sign or indication on other grounds, provided such denial does not derogate from the provisions of the Paris Convention and the TRIPS Agreement.]

 

 

 

{PATENTS/ UNDISCLOSED TEST OR OTHER DATA/ TRADITIONAL KNOWLEDGE}

 

{Section E: Patents / Undisclosed Test or Other Data / Traditional Knowledge}

 

 

Article QQ.E.1: {Patents / Patentable Subject matter}

 

1. Subject to the provisions of paragraph 2 and 3, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.87 [US/AU propose; 88 CL/MY/PE/SG/VN/BN/NZ/CA/MX oppose: The Parties confirm that:

 

  1. patents shall be available for any new uses or methods of using a known product],

 

[US/JP propose; CL/MY/PE/SG/VN/BN/AU/NZ/CA/MX oppose: (b) a Party may not deny a patent solely on the basis that the product did not result in enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.]

 

2. Each Party may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to nature or the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

 

3. [US: Consistent with paragraph 1] each Party [US propose; AU/NZ/VN/BN/CL/PE/MY/SG/CA/MX oppose: shall make patents available for inventions for the following] [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: may also exclude from patentability]:

 

(a) plants and animals, [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: other than microorganisms];

 

[JP oppose: (b)diagnostic, therapeutic, and surgical methods for the treatment of humans or animals [US propose; AU/SG/MY/NZ/CL/PE/VN/BN/CA/MX oppose: if they cover a method of using a machine, manufacture, or composition of matter]; [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose:] and

 

(c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production.]

[MX propose: (d) and the diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods as such; software as such; methods to present information as such; and aesthetic creations and artistic or literary works.]

 

[NZ/CA/SG/CL/MY propose: ALT 3. Each Party may also exclude from patentability:

 

  1. diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and
  2. plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.]

 

Article QQ.E.2: {Patentable Subject Matter}

Each Party shall89 disregard at least information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure[90 [91]92:

  1. was made by the patent applicant or by a person who obtained the information directly or indirectly from the patent applicant,

 

and

 

  1. occurred within 12 months prior to the date of filing of the application in the territory of the Party.

 

Article QQ.E.3:

[US: Without prejudice to Article 5A(3) of the Paris Convention,] Each Party shall provide that a patent may be cancelled, revoked or nullified only on grounds that would have justified a refusal to grant the patent. A Party may also provide that fraud, misrepresentation, or inequitable conduct may be the basis for cancelling, revoking, or nullifying a patent or holding a patent unenforceable. [AU/CL/MY/NZ/BN/CA/MX/VN propose93; US/JP oppose: A Party may also provide that a patent may be cancelled, revoked or nullified on the basis that the patent is used in a manner determined to be anti-competitive in a judicial [VZ/CA/MX propose: or administrative] proceeding] [AU/CL/CA/MX propose: US oppose; consistent with Article 5A(3) of the Paris Convention.]

 

Article QQ.E.4: 94

Article QQ.E.4: {Opposition to Grant of Patent}

 

[NZ/CA/SG/CL/MY propose: Each Party shall provide a procedure for third persons to oppose the grant of a patent, either before or after the grant of a patent, or both.]

 

Article QQ.E.5: {Exceptions}

 

Each Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of third parties.

 

Article QQ.E.5bis: {Regulatory Review Exception}

 

[NZ/CA/SG/CL/MY propose: Consistent with [Article QQ.E.5 (Exceptions)], each Party may provide that a third person may do an act that would otherwise infringe a patent if the act is done for purposes connected with the collection and submission of data in order to comply with the regulatory requirements of that Party or another country, including for purposes connected with marketing or sanitary approval.]

 

 

Article QQ.E.5ter: {Experimental Use of a Patent}

 

[NZ/CA/SG/CL/MY propose: 1. Consistent with [Article QQ.E.5 (Exceptions)], each Party may provide that a third person may do an act that would otherwise infringe a patent if the act is done for experimental purposes relating to the subject matter of a patented invention.

 

2. For the purposes of this Article, experimental purposes may include, but need not be limited to, determining how the invention works, determining the scope of the invention, determining the validity of the claims, or seeking an improvement of the invention (for example, determining new properties, or new uses, of the invention).]

 

Article QQ.E.5quater: {Other Use Without Authorisation of the Right Holder}

 

[NZ/CA/SG/CL/MY propose: Nothing in this Chapter shall limit a Party’s rights and obligations under Article 31 of the TRIPS Agreement or any amendment thereto.]

 

Article QQ.E.6: {Patent filing}

 

1 Each Party shall provide that where an invention is made independently by more than one inventor, and separate applications claiming that invention are filed with or for the relevant authority of the Party, any patent granted for the claimed invention shall be granted on the application [US/VN/MX propose; AU/NZ/CL/MY/CA/PE oppose: which has been found to be patentable and] which has the earliest filing or, if applicable, priority date [AU/NZ/PE/BN/CL/CA95 propose;96 US/VN/MY/MX/SG oppose: and which is published].[US: 97]

 

 

Article QQ.E.7:

Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications98.

 

Article QQ.E.8:

[US/AU/PE/VN propose;99 CL/MY/BN/NZ/CA/SG/MX100 oppose: Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.]

 

Article QQ.E.9:

[US/PE/AU propose; 101 CL/VN/MY/BN/NZ/CA/SG/MX oppose: Each Party shall provide that a claimed invention [AU oppose: is] [AU propose: shall be] sufficiently supported by its disclosure [AU oppose: if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention] as of the filing date.]

 

Article QQ.E.10:

[US/AU/MX propose;102 SG/CL/MY/VN/PE/BN/NZ/CA oppose: Each Party shall provide that a claimed invention is [US/AU propose: useful] [MX propose: industrially applicable] if it has a specific [MX propose: and], substantial, [MX oppose: and credible] utility.]

 

Article QQ.E.11: {Publication of Patent Applications}

 

[AU/PE/NZ/MY/CL/VN/US/CA/MX/JP: 1. Each Party shall publish [US/MX oppose: or make available for public inspection] any patent application promptly after the expiry of 18 months from its filing date or, if priority is claimed, from its priority date, unless the application has been published earlier or has been withdrawn, abandoned or refused [CA propose: , without leaving any rights outstanding].]103

 

[AU/PE/NZ/CL/VN/CA/MX propose; MY oppose: 2. Each Party shall provide that an applicant may request the early publication of an application prior to the expiry of the period mentioned above.]

 

Article QQ.E.12:

[US/AU104/CA/SG/PE/CL/NZ/JP propose; MY/BN/VN/MX oppose: For published105 patent applications and issued patents, each Party shall make available to the public [US/PE/CA propose: at least] the following information : submitted [US/SG/PE propose: to that Party’s competent authorities] in accordance with [US/SG/PE propose: their] requirements [US/SG/PE oppose: of the Party’s competent authorities] [AU/CA/CL propose: in their possession] [US/SG/PE propose: and] in connection with the prosecution of such patent applications and patents:

 

(a) search and examination results, [JP oppose: including any relevant prior art search histories];

 

(b) [SG/PE/CL/US/NZ/AU/JP propose: non confidential]106 communications from applicants; and

 

(c) patent and non-patent related literature citations submitted by applicants, and relevant third parties.]

 

Article QQ.E.X: {Exhaustion of Rights}

 

[CL propose: The Parties are encouraged to establish international exhaustion of patent rights. For this purpose, the registration of a patent shall not entitle its holder to prevent third parties from making, using, offering for sale, selling or importing a product protected by that patent, which has been put in the market in any country by the patent holder or with his consent.]

 

Article QQ.E.XX

 

[US propose; CA/NZ/JP oppose: Each Party, at the request of the patent owner, shall adjust the term of a patent to compensate for unreasonable delays that occur in the granting of the patent. For purposes of this subparagraph, an unreasonable delay at least shall include a delay in the issuance of the patent of more than four years from the date of filing of the application in the territory of the Party, or two years after a request for examination of the application has been made, whichever is later. Periods attributable to actions of the patent applicant need not be included in the determination of such delays. Any patent term adjustment under this article shall confer all of the exclusive rights of a patent subject to the same limitations and exceptions that would otherwise apply to the patent absent any adjustment of the patent term.]

 

 

Article QQ.E.13107 108: {Exceptions / Regulatory Review Exception}

 

[US/NZ/PE/CA/MX/JP propose: Consistent with paragraph [QQ.E.5] (patent exceptions and limitations), each Party shall permit] [CL/SG/MY/AU/VN/BN propose: Where a Party permits] a third person to use the subject matter of a subsisting patent to [US/NZ/PE/AU/MX/VN/BN/JP] propose: generate information necessary to] support an application for [AU/CA/MX/VN/BN propose: regulatory or] marketing approval [CL/NZ/PE/SG/MY/AU/CA/MX/VN/BN propose: or sanitary permit] of a [AU/CA/VN/BN oppose: pharmaceutical] product [PE propose: or agricultural chemical product], [US/NZ/PE/SG/MY/MX/JP propose: and shall further] [CL/AU/CA/VN/BN propose: that Party may also] provide that any product produced under such authority [CL/AU/CA/VN/BN propose: may be] [US/NZ/PE/SG/MY/MX/JP propose: shall not be] made, [CA propose: constructed,] [CL/PE/VN/BN propose: offered for sale], [PE/VN/BN propose: imported,] used, or sold in its territory [US/NZ/PE/SG/MY/MX/JP propose: other than] for purposes related to [US/NZ/PE/AU/MX/VN/BN/JP propose: generating such information to support an application for] meeting [AU/CA/MX/VN/BN propose: regulatory or] marketing approval [CL/NZ/PE/SG/MY/AU/CA/MX/VN/BN propose: or sanitary permit] requirements of that Party [NZ/SG/MY/AU/CA/MX/CL/VN/BN propose: or another country].

 

[US/SG/MY/PE/MX/CL propose;109 NZ/AU/CA/VN/BN oppose: If the Party permits exportation of such a product, the Party shall provide that the product shall only]] [NZ/CA/BN propose: Each Party shall permit a product to] [AU/VN propose: Each Party may permit such a product to] be exported outside its territory [US/NZ/PE/AU/MX/VN/BN propose: for purposes of generating information] to support an application for meeting [AU/CA/MX/VN/BN propose: regulatory or] marketing approval [CL/NZ/SG/MY/PE/AU/CA/MX/VN/BN propose: or sanitary approval] requirements of that Party [CL/NZ/SG/MY/AU/CA/MX/VN/BN propose: or another country].

 

Article QQ.E.14:

[US propose;110 AU/NZ/CL/PE/MY/SG/BN/VN/CA/MX oppose: 6.

 

(a) Each Party shall make best efforts to process patent applications and marketing approval applications expeditiously with a view to avoiding unreasonable or unnecessary delays.

 

(c) Each Party, at the request of the patent owner, shall make available an adjustment of the patent term of a patent which covers a new pharmaceutical product111 or a patent that covers a method of making or using a pharmaceutical product, to compensate the patent owner of unreasonable curtailment of the effective patent term as a result of the marketing approval process.

 

(d) In implementing subparagraph 6(c), a Party may:

 

  1. limit the applicability of subparagraph 6(c) to a single patent term adjustment for each new pharmaceutical product that is being reviewed for marketing approval;
  2. require the basis for the adjustment to be the first marketing approval granted to the pharmaceutical product in that Party;
    and
  3. limit the period of the adjustment to no more than 5 years.

(e) In implementing subparagraph 6(c), and as a condition for providing the adjustment set forth in subparagraph 6(c) for a new pharmaceutical product approved consistent with Article 9.2(b) or Article 9.2(d), a Party may require an applicant that has submitted an application for marketing approval consistent with Article 9.2(b) or Article 9.2(d) to commence the process of obtaining marketing approval for that new pharmaceutical product in the Party within [X] years of the date of the first marketing approval of the same pharmaceutical product in another Party.112

 

(f) Any adjustment under subparagraph 6(c) shall confer all of the exclusive rights, subject to the same limitations and exceptions, of the patent claims of the product, its method of use, or its method of manufacture in the originally issued patent as applicable to the product and the approved method of use of the product. ]] ]

Article QQ.E.16: 113 [US: Pharmaceutical Products

 

Submission of Information or Evidence Concerning the Safety or Efficacy of a New Pharmaceutical Product

 

[US propose; AU/PE/VN/NZ/CL/MY/SG/BN oppose: 1. (a) If a Party requires or permits, as a condition for granting marketing approval for a new pharmaceutical product, the submission of information concerning the safety or efficacy of the product, the origination of which involves a considerable effort, the Party shall not, without the consent of a person previously submitting such safety or efficacy information to obtain marketing approval in the territory of the Party, authorize a third person to market a same or a similar product based on:

 

  1. the safety or efficacy information previously submitted in support of the marketing approval; or
  2. evidence of the existence of the marketing approval,
  1. for at least five years from the date of marketing approval of the new pharmaceutical product in the territory of the Party.

  2. If a Party requires or permits, in connection with granting marketing approval for a new pharmaceutical product, the submission of evidence concerning the safety or efficacy of a product that was previously approved in another territory, such as evidence of prior marketing approval in the other territory, the Party shall not, without the consent of a person previously submitting the safety or efficacy information to obtain marketing approval in the other territory, authorize a third person to market a same or a similar product based on:

 

  1. the safety or efficacy information submitted in support of a prior marketing approval in the other territory; or
  2. evidence of the existence of a prior marketing approval in the other territory,

 

for at least five years from the date of marketing approval of the new pharmaceutical product in the territory of the Party.

 

Submission of New Clinical Information or Evidence relating to a Pharmaceutical Product that Includes a Chemical Entity that has been Previously Approved for Marketing in Another Pharmaceutical Product

 

  1. If a Party requires or permits, as a condition of granting marketing approval for a pharmaceutical product that includes a chemical entity that has been previously approved for marketing in another pharmaceutical product, the submission of new clinical information that is essential to the approval of the pharmaceutical product containing the previously approved chemical entity, other than information related to bioequivalency, the Party shall not, without the consent of a person previously submitting such new clinical information to obtain marketing approval in the territory of the Party, authorize a third person to market a same or a similar product based on:

 

  1. the new clinical information previously submitted in support of the marketing approval; or
  2. evidence of the existence of the marketing approval that was based on the new clinical information,

 

for at least three years from the date of marketing approval based on the new clinical information in the territory of the Party.

 

  1. If a Party requires or permits, in connection with granting marketing approval for a pharmaceutical product of the type specified in subparagraph (c), the submission of evidence concerning new clinical information for a product that was previously approved based on that new clinical information in another territory, other than evidence of information related to bioequivalency, such as evidence of prior marketing approval based on new clinical information, the Party shall not, without the consent of a person previously submitting such new clinical information to obtain marketing approval in the other territory, authorize a third person to market a same or a similar product based on:
  1. the new clinical information submitted in support of a prior marketing approval in the other territory; or
  2. evidence of the existence of a prior marketing approval that was based on the new clinical information in the other territory,

 

for at least three years from the date of marketing approval based on the new clinical information in the territory of the Party.]

