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CHAPTER ONE: INITIAL PROVISIONS AND DEFINITIONS
[[1]: Section A : Initial Provisions
ARTICLE 1.1: RELATION TO OTHER AGREEMENTS
Nothing in this Aagreement shall derogate from any international[NZ/Sing/EU: any existing rights and) any obligation of a Pparty with respect to any other Party under existieng agreements to which both Parties are party., including the WTO Agreement of Trade-Related Aspects of Intellectual Property Rights.
ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS 2[2]
1. MembersEach Party shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive [US/EU/CH/NZ/CAN: protection and] enforcement of intellectual property rights than is required by this Agreement, provided that such [AUS/EU/CH/NZ/CAN: protection and] enforcement does not contravene the provisions of this Agreement. MembersEach Party shall be free
to determine the appropriate method of implementing the provisions of
this Agreement within their own legal system and practice.
2.
Nothing in this Agreement creates any obligation with respect to the
distribution of resources as between enforcement of intellectual
property rights and enforcement of law in general.
ARTICLE 1.3: RELATION TO STANDARDS CONCERNING AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS
1. This Aagreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law.
2. It is understood that this Agreemeint does not create
any obligation on a Party to apply measures where a right in
intellectual property is not protected under the laws and regulations
of that Party.
[Aus/Can/Sing/NZ: 3. No
Party shall be obliged to apply this section to any goods that do not
infringe an intellecual property right held within the territory of
that Party]
ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION
[A suitable provision needs to be drafted that would ensure nNothing in theis Agreement detracts
from national legislation regarding protection of personal privacy. In
the same way, a suitable provision needs to be drafted regardingshall require any Party to disclose information the disclosure of commercial information]
[Section B[3which
would be contrary to its law or its international agreements, including
laws protecting right of privacy or confidential information the
disclosure of which would prejudice law enforcement or the legitimate
commercial interests of particular enterprises, public or private, or
otherwise be contrary to public interest[3].
AUS[4]
[AUS/NZ/Sing/CAN:
Article 1.X: 1. The 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. 2. Parties may, in formulating or amending their laws
and regulations, adopt measures necessary to protect public health and
nutrition, and to promote the public interest in sectors of vital
importance to their socio-economic and technological development,
provided that such measures are consistent with the provisions of this
Agreement. 3. Appropriate measures, provided that they are consistent
with the provisions of this Agreement, may be needed 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.] [J/Mex/Kor/US: delete this
provision] [EU: include some principles of this provision in the
Preamble][5]
Section B[6]: General Definitions
[Can: Canada reserves its position on all elements proposed in this section, pending discussion of them in negotiations]
ARTICLE 1.X: DEFINITIONS
For purposes of this Agreement, unless otherwise specified:
days means calendar days;
[MX:
In the "days" definition it is established that is would natural days.
However, in Article 2.13 there is a footnote which stipulates that
"days" refer to working days. Therefore is it suggested to make clear
the initial definition or delete such definition and establish with
footnotes if it refers to natural or working days, where appropriate]
intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of If Trade-Related Aspects of Intellectual Property Rights
[MX:
The definition of "intellectual property" refers to the figures listed
in TRIPs; however, said wording is not clear enough since words such as
"intellectual property right" and "copyrights and related rights and
trademarks" are used in all the text. Therefore, it is suggested to
define "intellectual Pproperty Rights." in Article 1 and use the same wording in all the tet in order to be uniformity.]
Council means the ACTA Oversight Council established under Chapter Five;
measure includes any law, regulation, procedure, requirement, or practicse;
person means either a natural person or a juridical person;
right
holder includes a federation or an association having the legal
standing and authority to assert rights in intellectual property, and
also includes a person that exclusively has any one or more of the
intellectgernual property rights encompassed in a given intellectual property;
territory means customs territory of a Party and all free trade zones of that Party;
TRIPS
Agreement means the Agreement on Trade-Related Aspects of Intellectual
Property Rights, contained in Annex 1C to the WTO Agreement;[4]
[7] WTO means the World Trade Organization; and
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994.5
CHAPTER TWO: LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
s[5]
ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT
1[8]
1.
Parties shall ensure that enforcement procedures are available under
their law so as to permit effective action against any act if
infringement of intellectual property rights covered by this Agreement,
including expeditious remedies to prevent infringements and remedies
which constitute a deterrent to further 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. Procedures adopted, maintained, or applied to implement this Chapter shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
2Options 1: [Mex/US/J/NZ/Sin/CAN: 3. In respect of civil remedies and criminal penalties for enforcement of intellectual property rights, each Party shall take into account, as approriate, the need for proportionality between the seriousness of the infringement and th, the interests of third parties and the applicable remedies or penalties ordered.
[3. Those.]
Option 2: [EU/CH/Mor: 3. In respect of measures, procedures and remedies shall also be [effective, proportionate][ fair and equitable] and [deterrent]][6]]
4. [Padopted,
maintained or applied to implement this Chapter, each Party shall
ensure the need for proportionality in relation to the infringement.]
4. [US: Not withstanding the other provisions on
limitations on remedies available against use by governments as well as
exemptions of public authorities and official from liability to be
inserted here at a later date.]
5. [Df
this Agreement, the Parties may limit the remedies available against a
unauthorized use of intellectual property covered under this Agreement,
or against such unauthorized use by a third party that was authorized
by a government, to payment of remuneration. Such remuneration shall be
adequate to compensate for the injury the right holder has suffered,
taking into account the economic value of the use.][9]
5. [MX/Aus/Sing/NZ/US/Can: define scope of the intellectual property rights covered inby the Agreement]] [TEU/CH: the scope of intellectual property rights will be defined at the start of each chapter.]
[Aus/US/NZ/Can/Sing: This Agreement shall apply [NZ/Can/Sing: only]
[Kor: at least] to trademark counterfeiting and copyright pircay unless
oterwise specified. The Section on the Digital Environment shall apply
only to copyright and related rights.]
6. [EU: Each Party shall
ensure that the rights of the [EU/CH: defendants and] third parties
shall be duly protected and guaranteed.]
Section 1: Civil Enforcement
ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES
1. [Can/US/NZ/Sing/AUS: In the context of this section, e] [E]ach Party shall make available to right holders [civil judicial] [or administrative] procedures concerning the enforcement of any [J/CH/EU: intellectual property right] [Sing/Can/NZ/Aus/US/Mex: copyrights and related rights and trademarks].
2
. To the extent that any civil remedy can be ordered as a result of
administrative procedures on the merits of a case, each Pary shall
provide that such procedures conform to principles equivalent in
substance to those set out in this section.
ARTICLE 2.X: INJUNCTIONS
[EU/Sing: 1. ]In civil judicial proceedings concerning the enforcement of [Can/NZ/Aus/US/Sing/Mex: copyright or related rights and trademarks] [J/EU: intellectual property rights], each Party shall provide that its judicial authorities shall have the authority [Can/AUS: subject to any statutory limitations under its domestic law] [US/Kor/J/EU/CH/Mex: subject to any statutory limitations under its domestic law] to issue [against the infringer an injunction aimed at prohibiting the continuation of the] [an order to a party to desist from an] infringement, including an order to prevent infringing goods from entering into the channels of commerce [and to prevent their exportation].[7]
[.
[EU/CH: 2. The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against [infringing] intermediaries whose services are used by a third party to infringe an intellectual property right.[8]][9] [10]][11]
ARTICLE 2.2: DAMAGES
1. Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer [who knowingly or with reasonable grounds to know, engaged in [infringing activity] of [intellectual property rights] [copyright or related rights and, or trademarks] [intellectual property rights], to pay the right holder
(i); or
(ii)
[at least in the case of copyright or related rights infringement and
trademark counterfeiting,] [in the case of IPR infringements] the
profits of the infringer that are attributable to the infringement,
[which may be presumed to be the amount of damages] [and that are not
taken into account in computing the amount of damages] [referred to in
clause (i)][10]
[which may be presumed to be the amount of damages referred to in clause (i)]; and
(b) i.
In determining the amount of damages [US: for [copyright ors and related rights infringements and trademarks counterfeiting] [infringement of intellectual property rights], its judicial authorities shall, its judicial authorities shall have the authority to consider,
inter alia, any legitimate measure of value submitted by the right
holder, which may include the lost profits, the value of the infringed
good or service, measured by the market price, the suggested retail
price, or [the profits of the infringer that are attributable to the infringement].
[2. [At least]
in cases [EU/CH: of intellectual property rights] [of copyright or
related rights infringement and trademark counterfeiting], each Party
shall provide that in civil judicial proceedings, its judicial
authorities shall have the authority to order the infringer to pay the
right holder the profits of the infringer that are attributable to the
infringement [Kor: which may be presumed to be the amount of the
damages].
3. [US: At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in [cases of trademark counterfeiting], in civil judicial proceedings, [As an alternative to paragraph 1,] ee] [E]ach Party [shall][may] also establish or maintain a system that provides for:
(a) pre-established damages;
(, or b) presumptions for determining the amount of damages[112] sufficient to compeensate the right holder for the harm caused by the infringement.[12][; or
(c), or c) at least for copyright, additional damages]]
[3.
Where the infringer did not knowingly, or with reasonable grounds to
know, engage in infringing activity, each Party may [lay down that]
[establish] [may authorize its] the judicial authorities may [to] order
the recovery of profits or the payment of damages, which may be
pre-established.].
[4. Where a Pparty provides one of the options described in paragraph 2 (a) or 2 (b), that Party shall ensure that a right holder has the right to choose that option [[13]] as an alternative to the remedies referred to in paragraph 1.]
Option 1
[5. Each Party shall provide that its judicial authorities, except in exceptional circumstanceswhere appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings [[at
least in cases] concerning copyright or related rights infringement,
[patent infringement,] or trademark infringement] that the prevailing
party be awarded payment by the losing party of [ [reasonable and
proportionate] legal] court costs or fees. [Each Party shall also
provide that its judicial authorities, [except in exceptional
circumstances], [in proceedings concerning copyright or related rights
infringement or willful trademark counterfeiting,] shall have the
authority to order, [in appropriate caseconcerning infringement of [intellectual property rights] [copyright or related rights, or trademarks], that the prevailing party be awarded payment by the losing party of reasonable attorney's fees [, and other expenses as provided for under that Party's domestic law].[14]]
Option 2
[5.
Each Party shall provide that its judicial authorities, [in appropriate
cases], shall have the authority to order, at the conclusion of civil
judicial proceedings [[at least in cases] concerning copyright or
related rights infringement, [patent infringement,] or trademark
counterfeiting] that the prevailing party be awarded payment by the
losing party of court costs or fees and reasonable [and proportionappropriate] attorney's fees [, andor any other expenses as provided for under that Party's domestic law].[15]].