 

[US: Additional Provisions relating to Pharmaceutical Products

 

  1. Notwithstanding paragraph 2 above, a Party may take measures to protect public health in accordance with:

 

  1. the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) (the “Declaration”);
  2. any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Declaration and in force between the Parties; and
  3. any amendment of the TRIPS Agreement to implement the Declaration that enters into force with respect to the Parties.

 

  1. A Party that requires or permits an applicant to obtain approval for marketing a new pharmaceutical product in its territory by relying, in whole or in part, on the prior approval of the pharmaceutical product by the regulatory authority in another territory may, as a condition for providing the period of data protection specified in subparagraph 2(b) or 2(d), require an applicant that has submitted an application for marketing approval consistent with said subparagraphs to commence the process of obtaining marketing approval for that pharmaceutical product within [X] years of the date of first marketing approval of the same pharmaceutical product in another Party.

 

Article QQ.E.17:

 

1. Where a Party requires or permits, as a condition of approving the marketing of a pharmaceutical product, persons, other than the person originally submitting safety or efficacy information, to rely on that information or on evidence concerning safety or efficacy information for a product that was previously approved, such as evidence of prior marketing approval in another territory, each Party shall:114

 

(a) provide a transparent and effective system to:

 

  1. identify a patent or patents covering an approved pharmaceutical product or its approved method of use; and
  2. provide notice to a patent holder of the identity of another person who intends to market, during the term of the identified patent or patents, a product that is the same as, or similar to, the approved pharmaceutical product referenced in subparagraph 5(a)(i).

(b) unless such other person agrees to defer the marketing of the product until after the expiration of an identified patent, ensure that a patent holder may seek, prior to granting of marketing approval to an allegedly infringing product, available remedies by providing:

 

  1. an automatic delay of the grant of marketing approval that remains in place for a period of time designed to ensure sufficient opportunity to adjudicate115 disputes concerning the validity or infringement of allegedly infringed patents; and
  2. judicial or administrative procedures, including effective

    provisional measures, to allow for the timely adjudication of disputes concerning the validity or infringement of an allegedly infringed patent.

 

(c) If such other person’s product has been found to infringe a valid patent identified pursuant to subparagraph (a), provide measures that operate to prohibit the unauthorized marketing of that product prior to the expiration of the patent.

 

(d) when a Party delays the grant of marketing approval consistent with subparagraph 5(b)(i), provide an effective reward, consistent with the provisions of this Agreement, for the successful challenge of the validity or applicability of the patent.116

 

  1. In implementing subparagraph 5(b)(i), and as a condition for providing the automatic delay of the grant of marketing approval specified in subparagraph 5(b)(i) for a new pharmaceutical product approved consistent with subparagraph 2(b) or 2(d), a Party may require that an applicant that has submitted an application for marketing approval consistent with subparagraph 2(b) or 2(d) to commence the process of obtaining marketing approval for that new pharmaceutical in the Party within [X] years of the date of first marketing approval of the pharmaceutical product in another Party.

 

Article QQ.E.18:

Where a Party provides for a period of data protection for a pharmaceutical product of more than [5+Y] years pursuant to subparagraph 2(a) or 2(b) of this Article, that Party is not required to implement for that pharmaceutical product subparagraphs 2(c), 2(d) (3-year data protection in connection with submission of new clinical information), 5(b)(i) (automatic delay of marketing approval) or 5(d) of this Article (reward for the successful challenge of the validity or applicability of a patent).

 

Article QQ.E.19:

Where a Party chooses to apply subparagraph 6(e) of Article 8 and paragraphs 4 and 6 of this Article, the following provisions shall apply:

 

  1. a Party shall permit an applicant to commence the process of obtaining marketing approval by providing the regulatory authority of the Party information supporting approval of the new pharmaceutical product in the Party that is available to the person at the time the request is made, such as evidence of the prior approval of the product in another Party. It is understood that, while a Party may impose reasonable additional requirements or deadlines as a condition of authorizing the person to market the pharmaceutical product in its territory, satisfaction of those additional requirements or deadlines or the granting of approval shall be recognized by the Party as necessarily occurring after the commencement of the marketing approval process within the meaning of subparagraph 6(e) of Article 8 and paragraphs 4 and 6 of this Article; and
  2. a Party may not refuse to grant approval of a new pharmaceutical product on the basis of a failure of an applicant for marketing approval to satisfy the requirements of subparagraph 6(e) of Article 8 or paragraphs 4 and 6 of this Article.

 

Article QQ.E.20: [Placeholder for specific provision applying to biologics].]

 

[US: General Provisions relating to Pharmaceutical Products and Agricultural Chemical Products

 

Article QQ.E.21:

For purposes of this Article, a new pharmaceutical product means a product that does not contain a chemical entity that has been previously approved in the territory of the Party for use in a pharmaceutical product [JP propose: for human use].117

 

Article QQ.E.22:

Subject to paragraph 3 (protection of public health), when a product is subject to a system of marketing approval in the territory of a Party pursuant to paragaph 1 or 2 and is also covered by a patent in the territory of that Party, the Party shall not alter the term of protection that it provides pursuant to paragraph 1 or 2 in the event that the patent protection terminates on a date earlier than the end of the term of protection specified in paragraph 1 or 2.]]

 

Article QQ.E.XX.1: {Measures to Encourage Timely Entry of Pharmaceutical Products}

 

[NZ/CA/SG/CL/MY/VN propose: Each Party may adopt or maintain measures to encourage the timely entry of pharmaceutical products to its market.]

 

Article QQ.E.XX.2: {Patent Quality and Efficiency}

 

[NZ/CA/SG/CL/MY/VN propose: 1. Each Party shall endeavour to improve quality and efficiency in its patent system.

 

2. Each Party shall endeavour to enhance its patent registration system by maintaining examination procedures, cancellation procedures and, where provided, opposition procedures that consistently provide high quality rights for granted patents, and endeavour to simplify and streamline its administration system for the benefit of all users of the system and the public as a whole.]

 

 

Article QQ.E.XX.3: {Processing Efficiency}

 

[NZ/CA/SG/CL/MY/VN propose: 1. Each Party shall endeavour to process applications for patents, and applications for marketing, regulatory or sanitary approval of pharmaceutical products, in an efficient and timely manner.

 

2. Each Party may provide a procedure for patent applicants to apply to expedite the examination of their patent application.

 

3. If there are unreasonable delays in a Party’s processing of applications for patents, or processing of applications for marketing, regulatory or sanitary approval of pharmaceutical products, the Party shall endeavour to address those delays.]

Article QQ.E.XX.4: {Protection of Undisclosed Data}

 

[NZ/CA/SG/CL/MY/VN propose: 1. Where a Party requires, as a condition of marketing, regulatory or sanitary approval for pharmaceutical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, that Party shall protect such data against unfair commercial use. In addition, each Party shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data is protected against unfair commercial use.

 

  1. Each Party may provide that the protection of data under paragraph 1, inter alia:
    1. is limited to undisclosed test or other data, the origination of which involves a considerable effort;
    2. is limited to pharmaceutical products that do not contain a new chemical entity that has been previously approved for marketing in the Party;
    3. is limited to pharmaceutical products which utilize a new chemical entity;
    4. is available only once per pharmaceutical product;
    5. is not available for new uses or indications, new dosage forms or methods of making a pharmaceutical product;
    6. is limited to a period of time as determined by the Party; or
    7. may be waived to facilitate the marketing, regulatory or sanitary approval of a pharmaceutical product that is the subject of a voluntary or compulsory license, or a licence otherwise issued pursuant to the TRIPS Agreement.

 

  1. Each Party may take measures to protect public health in accordance with:
    1. the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) (the “Declaration”);

 

  1. any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Declaration and in force between the Parties; and
  2. any amendment of the TRIPS Agreement to implement the Declaration that enters into force with respect to the Parties.]

 

 

Article QQ.E.XX.5: {Publication of Regulatory Approval}

 

[NZ/CA/SG/CL/MY/VN propose: Each Party shall endeavour to promptly make public the granting of marketing, regulatory or sanitary approval of pharmaceutical products.]

 

 

Article QQ.E.XXX {Agricultural Chemical Products}

 

[US/SG/PE/MX/JP propose118 ; NZ/VN oppose: 1.

 

(a) If a Party requires [AU/CL/MX oppose: or permits], as a condition of granting marketing approval [CL/MX propose: or sanitary permit] for a new agricultural chemical product [CL/MX propose; JP oppose: which utilize new chemical entity], the submission of [CL/MX propose: undisclosed][AU oppose: information] [AU propose; JP oppose: undisclosed test or other data] concerning safety or efficacy of the [CL/MX oppose: product][CL/MX propose; JP oppose: new chemical entity], the Party shall not, without the consent of [AU oppose: a person that previously submitted such] [AU propose: the person who provided the] [CL/MX oppose: safety or efficacy] information [AU oppose: to obtain marketing approval in the Party, authorize another] [AU propose: , permit third persons] to [CL/MX oppose: market] a [CL/MX oppose: same or a similar] product based on:

 

[SG oppose: (i) [CL/MX propose; JP oppose: undisclosed information concerning][AU oppose: the safety or efficacy information submitted in support of the marketing approval] [CL/MX propose: or sanitary permit][AU propose; JP oppose: that undisclosed test or other data]; or]

 

[CL/MX oppose: (ii) [AU oppose: evidence of the existence of] the marketing approval,]

 

 

[MX oppose: for [AU oppose: at least] ten years from the date of marketing approval [AU oppose: in the territory of] [AU propose: by] the Party .] [MX propose: Where origination of such data involve considerable efforts,119 ] [CL/MX propose; JP oppose: Each Party shall protect such information against disclosure except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use]

 

[CL/MX oppose: (b) If a Party [AU oppose: requires or permits, in connection with] [AU propose: permits, as a condition of ] granting marketing approval for a new agricultural chemical product, the submission of evidence concerning the safety or efficacy of a product that was previously approved in another territory, such as evidence of prior marketing approval [AU oppose: in the other terrritory]; the Party shall not, without the consent of [AU oppose: a person that] [AU propose: the person who] previously submitted [AU oppose: the safety or efficacy] information [AU propose: concerning safety or efficacy] to obtain marketing approval in another territory, [AU oppose: authorize another] [AU propose: permit third persons] to market a same or a similar product based on:

 

[SG oppose: (i) [AU oppose: the safety or efficacy] information [AU propose: concerning safety or efficacy] submitted [AU oppose: in support of] [AU propose: to obtain] the prior marketing approval in the other territory; or]

 

(ii) evidence of [AU oppose: the existence of a] prior marketing approval in the other territory,

 

for [AU oppose: at least] ten years from the date of marketing approval [AU oppose: of the new product in the territory of the Party].]

 

[PE propose120: In order to receive protection under subparagraph (b), a Party may require that the person providing the information in the other territory seek approval in the territory of the Party within five years after obtaining marketing approval in the other territory.]

 

[MX propose121: Where a Party relies on a marketing approval granted by another Party, the reasonable period of exclusive use of the data submitted in connection with obtaining the approval relied on shall begin with the date of the first marketing approval relied on.]

 

[CL/MX oppose: 2. For purposes of this Article, a new agricultural chemical product is one that [AU oppose: contains] [AU propose: does not contain] a chemical entity that has [AU oppose: not] been previously approved [AU propose: for marketing] in the [AU oppose: territory of the] Party [AU oppose: for use in an agricultural chemical product].]]

 

[NOTE: ARTICLES ORIGINALLY LABELED AS QQ.E.23-24 HAVE BEEN MOVED TO QQ.A.4-5]

 

Article QQ.E.23 122 : [PE/NZ/MX/SG: Proposed joint text for the Intellectual Property Chapter on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources

[PE/NZ/VN/BN/MX/SG/CL/MY propose: 1. The Parties recognise the importance and contribution of traditional knowledge, traditional cultural expressions, and biological diversity to cultural, economic and social development. ]

 

[PE/MY/MX/BN propose; NZ/AU/SG/CL oppose: 2. Each Party exercises sovereignty over their biological [MY/BN oppose: diversity] [MY/BN propose: resources] and shall determine the access conditions to their genetic resources and their derivatives in accordance to their domestic legislation.]

 

[PE/NZ/BN/MY/MX/VN propose; AU/SG/CL oppose: 3. Where national legislation [MY/BN propose: or policies] establishes such requirements, the Parties recognise that users of genetic resources [NZ/CA oppose: and their derivatives] [ 123 ] or traditional knowledge associated with genetic resources [NZ/CA oppose: and their derivatives] [NZ propose: may] [PE/MY propose: shall]:

 

(a) obtain prior informed consent to access genetic resources [NZ/CA oppose: and their derivatives];

(b) access traditional knowledge associated with genetic resources [NZ/CA oppose: and their derivatives] with the prior informed consent or approval and involvement of the indigenous or local community holding such knowledge; and

  1. [BN/MY propose: fairly and] equitably share the benefits arising from the use of genetic resources [NZ/CA oppose: and its derivatives] and traditional knowledge associated with genetic resources [NZ/CA oppose: and their derivatives] on mutually agreed terms.]

 

[PE/NZ/MX/CL/VN propose; SG oppose: 4. The parties recognize that:

 

(a) information about genetic resources [NZ/CL/AU/CA oppose: and their derivatives] and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] can be useful in assessing patent applications against existing eligibility criteria; and

(b) the intellectual property system is one possible means to protect the traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] and traditional cultural expressions of indigenous and local communities.]

 

[PE/NZ/MX/CL propose; SG oppose: 5. The Parties affirm that they will promote quality patent examination of applications concerning genetic resources and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] to ensure that the eligibility criteria for patentability are satisfied. This may include:

 

(a) in determining prior art, ensuring that readily available documented information related to genetic resources [NZ/CL/AU/CA oppose: and their derivatives] or traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] is taken into account;

(b) an opportunity to cite, in writing, to the appropriate examining authority prior art that may have a bearing on patentability;

(c) where applicable and appropriate, the use of databases or digital libraries containing traditional knowledge [CL oppose: associated genetic resources [NZ/AU/CA oppose: and their derivatives]]; and
(d) cooperation in the training of patent examiners in the examination of patent applications related to genetic resources [NZ/CL/AU/CA oppose: and their derivatives] and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]].]

 

[PE/NZ/AU/MX/MY/BN/VN/CL propose; SG oppose: 6. Subject to each Party’s international obligations [AU/MY/BN/VN/CL oppose: the Parties affirm that they will endeavour to][AU/MY/BN/VN/CL propose: each Party may] establish appropriate measures to protect traditional knowledge and [MY oppose: traditional cultural expressions].]

 

[PE/MX propose; NZ/AU/SG/CL oppose: 7. Each Party will take appropriate, effective and proportionate measures to address situations of non-compliance with provisions established in paragraph 3.]