ARTICLE 2.3: OTHER REMEDIES
1. With respect to goods that have been found to be [US/Aus/Can/Sing/Kor/NZ/Mex: pirated or counterfeited] [J/EU/CH: infringing an intellectual property right],
each Party shall provide that in civil judicial proceedings, at the
right holder's request, its judicial authorities shall have the
authority to order that such goods be [recalled, definitively removed from 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 shall
have the authority to order that materials and implements the
predominant use of which has been in the manufacture or creation of [J/EU: infringing] [US/Aus/Can/Sing/NZ/Mex: pirated or counterfeit] 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.
[EU/CH/Aus/CAN: 3. The judicial authorities shall have the authority to order that those remedies be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.]
[4.
[In ordering those remedies, the judicial authorities][Each Party shall
further provide that its judicial authority in ordering these remedies]
shall take into account the need for proportionality between the
seriousness of the infringement and the remedies ordered as well as the
interest of third parties.][16].]
ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT
[Without prejudice to other statutory provisions which, in particular,its domestic law tha govcerns the protection of confidentiality of information sources or, the processing of personael data,][17] E or privilege, each Party shall provide that in civil judicial proceedings concerning the enforcement of [J/CH/EU: intellectual property rights][ [Can/NZ/Aus/Sing/US/Mex: copyright or related rights and trademarks], its judicial authorities shall have the authority upon a justified request of the right holder, to order the [alleged] infringer [including aninfirnger, or in the alternative, the alleged infringer] to provide, [at least for the purpose of collecting evidence] any [, relevant] information [information on the origin and distribution network of the infringing goods or services][in the form as prescribas provided in its applicable laws and regulations] that the infringer or alleged infringer possesses or controls, [where appropriate,] to the right holder
or to the judicial authorities. Such information may include
information regarding any person or persons involved in any aspect of
the infringement and regarding the means of production or distribution
channel of such goods or services, including the indentification of third
persons involved in the production and distribution of the infringing
goods or services or in their channels of distribution. [For
greater clarity, this provision does not apply to the extent that it
would conflict with common law or statutory privileges, such as legal
professional privilege.] ]
ARTICLE 2.5: PROVISIONAL MEASURES
[X.EU/CH/J: Each Party shall provide that its judicial authorities shall have the authority, at the request of thea applicant, to issue an interlocutory injunction provisional measure intended to prevent any imminent infringement of an intellectual property right [Can/Aus/Mex:
copyright or related rights or trademark]. Such provisional measures
may also be issued under certain conditions, in relation to an
intermediary whose serices are being usd by a third party to infringe
an [intellectual property right] [copyright or related rights or trademark]. An
interlocutory injunction may also be issued, under the same conditions,
against an [infringing] intermediary whose services are being used by a
third party to infringe an intellectual property right. Each Party shallEach Party shall [J: may] also provide that provisional measures may be issued, even before the commencement of the proceedings on the merits, to preserve relevant evidence in respect ofto the alleged infringement.
Such measures may include inter alia the detailed description, the
taking of samples or the physical seizure of documents or of the
infringing goods.]
1. Each Party shall [provide][ensure] that its judicial authorities [shall ]with the authority to act [expeditiously][ on requests] for provisional measures inaudita altera parte, and shall endeavor to make a decision[ on such requests] without undue delay, except in exceptional cases.
2. [.
2. [US/J/NZ/MX/Aus: In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting][18]3], each Party shall provide that its judicial authorities shall have the authority to
order the seizure or other taking into custody of suspected infringing
goods, materials, and implements relevant to the act of infringement [and, at least for trademark counterfeiting, [J: documents] [EU: documentary evidence], either originals or copies thereof, relevant to the infringement].
[US/J/EU/Can: 3. Each Party shall provide that its [judicial][competent] authorities have the authority to require the
plaintiff, with respect to provisional measures, to provide any
reasonably available evidence in order to satisfy themselves with a
sufficient degree of certainty that the plaintiff's right is being
infringed or that such infringement is imminent, and to order the
plaintiff to provide a reasonable security or equivalent assurance [set at a level sufficient] to proetect the defendant [EU/CH: , ensuring compensation four any prejudice suffered when the measure is revoked or lapses due to any reason, ]and to prevent abuse. []
[Kor/NZ/J:, ensuring compensation fur any prejudice suffered when the
measure is revoked or lapses due to any reason,] and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedures].
Section 2: Border Measures[19][[20]] [[21]]
[ARTICLE 2.X: SCOPE OF THE BORDER MEASURES4] [Japan:[15]]
[EU/CH: Article 2.X: Scope of the border measures]
1. This section
sets out the conditions for action by the competent authorities when
goods are suspected of infringing intellectual property rights, within
the meaning of thise agreement, when they are imported, exported, in-transit or in other situations where the goods are under customs supervision.
2.
For the purposes of this section, "goods infringing an intellectual
property right" means goods infringing any of the intellectual property
rights covered by TRIPS[2216]. However,
Parties may decide to exclude from the scope of this section, certain
rights other than trade marks, copyrights and GIs when [not protected
exclusively by copyright and trade mark systems and] [protected by
[non-product- or sector-specific] [registration] sui generis systems.]]
3. [[US/Sing/Aus/NZ/J/Can: Parties shall provide for the provisions related to border measures to be applied [US/Sing/J: at least ]] in cases of trade mark counterfeiting and copyright piracy. [US/Sing/J: Parties may provide for such provisions to be applied in other cases of infringement of intellectual property rights.]]
ARTICLE 2.X: DE MINIMIS PROVISION
Parties
may exclude from the application of this Section small quantities of
goods of a non-commercial nature contained in travelers' personal
luggage [NZ/Aus/Can/Sing/Kor/J: or sent in small consignements.][17]]
ARTICLE 2.X: PROVISION OF INFORMATION FROM THE RIGHT HOLDER
Each Party shall permit the competent authorities to request a rights holder to supply relevant information to assist
the competent authorities in taking border measures provided for under
this Section. Each Party may also allow a right holder to supply
relevant information to the competent authorities.
ARTICLE 2.6: APPLICATION BY RIGHT HOLDER
Option 1
[and in-transit[23]18] shipments and [Mor: may] [EU/KOR: shall] provide procedures for export shipments, by which right holders may request the competentd authorities to suspend release[2419] of suspected counterfeit trademark goods[250]
and suspected pirated copyright goods[21] [EU/: goods suspected of
infringing an intellectual property right] into free circulation [Kor:
or the detention of such goods].
Option 2
[US/J/NZ/Can/Sing/Aus/CH/Mex:
1. Each Party shall provide procedures for import and export
[NZ/Can/Sing/Aus: and export] shipment and my provide procedures for
in-transit[22] shipments, by which right holders may request the
competent authorities to suspend the release of the suspected
counterfeit trademark goods[23] and suspected pirated copyright goods.[26] [goods suspected of infringing an intellectual property right]into free circulation.
Option 2
[1.4]{24}]
Option 3
[EU: Each Party shall provide procedures by which right holders may request the competent authorities to suyspend the release of goods suspected of infringing intellectual property rights or detain them.]
2. The competent
authorities shall require a right holder requesting the procedures
described in paragraph 1 to provide adequate evidence to satisfy
themselves that, under the laws of the Party providing the procedures,
there is prima facie an infringement of the right holder's intellectual
property right and to supply that sufficient information that
may reasonably be expected to be within the right holder's knowledge to
make the suspected infringing goods reasonably recognizable byto the competent authorities.
The requirement to provide sufficient information shall not
unreasonably deter recourse to the procedures described in paragraph 1.
3. Each Party shall provide for applications to suspend the release of suspected infringing goods that apply to all goods[275] under customs control in its territory and remain applicable to multiple [Sing: or in the alternative specified] shipments [US: or where there is a specific shipment at issue, the application will apply to specified shipments]. Each Party may provide that, at the request of the right holder, the application
to suspend the release of goods may apply to selected points of entry
and exit under customs control. These applications for suspension shall
remain applicable for a period of not less than [NZ/US/CH/J/EU/Kor/Can/AUS/Mor: one year][ [Sing: or sixty days]
from the date of application, or the period of protection of the
relevant intellectual property rights under the laws of the Party
providing border measures under this Section, whichever is shorter.
Each Party may permit a right holder to specify that an application to
suspend remain applicable for a period of less than [one year][or sixty days].NZ/US/CH/J/EU/Kor/Can/AUS/Mor: one year] [Sing: or sixty days].
[Sing:
3. Each Party shall provide for applications to suspend the release of
suspected infringing goods that apply to all goods[26] under customs
control in its territory and that shall remain applicable for a
reasonable period. Each Party may [J (drafting suggestion): shall [or
shall endeavor]] provide for such applications to apply to multiple
shipments. Each Party may provide that, at the request of the right
holder, the applications may appy to selected points of entry and exit
under customs control.]
4. The competent
authorities shall inform the applicant within a reasonable period
whether they have accepted the application. Where the competent
authorities have accepted the application, they shall also make known
to the applicant the period of validity of the application.
5.
Each Party may provide, where the applicant has abused the process, or
where there is due cause, that an application may be denied, suspended,
or voided.
ARTICLE 2.7: EX-OFFICIO ACTION
Option
[may] [shallshall [NZ: may] provide that its
customs authorities may act upon their own initiative, to suspend the
release of suspected counterfeit trademark goods or suspected pirated
copyright goods with respect to imported, [US/J/Mex: exported] [US/J/NZ/Mex: , or in-transit]
goods including suspected counterfeit trademark goods or suspected
pirated copyright goods admitted to, withdrawn from, or located in free
trade zones [EU/CH: goods suspected of infringing an intellectual property right]. [Aus/Can/NZ/Sing: Each Party [may][shall endeavor to] provide its customs authorities the same authority as the foregoing provision of this Article in respect of [exported and] in-transit goods that are [suspected counterfeit trademark goods or suspected pirated copyright goods.]
Option 2
[n initiative, to suspend the release of goods suspected of infringing an intellectual property right.]
2. [Each Party may also provide that its customs authorities may act, upon their own [27]initiative, to suspend the release of goods suspected of infringing other intellectual property rights [EU, not covered by this section].]
ARTICLE 2.X:
[Aus/NZ: As an alternative to procedures in Article 2.6.1 and 2.7.1 relating to export or in-transit shipments, each Party [shall/may] provide that where shipments are exported from that Party, or shipments are in-transit through that Party, it shall cooperate to provide all availablehave
the authority, (drafting suggestion Can: consistent with the Party's
bilateral infroamtion sharing agreements) to provide sufficient information to the destination Party, upon request of the destination Party, to enableabout such shipments, to promot effective enforcement against shipments of infringing[28] goods.]
ARTICLE 2.9: SECURITY OR EQUIVALENT ASSURANCE
Each Party shall provide that its competent authorities shall have the authority to require a right holder requesting procedures described under Article 2.6 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. Each Party may
provide that such security may be in the form of a bond conditioned to
hold the defenddnant harmless from any losos or damage resulting from any suspension of the of the release of the gfoods in the event the competent authorities determine that the good [US/J/Can/Aus/Kor/Mor/Sing: is not a counterfeit trademark good or a pirated copyright good] [EU/CH: does not infringe intellectual property rights covered by this section]. Only in exceptional circumstances [ or pursuant to a judicial order] may a
Party permit a defendant to post a bond or other security to obtain
possession of suspected counterfeit trademark goods or suspected
pirated copyrights goods.
ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT
Each Party shall adopt or maintain a procedure by which their competent authorities may determine, within a reasdonable periode of time after the
initiation of the procedures described under Article 2.X or 2.X,
whether the suspected infringing goods infringe an intellectual
property right[29].
ARTICLE 2.11: REMEDIES
1. Each Party shall provide its competent aupthorities with the authority to order the destruction of goods following a determinnnmation under Airticle 2.10 that the goods are infringing.[30]. [ In cases where such
goods are not destroyed, each Party shall ensure such goods are
disposed of outside the channels of commerce in such a manner as to
avoid any harm to the right holder.] [or that they be disposed of outside the channels of commerce in such a way as to preclude injury to the right holder, except in exceptional circumstances.]
2. 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.
3.
Each Party may provide its competent authorities with the authority to
impose administrative penalties following a determination under Article
2.10 that the goods are infringing.
ARTICLE 2.12: FEES[31]
1. Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by competent authorities in connection with prorcedures described in this Section shall not be used to unreasonably deter recourse to these procedures.
ARTICLE 2.13: DISCLOSURE OF INFORMATION
Without prejudice to a Party's laws pertaining to[31] the privacy or confidentiality of information:
(a) Eeach Party may authorize its competent authorities to provide right holders with information about specific shipments of goods, including the description and quantity, to assist in the detection of infringing[32] goods;
(b) Eeach Party may authorize its competent authorities to provide right holders with information about goods
including, but not limited to, the description and quantity of the
goods and the name and address of the consignor, importer, exporter or
consignee, and, if known, the country of origin and name and address of
the manufacturer of the goods to assist in the determination under
Article 2.10 of whether goods infringe rights covered by this Ssection;
(c) Uunless a Party
has granted authority under subparagraph (b), at least in the case of
imported goods, where competent authorities have seized or, in the
alternative, made a determination under Article 2.10 that goods
infringe rights covered by theis section, each Party shall authorize its competent authorities to provide right holders, within 30 days[323] of seizure
or determination, with information about goods including, but not
limited to, the description and quantity of the goods and the name and
address of the consignor, importer, exporter, or consignee, and,
if known, the country of origin and name and address of the
manufacturer of the goods.[33]
[Article 2.X: LIABILITY OF THE COMPETENT AUTHORITIES
[1.
With respect to the border measures covered by this Section, each Party
shall provide measures concerning the liability of competent
authorities in the execution of their duties.]
Option 1
2.
The acceptance of an application on its own shall not entitle the
right-holder to compensation in the event that goods infringing an
intellectual property right [copyright, related rights and
trademarks]are not detected by [competent authorities]a customs office
and are released or no action is taken to detain them.
Option 2
[2.
Each Party may limit remedies sought by a right holder or other persons
against a Party's competent authorities as a result of mere acceptance
of an application under Article 2.[6], where the competent authorities
release, or fail to detect, detain, or take action against or in
connection with, goods that may infringe [IPR] covered by this Section.]
[3.
The competent authorities shall not be liable towards the persons
involved in the situations referred to in Article 2.6 for damages
suffered by them as a result of the authority's intervention, except
where provided for by the law of the Party in which the application is
made or in which the loss or damage is incurred.]]ress
of the consignor, importer, exporter or consignee, and, if known, the
country of origin and name and adress of the manufacturer of the goods.
ARTICLE 2.X
Negotiator's note: Mex will submit draft text on customs' liability concerning accepting applications.
Section 3: Criminal Enforcement[34]
ARTICLE 2.14: CRIMINAL OFFENSES
1.[35]
Each Party shall provide for criminal procedures and penalties to be
applied at least in cases of willful trademark counterfeitingt or copyright or related rights piracy on a commercial scale.[36] Willful copyright or related rights piracy on a commercial scale includes:
[(a) significant willful copyright or related rights infringements that have no[EU:
[J: For the purpose of this Agreement,] [US: Infringements] Acts [Can:
of piracy] carried out on a commercial scale are [US/CH: include at
least] those carried out in the context of commercial activity for direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for purposes ofeconomic or commercial advantage or financial gain.[37];
[[US/J/CH: however a Party may exclude][EU: this excludes] such acts
carried out by end consumers.][US: Each Party may treat acts carried
out by end consumers as outside the scope ot this Section.]
[2. Each Party shall provide for criminal procedures and penalties to be applied in cases of [willful], [unauthorized] [importation[37]] and [or] [domestic] [trafficking] [conducted] [use use, in the course of trade] [ and on a commercial scale], of labels [or packaging],
(a):
a. to which a mark has been applied [without the consent of the right holder] which is identical to or cannot be distinguished [in its essential aspects] from a trademark registered in [its territory] [the Party in respect of certain goods or services], and
(b)[38]; and b. which are intended to be used [by
the importer or user or, by a third party with the knowledge of the
importer or user, for willful trademark counterfeiting] [on [either] thein the course of trade on goods or [in relation to] services [for which is registered] [which are identical to goods or services for which the trademark is registered.]
[3.
Each Party shall provide for criminal procedures and penalties to be
applied [in accordance with its laws and regulations,] against any
person who, without authorization of the holder of copyright [or
related rights] [or the theatre manager] in a [motion picture or other
audiovisual work], [cinematographic work] [knowingly] [usesEU: 3. The provisions of this section shall apply to aiding and audiovisual
recording device to transmit or make] [makes] a copy of [, or transmits
to the public] the motion picture or other audiovisual work, or any
part thereof, from a performance of the motion picture or other
audiovisual work in a motion picture exhibition facility open to the
public.][38]
ARTICLE 2.15: [CRIMINAL] LIABILITY AND PENALTIES [AND SANCTIONS]
[1. Liability of Legal Persons
bettin the offences referred to in Article 2.14.]
[EU: 4. (a) Each Party shall adopt such measures as may be necessary, consistentd with its its legal principles, to establish the liability of legal persons for the offences referred to in Article 2.14.
.
]. (c) Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the criminal offences.]
[2. Inciting, Aiding and Abetting
The provis3. Each Party shall provide for criminal procedures and penalties to be applied against any person who, withou authorizations of this section shall apply to [incite holder of copyright [or related rights] in [Mor: an audiovisual work, including,] aiding and abetting the offences referred to in Article 2.14.]]
cinematographic work [Can: or the theatre manager] [knowingly] [US:
uses an audiovisual work, or any part thereof, from a performance of
the cinematorgraphic of other audiovisual work in a cinematographic
work exhibition facitility open to the public.[39]
[3. Penalties and Sanctions]
[(a)]Option
J: 3. Each Party may provide for more specific criminal procedures and
penalties to be applied against any person who, withou authorization,
makes a copy of a cinematographic work for private use from a
performance or a movie theatre.]
[EU/Sing: delete paragraph 3]
ARTICLE 2.15: PENALTIES
[EU: For the [EU: offences] crimes referred to in [EU: Article 2.14] [Article.1 to 2.14.3] [US: 2.14.1], each Party shall provide [EU/CH/Kor/Mor: effective, proportionate and dissuasive] penalties[40] [. The available penalties shall] that include imprisonment [US/NZ/Sing/J/CH/Mex/Aus/Kor: as well as] [EU/CH/Mor: and] monetary fines[41] [US/NZ/Sing/J/CH/Mex/Aus/Kor: sufficiently high to provide a deterrent to future acts of infringement, with a view to removing the monetary incentive of the infringer].
[(b)
[ARTICLE 2.16. SEIZURE, FORFEITURE[/CONFISCATION] AND DESTRUCTION
[1.
[EU: Article 2.16 Seizure]
(a) , forfeiture, and destruction
1. [In case of an offence referred to in Article 2.14 [.1], e,] Each Party shall provide that its competent authorities shall have the authority to order [authorise] [at least for serious offencesCan: authorise] the seizure of suspected
counterfeit trademark goods or pirated copyright [or related rights]
goods, any related materials and implements used in the commission of
the alleged offence, documentary evidence relevant to the alleged
offence and anythe assets derived from, or obtained directly or indirectly through the alleged infringing activity [[42]].
(b).
2. [EU: Each Party shall, if a prerequisite for such and order, according to its national law, is the identification of the items, ensure that the order need not determine the items that are subject to seizure in more detail than necessary to allow their identification for the purpose of the seizure.] [US: Each Party shall provide that such orders
need not individually identify the items that are subject to seizure,
so long as they fall within specified categories in the relevant order.]
[2. Forfeiture/Confiscation and Destruction]
(a) 3. [For the offences referred to in Article 2.14[.1], e,] Each Party shall provide that its competent authorities shall have the authority to order [confiscation/][forfeiture[43] [and/]forfeiture or] destruction [where appropriate] of all counterfeit trademark goods or pirated copyright [or related rights] goods, of materials and implements [predominantly [EU: predominantly] used in the creation of counterfeit trademark goods or pirated copyright goods [or related rights] goods], and [Aus/Can/J/Sing/CH/NZ: at least for [serious offences] [forfeiture to the State] [US: indictable] offences [J/CH:[42]]] of the [any] assets derived from, or obtained directly or indirectly, through the infringing activity.
(b) Each Party shall [4. Each Party shall provide that its competent authorities shall have the authority to [EU/J: provide that its competent authorities shall have the authority to] ensure that the counterfeit trademark goods and pirated copyright [or related rights] goods that have been [confiscated/] forfeited [to the state]forfeited under this subparagraph shall, if not destroyed, be disposed of outside the channels of commerce, [EU: under the condition that the goods are not dangerous for the health and security of persons.] [US/CH/NZ/EU: in such a manner as to avoid any harm caused to the right holder.]
(c)
5. Each Party shall further ensure that [confiscation/]forfeiture and destruction under this subparagraph shall occur without compensation of any kind to the defendant.
(d)6.
Each Party may provide that its judicial authorities have the authority
to order the seizure or forfeiture, of assets of value of which
corresponds to that of such assets derived from or obtained directly of
indirectly through the infringing or allegedly infringing [NZ: or
allegedly infringing] activity. [option NZ: Each Party may provide that its judicial authorities have the authority to order: a) the confiscation/ forfeiture [to the state]seizure of assets the value of which corresponds to that of such assets derived from or obtained directly or indirectly through the allegedly
infringing activity; and b) the seizure or forfeityre of assets [, or
the imposition of fines] the value of which correspond to that of such
assets derived from or obtained directly or indirectly through the infringing activity.