 

[PE/NZ/MX/SG/MY/BN/VN propose: 8. The Parties shall, through their respective agencies responsible for intellectual property, cooperate to enhance understanding of how the intellectual property system can deal with issues associated with traditional knowledge, traditional cultural expressions and genetic resources. [This text is a place holder, to be reconsidered depending on the outcome of the cooperation section of the IP chapter]]]

 

 

 

 

[JP propose: {INDUSTRIAL DESIGNS}

 

{Section F: Industrial Designs}

 

Article QQ.F.1: {Partial Design}

 

Each Party shall ensure that adequate and effective protection is provided to industrial designs, including to designs of a part of an article, regardless of whether or not the part can be separated from the article.]

 

 

 

{COPYRIGHT AND RELATED RIGHTS}

 

{Section G: Copyright and Related Rights [124]}

 

Article QQ.G.1: {Copyright and Related Rights / Right of Reproduction}

 

  1. Each Party shall provide125 that authors, [NZ oppose: performers], and producers of phonograms126 have the right127 to authorize or prohibit all reproductions of their works, [NZ oppose: performances], and phonograms, [128] in any manner or form,[129] [VN/CA/NZ oppose: permanent or temporary (including temporary storage in electronic form)] [130] [131] [VN propose: it shall be a matter for national legislation to determine exceptions and limitations under which the right may be exercised].

 

Article QQ.G.2: {Copyright}

 

Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) 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.132

 

Article QQ.G.3: {Copyright and Related Rights}

 

[US/AU/PE/NZ/SG/CL/MX propose; VN/MY/BN/JP oppose: Each Party shall provide to authors, [NZ/MX oppose: performers,] and producers of phonograms the right to authorize or prohibit the importation[133] into that Party’s territory of copies134 of the work [PE oppose: [NZ/MX: oppose: performance,] or phonogram] made without authorization, [PE/AU/NZ/CA/SG/CL/MX/JP oppose: or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram.[135] ]] [136]

Article QQ.G.4: {Right of Distribution}

 

Each Party shall provide to authors, [NZ/MX oppose: performers,] and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies137 of their works, [NZ/MX oppose: performances,] and phonograms through sale or other transfer of ownership.[138]

 

Article QQ.G.5:

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.

 

Article QQ.G.6:

[US/AU/PE/SG/CL/MX propose; VN/BN/NZ/MY/CA/JP oppose: Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:

 

  1. on the basis of the life of a natural person, the term shall be not less than the life of the author and [MX propose: 100] [MX oppose: 70] years after the author’s death; and

 

  1. on a basis other than the life of a natural person, the term shall be:

 

  1. not less than [US propose; CL oppose: 95] [AU/PE/SG/CL propose: 70] [MX propose: 75] years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or
  2. failing such authorized publication within [US propose; CL oppose: 25] [SG/PE/AU/CL propose: 50] years from the creation of the work, performance, or phonogram, not less than [US propose; CL oppose: 120] [AU/PE/SG/CL propose: 70] years from the end of the calendar year of the creation of the work, performance, or phonogram.]

 

Article QQ.G.7: {Term of Protection for Copyright and Related Rights}

 

[NZ/BN/MY/VN/CA/JP propose; US/AU/SG/MX oppose: The term of protection of a work, performance or phonogram shall be determined according to each Party’s domestic law and the international agreements to which each Party is a party.]

 

Article QQ.G.8:

 

Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (Berne Convention) and [PE/SG/NZ/BN/US/VN/CL/MY/MX139: the corresponding provision in] Article 14.6 of the TRIPS Agreement, mutatis mutandis, to [CA oppose: the subject matter, rights, and obligations] [CA propose; US oppose: rights of authors, performers and producers of phonograms] in [Section G].

 

QQ.G.8

 

[CA/JP/SG/BN/NZ/PE/CL/VN/AU140 propose: Each Party shall apply, mutatis mutandis, Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) to the rights of authors, performers and producers of phonograms in [Section G]. A Party may provide for conditions, limitations, exceptions and reservations to the extent permitted in Article 14.6 of the TRIPS Agreement. ]

Article QQ.G.9:

Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right141in a work, [SG/BN/NZ/MY/VN/CL oppose: performance,] or phonogram:

 

  1. may freely and separately transfer that right by contract; and

 

  1. by virtue of a contract, including contracts of employment underlying the creation of works, [BN/SG/MY/VN/NZ/CL oppose: 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.

 

[CL: (c) Each Party may establish:

 

(i) which specific contracts 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

(ii) reasonable limits to the provisions in [paragraph 2(a)] [cross reference to QQ.G.9(a)-(b)] to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.]

 

 

Article QQ.G.X

 

No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.

 

Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}142

 

[US/AU/SG/PE/MX143 144 145 propose; MY/VN/BN/JP oppose146: (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights147 and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

 

  1. knowingly, [CL oppose: or having reasonable grounds to know]148, circumvents without [CL oppose: authority] [CL propose: authorization] any effective technological measure that controls access to a protected work, performance, phonogram, [PE/CA/CL oppose: or other subject matter]; or
  2. manufactures, imports, distributes, [CL oppose: offers [CA/CL propose: for sale or rental] to the public, provides, or otherwise traffics149 in] devices, products, or components, [CL oppose: or offers to the public] or provides services, that:
    1. are promoted, advertised150, or marketed by that person, [PE/SG/CL oppose: or by another person acting in concert with that person and with that person’s knowledge,] for the purpose of circumvention of any effective technological measure,
    2. have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or
    3. are primarily designed, produced, or performed for the purpose of [CA oppose: enabling or facilitating] the circumvention of any151 effective technological measure,

    shall be liable and subject to the remedies set out in Article [12.12]152 153. [CL propose: If the conduct is carried out in good faith without knowledge that the conduct in prohibited, a Party may exempt acts prohibited under this subparagraph that are carried out in connection with a nonprofit library, archive or educational institution]. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit 154 library, [CA/CL propose: museum,] archive, educationalinstitution, or [CA/CL oppose: public noncommercial broadcasting entity,] [CA propose: any other nonprofit entity as determined by a Party’s law] is found to have engaged [CA oppose: willfully and for purposes of commercial advantage [CL oppose: or private financial gain]] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [SG/AU/PE/CL155oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b), and (f) of Article [15.5]156 as applicable to infringements, mutatis mutandis. [157] ][CL propose: No Party is required to impose civil or criminal liability for a person who circumvents any effective
    technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, but does not control access to such work].

 

  1. In implementing subparagraph (a), 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 subparagraph (a).

[CL oppose: (c) Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights.]

  1. 158 Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) [CL oppose: to the following activities,] [CL propose: certain special cases that do not impair the adequacy of legal protection of the effectiveness of legal remedies against the circumvention of effective technological measures] [CL oppose: which shall be applied to relevant measures in accordance with subparagraph (e)]:
    1. [CA oppose: noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities 159, for the sole purpose of achieving interoperability of an independently created computer program with other programs160] [CA propose: reverse engineering activities with regard to a lawfully obtained copy of a computer program, for the sole purpose of achieving interoperability of the program or any other program];
    2. [CA oppose: noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, [CL oppose: unfixed] performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of [CL propose: encryption] technologies161 [CL oppose: for scrambling and descrambling of information]] [CA propose: activities with regard to a lawfully obtained copy of a work, performance, or phonogram for the sole purpose of encryption research] ;
    3. the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing subparagraph (a)(ii)162;
    4. [CA oppose: noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network] [CA propose: security testing activities that are authorized by the owner or administrator of a computer, computer system or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system or computer network];
    5. [CA oppose: noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work] [CA propose: activities for the sole purpose of identifying or disabling a capacity to carry out collection or dissemination of personally identifying information];
    6. lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes163;
    7. access by a nonprofit library, [CA propose: museum,] archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and

[CA propose: (viii) activities for the sole purpose of making a work, performance or phonogram perceptible to a person with a perceptual disability.

  1. activities for the sole purpose of making an ephemeral reproduction of a work, performance or phonogram,
  2. circumvention of a technological measure on a radio apparatus for the sole purpose of gaining or facilitating access to a telecommunication service by means of the radio apparatus]

 

  1. [CA oppose: noninfringing uses [SG oppose: of a work, performance, or phonogram] in a particular class of works, [SG oppose: performances, or phonograms] when an actual or likely adverse impact on those noninfringing uses [CL propose: or exceptions or limitations to copyright or related rights with respect to users] is [PE oppose: credibly demonstrated] [PE propose: found] [CL propose: demonstrated or recognized] in a legislative or administrative review or proceeding [SG oppose: by substantial evidence]; provided that [AU/PE oppose: any limitation or exception adopted in reliance upon this clause shall have effect for a renewable period of not more than three [SG propose: four] years] [AU/PE propose: any such review or proceeding is conducted at least once every four years] from the date of conclusion of such review or proceeding.]

    [CA propose: (xi) Each Party may provide further exceptions and limitations to measures implementing subparagraph (a) in relation to non infringing uses as determined through a legislative, regulatory, judicial, or administrative process in accordance with the Party’s law, following due consideration of the actual or potential adverse impact on those non infringing uses.]

 

  1. 164 The exceptions and limitations to measures implementing subparagraph (a) for the activities set forth in subparagraph [4.9(d)] may [CL oppose: only] be applied as follows[CL oppose: , and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures]:
    1. Measures implementing subparagraph (a)(i) may be subject to exceptions and limitations with respect to each [CL propose: situations and] activity set forth in subparagraph (d).
    2. Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d)(i), (ii), (iii), (iv), and (vi).

 

  1. Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that protect any copyright or any rights related to copyright, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d)(i) and (vi).

 

  1. 165 Effective technological measure means any [CA propose: effective] technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, [PE/CL/CA oppose: or other protected subject matter,] or protects [CA oppose: any copyright or any rights related to copyright] [CA propose: rights related to a work, performance or phonogram].][CL propose: and cannot, in a usual case be circumvented accidentally.]

 

 

Article QQ.G.11:

[SG/CL propose166: Nothing in this agreement shall require any Party to restrict the importation or domestic sale of a device that does not render effective a technological measure the sole purpose of which is to control market segmentation for legitimate copies of cinematographic film or computer program, and is not otherwise a violation of law.]

 

 

Article QQ.G.12167: {Technological Protection Measures}

 

[CL/NZ/PE/VN/MY/BN/JP propose; AU/US oppose:

1. [PE/SG oppose: Each Party [VN propose: may] [VN oppose: shall] provide legal protections and remedies against the circumvention of effective technological protection measures in their domestic copyright laws where circumvention is for purposes of infringing the exclusive rights of copyright [NZ oppose: or related rights] owners.]

2. Each Party may provide that such protections and remedies shall not hinder or prevent uses of copyright or related rights protected material that are permitted under exceptions or limitations to the exclusive rights of copyright [NZ oppose: and related rights] owners, or the use of materials that are in the public domain.

[PE/SG: It is understood that nothing in this Article prevents a Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Party’s national law, in accordance with Article QQG16, where technological measures have been applied to a work, performance or phonogram, and the beneficiary has legal access to that work, performance or phonogram particularly in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that work, performance or phonogram to enable the beneficiary to enjoy the limitations and exceptions under that Party’s national law.168]

 

3. Subject to each Party’s international obligations, the Parties affirm that they may establish provisions to facilitate the exercise of permitted acts where technological measures have been applied.]

 

 

Article QQ.G.13: {Copyright and Related Rights / Rights Management Information}

 

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

 

  1. each Party [VN oppose: shall] [VN: may] provide [VN oppose: that] [VN: legal remedies against] 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 [CA oppose: any] [CA propose: the] copyright or related right [VN oppose: ,] [VN: :]
  1. knowingly removes or alters any [CA/JP propose: electronic] rights management information;
  2. [MY/BN/VN/CA/JP oppose: distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority; or]
  3. [CA propose: knowingly] distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, [CL/NZ/MY/SG/VN oppose: performances,] or phonograms, knowing that [CA/JP propose: electronic] rights management information has been removed or altered without authority [VN oppose: ,] [VN: .]

 

[VN oppose: shall be liable and subject to the remedies set out in Article [QQ.H.4(15) 169 ]. 170 Each Party [CA/MX/JP propose: may] [CA/MX oppose: shall] provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, [CA propose: museum,] [MY: or] educational institution [MY/CA oppose: , or [CL oppose: public noncommercial] broadcasting entity] [CA propose: any other nonprofit entity as determined by a Party’s law.] [CL: established without a profit-making purpose], is found to have engaged [CA oppose: willfully and for purposes of commercial advantage or private financial gain] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [MY/CA propose: Each Party may provide that these criminal procedures and penalties do not apply to any other nonprofit entity as determined by a Party’s law.] [AU/SG/PE/CL/MY/NZ/BN/CA/MX/JP oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b) and (f) of Article [15.5] as applicable to infringements, mutatis mutandis.]]

 

[SG/NZ/CL/MY/BN/VN/CA/JP oppose: (b) each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to lawfully authorized activities carried out by [MX propose: the] government [MX oppose: employees, agents, or contractors] for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes.]

 

(c) Rights management information means:

 

  1. [AU/MY/CA/JP propose: electronic] information that identifies a work, [NZ/MY oppose: performance,] or phonogram, the author of the work, [NZ/MY oppose: the performer of the performance,] or the producer of the phonogram; or the owner of any right in the work, [NZ/MY oppose: performance,] or phonogram;
  2. [AU/MY/CA/JP: electronic] information about the terms and conditions of the use of the work, [NZ/MY oppose:performance,] or phonogram ; or
  3. any [AU/MY/CA/JP: electronic] numbers or codes that represent such information,

 

when any of these items [CA propose: of information] is attached to a copy of the work, [NZ/MY oppose: performance,] or phonogram or appears in connection with the communication or making available of a work, [NZ/MY oppose: performance] or phonogram, to the public.

 

(d) For greater certainty, nothing in this paragraph shall 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 QQ.G.14: {Related Rights}

 

1. Each Party shall accord the rights provided for in this Chapter with respect to [NZ/BN/MY oppose: performers and] producers of phonograms to the [NZ/BN/MY oppose: performers and] producers of phonograms who are nationals171 of another Party and to [NZ/BN/MY oppose: performances or] phonograms first published or first fixed in the territory of another Party172. A [NZ/BN/MY oppose: performance or] phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication.[173][174]

 

 

2. Each Party shall provide to performers the right to authorize or prohibit:

 

  1. broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and
  2. fixation of their unfixed performances.

 

 

3. [US/AU/PE/NZ/MY/BN/VN/CL/MX/SG propose ; CA oppose:

 

(a) Each Party shall provide to [NZ oppose: performers and] producers of phonograms the right to authorize or prohibit [BN oppose: the broadcasting or] any communication to the public of their [NZ oppose: performances or] phonograms, by wire or wireless means, including the making available to the public of those [NZ oppose: performances and] phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.]

 

[US/CL/PE/MX/SG/MY/NZ/AU/VN/BN propose: (b) Notwithstanding subparagraph (a) and Article [QQ.G.16.1] [exceptions and limitations – 3 step test], the application of this right to analog transmissions and [SG/VN/BN oppose: non-interactive], free over-the-air [CL/PE/MX oppose: analog and digital] broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party’s law.]

 

 

[US/AU/SG/CL/PE/VN/MY propose: (c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article [QQ.G.16.1] [exceptions and limitations – 3 step test], provided that the limitations do not [CL/PE oppose: unreasonably] prejudice the right of the performer or producer of phonograms to obtain equitable remuneration].

 

 

[CA propose: Each Party shall provide to performers and producers of phonograms the rights to authorize or prohibit:

 

 

(c) the broadcasting or any communication to the public of their performances or phonograms; and

 

(d) the making available to the public, by wire or wireless means, of their performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

 

Where, upon the data of signature of this Agreement, the right in subparagraph (a) has not been implemented by a Party, the requirement may be satisfied by providing a right to a single equitable remuneration for the direct or indirect use of phonograms published175 for commercial purposes for broadcasting or for any communication to the public.176]

 

 

Article QQ.G.15:

For purposes of this [Article QQ.G.1 and Article QQ.G.3 – 18 ], the following definitions apply with respect to performers and producers of phonograms:

 

  1. broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent177;
  2. 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. For the purposes of paragraph [3], “communication to the public” includes making the sounds or representations of sounds fixed in a phonogram audible to the public;

 

  1. fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
  2. 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;
  3. 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;
  4. 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
  5. [CA propose:178]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 rightholder, and provided that copies are offered to the public in reasonable quantity.

 

 

 

Article QQ.G.16 {Limitations and Exceptions}179

 

 

Article QQ.G.X

  1. With respect to Section G, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.
  2. Article QQ.G.X.1 neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, Berne Convention [VN propose: Rome Convention,] the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. 180


Article QQ.G.Y

 

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.X, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to, criticism, comment, news reporting, teaching, scholarship, research [CL/MY propose181: ,education, ] [CL propose: and persons with disabilities] [US/MY/SG/CA/PE/BN/MX/VN propose: , as well as facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled]182 183.

 

Article QQ.G.Z

 

[CL/NZ/MY propose184: It is consistent with this Agreement to provide exceptions and limitations for temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work; and which have no independent economic significance.]

 

Article QQ.G.17: {International Exhaustion of Rights}

 

[CL/NZ/SG/MY/BN/VN/PE/MX185 propose; AU/US oppose: The Parties are encouraged to establish international exhaustion of rights.]

 

[CA propose: Nothing in this Chapter shall affect the freedom of the Parties to determine whether and under what conditions the exhaustion of copyright and related rights applies.]

 

Article QQ.G.18: {Collective Management}

 

The Parties recognize the important role of collective management societies for copyright and related rights in collecting and distributing royalties186 based on practices that are fair, efficient, transparent and accountable, and which may include appropriate record keeping and reporting mechanisms.

 

 

 

 

{ENFORCEMENT}

 

{Section H: Enforcement}

 

Article QQ.H.1: {General Enforcement / General Obligations Relating to the Enforcement of Law [187] of Intellectual Property Rights}

 

1. Each Party shall ensure that enforcement procedures as specified in this section, are available under its law [CL/SG/CA/BN/PE/MX/VN propose: and its legal system] so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to future infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

 

2. Each Party shall ensure that its procedures concerning the enforcement of intellectual property rights shall be fair and equitable. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

 

[CL/VN/PE/AU/MY/BN/NZ/SG/MX/CA propose: 3. This Section does not create any obligation:

 

(a) 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 each Party to enforce their law in general, or

 

(b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of law in general.]

 

[US/SG propose188; BN/VN/PE/MY/NZ/MX/CA oppose: 4. The Parties understand that the distribution of enforcement resources shall not excuse that Party from complying with this Section189.]

 

 

Article QQ.H.2: {Presumptions}

 

1. In civil, criminal, and if applicable, administrative proceedings involving copyright or related rights, each Party shall provide:

 

  1. for a presumption [US/CA propose: 190] that, in the absence of proof to the contrary, the person whose name is indicated in the usual manner [CL/VN/BN/AU/MX/CA/SG/PE/NZ propose: 191 ] as the author, performer, producer [CA oppose: , or publisher] of the work, performance, or phonogram [CA propose: , or as applicable, the publisher] is the designated right holder in such work, performance, or phonogram; and
  2. for a presumption that, in the absence of proof to the contrary, the copyright or related right subsists in such subject matter.

 

[US/BN/MY/NZ/SG/CA propose; 2 AU/PE/CL/VN/MX oppose192: In civil, [BN/MY oppose: administrative,] and criminal proceedings involving trademarks, each Party shall provide for a rebuttable presumption that a registered trademark is valid.

 

[BN/SG/MY oppose193: In civil or administrative patent enforcement proceedings, each Party shall provide for a rebuttable presumption that each claim in a patent substantively examined and granted by the competent authority satisfies the applicable criteria of patentability in the territory of the Party 194].]

 

 

Article QQ.H.3: {Enforcement Practices With Respect to Intellectual Property Rights}

 

1. Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights shall [SG/BN/MY/CA propose: preferably] be in writing and [MY oppose: shall] [MY/CA propose: may] state [VN/SG/BN/MY/CA oppose: 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 such decisions and rulings shall be published [195] or, where publication is not practicable, otherwise made available to the public, in a national language in such a manner as to enable interested persons and Parties to become acquainted with them.

 

2. Each Party recognizes the importance of collecting and analyzing statistical data and other relevant information concerning intellectual property rights infringements as well as collecting information on best practices to prevent and combat infringements.
3. Each Party [US/AU/PE/NZ/CL/MX/CA/JP/SG/BN/VN propose: shall] [MY propose: may] publish or otherwise make available to the public information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative and criminal systems, such as statistical information that the Party may collect for such purposes.

 

Article QQ.H.4: {Civil Procedures and Remedies / Civil and Administrative Procedures and Remedies}

 

1. Each Party shall make available to right holders 196 civil judicial procedures concerning the enforcement of any intellectual property right 197 covered in this Chapter.

 

2 Each Party shall provide [198] that in civil judicial proceedings its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered [PE oppose: because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.] [SG/PE/AU/NZ/MY/CL/CA/MX/BN/VN oppose: 199]

 

2bis. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement.[200]

 

2ter. In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

 

[US/CA/BN/AU/JP/MX/NZ/PE/VN propose: 3.201 Each Party shall provide that its judicial authorities have the authority to order injunctive relief that conforms to the provisions of Article 44 of the TRIPS Agreement, inter alia, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce [VN propose: in that Party’s Jurisdiction].]202

 

[CL/PE/BN//VN propose;203 US/NZ oppose: 4. Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse.]204

 

 

Article QQ.H.4.X

 

(1) In civil judicial proceedings, with respect to infringement of copyright or related rights protecting works, phonograms, and performances, each Party shall establish or maintain a system that provides for one or more of the following:

 

  1. pre-established damages, which shall be available upon the election of the right holder; or
  2. additional damages205.

 

(2)206 In civil judicial proceedings, with respect to trademark counterfeiting, each Party [US propose: shall] [NZ/MY/BN/JP propose: may] also establish or maintain a system that provides for one or more of the following:

 

  1. pre-established damages, which shall be available upon the election of the right holder; or
  2. additional damages.

 

(3) Pre-established damages shall be set out in an amount that would be sufficient to compensate the right holder for the harm caused by the infingement [VN oppose: , and with a view to deterring future infringements].

 

(4) In awarding additional damages, judicial authorities shall have the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the [seriousness / extent / blatancy of the infringing conduct]207 and the need to deter similar infringements in the future.

 

ARTICLE QQ.H.4.Y

 

[US propose; SG/PE/VN/CA/CL/NZ/MY/BN/AU/MX/JP oppose: 6. In civil judicial proceedings concerning patent infringement, each Party shall provide that its judicial authorities shall have the authority to increase damages to an amount that is up to three times the amount of the injury found or assessed.208 ]

 

7. Each Party shall provide that its judicial authorities, [PE oppose: where appropriate,] [CA propose:209] [PE propose: except in exceptional circumstances] have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, [CA/MX/US propose: patents and] [CA/MX/US oppose: or] trademarks, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney’s fees, or any other expenses as provided for under that Party’s law.

 

9210. In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority [VN propose: , at the right holder’s request,] to order [VN propose: as provisional measures] the seizure or other taking into custody of suspected infringing goods, materials and implements relevant to the infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement.

 

21110. Each Party shall provide that in civil judicial proceedings :

 

  1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that, in civil judicial proceedings, at the right holder’s request, its judicial authorities have the authority to order that such infringing goods be [VN propose: disposed of outside the channel of commerce or] destroyed, except in exceptional circumstances, without compensation of any sort.
  2. Each Party shall further provide that its judicial authorities have the authority to order that materials and implements that have been used in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.
  3. in regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional circumstances, to permit the release of goods into the channels of commerce.

 

11212. Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request [VN: propose213] of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.

 

12. Each Party shall provide that in relation to a civil judicial proceeding concerning the enforcement of intellectual property rights, its judicial or other authorities have the authority to impose sanctions on a party, counsel, experts, or other persons subject to the court’s jurisdiction, for violation of judicial orders concerning the protection of confidential information produced or exchanged in connection with such a proceeding. 214

 

13. To the extent that any civil remedy [VN propose; MX oppose:215 ]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 (civil and administrative proceedings)

 

14. In the event that a Party’s judicial or other 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, that Party should seek to ensure that such costs are reasonable and related appropriately, inter alia, to the quantity and nature of work to be performed and do not unreasonably deter recourse to such proceedings.

 

[US/AU/SG propose; BN/VN/MX/JP oppose216: 15. In civil judicial proceedings concerning the acts described in Article 4.[9] (TPMs) and Article 4.[10] (RMI), each Party shall provide that its judicial authorities shall, at the least, have the authoriy to:

 

  1. impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity;
  2. [US/SG propose; NZ/AU/MY oppose: provide an opportunity for the right holder to elect between actual damages it suffered (plus any profits attributable to the prohibited activity not taken into account in computing those damages) or pre-established damages;] [AU/NZ/PE propose: order damages of the type available for the infringement of copyright]
  3. order [NZ propose: , where appropriate,] payment to the prevailing party at the conclusion of civil judicial proceedings of court costs and fees, and appropriate attorney’s fees, by the party engaged in the prohibited conduct; and
  4. order the destruction of devices and products found to be involved in the prohibited activity.

 

[US/AU/SG/NZ/MY/CL/CA propose [US propose: No Party shall make damages available under this paragraph] [AU/SG/NZ/MY/CL/CA propose: A Party may provide that damages shall not be available] against a [MY oppose: nonprofit] library, archives, educational institution, [CA propose: museum, or any other nonprofit entity as determined by a Party’s law] [CA oppose: or public noncommercial broadcasting entity] [MY oppose: that sustains the burden of proving that such entity was not aware and had no reason to believe that its acts constituted a prohibited activity]. ]]217

 

[NZ/CA/SG/CL/MY propose: 16. Each Party may adopt or maintain measures to discourage vexatious or unreasonable proceedings, including those involving pharmaceutical products that are subject to marketing, regulatory or sanitary approval.]

 

 

Article QQ.H.5: {Provisional Measures}

 

1. Each Party’s authorities shall act on requests for relief inaudita altera parte expeditiously in accordance with the Party’s judicial rules.

 

2. Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant’s right is being infringed or that such infringement is imminent, [VN//PE: and that any delay in the issuance of such measures is likely to cause irreparable harm to the right holders, or there is a demonstrable risk of evidence being destroyed,] and to order the applicant to provide a security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedures.

 

Article QQ.H.6: {Special Requirements Related to Border Enforcement218 / Special Requirements related to Border Measures} [219]

 

1. Each Party shall provide that any right holder initiating procedures for its competent authorities to suspend release of suspected counterfeit [SG/BN/MY/VN/CA oppose: or confusingly similar] trademark goods, or pirated copyright goods220 into free circulation is required to provide adequate evidence to satisfy the competent authorities that, under the law{s} of the [CA/NZ/MX/US/PE/AU oppose: country of importation] [CA/NZ/MX/US/PE/AU221 propose: Party providing the procedures], there is prima facie an infringement of the right holder’s intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspected goods 222reasonably recognizable by its competent authorities. The requirement to provide such information shall not unreasonably deter recourse to these procedures.

 

1bis. Each Party shall provide for applications to suspend the release of, or to detain, any suspect goods 223 [SG/VN oppose: under customs control 224 in its territory.][SG/VN propose: that are imported into the territory of the Party225] A Party may provide that, at the request of the right holder, an application to suspend the release of, or to detain, suspect goods may apply to selected points of entry [US/CA/JP/MX226 propose; CL/SG/VN oppose: and exit] under customs control.]227 228 [US/AU/CA/JP/NZ propose; MX /PE/CL/MY/SG/VN/BN oppose: Each Party shall provide that applications [NZ oppose: shall] remain in force [NZ propose: for the period requested by the right holder but not exceeding five years, or] for a period of not less than one year from the date of application, or the period that the good is protected by copyright or the relevant trademark registration is valid, whichever is shorter.[NZ propose: A Party may provide that its competent authorities have the authority to suspend or invalidate an application when there is due cause.]

 

2. Each Party shall provide that its competent authorities have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit [BN/SG/MY/VN/CA oppose: or confusingly similar] trademark goods, or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. A Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good.
3. Without prejudice to a Party’s laws pertaining to privacy or the confidentiality of information, where its competent authorities have detained or suspended the release of goods that are suspected of being counterfeit or pirated, a Party may provide that its competent authorities have the authority to inform the right holder [CA/VN propose: who has filed a request for assistance] [MY/CA/BN/PE/VN oppose: promptly] [MY/CA/PE229 /BN/SG/VN propose: within a reasonable period] of the names and addresses of the consignor, exporter, consignee or importer, a description of the merchandise, quantity of the merchandise, and, if known, the country of origin of the merchandise.: Where a Party does not provide such authority to its competent authorities when suspect goods are detained or suspended from release, it shall provide [US/VN propose: , at least in cases of imported goods,] its competent authorities with the authority to provide the foregoing information to the right holder [SG/VN oppose: within 30 days230] [SG/VN propose: within a reasonable period] of the seizure or determination that the goods are counterfeit or pirated, whichever is earlier.

 

[US/PE/AU/SG/MY/CL/CA/BN/JP propose; NZ/VN/MX oppose: 4. Each Party shall provide that its competent authorities may initiate border measures ex officio231 with respect to [AU propose: merchandise that is] imported, [MY/CL/AU/PE/BN oppose: exported,] [CL/AU/PE propose; SG oppose: destined for export,] [AU/MY/SG/CA/BN/CL oppose: or in-transit merchandise,[PE oppose: 232 ]] [PE/SG/MY/CL/CA/BN oppose: or [AU oppose: merchandise] [US propose: entering into or exiting from] [US oppose: in] free trade zones], that is suspected of being counterfeit [SG/PE/MY/CA/BN oppose: or confusingly similar] trademark goods, or pirated copyright goods.]