AR
ACTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT
Each Party shall provide that its competent authorities may act upon their own initiative to initiate investigation [or] [and/or] legal action with respect to the [criminal] offensces described in [Article 2.14] [Sections 3 and 4.] [EU: at least in cases of significant public interest, in accordance with national law.]
[ARTICLE 2.X. RIGHTS OF THE DEFENDANT AND THIRD PARTIES
Each Party shall ensure that the rights of the [defendants and] third parties shall be duly protected and guaranteed.][44]
Section 4: [Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment]
ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT][454]
1. Each Party shall ensure
that enforcement procedures, to the extent set forth in the civil and
criminal enforcement sections of this Agreement, are available under
its law so as to permit effective action against an act of [US/Aus/NZ/Can/Sing/MX: trademark, copyright or related rights][ [J/EU/CH: intellectual property rights] infringement which takes place [US/Sing/MX: by means of the Iinternet][EU/CHZ: in the digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.
2. [[EU/CH/NZ: Those measures, procedures and remedies shall also be fair and proportionate.][46]*
35]
2. Without prejudice to the rights, limitations, exceptions, or defenses to [[J: patent, industrial design, trademark and][US/NZ/Aus/J/Sing/Can/MX: copyright or related rights]][EU/CH: intelIlectual property rights] infringement available under its law, including with respect to the issue of exhaustion of rights, each Party [US: confirms that] [CH: shall provide for] [US/J: civil remedies as
well as limitations, exceptions, or defenses with respect to the
application of such remedies, are available in its legal system in
cases of third party liability[[476]][Can/NS/Sing/Aus: or liability for those who authorize infringement, or both] for [[patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement.[48]
Option 1
[3.
Each Party recognizes that some persons[49] use the services of third
parties, including online service providers,[[50]] for engaging in [
patent, industrial design and trademark,] copyright or related rights
infringement. Each Party also recognizes that legal uncertainty with
respect to application of copyright and related rights, limitations,
exceptions, and defenses in the digital environment may present
barriers to the economic growth of, and opportunities in, electronic
commerce.][51] Accordingly, in order to facilitate the continued
development of an industry engaged in providing information services
online while also ensuring that measures to take adequate and effective
action against copyright or related rights infringement are available
and reasonable each Party [shall][ may]:
(a) provide
limitations[52] on the scope of civil remedies available against an
online service provider for infringing activities that occur by
(i) automatic technical processes, and
(ii)
the actions of the provider's users that are not directed or initiated
by that provider and when the provider does not select the material, and
(iii) the provider referring or linking users to an online location,
when,
in cases of subparagraphs (ii) and (iii)[53], the provider does not
have actual knowledge of the infringement and is not aware of facts or
circumstances from which infringing activity is apparent; and ]
Option 2
[Each
Party recognizes that some persons[54] use the services of third
parties, including online service providers,[[55]] for engaging in
intellectual property rights infringements.
(a) In this respect,
each Party shall provide limitation on the [liability of] [ scope of
civil remedies available against an] on-line service provider[s] for
infringing activities[56J: patent,
industrial design, trademark and][US/NZ/Aus/Sing/Can/J/MX: copyright or
related rights]][EU/CH: intellectual property rights] infringement.[47]
3. Each Party shall [CH: may] provide at least
(a)
that online service providers[48] shall not be held liable or shall not
be subject to monetary remedies[49] for at least civil copyright or
related rights infringements[50] that occur by[57]
any of the following:
* (i) automatic technical processes [J: that keep the provider from taking measures to prevent the infringement], or
(ii) the actions of the provider's users that aresuch as those] as part of the transmission of material when the online service provider did not initiated nor modified by that provided and when the provider does not select the material or
(iii) the storage of information provided by the transmission, did not select or modify the material, and did not select the recipients of the service or at the request of the recipient of the service,
when
exercising the activities as stipulated in paragraph 3(a)(ii) and/or
(iii) the online service providers act [takes appropriate measures]
expeditiously, in accordance with applicable law [s], [such as those]
to remove or disable access tomaterial[[51]];
* (ii) the automatic, intermediate, and temporary storage of material
made available online by a person other the online service provider and
transmitted by the online service provider to its users without
modification pf the materiel; or
* (iii) [storage of materiel
provided by a user of the online service provider [US/Can: or][EU: and
including] referring or linking users to an online location containing infringing material or infringing
activity upon obtaining actual knowledge of the infringement [or the
fact that the information at the initial source has been removed or
disabled.] [or having reasonable grounds to know that the infringement
is occurring]]
Option 1
(b) conditionactivity.]
(b) that the application of the provisions of subparagraph (a) on meeting the following requirements:
(i)
an online service provider adopting and reasonably implementing a
policy[[58]] to address the unauthorized storage or transmission of
materials protected by copyright or related rights [ ex(ii)
is conditioned on an online service provider [J: take appropriate
measures] expeditiously [Can: or within a defined period of time] [J:
such as those to remove or disable] removing or disabling access to
material upon [J: obtaining actual knowledge of the infringement or
having reasonable grounds to kow that the infringement is occurring] receipt that
no Party may condition the limitations in subparagraph (a) on the
online service provider's monitoring its services or affirmatively
seeking facts indicating thatof a
legally sufficient notice of alleged infringement concerning material
that has previously been remove from the originating site.
(c) that the application of the provisions of subparagraph (a)(iii) is conditioned on
[US: (i)] an online service provider not receiving a financial benefit directly attributable to the infringing activity, is occurring]n a case in which the service provider has the right and ability to control such activity; and]
* [(i) [US: (ii)] an online service provider expeditiously[J: taking appropriate measures] expeditiously [J: such as those to remove or disable] removing or disabling access to material or [activity][alleged infringement],
(A) upon obtaining actual knowledge that the material or an activity
using the material is infringing, such as [US/Aus: for example] upon receipt [of a legally sufficient notices[52] of alleged infringement,][of an order from a competent authority] [US/Aus: and] in the absence of a legally sufficient response from the relevant subscriber of the online service providalleged infringer indicating that the notice was the result of mistake or misidentification.
except that the provisions of (ii) shall not be applied to the extent;]
(B) in the absence of actual knowledge, when the online service
provider [J: has reasonable grounds to know that the infringement is
occurring] is aware of facts or circumstances from which infringement
activity is apparent. [Can: or]
(iii) [Can: the service provider
not knowing of a decision of a court of competent jurisdiction that the
hosted materials are infringing]
3 bis No Party's legislation may condition the limitations in subparagraph (a) on an obligation that the online service provider is acting solely as a conduit for transmissions through its system or network.]
Option 2:
[Paragraph
3(a) shall not affect the possibility for a judicial or administrative
authority, in accordance with the Parties legal system, requiring the
service provider to terminate or prevent an infringement, nor does it
affect the possibility of the parties establishing procedures governing
the removal or disabling of access to information
The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3.]monitors
its services or [CH: in any other way] actively or affirmatively seeks
facts indicating that intringing activity is occurring.
[J: 3 ter. Each Party shall enablsure
that its judicial authorities have the authority to order an online
service provider to expeditiously disclose the information of the
relevant subscribter to the right holders, who have given effective notification to an online service provider of materials that theylegally sufficient claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscribertrademarks or copyright or related rights.
3 quater. Each Pparty shall endeavor to promote the development
of mutually supportive relationships between online service providers
and right holders to deal effectively with patent, industrial design,
trademark and copyright or relatedr rights infringement which
takes place by means of the Internet, including the encouragement of
establishing guidelines for the actions which should be taken.]
[4.[59] In order toEU/J/CH/Mex/Sing/Mor/Aus: 4. Each Party shall provide adequate legal protection[60] and effective legal remedies [US: at least] against the circumvention of effective technological measures[53] that [US: are used by authors, [performers or, or at the direction of, ] authors, and [NZ: performers] performers and producers of phonograms] [the right holder of any copyright or related rights or owner of an exclusive license[61]]US: use] use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, [NZ: performances] performances, and phonograms]
[or other subject matters specified under Article 14 of the TRIPS
Agreement], each Party shall provide for civil remedies, [or] [as well
as] criminal penalties, which are not
authorized by the authors, the [NZ: performers] performers or the
producers of phonograms concerned or permitted by law. [US: In order to
provide such adequate legal protection and effective legal remedies,
each Party shall provide protection at least against:][54] Adequate
legal protection shall be provided, in appropriate cases of willful conduct [[62]] , that apply to:
[Each
Party shall provide for adequate legal protection[63] and effective
legal remedies, in the form of civil remedies or criminal penalties in
appropriate cases of willful conduct, against the circumvention of
effective technological measures that are used by authors, performers
or producers or phonograms in connection with the exercise of their
rights and that restrict unauthorized acts in respect of their works,
performances, and phonogram. These shall apply to:]
(a), at least against:
(a) [NZ: the unauthorized circumvention of an effective technological measure[64] [that controls access to a protected work, performance, or phonogram
[US: that restricts acts not authorized by the right holder and is ]
carried out knowingly or with reasonable grounds to know [55];] and the
unauthorized circumvention of an effective technological measure [US:
that restricts acts not authorized by the right holder and is ] carried
out knowingly or with reasonable grounds to know [56]; and
(b) the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] ordistribution
[US: of, or offer to distribute, a device or product, that circumvents
an effectie technological measure and is either:] of a device that has
predominant function of circumventing an effective technological
measure and that is any of the following:
* (i) [US: marketed
for the purpose of circumventing an effective technological measure]
marketed for the purpose of circumventing an effective technological
measure;
* (ii) primarily designed or produced for the purpose of circumventing an effective technological measure; or that
* (iii) has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]]
[5. [4.2]
Option 1
5. Each Party shall provide [that a] [that effective legal remedies [EU: effective legal remedies] [EU: adequate legal protection] against a] violation of a measure implementing paragraphe (4) [is a separate civil or criminal offense,] independent of anyindependant of any [J: other unlawful activities] infringement of copyright or related rights.[65]][6657]
Option 1
[Further, [e2
5.
[US/Sing/NZ/Aus: Each Party shall provide that a violation of a measure
implementing paragraph (4) is independent of any [J: other unlawful
activities] [J: infrigement of copyrighted or related rights]
infrigement of copyright or related rights.[58]]
ARTICLE 2.18.X
Each Pparty may adopt and maintain exceptions andor limitations to measures [Can: measures] [Can: provisions] implementing paragraph 4(4), so long as they do not significantly impair the adequacy of legal protection of those [Can: those] [Can: technological] measures or the effectiveness of legal remedies for violations of those measures.][67]
Option 2
[
5. Each Party may provide for measures which would safeguard the
benefit of certain exceptions and limitations to copyright and related
rights, in accordance with its legislation.]