 

5. Each Party shall adopt or maintain a procedure by which its competent authorities may determine, within a reasonable period of time after the initiation of the procedures described under Article QQ.H.6(1)233 whether the suspect goods infringe an intellectual property right. Where a Party provides administrative procedures for the determination of an infringement, it [VN234 propose: may] [VN oppose: shall] also provide its authorities with the authority to impose administrative penalties, which may include monetary penalties or the seizure of the infringing goods, following a determination that the goods are infringing.

 

6. Each Party shall provide that its competent authorities have the authority to order the destruction [VN propose: , or disposal outside the channel of commerce,] of goods following a determination that the goods are infringing. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce.

 

7. Where a Party establishes or assesses, in connection with the procedures described in this section [article], an application fee, storage fee, or destruction fee, such fee shall not be set at an amount that unreasonably deters recourse to these procedures

 

8. Each Party shall include in the application of this Article goods of a commercial nature sent in small consignments. A Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers’ personal luggage.235

 

Article QQ.H.7: {Criminal Procedures and Remedies / Criminal Enforcement}

 

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

 

2. [US/AU/SG/PE propose; CL/VN/MY/NZ/CA/BN/MX oppose: Willful copyright or related rights piracy on a commercial scale includes:

 

  1. significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
  2. willful infringements for purposes of commercial advantage or [AU/SG/PE/JP oppose: private] financial gain.[AU/SG/PE/CA/JP oppose: 236]]

 

Each Party shall treat willful importation [SG/MX/BN/MY/VN oppose: or exportation] of counterfeit trademark goods [VN oppose: or pirated copyright goods] on a commercial scale as unlawful activities subject to criminal penalties.237

 

[US propose; AU/BN/MY/NZ/SG/CL/VN/PE/CA/MX/JP oppose: 3. Each Party shall also provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of knowing trafficking in:

 

  1. labels or packaging, of any type or nature, to which a counterfeit trademark 238 has been applied, the use of which is likely to cause confusion, to cause mistake, or to deceive; and

 

  1. counterfeit or illicit labels239 affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:
    1. a phonogram,
    2. a copy of a computer program or a literary work,
    3. a copy of a motion picture or other audiovisual work,
    4. documentation or packaging for such items; and
  2. counterfeit documentation or packaging for items of the type described in subparagraph (b).]

 

[NZ/AU/BN/MY/US/CA/SG/MX/JP propose; PE/CL/VN oppose: 4. Each Party shall provide for criminal procedures and penalties to be applied in cases of willful importation240 and domestic use, in the course of trade and on a commercial scale, of labels or packaging241:

 

  1. to which a mark has been applied without authorization which is identical to, or cannot be distinguished from, a trademark registered in its territory; and
  2. which are intended to be used in the course of trade on goods or in relation to services which are identical to goods or services for which such trademark is registered.]

 

[US propose; CA/JP oppose: Each Party shall further ensure that criminal penalties and procedures are applied in cases of knowing trafficking in illicit labels242 affixed, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany phonograms, copies of computer programs, literary works, motion pictures, or other audiovisual works.]

 

5. [AU/NZ/SG/MY/ CA/US propose; PE/VN/BN/MX/CL oppose: [US/CA propose: Each] [US/CA oppose: A] Party [SG/NZ/CL oppose: shall] [SG/NZ/CL/JP: may] provide criminal procedures and penalties [US/CA oppose: , in appropriate cases,] for the [US/CA propose: knowing and] unauthorized copying [MY: or recording] [US propose; CA/JP oppose: or transmittal] of [US/CA propose: a [JP propose: first-run] cinematographic work, or any part thereof,] [US/CA oppose: cinematographic works] from a performance in a [CA oppose: motion picture exhibition facility generally open to the public] [CA/JP propose: movie theater].]

 

6. With respect to the offenses for which this Article requires the Parties to provide for criminal procedures and penalties, Parties shall ensure that criminal liability for aiding and abetting is available under its law.

 

7. With respect to the offences described in Article QQ.H.7[1]-[4] above, each Party shall provide:

 

  1. penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity; 243
  1. 244that its judicial authorities shall have the authority, when determining penalties, to account for the seriousness of the circumstances, which may include those that involve threats to, or effects on, health or safety;245
  2. that its judicial [VN propose: or other]authorities shall have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offense, documentary evidence relevant to the alleged offense [MY oppose: , and assets 246 derived from, or obtained directly [VN oppose: or indirectly] through the alleged infringing activity].

    Where a Party requires the identification of items subject to seizure as a prerequisite for issuing any such judicial order, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure;

  3. that its judicial authorities shall have the authority to order the forfeiture, at least for serious offenses, of any assets derived from, or obtained directly [VN oppose: or indirectly] through the infringing activity;
  4. that its judicial authorities shall have the authority to order the forfeiture or destruction of:
    1. all counterfeit trademark goods or pirated copyright goods; and
    2. materials and implements [CA/VN/MX propose: predominantly][CA/VN/MX oppose: that have been] used in the creation of pirated copyright goods or counterfeit trademark goods; and

    [CL/PE/VN/BN/SG/AU/CA/MX/JP oppose: (iii) any other articles consisting of a counterfeit trademark].

In cases where counterfeit trademark goods and pirated copyright goods are not destroyed, the [MY oppose: judicial][MY/SG/CL/AU/PE/MX/VN/JP: competent247] authorities shall ensure that , except in exceptional circumstances, such goods shall be disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder. Each Party shall further provide that forfeiture or destruction under this subparagraph and subparagraph (c) 248 shall occur without compensation of any kind to the defendant;

 

[US/NZ propose; BN/SG/MY/CL/PE/AU/VN/CA/MX/JP oppose: (f)
that its judicial authorities have the authority to order the seizure or forfeiture of assets the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity];

  1. that its judicial or other competent authorites shall have the authority to release or, in the alternative, provide access to, goods, material, implements, and other evidence held by the authority to a right holder for civil249 infringement proceedings.

[US/NZ/PE/SG/BN/CL/AU/MY/CA/MX propose: VN/JP oppose: (h) that its competent authorities may act upon their own initiative to initiate a legal action without the need for a formal complaint by a private party or right holder].

 

Article QQ.H.8 {Trade Secrets}

 

1.250[CL propose: In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention] Parties shall ensure that natural and legal persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state commercial enterprises) 251 without their consent in a manner contrary to honest commercial practices.[ 252 ] As used in this Chapter, trade secrets encompass, at a minimum, undisclosed information as provided for in Article 39.2 of the TRIPS Agreement.

 

 

[US/MX/CA/NZ/JP253 propose; SG/MY/PE/VN/CL/AU254/BN oppose: 2. Each Party shall provide for criminal procedures and penalties at least in cases in which a trade secret relating to a product in national or international commerce is misappropriated, or disclosed, willfully and without authority for purposes of commercial advantage or financial gain, and with the intent to injure the owner of such trade secret.]

 

Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite Signals/Protection of Encrypted Program-Carrying Satellite and Cable Signals}

 

  1. Each Party shall make it a [CL/MX propose: civil or,] [VN propose: administrative or] criminal offense to:

 

  1. manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing[CL 255] [CL/JP oppose: or having reason to know] that the device or [CL oppose: system is primarily of assistance] [CL propose: system’s principal function is solely to assist] in decoding an encrypted program-carrying satellite [CL/VN/SG/PE/CA/MX oppose: or cable] signal without the authorization of the lawful distributor of such signal256; and

[US/AU/NZ/PE/MY/SG/MX/VN/CA/CL propose, BN/JP oppose: (b) [VN oppose: [CA propose: except in circumstances where the lawful distributor has not made the signal available to persons in the area where the decoding occurs,] willfully receive257[CL oppose: and make use of,][258] or] willfully further distribute a program-carrying signal that originated as an encrypted satellite [PE/SG/MX/VN/CL/CA oppose: or cable] signal knowing that it has been decoded without the authorization of the lawful dstributor of the signal, [PE/SG/MX/VN/CL/CA oppose: 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.] ]

 

[US/AU/PE/NZ/MX/CL259 propose260, MY/BN/VN/CA oppose: 2. Each Party shall provide for civil remedies, [CL/MX oppose: including compensatory damages,] for any person injured by any activity described in paragraph [1], including any person that holds an interest in the encrypted programming signal or its content.]

 

Article QQ.H.10: {Special Measures Relating to Enforcement in the Digital Environment}

 

[US/AU/CA/SG/NZ/PE propose, VN/ oppose:1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Chapter, are available under its law so as to permit effective action against an act of trademark, copyright or related rights infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.]261

 

Article QQ.H.11: {Government Use of Software / Government Use of Software and Other Materials Protected by Copyright or Related Rights}

 

Each Party262 shall adopt or maintain appropriate laws, regulations, policies, orders, government-issued guidelines, or administrative or executive decrees providing that its [US/AU/CA/MY/VN/MX propose: central 263 ] government agencies use only non-infringing264computer software [US/AU/CA/MX propose:; SG/CL/PE/NZ/MY/BN/VN oppose: and other materials protected by copyright or related rights] in a manner authorized by law and by the relevant license. These measures shall apply to the acquisition and [PE/CA oppose: management] [PE/CA propose: use] of such software [PE/CL/BN/SG/NZ/MY/VN oppose: and other materials] for government use.

 

Article QQ.H.12265:

[US propose: Notwithstanding Article QQ.G.16 [limitations and exceptions] and Article QQ.G.14.3(b) [over the air broadcasting reference], no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.266]

 

 

 

 

{SECTION I: INTERNET SERVICE PROVIDERS}

 

Article QQ.I.1:267 {Internet Service Provider Liability}

 

[CL/BN/NZ/MY/VN/CA/SG/MX propose; AU/US oppose: 1.268 Each Party shall limit the liability of, or the availability of remedies against, internet service providers269 [when acting as intermediaries270], for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.]

 

[CA propose: 2. Limitations referred to in the previous paragraph shall cover at least the following functions:

 

  1. mere conduit, which consist of the provision of the means to transmit information provided by a user, or the means of access to a communication network;
  2. hosting of information at the request of a user of the hosting services;
  3. caching carried out through an automated process, when the internet service provider:
    1. does not modify information other than for technical reasons;
    2. ensures that any directions related to the caching of information that are specified in a manner widely recognized and used by industry are complied with; and
    3. does not interfere with the use of technology that is lawful and widely recognized and used by the industry in order to obtain data on the use of information;
  4. providing an information location tool, by making reproductions of copyright material in an automated manner, and communicating the reproductions.]

 

[CA propose: 3. Qualification by an internet service provider for the limitations as to each function in the previous paragraph shall be considered separately from qualification for the limitations as to each other function. Eligibility for the limitations in the previous paragraph may not be conditioned on the internet service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.]

 

[CL/BN/NZ/VN/MX propose; AU/US/SG/MY oppose: 2. 271 272 The framework in Paragraph 1 [CA oppose: will only apply if an internet service provider meets conditions, including] [CA/CL/VN propose; NZ/MX oppose: shall be accompanied in a Party’s law by]:

 

(a) [CA/NZ/CL/VN/MX propose: procedures for notifications of claimed infringement and for] removing or disabling access to infringing material [CA/CL/MX oppose: upon notification from the right holder through a procedure established by each Party]; and]

 

[CA/NZ/CL/VN273 propose: (b) legal incentives for internet service providers to comply with these procedures, or remedies against internet service providers who fail to comply.]]

 

[CA propose: 4. Each Party shall provide legal incentives for internet service providers to comply, or remedies against internet service providers who fail to comply, with any procedures established in each party’s law for:

 

(a) effective notifications of claimed infringement; or

(b) removing or disabling access to infringing material residing on its networks.]

 

[CA/CL/VN274] propose: [CA oppose: 3.] [CA propose: 5.] The framework in Paragraph 1 will not apply to the extent that an internet service provider provides a service primarily for the purpose of enabling acts of copyright or related right infringement.]

 

[CA propose: 6. This Article is without prejudice to the availability in a Party’s law of other defences, limitations and exceptions to the infringement of copyright or related rights. This Article shall not affect the possibility of a court or administrative authority, in accordance wth Parties’ legal systems, or requiring the internet service provider to terminate or prevent an infringement.]

[US/AU/SG/NZ/PE propose; BN/VN/CA/MX oppose: 1. [SG/MY oppose275: For the purpose of providing enforcement procedures that permit effective action against any act of copyright276 infringement covered by this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies] each Party shall provide, consistent with the framework set out in this Article:

 

 

 

  1. [MY/VN oppose: legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; and]
  2. limitations in its law [MY/NZ/SG propose: on the liability of, or on the remedies] [NZ/MY/VN oppose: regarding the scope of remedies 277 ] available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this subparagraph (b).278 [PE propose: 279]
    1. [MY/VN oppose: These limitations shall preclude monetary relief and provide reasonable restrictions on court-ordered relief to compel or restrain certain actions for the following functions, [NZ oppose: and shall be confined to those functions]][280]:
      1. transmitting, routing, or providing connections for material without modification of its content[CL propose:281], or the [MY oppose: intermediate and] transient storage of such material in the course thereof;
      2. caching carried out through an automatic process;
      3. storage, at the direction of a user, of material residing on a system or network controlled or operated by or for the service provider282; and
      4. referring or linking users to an online location by using information location tools, including hyperlinks and directories.
    2. These limitations shall apply only where the service provider does not initiate the transmission of the material, and does not select the material or its recipients (except to the extent that a function described in clause (i)(D) in itself entails some form of selection).
    3. Qualification by a service provider for the limitations as to each function in clauses (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function[CL oppose: , in accordance with the conditions for qualification set forth in clauses (iv) through (vii)]
    4. With respect to functions referred to in clause (i)(B), the limitations shall be conditioned on the service provider:

[CL/MY oppose: (A) permitting access to cached material in significant part only to users of its system or network who have met conditions [NZ propose: imposed by the originator of the material] on user access to that material;]

  1. 283complying with rules concerning the refreshing, reloading, or other updating of the cached material when specified by the [CL oppose: person making the material available online] [CL propose: supplier of the material] in accordance with a relevant industry standard data communications protocol for the system or network through which that person makes the material available that is generally accepted in the Party’s territory;
  2. 284not interfering with technology used 285at the originating site consistent with industry standards generally accepted in the Party’s territory to obtain information about the use of the material, and not modifying its content in transmission to subsequent users; and
  3. [MY oppose: expeditiously] removing or disabling access, on receipt of an effective notification of claimed infringement, to cached material that has been removed or access to which has been disabled at the originating site.
  1. With respect to functions referred to in clauses (i)(C) and (D), the limitations shall be conditioned on the service provider:

(A) not receiving a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity;

(B) [MY oppose: expeditiously] removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement was apparent, such as through effective notifications of claimed infringement in accordance with clause (ix); [NZ oppose: and

(C ) publicly designating a representative to receive such notifications.]