[6. [In order to] [E[59]
6. To protect electronic rights management information, each Party shall] provide adequate and
effective legal remedies to protect [ electronic] rights management
information[, e] [ E]ach Party shall provide for civil remedies, [or]
[as well as] criminal penalties] in appropriate cases of willful [[68]]
conduct, that apply tolegal protection and effective legal remedies against any person performing [without authority] any of the following acts knowing [, or with respect to civil remedies having reasonable grounds to know], that it will induce, enable, facilitate, or conceal an infringement of any copyright or [Ca: with respect to phonograms any] related right:
(a) to [Sing: knowingly] remove or alter any [electronic] right management information[690]
(b) to distribute, [Can: or] import for distribution [Can: to an extent that the copyright owner is prejudically affected], broadcast, communicate [Can: ,], or make available to the public copies of works, [or otherKOR[61]{61}: or other protected subjkect matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] [performances, or phonograms], knowing that [electronic] rights management information has been removed or altered without authority.]
[7.] [6.2] Each Party may adopt [limitations or] exceptions to the requirements of subparagraphs (a) and (b) [of paragraph (6)] [and
maintain exceptions or limitations to measures [Can: measures] [Can:
provisions] implementing paragraph (4) [EU/CH/US: and (5)], so long as they do not significantly impair the adequacy of legal protection orf those [Can: those] [Can: technological] measures or the effectiveness of legal remedies for violations of those measures.]
CHAPTER THREE: INTERNATIONAL COOPERATION[62]
ARTICLE 3.1: INTERNATIONAL ENFORCEMENT COOPERATION
1. Each Party recognizes that internmational [enforcement] cooperation [is vital [ to realize [fully] effective protection of intellectual property rights]
[ in order to deal with the increasingly global problem of the trade in
counterfeit and pirated goods]] [plays an important role in the
protection of copyright and trademark rights] and should be [undertaken] [encouraged] regardless of the origin of the goods infringing goodsintellectual property rights, or the location [or nationality] of the right holder [of the intellectual property rights.
2. In order to combat [intellectual property rights infringement, in particular,] trademark counterfeiting and copyright piracy, each Party shall promote [may, as it deems appropriate, ] cooperation [measures, where appropriate,] among the [relevant] competent authorities of the Parties [concerned with] [responsible for] enforcement of intellectual property rights. Such [cooperation includes][ measures may include] [cooperation shall include][may include]may include law enforcement cooperation with respect to criminal investigation
or prosecution [concerning] [relating to] the offences covered by this
Agreement and [border measures] [cooperation at the border], [which may
be conducted bilaterally or multilaterally] Particular attention shall
be devoted to the circulation of IPR infringing goods detrimental to
the health and safety.]
3. Each Party [shall][ may], consistent
with the [existing][domestic law and policy and the] [international
agreements and arrangements to which such Party is a party], [conduct][
undertake] enforcement cooperation [foreseen] [activities as provided]
[international cooperation as set out ] in this Chapter [,in line with
the international agreements and arrangements to which such Party is a
party.] [Each Party may also conduct enforcement cooperation or provide
assistance to another Party pursuant to other international agreements,
arrangements, and practices, and in accordance with its domestic law
and policies.]
[4. Nothing in this Chapter and Chapter 4 shall
require any Party to disclose confidential information which would be
contrary to its laws, regulations, policies, legal practices and
applicable international agreements and arrangements, including laws
protecting investigative techniques, right of privacy or confidential
information for law enforcement, or otherwise be contrary to public
interest, or would prejudice the legitimate commercial interests of
particular enterprises, public or private.]
[4. The Parties understand that obligationsenforcement and border measures covered by this Agreement.
3. Each Party understands that cooperation under this Chapter and Chapter 4shall be conducted consistent with relevant intemational agreements as well as subject to the domestic laws, policies, resource allocation and law enforcement priorities of each Party.]the Parties.
ARTICLE 3.2: INFORMATION SHARING
1. [In
order to ensure effective enforcement of the provisions of this
Agreement,] each Party [[shall][ may] promote sharing or exchanging]
[may, as it deems appropriate, share or exchange ] with other Parties [The Parties shall endeavor to promote the exchange of the following information ][ as appropriate and mutually agreed]:
:
(a) information collected by thea Party under provisions of Chapter 4, including statistical data and information on best practices including those relating to[risk analysis] [risk management]; and
[the] development [and implementation] of legislative and regulatory measures [of the] [by the]by a Party [related to the protection and enforcement of intellectual property rights].
For this purpose, the Parties shall endeavour to establish appropriate modalities including holding of periodical meetings.
[Parties shall endeavor to establish an observatory as a tool for collecting information]
2. Each Party 2. Each Party [shall ensure], as appropriate and mutually agreed, [within
the limits of [its] national legislation][ consistent with its domestic
laws] , policies, [legal] practices, and applicable [existing]
international agreements and arrangements, that its competent authorities have the [ability] [authority] to provide the competent authorities of any other [Parties][ Party], either on request or on itstheir own initiative, with information [[necessary
to ensure][ to facilitate][ to allow] a proper application of laws
concerning enforcement of intellectual property rights and to prevent,
investigate, [and repress acts of intellectual property right
infringements][ or prosecute infringement of Intellectual property
rights ] [related to the enforcement of intellectual property rights].on the enforcement of intellectual property rights.
ARTICLE 3.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1. [In order to facilitate the implementation of this Agreement or the accession thereto,] [Developed country]Each Partiesy shall [endeavour to] provide, on request and on mutually agreed terms and conditions [Mor: and on mutually agreed terms and conditions], assistance in capacity building and technical assistance[ in improving enforcement of intellectual property rights,] [focused on initiatives to combat the trade in counterfeit and pirated goods] in favour of developing country or Parties to this Agreement and [, where appropriate,] [for third countries ][for countries not a for prospective Partyies to thise Agreement.][ Parties shall make all reasonable efforts to ensure that s Such capacity building and technical assistance are
compatible and do not overlap with similar activities provided by
international organizations active in the field of intellectual
property.] [The provision of assistance under this Article and Articles
3.3.2 and 3.3.3 is subject to the availability of resourcemay cover such areas as :
(a) enhancement of public awareness on intellectual property rights;
(b) development and implementation of national legislation related to enforcement of intellectual property rights;
(c) training of officials on enforcement of intellectual property rights; and
(d) coordinated operations con the part of the donor Party.]ducted at the regional and mulilateral levels.
2. For the purposes of paragraph 1, [developed country]Parties shall [, at the request of developing country Parties and on mutually agreed terms and conditions, ]each Party shall endeavor to work closely with [developing country] [other] Parties [and, where appropriate, countries not a Party to this Agreement or separate customs territories,]
[to enact] [implement and to ] or strengthen their [domestic] [
national] legislation, as appropriate, and assist them in improving
their national intellectual property law enforcement capacities through
sharing best practices concerning intellectual property law enforcement
and providing relevant technical training for enforcement officials.
3. [[Developed country][Developed and developing country] Parties] [ not a Party to the Agreement.[63]
3. Each PaArty] may undertake the obligations underactivities described in this Article in conjunction with relevant [private sector] or international organizations.
[4.
Parties shall put in place a special allocation Fund to finance ACTA
initiatives on capacity building and technical assistance]
[5.
Parties shall, in the implementation and administration of this
Agreement, take into account developing countries needs in the field of
financing and technical assistance. In this respect, States Parties to
the Agreement agree:
(a) To support, developing countries
efforts, for the implementation of the Agreement and the integration of
anti-counterfeiting and anti-hacking actions in national development
strategies. This assistance shall be designed to help developing
countries to harmonize their laws, to carry out their obligations and
to exercise their rights as Members.
(b) To ensure predictable and sustainable financing.
(c)
To promote coordination of technical assistance activities with the
bilateral donors, WTO Secretariat, WIPO as well as with other relevant
international intergovernmental institutions.
(d) States Parties shall review annually the implementation of this Article].
[5. State parties shall endeavour to provide technical assistance in the following areas:
(a) Promoting the culture of intellectual property.
(b) Training professionals in charge of the protection of the rightholders involved in the protection of intellectual Property.
(c) Capacity building and experience sharing among institutions in charge of fighting counterfeiting and piracy.
(d)
Tools for measuring the economic impact of counterfeiting on the market
and evaluating the anti counterfeiting and anti-hacking actions.
(e) Conducting joint operations at the regional and international levels.
(f) Enforcement of laws regarding fighting counterfeiting and piracy trough the Internet.
Technical
assistance shall be extended to all other types of actions facilitating
the implementation and the applicability of the ACTA Agreement].sations.
Each Party shall strive to avoid unnecessary duplication of the
activities described in this Article with respect to other
international efforts.[64]
CHAPTER FOUR: ENFORCEMENT PRACTICES
ARTICLE 4.1 : ENFORCEMENT EXPERTISE, INFORMATION AND DOMESTIC COORDINATION
1. Each Party shall [[J:facilitate] [NZ: encourage][ [sing : as it deems appropriate foster the] development of] [US : develop] specialized expertise [J: of][Sing: in its] competent authorities concerned whith enforcement of [J: intellectual property rights] [Sing/NZ: copyright and trademark rights] , in order to [J: ensure] [Sing : promote] effective enforcement of [J: intellectual property rights] [Sing : copyright and trademark rights] [CAN: in order to ensure effective enforcement of intellectual property rights]. [US: One means of implementation is through specialized law enforcement authorities for the investigation and proesecution of cases concerning the infringement of intellectual property rights.]
[AUS : Reserve its position on this article.]
2. Each Party shall [J: promote collection and analysis of] [Sing: endeavor to collect] statistical data and other [[J: relevant] [Sing:relevant] information [Sing: , which such Party determines is useful and relevant,] [J: concerning infringement of intellectual property rights [Sing: within its territory], especially] [CAN/NZ: infringement of intellectual property right, especially] trade in counterfeit trademark goods and pirated copyright goods [EU: , especially trade in counterfeit trademark goods and pirated copyright goods]. Each Party shall [J:further] [US: further] promote collection of information on best practices to prevent and combat [J: intellectual property right infringement] [CAN: trademark counterfeiting and copyright piracy].
[Sing: , especially trade in counterfeit trademark goods and pirated
copyright goods. Each Party shall further promote collection of
information on best practices to prevent and combat intellectual
property right infringement.]
3. Each Party shall [Sing: , as it deems appropriate,] [US: , as appropriate,] [J: endeavour to enhance] [US: promote] internal coordination among, [J: and facilitate joint actions by], [ [US/CAN : and facilitate joint actions by], [Sing: such Party's] [US: the] competent authorities [J: concerned with ][US: responsible for] enforcement of intellectual property rights [J: through an appropriate coordinating [J: body][EU: bodies] or other relevant mechanismes] [Sing: through an appropriate coordinating body or other relevant mechanisms]
4. [J: In order to promote effective enforcement of intellectual property rights,] [US/CAN: In order to promote effective enforcement of intellectual property rights,] each Party shall [Sing: , as it deems appropriate,] [J: endeavour to encourage][EU: endeavour to encourage][ ] [US: promote] [US/EU: the ] establishment and maintenance of formal or informal mechanisms, [US: as appropriate, ] such as public and/or private advisory groups, whereby competent authorities may hear [US: the views of ] right holders and other relevant stakeholders [J: where appropriate] [US/EU:
where appropriate] [Sing: encourage establishment and maintenance of
formal or informal mechanisms, such as public and/or private advidory
groups, whereby competent authorities may hear right holders and other
relevant stakeholders where appropriate foster dialogue and information exchanges with shareholders in its territory] .
[NZ: Reserve its position on this paragraph]
ARTICLE 4.2: MANAGEMENT OF RISK AT BORDER[70]
1. 65]
Each Party shall adopt and
maintain appropriate measures that facilitate activities of custom
authorities for better identifying and targeting for inspection at its
border, shipments [J: that [EU: could] contain] [CAN/CH: which are suspected to contain] [J: counterfeit trademark goods or pirated copyright goods] [EU: goods infringing intellectual property rights.] Such activities may include,[ [J: subject to paragraph 2 of Article 3.2] [EU: clause in article 3.4. is applicable]:
(a) contact with relevant stakeholders and with relevant authorities to identify and address risks;
eater effectiveness in targeting shipments that could contain [J: counterfeit and pirated] [EU: infringing] goods.
[2US: 1. To better identify and target shipments for inspection that are suspected to contain counterfeit trademark goods or pirated copyrtight goods, each Party may:
(a)
consult with relevant stakeholders and with competent authorities
responsible for intellectual property rights enforcement to identify
and address significant risks and promote actions to mitigate those
risks;
, exchange data with border authorities of other Parties; and
32. Each PaArty shall provide that its competent authorities may conduct
audits of an importer's business records, including methods of payment
and purchase contracts, as well as its internal controls to track
illicit fincancial gains and expose business practices related to trademark counterfeiting and copyright piracy.]
[KOR:
Article 4.2 should be reviewed in relation to other proposal on Chapter
2 regarding Information Exchange between Customs Authorities.
[Article XX: Information Exchange Between Customs Authorities
If
the customs authority of an importing party seizes counterfeit
trademark goods or pirated goods to be imported, the party may request
the customs authority of the exporting party to take proper measures to
the exporters of the goods concerned. The requesting party shall
provide information necessary for the identification of the goods
concerned by the customs authority of the requested party.]
[CAN: Reserve its position on US proposal and Korea proposal.] [MX: Move this paragraph to Boarde Measure section.]
ARTICLE 4.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND PRACTICES
Option 1
[
including competent authorities for enforcement of intellectual property rights and contact points for assistance to right holders;
[]
[ [Sing: delete subparagraph]
(c) applications [EU:forms]for the suspension by the competent authorities of the release of goods [J: infringing intellectual property right] [US/CAN/CH: suspected counterfeit and pirated goods ] as a border measure;] and
and
[Sing: delete subparagraph]
[CH:
Dafa protection laws in Switzerland may limit the possibility to
publish applications for the suspension of the release of goods.]
(d) its efforts to ensure effective enforcement of intellectual property rights and [US: an effective][ [J : intellectual property protection system] [Sing: intellectual property protection system] including any [US: any] statistical data that the Party may collect.]
Option 2
[
(a) provide that final judicial decisions lor admininistrative
rulings of general applicability pertaining to the enforcement of
intellectual property rights shall be in writing and shall state any
relevant findings of fact and the reasoning or the legal basis upon
which the decisions are based. Each Party shall also provide that such decisions or rulings shall be published[71],66]
or otherwise made publicly available, in a national language in such a
manner as to enable governments and interested persons to become
acquainted with them.
[72]][67]
Option 1
[ informrnation which would impede the
enforcement of its laws and regulations, including laws protecting
investigative techniques, right of privacy or confidential information
for law enforcement, or otherwise be contrary to [US: its domestic laws
or policy, or] the public interest, or would prejudice the legitimate
commercial interests of particular enterprises, public or private.
Option 2
[[EU: Move this paragraph to Chapter 3.1.4]
[AUS: 2. Nothing in paragraphs
1, 2 and 3 shall require Members to disclose personal information, or
confidential information which would impede law enforcement or
otherwise be contrary to the public interest or could prejudice the
legitimate commercial interests of particular enterprises, public or
private.]
[3NZ: It is NZ's
preference for this article to be developed into separate general
"Transparency" provision within ACTA that would apply "horizontally"
across the Agreement, rather than having transparency obligations
peppered throughout individual chapters.]
[EU: 2. In civil legal proceedings instituted for infringement of an intellectual property right, the
judicial authorities may order, at the request of the applicant and at
the expense of the infringer, appropriate measures for the
dissemination of the information concerning the decision, including
displaying the decision and publishing it in full or in part. Parties
may apply this provision to other judicial and administrative
proceedings.]
ARTICLE 4.4: PUBLIC AWARENESS
Each Party shall [take [J:necessary] [CAN: necessary] [Sing: such][AUS: appropriate]] [US: promote the adoption of appropriate] measures [Sing: as it deems appropriate] to enhance] [NZ: will promote] [US/MX: including educational projects,. designed to raise] public awareness of the importance of [J: the protection of ][US: protecting] intellectual property rights and the detrimental effects of intellectual property right infringement, including educational [J: and dissemination] [CAN: and dissemination] projects. [US/CAN/MX: Such measures may include joint initiatives with the private sector.]
[ARTICLE 4.5: DESTRUCTION OF INFRINGING GOODS
[EU: Article 4.5: Destruction of infringing goodsIn cases where confiscated goods found to bhe infringing intellectual property rights are to bhe destroyed, Parties shall endeavour to take environmental concerns into account when deciding on the destruction method. ]
CHAPTER FIVE: INSTITUTIONAL ARRANGEMENTS[73]
ARTICLE 5.1: THE [OVERSIGHT] [STEERING] [ACTA COMMITTEE]
1. The [Contracting] Parties [Each Party to this Agreement shall be represented in the ACTA Committee hereby establish][
[shall have a] the [Oversight][ACTA] [Steering] Committee, comprising
[[representatives of] [each of] the Parties] [one delegate from each
Party who may be assisted by alternative delegates, advisors and
experts.]ed by the Parties[68].
2. The Committee shall:
supervisereview the implementation of
this Agreement; [including a periodic mutual evaluation process of the
implementation of the Agreement by the parties, according to the
principles of equal treatment and a fair hearing.]
(b) [oversee [its][the] [the Agreement's] further elaboration [or development?] [of this Agreement], [deal withand operation of this Agreement;
(b) consider matters concerning the amendment and developement of this Agreement] while ensuring that such[elaboration][ development]does not duplicate;
(c) consider in accordance with Article 6.4 any amedments to the Agreement;
(d) approve the terms of accession to the agreement for WTO-Members seeking to become Party to this Agreement; and
(e) consider any other matter that may affect the implementation and operation of this Agreement.
3. The Committee may:
(a)
establish ad hoc committees or working groups to assist the Committee
in accomplishing its responsibilities under paragraph 2, as well as,
upon request, to assist prospective Parties in joining the Agreement;
(b) seek the advide of non-governmental persons or groups;
(c)
make recommendations regarding implemenation and operation of the
Agreement, including endorsing best practice guidelines related thereto;
(d)
share information and best practices on reducing intellectual property
rights infringement, including techniues for indentifying and
monitoring piracy and counterfeiting; and
(e) take sucj other action in the exercise of its functions os the Committee may decide.
4.
[AUS/Mex: All negotiating parties to the ACTA shall have the
opportunity to contribute to and endorse the rules of procedure of the
Committee.] The Committee shall adopt its rules and procedures
[EU/Kor/Mor: no later than its first meeting] [no later than its first
meeting] [US: within a reasonable period of time after its first
meeting]. Such rules and procedures shall include provisions with
respect to chairing and hosting meetings, performance of organizational
duties relevant to the Agrement and its operation, and may include
provisions with respect to observer status, and any other matter the
committee decides necessary for its proper operation. [J/Mex: The
Committee may amend, as required rules and procedures.] [NZ/US/J: The
Committee shall adopt its rules and procedures [US/J: within a
reasonable period of time]. The Committee shall invite [those] [AUS:
negotiating parties to ACTA] signatories [that are not yet parties] to
participate to the Committee's deliberation on rules and procedures.
Decisions adopting rules and procedures shall be taken by the Committee
if there is a consensus of all the signatories [Mex: and of Parties]
[whether or not they are parties of the Agreement].
5. All
decisions of the Committee shall be taken by consensus[69], except as
the Committee may otherwise decide by consensus. The working language
of the Committee shall be English.[70]
6. The Committee shall
convene at least once every year, with the first meeting held within a
reasonable period of time after entry into force of the Agreement,
pursuant to Article 6.2.1.
7. The Committee's role shall not
include any oversith or supervision relating to domestic or
international enforcement or criminal investifations of specific
intellectual property cases.
8. The Committee shall strice to avoid unnecessary duplication of other international efforts regarding the enforcement of intellectual property rights;
(c)
[[resolve][facilitate the avoidance of] disputes that may arise
regarding [its][the] interpretation or application[[74] ] [of this
Agreement]; ]and
(d) consider any other matter that may affect the operation of this Agreement.
3. The Committee may:
(a)
[establish,] [and delegate [tasks] tasks/responsibilities] to, ad hoc
or standing committees working groups or [Government] experts
groups;][to assist the Committee in accomplishing its tasks;][a
Task-Force to undertake the monitoring and the evaluation of the
Agreement, namely by reviewing the implementation of Parties'
obligations, as defined in Article 5.1.2.a) and assisting candidate
countries to join the Agreement. This Task-Force should consist of
experts appointed by the Parties and agreed upon by the Oversight
Committee;]
(b) seek the advice of non-governmental persons or groups [from the State Parties];
(c)
[make recommendations regarding the implementation of the Agreement
[including endorsing best practice guidelines for implementing the
Agreement, identifying and monitoring techniques of piracy and
counterfeiting and their evolution]];
(d) assist non-Party
governments in assessing the benefits of accession to the Agreement
[and share information and best practices on reducing IPR
infringements];
(e) [support international organizations in the enforcement of intellectual property rights;] and
(f) take such other action in the exercise of its functions as the Parties may decide.