 

[MY/NZ oppose: (vi) Eligibility for the limitations in this subparagraph shall be conditioned on the service provider:

(A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers; and

 

(B) accommodating and not interfering with standard technical measures accepted in the Party’s territory286 that protect and identify copyrighted material, that are developed through an open, voluntary process by a broad consensus of interested parties287, that are available on reasonable and nondiscriminatory terms, and that do not impose substantial costs on service providers or substantial burdens on their systems or networks.]

 

  1. Eligibility for the limitations in this subparagraph may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity [NZ/MY oppose: , except to the extent consistent with such technical measures.]

 

[NZ oppose: (viii) If the service provider qualifies for the limitations with respect to the function referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location.[MY oppose: If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary, provided that such other remedies are the least burdensome to the service provider [CL propose: and users or subscribers] 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 [CL propose: ,to users or subscribers] 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.]]

 

[NZ oppose: (ix) For purposes of the notice and take down process for the functions referred to in clauses (i) [CL propose: (B)] (C) and (D), each Party 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. 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.]

 

[NZ oppose: (x) If the service provider removes or disables access to material in good faith based on claimed or apparent infringement, each Party shall provide that the service provider shall be exempted from liability for any resulting claims, provided that, in the case of material residing on its system or network, it takes reasonable steps promptly to notify the [CL oppose: person making the material available on its system or network] [CL propose: supplier of the material] that it has done so and, if such person makes an effective counter-notification and is subject to jurisdiction in an infringement suit, to restore the material online unless the person giving the original effective notification seeks judicial relief within a reasonable time.]

 

  1. Each Party shall establish an administrative or judicial procedure enabling copyright owners [NZ oppose: who have given effective notification of claimed infringement] to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

 

  1. For purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user’s choosing, [NZ oppose: and for purposes of the functions referred to in clauses (i)(B) through (D) service provider means a provider or operator of facilities for online services or network access288.]]

 

 

 

[US/AU/SG propose; CL/MY/NZ/VN/BN/CA/MX/PE oppose: Annex to Article QQ.I.1.3(b)(ix)

 

In meeting the obligations of Article QQ.I.1.3(b)(ix), each Party shall adopt or maintain requirements for: (a) effective written notice to service providers with respect to materials that are claimed to be infringing, and (b) effective written counter-notification by those whose material is removed or disabled and who claim that it was disabled through mistake or misidentification, as set forth in this letter. Effective written notice means notice that substantially complies with the elements listed in section (a) of this letter, and effective written counter-notification means counter-notification that substantially complies with the elements listed in section (b) of this letter.

 

(a) Effective Written Notice, by a Copyright289 Owner or Person Authorized to Act

on Behalf of an Owner of an Exclusive Right, to a Service Provider’s Publicly Designated Representative290

 

In order for a notice to a service provider to comply with the relevant requirements set out in Article QQ.I.1.3(b)(ix), that notice must be a written communication, which may be provided electronically, that includes substantially the following:

 

  1. the identity, address, telephone number, and electronic mail address of the complaining party (or its authorized agent);

 

  1. information reasonably sufficient to enable the service provider to identify the copyrighted work(s)291 claimed to have been infringed;

 

3. information reasonably sufficient to permit the service provider to identify and locate the material residing on a system or network controlled or operated by it or for it that is claimed to be infringing, or to be the subject of infringing activity, and that is to be removed, or access to which is to be disabled;292

 

  1. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

 

  1. a statement that the information in the notice is accurate;

 

  1. a statement with sufficient indicia of reliability [SG propose:293] (such as a statement under penalty of perjury or equivalent legal sanctions) that the complaining party is the [SG/AU oppose: holder] [SG/AU propose: owner] of an exclusive right that is allegedly infringed, or is authorized to act on the owner’s behalf; and
  2. the signature of the person giving notice.294

 

(b) Effective Written Counter-Notification by a Subscriber295 Whose Material Was Removed or Disabled as a Result of Mistake or Misidentification of Material

 

In order for a counter-notification to a service provider to comply with the relevant requirements set out in Article QQ.I.1.3.(b)(ix), that counter-notification must be a written communication, which may be provided electronically, that includes substantially the following:

 

  1. the identity, address, [SG/AU propose: electronic mail address] and telephone number of the subscriber;
  2. the identity of the material that has been removed or to which access has been disabled;

 

  1. the location at which the material appeared before it was removed or access to it was disabled;

 

  1. a statement with sufficient indicia of reliability (such as a statement under penalty of perjury or equivalent legal sanctions) that the subscriber [SG/AU propose: is the supplier of the material and] has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;

 

  1. a statement that the subscriber agrees to be subject to orders of any court that has jurisdiction over the place where the subscriber’s address is located, or, if that address is located outside the Party’s territory, any other court with jurisdiction over any place in the Party’s territory where the service provider may be found, and in which a copyright infringement suit could be brought with respect to the alleged infringement;

 

  1. a statement that the subscriber will accept service of process in any such suit; and

 

  1. the signature of the subscriber.296

 

]]

 

 

 

 

[CL propose: Annex […]

 

List of Geographical Indications from Chile

 

WINES Name of Indication

Valle de Aconcagua

Alhué

Valle del Bío Bío

Buin

Valle del Cachapoalf

Valle de Casablanca

Cauquenes

Chillán

Chimbarongo

Valle del Choapa

Coelemu

Valle de Colchagua

Valle de Copiapó

Valle de Curicó

Region de Aconcagua

Region de Atacama

Region de Coquimbo

Valle del Claro

Region del Sur

Region del Valle Central

Valle del Elqui

Valle del Huasco

Illapel

Isla de Maipo

Valle del Itata

Valle de Leyda

Valle de Limarí

Linares

Valle del Loncomilla

Valle del Lontué

Lolol

Valle del Maipo

Maria Pinto

Valle del Marga-Marga

Valle del Maule

Marchigue

Valle del Malleco

Melipilla

Molina

Monte Patria

Mulchén

Nancagua

Ovalle

Paiguano

Pajarete

Palmilla

Panquehue

Parral

Pencahue

Peralillo

Peumo

Pirque

Portezuelo

Puente Alto

Punitaqui

Quillón

Rancagua

Valle del Rapel

Rauco

Rengo

Requínoa

Río Hurtado

Romeral

Sagrada Familia

Valle de San Antonio

San Juan

Salamanca

San Clemente

San Fernando

San Javier

San Rafael

Santa Cruz

Santiago

Talagante

Talca

Valle del Teno

Valle delTutuvén

Traiguén

Vicuña

Villa Alegre

Vino Asoleado

Yumbel

 

SPIRITS Name of Indication Country

Pisco Chile

 

AGRICULTURAL Name of Indication Country

Limón de Pica Chile]

 

 

 

 

1Section and Article titles and headings appear in this text on a without prejudice basis. Parties have agreed to defer consideration of the need for, and drafting of, Section and Article titles and headings. Such titles or headings that appear in braces (i.e., “{ }”) are included for general reference and information purposes only.

2Negotiators’ Note: NZ/SG supports a definition for Intellectual Property which mirrors TRIPS Article 1.2 subject to confirmation of treatment of plant varieties rights.

3[AU/PE: For the purpose of this Chapter “intellectual property” also includes rights in plant varieties.]

4Negotiators’ Note: AU supports including objectives but is still considering the drafting and scope of this article.

5Negotiators’ Note: CA supports this provision in principle, but is reviewing the proposal.

6Negotiators’ Note: MX will reflect further on the additional subparagraphs (g) and (h).

7Negotiators’ Note: JP is reflecting further on this paragraph.

8Negotiators’ Note: AU is still considering the drafting and scope of this paragraph.

9Negotiators’ Note: AU is considering the drafting of the language.

10Negotiators’ Note: Parties to discuss paragraphs 1, 2 and 3 with legal group to consider possible redundancy with General Provisions and receive advice on resolution.

11Negotiators’ Note: Delegations are considering the relationship between this proposal and the general non-derogation provision in Article [ ]. Proponent delegations other than VN are prepared to consider addition of the opening clause shown in brackets if it aids in forming a consensus.

12Negotiators’ Note: MX is flexible if the obligation is on a best endeavor basis.

13Negotiators’ Note: SG has no substantive objection to this paragraph and will follow consensus.

14Negotiators’ Note: MY/BN do not object in principle subject to further domestic internal consultations or procedures and greater clarity regarding views of other Parties. SG/CL has no substantive objection to this paragraph and will follow consensus. VN are continuing domestic procedures for consideration of the Protocol.

15Negotiators’ Note: AU considering drafting of this provision.

16Negotiators’ Note: JP reserves its position pending the outcome of Article QQ.A.1.

17[US/AU/SG/PE: For purposes of Articles [QQ.A.7.1-2___(NT & Judicial/Admin Procedures)_QQ.D.2.a__(GIs/Nationals), and (QQ.G.14.1 Performers/Phonograms/Related Rights,] a national of a Party shall [US propose: include] [US oppose: also mean], in respect of the relevant right, an entity of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in [Article QQ.A.6.4] and the TRIPS Agreement.]

18[US/AU/SG/PE/MY/VN/BN/NZ/MX/CLpropose: For purposes of paragraphs 1 and 2 “protection” shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. Further, for purposes of paragraph 1[and 2], “protection” also includes the prohibition on circumvention of effective technological measures set out in Article QQ.G.10 and the rights and obligations concerning rights management information set out in Article QQ.G.13]
Negotiators’ Note: [CL/SG/PE/MY/VN/BN/NZ/MX: reserves its position with regards to the second sentence, depending on the outcome of the technological protection measure/rights management information][Parties to determine whether this footnote shall refer to paragraph 1, or paragraphs 1 and 2.]

19Negotiators’ Note: SG/CL is flexible on either approach to National Treatment.

20Negotiators’ Note: NZ notes its proposed text may not be necessary depending on outcome of following two paragraphs. CA supports in principle and is considering further the drafting of this provision.

21Negotiators’ Note: AU can be flexible on either approach to National Treatment.

22Negotiators’ Note: MY/SG/PE support in principle. CP/JP is considering further.

23Negotiators’ Note: MX is considering its position in relation to the whole paragraph.

24Negotiators’ Note: CA can support consensus on the first sentence.

25Negotiators’ Note: AU/NZ/CL/SG/BN/MY/JP is reviewing this provision in light of discussion in Legal and Institution Group. CA understands that a similar provision has already been agreed upon in the Transparency chapter.

26[SG/MY: Negotiators Note: Subject to the acceptance of provision concerning the disclosure of confidential information that will impede law enforcement.]

27[US: A Party may satisfy requirement for publication by making the law, regulation, or procedure available to the public on the Internet.]

28Text from Legal and Institution Group inserted for comparison purposes: Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application with respect to any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and Parties to become acquainted with them.

29Negotiators’ Note: CA supports in principle pending clarification of what is meant by “open to public inspection” in sub-paragraph (b).

30Negotiators note: AU/MY/CA/JP/MX: support inclusion of a provision regarding disclosure of confidential information but would prefer to see such a provision located in a chapter dealing with general provisions and exceptions.

31Text from LII Group inserted for comparison purposes: [LII Group: Article CCC.6: Disclosure of Information. Nothing in this Agreement shall be construed as requiring a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement, otherwise be contrary to the public interest, or prejudice the legitimate commercial interests of particular enterprises, public or private. FN: AU/NZ/MY: For the purposes of this paragraph, the public interest includes, for example, compliance with legislative or constitutional provisions regarding privacy.]

32Negotiators’ Note: AU/NZ/CL/SG/PE/MY/BN/VN/JP/MX/CA/US reserve positions pending final outcome of Chapter. All Parties agree to revisit this provision at the conclusion of this chapter.

33Negotiators’ Note: JP will follow consensus on this paragraph.

34Negotiators’ Note: CA is reflecting on the notion of the meaning of relevant authorities.

35Negotiators’ Note: US consulting experts on wording of provision.

36Negotiators’ Note: US and JP can go along with the consensus.

37Negotiators’ Note: MY supports this article subject to further domestic implementation.

38[JP propose: For clarity a Party may require that a sign has acquired distinctiveness through use, where the sign consists only of names of place.]

39For purposes of this Chapter, geographical indication means indications that identify a good as originating in the territory of a party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin. Consistent with this definition, any sign or combination of signs shall be eligible for protection under one or more of the legal means for protecting GIs, or a combination of such means.

40Negotiators’ Note: CA/MY is flexible on this proposal.

41Negotiators’ Notes: PE/MX/SG will go with consensus on this paragraph.

42[PE/US propose: For greater certainty, the existence of such measures does not per se, amount to impairment.]

43Negotiators’ Note: MX is still reflecting on this provision. JP is considering this provision.

44[SG propose: this provision is not intended to affect the use of common names of pharmaceutical products in prescribing medicine.]

45Negotiators’ Note: JP is considering this provision.

46Negotiators’ Note: JP is considering this provision.

47Negotiators’ Note: MX will go with consensus with this paragraph.

48[US/CA/CL/MX/SG/NZ/VN/BN/AU/MY propose: Where a Party determines whether a mark is well-known in the Party, the Party need not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services.]

49Negotiators’ Note: MY support subject to domestic implementation.

50Negotiators’ Note: Parties reviewing the scope of this paragraph intersessionally.

51Negotiators’ Note: CA is flexible on this language, subject to its final attribution of this paragraph.

52Negotiators’ Note: JP is considering this provision.

53For greater certainty, cancellation for purposes of this Section may be implemented through nullity or revocation proceedings.

54Parties that rely on translations of the Nice Classification are required to follow updated versions of the Nice Classification to the extent that official translations have been issued and published.

55Negotiators’ Note: AU supports this article ad referendum.

56Negotiators’ Note: AU supports this paragraph ad referendum.

57Negotiators’ Note: Brunei can accept this provision pending completion of its database.

58Negotiators’ Note: US seeks further clarification on the scope of application of privacy data.

59Negotiators’ Note: AU/CL/MY/NZ/US/SG/JP support contingent on understanding that TPP will include a general provision related to privacy/disclosure of information; issues.

60Negotiators’ Note: JP seeks clarification as to whether “registration” is deemed to be synonymous with “acquiring the right to use” and reserves its position pending clarification of the term “trafficking”.

61Negotiators’ Note: [JP is still considering this issue depending on the outcome of discussions on Article QQ.C.2][AU/NZ: will go with consensus.]

62Subparagraph (a) shall also apply to judicial procedures that protect or recognize a geographical indication.

63Negotiators’ Note: Parties are considering the different terms used in this provision along with similar issues that have cropped up in C6 and D3.

64Negotiators’ Note: JP is considering this language.

65Negotiators’ Note: JP is considering this provision depending on the meaning of this Article.

66Negotiators’ Note: subject to legal clarification on consistency of the term cancellation etc.

67Negotiators’ Note: JP is considering this provision including Note to (i) and (ii).

68[US/NZ/BN propose; CL/PE/SG/MX/MY oppose: For greater certainty, the Parties acknowledge that a geographical indication that is likely to cause confusion with a pre-existing trademark or with another geographical indication should be refused protection, even if that geographical indication is a translation or modification of a geographical indication that the Party already protects.] [US alternative propose; PE/MX/ SG/MY/CL oppose: For greater certainty, the Parties acknowledge that, where a translation or a modification of a geographical indication is likely to cause confusion with a pre-existing trademark or geographical indication, it should be refused protection.]