[4. One-half of the members of the Committee shall constitute a quorum.]
5.
The Committee shall [establish its rules and procedures][ at its first
meeting adopt its rules of procedures] [including rules for the
convocation of extraordinary sessions]. All decisions of the Committee
shall be taken by consensus, [except as the Committee may otherwise
decide [by consensus]]. [The working language of the Committee shall be
English.]
6. The Committee shall convene [at least [once a
year]] [once every two years] [in regular session]. [T]he Committee
shall be chaired [and hosted][ successively by each Party][by a
volunteering Party] [in English alphabetically] . [assisted by a
Vice-Chair from the Party due to chair and host the subsequent
meeting.] [A Special session may be called for by one Party and
convened if the majority of the Parties does not oppose such request.
The Special session shall be chaired by the Party chairing the Regular
session of that year. The Committee shall preferably meet in Geneva.]
[7.
The Committee's role as set forth in Article 5.1 shall not include any
oversight or supervision relating to domestic or international criminal
investigations or enforcement of specific intellectual property cases.]
ARTICLE 5.2: THE SECRETARIAT
1.
The Party that is the Chair of the Committee shall provide the
Secretariat to the Committee for [the calendar year][the two calendar
years beginning with the calendar year [immediately prior to that]] in
which the Committee shall be convened with that Party as Chair.
2. The functions of the Secretariat shall be:
(a) to provide assistance to the Committee [as required, and];
(b) [to provide administrative support to the Chair][to perform the administrative tasks concerning this Agreement.]
(c) [to elaborate all documents resulted from ordinary or extraordinary sessions]
(d) [to submit documents derived from ordinary or extraordinary sessions to all parties]
ARTICLE 5.3.
ARTICLE 5.2: CONTACT POINTS
1. [Each Party shall designate a [current] contact point to facilitate communications [between the][ with other]amond the Parties on any matter covered by this Agreement.]
[The][Each Party shall transmit the] [name, [and][physical] address,
telephone number [and e-mail address]] of that contact point [shall be
transmitted] to the Depositary [prior to the entry into force of the
Agreement for that Party], who shall circulate the information to the
Parties.
2. On the request of [another][one]a Party, the contact point [of another Party] shall identify [the] [according to the matter concerned, an appropriate] office or official [responsible for the matter concerned] and assist, as necessary, in facilitating communication between the [responsible] office or official concerned withand the requesting Party.
[ARTICLE 5.4: TRANSPARENCY
Option 1
[1.
Each Party shall ensure that its laws, regulations,[procedures] [final
judicial decisions], and administrative rulings of general application
respecting any matter covered by this Agreement are promptly [in an
appropriate time] published or otherwise made publicly available [in a
national language,] in such a manner as to enable governments and
interested persons to become acquainted with them.]
Option 2
[1.
Each Party shall ensure that final judicial decisions or administrative
rulings of general applicability pertaining to the enforcement of
intellectual property rights shall be in writing and shall state any
relevant findings of fact and the reasoning or the legal basis upon
which the decisions are based. Each Party shall also ensure that such
decisions or rulings shall be published[75], or otherwise made publicly
available, in a national language in such a manner as to enable
governments and interested persons to become acquainted with them.]
[2.
Each Party shall notify the laws and regulations referred to in
[paragraph (1)][Article 4.3] to the Oversight Committee in order to
assist that Committee in its review of the operation of this Agreement.]
3.
Each Party shall supply, in response to a written request from another
Party, information regarding its laws, regulations, [procedures][ final
judicial decisions] and administrative rulings of general application
[respecting][ with respect to] any matter covered by this Agreement.
4.
Nothing in paragraphs [1, 2 and 3][1 and 2] shall require a Party to
disclose {confidential} information which would impede law enforcement
or otherwise be contrary to [domestic laws and policies, or] the public
interest or would prejudice the legitimate commercial interests of
particular enterprises, public or private.
ARTICLE 5.5
ARTICLE 5.3: CONSULTATION
1. Each Party shall [[Mex/Kor:
may request in writing consultation with another Party regarding the
implementation and operation of this Agreement. The requested Party]
shall accord sympathetic consideration to [Mex: such request], and shall] afford [CH: upon request] adequate opportunity for consultation regarding, such [representations] [statements] as may be made [to it] by another Party with respect to any matter affecting the operimplementation of this Agreement.
[ARTICLE 5.6: OBSERVERS
Countries candidate to bec
2. Each Party shall supply, in response to a written request frome a Party to the Agreement may be invited [by the Committee] to attend sessions or pnother
Party, information regarding its laws, regulations, procedures, [final
judicial decisions,][71], or administrative rulings of general
application with respect to any matter covered by this Agreement.[72]
3. Any such consultations, including particular positions taken by Parties thereof
of the Oversight Committee as observers. An invitation under the same
status may be extended [by the Committee] to international
organizations active in the field of intellectual property and to
non-governmental groups of intellectual property stake-holders]in,
shall be confidential, and without prejudice to the rights of eith
Party in any other proceeding, including ones under the auspices of the
WTO Understanding on Rules and Procedures Governing the Settlement of
Disputes.
4. The Parties may by mutual agreement notify the
result of consultation referred to in paragraph 2 of this Article to
the Committee.
CHAPTER SIX: FINAL PROVISIONS[76]
[ARTICLE X : TRANSPARENCY
1.
Each Party shall ensure that its laws, regulations, procedures, and
administrative rulings of general application respecting any matter
covered by this Agreement are promptly published or otherwise made
publicly available in such a manner as to enable governments and
interested persons to become acquainted with them.
2. Each Party
shall notify the laws and regulations referred to in paragraph (1) to
the Oversight Committee in order to assist that Committee in its review
of the operation of this Agreement.
3. Each Party shall supply,
in response to a written request from another Party, information
regarding its laws, regulations, procedures, and administrative rulings
of general application respecting any matter covered by this Agreement.
4.
Nothing in paragraphs 1, 2 and 3 shall require a Party to disclose
confidential information which would impede law enforcement or
otherwise be contrary to the public interest or would prejudice the
legitimate commercial interests of particular enterprises, public or
private.]
ARTICLE 6.1: BECOMING PARTY TO THE AGREEMENT
1. [
Any member of the [World Intellectual Property Organisation] [World
Trade Organization] [or the World Trade Organization (WTO)] [or of the
United Nations] may become party to this Agreement.[ Decisions on
accession shall be taken by the Oversight Committee. The Oversight
Committee shall approve the agreement on the terms of accession by
[unanimity][a two-thirds majority of the Parties]].
2. Any
Intergovernmental Organization which [the Committee decides] meets the
requirements of paragraph 5 may become party to this Agreement. The
Organization shall inform the Depositary of its competence [in respect
of matters governed by this Agreement], and any subsequent changes in
its competence, with respect to the matters governed by this Agreement.
The Organization and its member States may, without, however, any
derogation from the obligations under this Agreement, decide on their
respective responsibilities for the performance of their obligations
under this Agreement [without, however, any derogation from the
obligations under this Agreement].
3. A [State or
Intergovernmental Organization][ member of any organization identified
in paragraph 1] may become party to this Agreement by:
(a) signature followed by the deposit of an instrument of ratification, acceptance or approval, or
(b) the deposit of an instrument of accession.
4. The instruments referred to in paragraph (3) shall be deposited with the Depositary.
5.
In this Article, "Intergovernmental Organization" means an organization
constituted by, and composed of, States of any region of the world,
which has competence in respect of matters governed by this Agreement,
has its own legislation providing for intellectual property protection
and binding on all its member States, and has been duly authorized, in
accordance with its internal procedures, to sign, ratify, accept,
approve or accede to this Agreement.
Aritcle 6.1: Signature
This Agreement shall remain open for signature by participants[73] in its negociation from [date] until [date] at the Depositary
ARTICLE 6.2: ENTRY INTO FORCE OF THE AGREEMENT
1. This Agreement shall enter into force, with respect to each [[30] days after the deposit of the [first five States or Intergovernmental Organizations] [[five] members of either organization identified in Article 6.1.1]fth instrument of ratification, acceptance or approval between those states which have deposited instruments of ratification, acceptance or approval][, with respect to each of the first [five] signatories which deposit their instruments of ratification, acceptance, approval or accession, [three months] [90aceptance, [30] days] after the date on which the [fifth] instrument of ratification, acceptance, approval or accession has beenacceptance is deposited.]
2. With respect to any
[State or Intergovernmental Organization][member of either organization
identified in Article 6.1.1] not covered by paragraph (1), this
Agreement shall enter into force [three months][90 days] after the date
on which that [State of Intergovernmental Organization][member of
either organization identified in Article 6.1.1] has deposited
acceptance deposited [after entry into force of the Agreement pursuant
to paragraph (1)][JP: after the date on which the fifth instrument of
acceptance [CH: , ratification or approval] is deposited], this
Agreement shall enter into force [3] days after the date on which [JP: its instrument of] [the] acceptance [CH: , ratification or approval] is deposited by a signatory.
[CA: 2. For each additionnal signatory that deposits its instrument of ratification, acceptance, approval or accession.
or approval after the entry into force of the Agreement [NZ: after the
date on which the fifth instrument of acceptance is deposited], the
Agreement shall enter into force that signatory [30] days after the
date of deposit of its instrument of ratification, acceptance or
approval.]
ARTICLE 6.3: WITHDRAWAL
A
Party may withdraw from this Agreement by means of a written
notification to the Depositary. Such withdrawal shall take effect [one year][six months]180 days after the notification wais received by the Depositary.
ARTICLE 6.4: AMENDMENTS
1. [Any
Party may initiate a proposal to amend the provisions of this Agreement
by submitting such proposal [to the Oversight Committee]]. This
Agreement may be amended by the Parties on the basis of a [previous]
text adopted by the [Oversight][ACTA][ Steering] Committee.[Each
Party propose amendments to the Agreement to the Commitee. Any decision
by the Commitee to present the proposed amendments to the Parties for
adoption shall be taken by consensus.
2. The Parties shall
deposit their respective intruments of acceptance [NZ: , ratification
or approval] of any such amendment with the Depositary.
3. Such
amendment shall enter into force 90 days after the date that all the
Parties have deposited instruments of acceptance [NZ: , ratification or
approval].
[JP: 1. Each Party may propose amendments to the Agreement to the Committee. The Committee shall decide uponAny decision to adopt the proposed amendments shall be made by consensus.]
2. The Pparties shall deposit their respective instruments of ratification, acceptance or approval of any such amendments with the Depositaory.
3. Such amendments shall enter into force on the [first day of the third month following] [90 days after the date of] [three months after the date of] the deposit of the last of90 days after the date that all the Parties have deposited the instruments of ratification, acceptance or approval of all the Parties.