69[US/AU propose: For greater certainty, the Parties acknowledge that the prior trademarks referred to in Article QQ.D.3 include well-known trademarks.]

70Negotiators’ Note: JP is considering this provision.

71[US: For greater certainty, nothing in this Agreement shall prohibit a Party from barring third parties from using or registering translations of geographical indications if: (1) such uses give rise to a likelihood of confusion[JP oppose: , and (2) the geographical indications became protected through means other than an agreement between a Party and a government or governmental entity].] Negotiators’ Note: JP proposes to move this footnote before subparagraph (a), so that it covers subparagraph (b) as well.

72Negotiators’ Note: JP is considering this provision.

73Negotiators’ Note: JP is considering this provision.

74[NZ propose: for greater certainty the filing date reference in Article QQ.D.6 includes the priority filing date under the Paris Convention, where applicable.]

75Negotiators’ Note: CA to consider; BN can go along with consensus: VN/BN maintains opposition to reference to agreement with another government, etc.

76Negotiators’ Note: JP is considering this provision.

77Negotiators’ Note: CA reserves its right to revisit this article once the Geographical Indication provisions have been agreed upon. MY/SG still considering this provision.

78Negotiators’ Note: JP is considering this provision.

79Negotiators’ Note: CA is reflecting on both proposals. JP is considering this provision.

80Negotiators’ Note: MY/PE supports SG proposal in principle but is reflecting on language.

81Negotiators’ Note: JP is considering this provision.

82Negotiators’ Note: VN supports subject to this list of GIs in the Annex.

83[CL/BN/SG propose: For greater certainty, the Parties acknowledge that geographical indications will be recognized and protected in the Parties only to the extent permitted by and according to the terms and conditions set out in their respective domestic laws.]

84Negotiators’ Note: CA is continuing to reflect on this provision but notes concerns regarding scope and operation. JP is considering this provision.

85Negotiators’ Note: US supports the principle reflected in this Article, but has concerns about limiting the Article just to names of countries.

86Negotiators’ Note: AU/ NZ/ SG/ BN reflecting on reformulated proposal. JP is considering this provision.

87For purposes of this [Section] Article, a Party may deem the terms “inventive step” and “capable of industrial application” to be synonymous with the terms “non-obvious” and “useful”, respectively. In determinations regarding inventive step (or non-obviousness), each Party shall consider whether the claimed invention would have been obvious to a person skilled or having ordinary skill in the art having regard to the prior art.

88Negotiators’ Note: JP is considering this provision.

89Negotiator’s Note: NZ/VN accept ad referendum pending confirmation on scope of publication and duration of grace period.

90[CA/SG/JP propose: A Party shall not be required to disregard information contained in [gazettes related to intellectual properties or] patent applications made available to the public by a patent office unless erroneously published or unless the application was filed without the consent of the inventor or their successor in title by a third party who obtained the information directly or indirectly from the inventor.]

91For greater certainty, a Party may limit application of this provision to disclosures made by or obtained directly or indirectly from the inventor or joint inventor. [PE/US/MY/SG/AU propose: For greater certainty, a Party may provide that, for purposes of this article information obtained directly or indirectly from the patent applicant may be information contained in the public disclosure that was authorized by, or derived from, the patent applicant.]

92Negotiators’ Note: Parties will continue to work to resolve the drafting of footnotes 61 & 62 (2nd sentence) intersessionally.

93Negotiator’s Note: PE and SG are flexible with both options.

94US withdraw Article QQ.E.4 ad referendum pending confirmation from capital.

95Negotiator’s note: CA reserves its position on Articles QQ.E.6,QQ.E.11 and QQ.E.12 pending clarification of the definition of publish/published.

96Negotiators’ Note: JP is considering this provision.

97[US: A Party may limit application of this provision to patent applications in which there is at least one claim to new subject matter filed after the entry into force of this Agreement.] Negotiators’ Note: JP is considering this provision.

98Each Party may provide that such amendments do not go beyond the scope of the disclosure of the invention as of the filing date.

99Negotiators’ Note: JP is considering this provision.

100Negotiator’s Note: MX/SG are willing to accept the article provided that the sentence “without undue experimentation” is deleted.

101Negotiators’ Note: JP is considering this provision.

102Negotiators’ Note: JP is considering this provision.

103Negotiator’s note: SG/BN/US/MY is not fundamentally opposed, but considering how their concerns over exceptions will be addressed. US support for this provision is contingent upon resolution of exceptions under U.S. law. JP is considering the issue of exceptions.

104Negotiator’s Note: AU is considering the issue of “in the possession of the competent authority”.

105Negotiator’s Note CA: Publish includes making available for public inspection.

106Negotiator’s Note: AU is still considering whether this would include personal information.

107Negotiator’s Note: CA/MX/AU is still considering the options in this provision.

108[MX propose: For greater clarity, the duration of the regulatory review exception will be subject to each Party’s national legislation.]

109Negotiators’ Note: JP is considering this provision.

110Negotiators’ Note: JP is considering this provision.

111[US: For greater certainty, new pharmaceutical product in subparagraphs 6 (c)-(e) means a product that at least contains a new chemical entity that has not been previously approved as a pharmaceutical product [JP propose: for human use] in the territory of the Party.]

112[US: Negotiator’s Note: For purposes of paragraph 6(e) of Article 8 and paragraphs 4 and 6 of Article 9, the length of the [X]-year period should: enhance certainty regarding access to innovative and generic pharmaceutical products for all; provide incentives for innovation; provide incentives for the diffusion of pharmaceutical products within the TPP region; respect commercial considerations; and account for special challenges in developing and commercializing such products throughout the region (e.g., challenges faced by smaller or less experienced applicants, or the time that an applicant may need to assess additional safety or efficacy implications of marketing a product, such as to assess such implications in jurisdictions where risks may differ from those faced in markets where the product has previously been approved).]

113Negotiators’ Note: CA reserves its position and seeks to develop its understanding of these provisions further to the discussion in Singapore. JP is still considering its position on Article QQ.E.16. to E.22.

114For greater certainty, the Parties recognize that this paragraph does not imply that the marketing approval authority should make patent validity or infringement determinations.

115[Negotiator’s Note: As used in Article 9.5(b)(i), “adjudicate” does not mean final adjudication.]

116A Party may comply with paragraph 5(d) by providing a period of marketing exclusivity in appropriate circumstances to the first such other person or persons to challenge a patent.

117For greater certainty, the Parties understand that the term “pharmaceutical product” as used in this Chapter includes biologic products.

118Negotiators’ Note: AU/CA/MY/CL/BN can support the inclusion of provisions on agriculture chemical but still considering the scope and drafting of the protection. CA is also considering the duration of the protection.

119Negotiator’s Note: MX: Placeholder for definition for “considerable efforts”.

120Negotiators’ Note: JP is considering this provision.

121Negotiators’ Note: JP is considering this provision.

122Negotiators’ Note: CA/US position is that QQ.E.23 provisions should be addressed in the Environment Chapter. The US/JP opposes the inclusion of this proposal in this Chapter.

123[MX propose; CL oppose: For greater certainty “derivative” means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, without human manipulation, even if does not contain functional units of heredity.]

124Negotiator’s Note: MX is still reflecting the coverage of related rights in this chapter.

125The Parties reaffirm that it is a matter for each Party’s law to prescribe that works in general or any specified categories of works, performances and phonograms shall not be protected by copyright or related rights unless they have been fixed in some material form.

126References to “authors, performers, and producers of phonograms” refer also to any successors in interest.

127With respect to copyrights and related rights in this Chapter, the “right to authorize or prohibit” and the “right to authorize” refer to exclusive rights.

128[US/AU/PE/CA/CL/MX/SG/MY/NZ/VN propose: With respect to [PE/CL/MX oppose: copyright and] related rights in this Chapter, a “performance” means a performance fixed in a phonogram unless otherwise specified.]

129[VN/BN/CA propose: The reproduction right, as set out in Article 9 of the Berne Convention [CA propose: and articles 7 and 11 of the WPPT], and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works [CA propose: , performances and phonograms] in digital form. It is understood that the storage of a protected work [CA propose: , performance or phonogram] in digital form in an electronic medium constitutes a reproduction within the meaning of [CA propose: the articles referenced in this footnote] [CA oppose: Article 9 of the Berne Convention].]

130[CL/NZ/MY/BN/JP propose: It is consistent with this Agreement to provide exceptions and limitations for temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work; and which have no independent economic significance.] [Negotiators Note: Discussions indicated no substantive objection to the concept, however, Parties continue to consider whether the footnote is required, where it might best be placed, and how it should be drafted.]

131[CA/JP propose: It is a matter for each Party’s law to determine when a given act constitutes a temporary reproduction for the purposes of copyright and related rights.]

132It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Chapter or the Berne Convention. It is further understood that nothing in this Article precludes a Party from applying Article 11bis(2) of the Berne Convention.

133[NZ propose: For the purpose of this paragraph importation may exclude importation for private or domestic use.]

134[PE/NZ propose: The expressions “copies” in this paragraph refers exclusively to fixed copies that can be put into circulation as tangible copies]. [Negotiators’ Note: US can support the concept subject to final drafting.] [JP propose: A Party may comply with its obligations under this paragraph by legislating in the Party’s law that such importation, for the purpose of distribution, is deemed to be infringement.] Negotiator’s Note: With this footnote, Japan can withdraw its opposition in the first line of QQ.G.3.

135[US: With respect to copies of works and phonograms that have been placed on the market by the relevant right holder, the obligations described in Article [QQ.G.3] apply only to books, journals, sheet music, sound recordings, computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted material represents substantially all of the value of the product). Notwithstanding the foregoing, each Party may provide the protection described in Article [QQ.G.3] to a broader range of goods.]

136[Negotiator’s Note: The US is considering the relationship between this provision and other proposals regarding the exhaustion of IP rights, as well as other TPP countries’ legal regimes.]

137The expressions “copies” and “original and copies” subject to the right of distribution in this paragraph refer exclusively to fixed copies that can be put into circulation as tangible objects [US/CA/SG oppose: , i.e., for this purpose, “copies” means physical copies.]

138[AU/VN/PE/NZ/BN/MY/SG/CA/CL/MX/JP propose: Nothing in this Agreement shall affect a Party’s right to determine the conditions, if any, under which the exhaustion of this right applies after the first sale or other transfer of ownership of the original or a copy of their works, performances, or phonograms with the authorization of [CA/SG propose: the author, performer or producer] [CA/SG oppose: the right holder].] (Negotiator’s Note: VN prefers this to be in the text as opposed to a footnote).

139[Negotiators’ Note: AU/CA agree in principle but will reflect further on the language.]

140Negotiators’ Note: AU supports this article ad referendum.

141For greater certainty, this provision does not affect the exercise of moral rights.

142Negotiators’ Note: Article QQ.H.4.15 should be discussed after discussions on this issue.

143Negotiator’s Note: MX supports this provision in principle.

144Negotiator’s Note: CA supports this provision in principle pending outcome of discussions on exceptions.

145Negotiator’s Note: CL is considering pending the outcome of the language of this proposal.

146Negotiator’s Note: NZ reserves its position on article QQ.G.10 pending the outcome of exceptions and limitations on TPMs protection. JP is considering a possibility of producing its proposal on Technological Protection Measures.

147Negotiator’s Note: CA reserves its position pending the clarification of the meaning of “rights”.

148Negotiator’s Note: CA pending clarification of criminal remedies.

149Negotiator’s Note: CA reserves its position pending clarification of “traffics”.

150Negotiator’s Note: CA reserves its position pending clarification of the terms “promoted” and “advertised.”

151Negotiator’s Note: CA reserves its position pending clarification of “any”.

152Negotiator’s Note: CA seeks clarification as to whether article “12.12” is meant to refer to article QQ.H.4(15).

153Negotiator’s Note: CA reserves its position pending outcome of discussion of provision QQ.H.4(15).

154Negotiator’s Note: CA seeks clarification if nonprofit applies to all institutions.

155Negotiator’s Note: CA seeks clarification of the intention of this sentence.

156Negotiator’s Note: CA seeks clarification as to whether article “15.15” is meant to refer to article QQ.H.7(7). CA reserves position pending clarification of QQ.H.7(7).

157[US/AU: For purposes of greater certainty, no Party is required to impose liability under Articles [9 and 10] for actions taken by that Party or a third party acting with the authorization or consent of that Party.] [Negotiator’s Note: CA seeks clarification of this footnote.]

158Negotiator’s Note: CA is considering these limitations.

159[CL propose: For greater certainty, elements of a computer program are not readily available to a person seeking to engage in non-infringing reverse engineering when they cannot be obtained from literature on the subject, from the copyright holder, or from sources in the public domain.]

160[CL propose: Such activity occurring in the course of research and development is not excluded in this exception.]

161[CL propose: Such activity occurring in the course of research and development is not excluded from this exception.]

162Negotiator’s Note: CA reserves its position.

163Negotiator’s Note: CA needs to reflect further on this paragraph.

164Negotiator’s Note: CA is considering paragraph (e) pending the outcome on discussions on limitations and exceptions.

165Negotiator’s Note: CA is considering paragraph (f).

166Negotiators’ Note: NZ/PE/CA/AU/MX/MY/BN/VN support in principle pending drafting consultations.

167Negotiator’s note: SG/CA/MX is willing to consider a more flexible approach to TPM provisions.

168Negotiator’s Note: MY/VN/CL does not object in principle but needs to reflect further on the language.

169Negotiator’s Note: CL/MY/NZ/BN/JP positions pending outcome of this provision.

170Negotiator’s Note: NZ/JP is considering the scope of obligations under this paragraph.

171Negotiator’s Note: CA reserves its position pending the outcome of FN10 (Art. QQ.A.7).

172For greater certainty, in this paragraph with respect to performances or phonograms first published or first fixed in the territory of a Party, a Party may apply the criterion of publication, or alternatively, the criterion of fixation, or both.

173For purposes of this Article, fixation means the finalization of the master tape or its equivalent.

174[JP propose: A Party may comply with its obligations under this paragraph by legislating that performers and producers of phonograms are protected to the extent provided for in Article 3 of WPPT and/or Paragraph 3 of Article 1 of the TRIPS Agreement.

175The term “published” in this paragraph includes phonograms that are made available in accordance with Article 15(4) of the WPPT.

176Where a Party has availed itself of the option contained in Article 15(3) of the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT), the obligation contained in [QQ.A.X – national treatment] does not apply to the extent that a Party makes use of a reservation taken under that Article.]”

177[US/SG propose ; CA/MX/CL/MY/VN/BN/CL oppose: For greater certainty, “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.]

178Negotiator’s Note; CA is considering the need for a deeming provision similar to article 15 (4) of WPPT.

179Negotiators’ Note: CA supports a provision on limitations and exceptions and is reflecting further.

180Negotiators’ Note: Delegations are considering the relationship between Article QQ.G.X.2 and new multilateral agreements concluded under the auspicies of WIPO and the agreements listed in Article QQ.G.X.2. Delegations will work to resolve this issue in Article QQ.A.6 (General Provisions – relationship to other agreements) or elsewhere.

181Negotiator’s Note: SG/CA/PE/BN/NZ/AU is flexible on the inclusion of the word ‘education’ as the notion is already significantly covered by teaching, sholarship and research. US/MX believe the word ‘education’ is covered by teaching, scholarship and research, but is considering further.

182FN: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.Y.

183Negotiator’s Note: NZ/AU is flexible on either options referring to persons with disabilities.

184Negotiator’s Note: Delegations are considering the appropriate placement of this issue under right of reproduction or L & E. There continue to be discussions regarding this issue and delegations have diverging views.

185Negotiators’ Note: CA reserves its position pending the outcome of discussions elsewhere in this Chapter.

186For greater certainty, royalties may include equitable remuneration.

187[CL propose: For greater certainty, law may include enforcement procedures established under Parties legal systems.]

188Negotiators’ Note: AU/CL can support if there is emerging consensus on this issue.

189Negotiators’ Note: The reference to Section is intended to include enforcement-related provisions throughout the Chapter.

190[US/CA/MY propose: For greater certainty, a Party may implement this Article on the basis of sworn statements or documents having evidentiary value, such as statutory declarations. A Party may also provide that such presumptions are rebuttable presumptions that may be rebutted by evidence to the contrary.]

191Each Party may establish the means by which it shall determine what constitutes the “usual manner” for a particular physical support.

192Negotiators’ Note: JP is considering this provision.

193Negotiators’ Note: JP is considering this provision.

194Negotiators’ Note: AU/MX/US/PE will consider options to address concerns intersessionally and will involve the wider group.

195[US: A Party may satisfy the requirement for publication by making the decision or ruling available to the public on the Internet.]

196For the purposes of this Article, the term “right holder” shall include those authorized licensees, federations and associations that have the legal standing and authority to assert such rights. The term “authorized licensee” shall include the exclusive licensee of any one or more of the exclusive intellectual property rights encompassed in a given intellectual property.

197Negotiators’ Note: AU/US/JP would like to consider this proposal in tandem with the definition of intellectual property rights in this Chapter.

198[AU/NZ/MY/CA/JP/SG propose: A Party may also provide that the right holder may not be entitled to either of the remedies set out in 2 and 2bis in the case of a finding of non-use of a trademark] [JP/AU/SG/CA/MY propose: it is understood that there is no obligation for a Party to provide for the possibility of the remedies in 2 and 2bis to be ordered in parallel.]

199[US propose: In the case of patent infringement, damages adequate to compensate for the infringement shall not be less than a reasonable royalty.] [Negotiators’ note: JP can go along with consensus.]

200[CA propose: A Party may exclude from the application of this Article cases of Copyright or related rights infringement where an infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity or where an infringer is a non-profit entity.][JP propose: A Party may presume those profits to be the amount of damages referred to in the preceding paragraph.]

201Negotiators’ Note: AU supports this paragraph ad referendum.

202Negotiators’ Note: CL/MY/SG will revert back intersessionally.

203Negotiators’ Note: JP is considering this provision.

204Negotiators’ Note: MY support the principle but are still considering the need for this proposal in the context of Article 48 of TRIPS. SG/MX/VN/AU/CA can go along with the consensus.

205For greater certainty, additional damages may include exemplary or punitive damages.

206Negotiator’s Note: AU is still considering this paragaph.

207Negotiators’ Note: Parties are considering the drafting choice of the word that represent the concept of seriousness.

208No Party shall be required to apply this paragraph to actions for infringement against a Party or a third party acting with the authorization or consent of a Party.

209[CA propose: For the purposes of this Article, where appropriate shall not be limited to exceptional cases.]

210Negotiators note: NZ share view of the article but would rather see it placed some other place; MX is considering this issue in light of Article QQ.H.4.13; JP proposes to move paragraph. 9 to Article QQ.H.5. Otherwise, JP will support VN proposal.

211Negotiator’s Note: MX supports this in principle but needs to reflect on this pending discussions on paragraph QQ.H.4.13.

212Negotiator’s Note: MX is still considering this proposal.

213VN propose: A request for an order under this paragraph may be considered as unjustified in case such order would be out of proportion to the seriousness of the infringement.

214Negotiators’ Note: PE/MX are considering the need for this proposal.

215[For greater certainty, civil remedies do not include administrative measures, decisions or any other actions taken by administrative authorities.]

216Negotiators Note: PE/MY/NZ/CL/CA reserve their positions pending resolution of related provisions regarding TPM and RMI.

217Negotiator’s Note: This will be discussed in relation to provisions regarding TPM and RMI.

218Negotiators Note: The scope of border measures in this section will be confined to counterfeit trademark goods, pirated copyright goods. The US proposal for inclusion of, confusingly similar trademark goods is still under negotiation and Parties have different views on this proposal.

219[CA propose: It is understood that there shall be no obligation to apply the procedures set forth in this Article to goods put on the market in another country by or with the consent of the right holder.]

220For purposes of Article 14:

(a) counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in quesiton under the law of the country of importation; and

(b) pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.

221Negotiators’ Note: AU supports this ad referendum.

222Negotiators’ Note: Need to clean up terminology in H.6 relating to ‘goods’ and ‘merchandise’.

223Negotiators’ Note: MY/CA/SG/AU/VN/BN: suspect goods need to be defined and revert back.

224Negotiators’ Note: CA/MY/AU: Customs controls need to be defined and revert back.

225[SG propose: the requirement to provide for such application is applicable to the obligation to provide procedures referred to in Article QQ.H.6.1.]

226Negotiators’ Note: AU/PE can support consensus.

227Negotiators’ Note: MY/SG/VN/BN are considering this first clause.

228Negotiators’ Note: Parties are considering the need for a footnote to deal with the scope of this clause.

229Negotiators’ Note: CA would need to include minor amendments on disclosure.

230For purposes of this Article, “days” shall mean “business days”.

231For greater certainty, the parties understand that ex officio action does not require a formal complaint from a private party or right holder [MY/BN propose: , provided that they have acquired prima facie evidence that intellectual property rights are being infringed].

232For purposes of this Article, in-transit merchandise means goods under “Customs transit” and goods “transhipped,” as defined in the International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto Convention).

233Negotiators’ Note: US to revisit after the decision on scope of application ex officio.

234Negotiators’ Note: VN can accept “shall” option if the scope of Border control is confined to trademarks counterfeit and copyright pirated goods.

235For greater certainty, a Party may also exclude from the application of this Article small quantities of goods of a non-commercial nature sent in small consignments.

236[US propose; AU/SG/PE/CA/JP oppose: For greater certainty, “financial gain” for purposes of this Article includes the receipt or expectation of anything of value.]

237[US/CA propose; JP oppose: A Party may comply with this obligation in relation to [JP: importation and] exportation of pirated [JP: copyright] goods through its measures concerning distribution.] [JP alternatively propose: A Party may comply with its obligation relating to importation and exportation of counterfeit trademark goods or pirated copyright goods by providing for distribution, sale or offer for sale of such goods on a commercial scale as unlawful activities subject to criminal penalties.]

238US: Negotiator’s Note: For greater certainty, the definition of “counterfeit trademark goods” in footnote [12] shall be used as context for this Article.

239US: For purposes of this Article, “illicit label” means a genuine certificate, licensing document, registration card, or similar labeling component:

(A) that is used by the copyright owner to verify that a phonogram, a copy of a computer program or literary work, a copy of a motion picture or other audiovisual work, or documentation or packaging for such phonogram or copies is not counterfeit or infringing of any copyright; and

(B) that is, without the authorization of the copyright owner-

(i) distributed or intended for distribution not in connection with the phonogram or copies to which such labeling component was intended to be affixed by the respective copyright owner;

or

(ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner’s distribution channel and not for the purpose of verifying that a copy or phonogram is noninfringing.

240A Party may comply with its obligation relating to importation of labels or packaging through its measures concerning distribution.

241A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to be applied to attempts to commit a trademark offence.

242US: For purposes of this Article, “illicit label” means a genuine certificate, licensing document, registration card, or similar labeling component:

(A) that is used by the copyright owner to verify that a phonogram, a copy of a computer program or literary work, a copy of a motion picture or other audiovisual work, or documentation or packaging for such phonogram or copies is not counterfeit or infringing of any copyright; and
(B) that is, without the authorization of the copyright owner-

(i) distributed or intended for distribution not in connection with the phonogram or copies to which such labeling component was intended to be affixed by the respective copyright owner;
or

(ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner’s distribution channel and not for the purpose of verifying that a copy or phonogram is noninfringing.

243It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and monetary fines to be imposed in parallel.

244Negotiator’s Note: CL/PE/MX/CA is still considering pending consultation with capital.

245A Party may also account for such circumstances through a separate criminal offense.

246Negotiators’ Note: CA/BN/VN are reflecting on the definition of “assets”.

247Negotiators Note: The use of the term “competent/judicial” in this subparagraph will be revisited.

248Negotiators’ Note: The cross reference to subparagraph (c) will be revisited during legal scrubbing.

249A Party may also provide such authority in connection with administrative infringement proceedings.

250Negotiators’ Note: AU supports this paragraph ad referendum.

251Negotiators’ Note: BN seeks further clarification on “state commercial enterprise”.

252[US: For greater certainty, a Party may treat disclosure of a trade secret to that Party’s authorities in connection with providing evidence of an alleged violation of that Party’s law as not contrary to honest commercial practices.][AU propose: for the purposes of this paragraph “a manner contrary to honest commercial practices” shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.]

253Negotiators’ Note: CA/MX/NZ/JP supports in principle subject to final drafting.

254Negotiators’ Note: AU opposes this paragraph ad referendum.

255[CL propose: For purposes of paragraph 1, knowledge may be demonstrated through reasonable evidence, taking into account the facts and circumstances surrounding the alleged illegal act.]

256[CA/AU/SG propose: The obligation regarding export may be met by making it a criminal offence to possess and distribute such a device or system.]

257[CA propose: willfully receiving may mean operating a radio apparatus so as to receive an encrypted signal].

258[US propose; CL/AU oppose: For greater certainty, “make use of” includes viewing of the signal, whether private or commercial].

259Negotiators’ Note: CL position will depend on the outcome of paragraph 1(a).

260Negotiators’ Note: SG agrees in principle but will reflect further on the language.

261Negotiator’s Note: MX/MY/CL/BN are still considering this provision.

262Negotiators’ Note: CA confirming with government procurement people.

263Negotiators’ Note: CA support for central depends on how it is defined throughout the agreement.

264Negotiators’ Note: SG/CL/MY/BN/VN subject to consideration of parallel importation issues.

265Negotiators’ Note: delegations are still considering this proposal, and are also reflecting on the placement of this proposal in the Chapter.

266[US: For purposes of this Article and for greater certainty, retransmission within a Party’s territory over a closed, defined, subscriber network that is not accessible from outside the Party’s territory does not constitute retransmission on the Internet.]

267Negotiators’ Note: JP is still considering its positions on this Section.

268Negotiator’s Note: PE is still considering its position on paragraphs 1, 2 and the new paragraph 3 presented by CA.

269Each Party may determine, within its domestic law, what constitutes an internet service provider.

270Negotiator’s Note; NZ is still considering this phrase.

271Negotiators’ Note: VN to consider this provision further.

272Negotiator’s Note: BN is considering its reactions to the proposals presented by CA on paragraphs 2 and 3.

273Negotiator’s Note: MX is considering its reactions to paragraph 2b and 3.

274Negotiator’s Note: NZ is considering its reactions to paragraph 3.

275Negotiator’s Note: NZ proposes to look at the placement of this paragraph vis a vis its placement elsewhere in the text.

276For purposes of this paragraph, “copyright” includes related rights. Negotiators’ Note: The placement of the footnote will depend on the outcome of the chapeau of this paragraph.

277[NZ propose: For the avoidance of doubt, limitations regarding the scope of remedies available can be implemented through limitations on the liability of internet service providers.]

278This subparagraph is without prejudice to the availability of defenses to copyright infringement that are of general applicability.

279[PE propose: For greater clarity, the failure of an ISP to qualify for the limitations in subparagraph (b) does not itself result in liability.]

280[US/PE/SG/AU propose; CL/NZ/VN oppose: A Party may request consultations with the other Parties to consider how to address under this paragraph functions of a similar nature that a Party identifies after the entry into force of this Agreement.]

281[CL/MY/SG/NZ/AU/PE/US propose: Such modification does not include modifications made as part of a technical process.]

282[CL/MY/SG/NZ/AU/US propose: For greater certainty, such storage of material may include e-mails and their attachments stored in the provider’s server and web pages residing on the provider’s server.]

283Negotiator’s Note: MY needs to reflect further on this provision.

284Negotiator’s Note: MY will reflect further on this provision.

285CL/SG/NZ/AU/US/PE propose: A Party may require that such technology shall be used in a lawful manner.]

286[CL/SG/NZ/AU/PE/US propose: A Party may require that such standard technical measures shall be used in a lawful manner, and that such measures are subject to approval by relevant authorities.]

287[CL/SG/NZ/AU/PE/US propose: A Party may provide that interested parties include copyright owners, service providers or other interested parties, [CL/SG/NZ/AU/US propose: as may be approved by relevant authorities,] as applicable.]

288[CL/MY/SG/NZ/AU/US/PE propose: As used in subparagraph (xii), a Party may provide that network access includes cases in which network access is provided by another provider.]

289All references to copyright in this letter are understood to include related rights, and all references to works are understood to include the subject matter of related rights.

290The Parties understand that a representative is publicly designated to receive notification on behalf of a service provider if the representative’s name, physical and electronic address, and telephone number are posted on a publicly accessible portion of the service provider’s website, and also in a register accessible to the public through the Internet, or designated in another form or manner appropriate for [insert Party name].

291If multiple copyrighted works at, or linked to from, a single online site on a system or network controlled or operated by or for the service provider are covered by a single notification, a representative list of such works at, or linked to from, that site may be provided.

292In the case of notices regarding an information location tool pursuant to paragraph (b)(i)(D) of Article 16.3, the information provided must be reasonably sufficient to permit the service provider to locate the reference or link residing on a system or network controlled or operated by or for it, except that in the case of a notice regarding a substantial number of references or links at a single online site residing on a system or network controlled or operated by or for the service provider, a representative list of such references or links at the site may be provided, if accompanied by information sufficient to permit the service provider to locate the references or links.

293[SG propose: To satisfy this requirement, the process to be established shall not be costly or cumbersome. An appropriate electronic mechanism may be used or incorporated in this process.]

294A signature transmitted as part of an electronic communication satisfies this requirement.

295All referenced to “subscriber” in this letter refer to the person whose material has been removed or disabled by a service provider as a result of an effective notice described in part (a) of this letter.

296A signature transmitted as part of an electronic communication satisfies this requirement.

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