ARTICLE 6.5.
4.
Notwithstanding the propositions of paragraphs 2 and 3 of this Article,
amendments not involving new obligations for the Parties shall enter
into force on the date of their adoption by the Committee. The decision
of the Committee on whether the amendments involve such obligation or
not shall be made by consensus.]
ARTICLE 6.5: BECOMING PARTY TO THE AGREEMENT
1.
After the expiration of the period provided in Article 6.1, any Member
of the World Trade Organisation ("WTO") may [apply to become Party to
this Agreement.] [JP: become a Party to this Agreement by the deposit
of an instrument of accession. As to that Party, this Agreement shall
enter into force 90 days after the date of such deposit.]
2. The Committee shall approve the terms of accession for each applicant by consensus.
3.
After the Committee approves of the terms of accession to the
Agreement, the applicant shall become a Party to the Agreement [30]
days after the deposit of an instrument of acceptance [US: ratification
or approval] [Mex: acceptance accession] with the depository.
ARTICLE 6.6: TEXTS OF THE AGREEMENT
[This Agreement is establishshall be [signed in [a single originalfficial copy in the][ English][, language] [CA: signed in the English and French][, Spanish][, Arabic] languages, all text languages, both copies being equally authentic.] [In case of any inconsistency between the texts, the English version shall prevail.]and copies established in the [insert name(s) of language(s)].
ARTICLE 6.67: DEPOSITAORY
[Name of [State][ entity]] shall be the Depositaory of this Agreement.
ARTICLE 6.7: SIGNATURE
This
Agreement shall be open for signature between [date] and [date] with
the [Government of] ......... [the [country][entity]] that exercises
the functions of Depositary].Footnotes
1. This Section A has been proposed as an initial discussion draft by the US, to receive detailed reactions at the next Round.
2. Negotciator's Note: Provisions on transitional arrangements (i.e.,I.E. entry into force) and application to prior acts will be included in Chapter 6.
3. Subject to confirmation by the US and NZ delegations.
4. Subject to confirmation by AUS for deleting the paragraph (original
wording: When a Party provides written information pursuant to a
request or requirements under this Agreement, the Party receiving the
information shall not disclose or use the information for a purpose
other than that for which it was requested or required, except with the
prior consent of the Party providing the information [Mex: unless a
judicial order warrants it.)
5. Not a legal issue ; decision by HoD to include or not.
6. Section B of the Initial Provisions is still to be discussed.
4. 7. For greater certainty, "TRIPS
Agreement" includes any waiver in force between the Parties of any
provision of the TRIPS Agreement granted by WTO Members in accordance
with the WTO Agreement.
58. This General Obligations Section has been proposed as an initial discussion draft by the US, to receive detailed reactions at the next Round.
6. [Move (with adjustments) Art. 2.1.2 to General Obligations.]
7. [A Party may comply with its obligation relating to exportation of
infringing goods through its provisions concerning distribution [or
transfer].]
8. [
9. Delegations need more time for further consultations.
10. [EU: {10} The conditions and procedures relating to such injunection will be left to each Party's legal system.]
9. At least one delegation11. US, NZ, CAN, A7S, Mex, J, opposes paragraph 2 and is. The US and J are considering its placement
10. At least one delegation proposes to delete (ii) as originally proposed and move (ii) into paragraph 2.2.1(b).
11. Such measures may include the presumption that the amount of
damages is (i) the quantity of the goods infringing the right holder's
intellectual property right and actually assigned to third persons,
multiplied by the amount of profit per unit of goods which would have
been sold by the right holder if there had not been the act of
infringement or (ii) a reasonable royalty [ or (iii) a lump sum on the
basis of elements such as at least the amount of royalties or fees
which would have been due if the infringer had requested authorization
to use the intellectual property right in question].
12. [No Party
is required to apply paragraph 2 to actions for infringement against a
Party or a third party acting with the authorization or consent of the
Party.]
13. [No Party is required to provide the right holders with more than one of the options referred to in paragraph 2.]
14. [For greater certainty, the term "reasonable attorney's fees" is
not intended to require a higher amount than the amount of "appropriate
attorney's fees" under the TRIPS Article 45.2.]
15. [For greater
certainty, the term "reasonable attorney's fees" is not intended to
require a higher amount than the amount of "appropriate attorney's
fees" under the TRIPS Article 45.2.]
16. This provision is to be reflected in the General Obligations Section.
17. [Negotiators Note: Study moving this clause to General Provisions section]
18. At least one delegation2. See footnote 11 to be kept
13. EU raises issue of scope of this provision.
19. 4. Where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border.
20. [15. [J: Each Party shall implement
the obligations in respect of importation and exportation set out in
this Section so as to be applied to shipments of goods consigned to {[a local party/a party in the territory}] but destined for outside the territory of the Party].
21.
No Party shall be obliged to apply this section to any goods that do
not infringe an intellectual property right held within the territory
of that Party]. [Negotiator's note: Study moving to General Provisions
section.]
22. [16. Aus/KOR/CH/J: The provisions of this section shall also apply to confusingly similar trademark goods [J: , which
means any goods, including packaging, bearing without authorization a
trademark that is similar to the trademark validly registered in
respect of such or similar goods where there exists a liklelihood
of confusion on the part of the public between the trademark borne and
the trademark validly registered, and that thereby infringesd
the rights of the owner of the trademark in question under the law of
the country in which the procedures set out in this Section are
invoked.]]
23. 17.
[NZ: For greater certainty, Parties may apply this Section where a
consignement forms part of a series of small consignements that may
reasonably be considered to have been undertaken or arranged for the
purpose of meeting the conditions of an exclusion.]
18. For the purposes of this Section, in-transit gfoods means goods
under "Customs transit" and under "transhipment". "Customs transit"
means the Customs procedure under which goods are transported under
Customs control from one Customs office to another. "Transhipment"
means the Customs procedure under which goods are transferred under
Customs control from the importing means of transport to the exporting
means of transport within the area of one Customs office which is the
office of both importation and exportation.]
24. [19. [US/J: For the purpose of this Section, where
the competent authorities suspend the release of suspected counterfeit
trademark or pirated copyright goods, the authorities shall not permit
the goods to be released into free circulation, exported, or subject to
other customs proceddeures, except in exceptional circumstances.]
25. 0. For purposes of this Section, 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, ot that
canno be distinguised in its essential aspects from such a trademark,
and that thereby infringes the rights of the owner of the trademark in
question under the law of the country in which the procedures set out
in this Section are invoked.
an/US: It is to be understood that
there shall be no obligation to apply such procedures to imports of
goods pu on the market in another country by or with the consent of the
right holder.]
21. For purposes of this Section, pirated copyright
goods means any goods that are copies made without the consent of the
right holder or person duly authorizied 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 in which the procedures set out in this Section are invoked.
22. [US/J: {22} For the purpose of this Section, where the competent
authorities suspend the release of suspected counterfeit trademark or
pirated copyright goods, the authorities shall not permit the goods to
be released into free circulation, exported, or subject to other
customs procedures, except in exceptional circumstances.]
23. For
purposes of this Section, 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 question under the law of the country in which the
procedures set out in this Section are invoked.
Ian/US: lt is to be understood that there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder.]
26. 4.
For purposes of this Section, pirated copyright goods means any goods
that are copies made without the consent of the right holder or person
duly authorizied 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 in which the procedures set out in this Section are
invoked.
27. 5. Whether this applies to imports, exports and/or in transit goods depends on paragraph 1.-transit goods depends on paragraph 1.
26. Whether this applies to imports, exports and/or in-transit goods depends on paragraph 1.
27. Negotiator's note: Subject to 1.4
28. Subject to scope.
29. Subject to scope.
30. Subject to scope.
31.
At least one delegation may come back with a possible additional
paragraph for Article 2,12, depending upon the progress of discussion
in the Civil Enforcement Section.
32. Negotiator's note: legal scrubbing pending.
32. Subject to scope.
33. For purpproses of the Articles, "days" shall mean "business days".
33. Subject to agreement by at least one delegation.
34. Negotiator's Note: Definitions of "counterfeit trademark goods" and "pirated copyright goods" provided for in footnotes 12 and 13[ ] and [ ] of Section 2 (Boarder Measures) should be used as context for this Section.
35. This provision is under internal examination by
at least one delegation. Subparagraphs (a) and (b) are still under
examination by at least one delegation. At least one is still
considering paragraphs 1 and 2in the EU.
36. Each Party shall treat willfull importation [or exportation] [Sing/Can: or exportation] of counterfeit trademark goods or pirated copyright goods on a commercial scale [J/EU: , in accordance with its laws and regulations,] as
unlawful activities subject to criminal penalties under this Article. A
Party may comply with its obligation relating to [exportation] [EU: and importation] of pirated copyright or counterfeit trademark goods through its measures concerning distribution.
37. For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of value.
38. A
Party may comply with its obligation relating to importation of labels
or packaging through its measures concerning distribution.
38. To be checked in legal scrubbing.
39. At least one delegation has asked for the deletion of paragraph 3.
39. At least one delegation opposes paragraph 2, 'Inciting, Aiding and Abetting'.
40. [US: It is understood that there is no obligation to provide penalties of imprisonment against legal persons for the crimes set forth in Article 2.14.].
41. [Negotiator's note: [US: It is understood that there is no obligation for a Party to impose both imprisonment and monetary fines in parallel] [EU: This does not imply an obligation for a Party to provide for the courts a possibility to impose both penalties in parallel.]
42. Each Party may provide
that its judicial authorities have the authority to order [fines or]
the seizure of assets the value of which corresponds to that of such
assets derived from or obtained, directly or indirectly, through the
infringing activity.
43. At least one delegation to propose wording to clarify whether forfeiture to right holder or to state.
44. At least one delegation proposes that this provision be reflected in the General Provisions of the Agreement.
45. At least one delegation reserves itsdefine “serious offences" in accordance with its national law.
43. Each Party may define "serious offences"' in accordance with its national law.
44. Canada and Mexico reserve their right to revisit elements of this Section at a later date.
46. [5. [EU/CH/NZ: See identical comment on the draft Chapter
2, Section 1 "Civil Enforcement" and Section 3 "Criminal Enforcement".
A suggestion is to move these provisions into Chapter 1, Section A
which applies to the whole Agreement. Direct reference to TRIPS might
also clarify the scope of thesre obligations.]
47. [6. [US/MX: For greater certainty, the Parties understand that third
party liability means liability for any person who authorizes for a
direct financial benefit, induces through or by conduct directed to
promoting infringement, or knowingly and materially aids any act of
copyright or related rights infringement by another. Further, the
Parties also understand that the application of third party liability
may include consideration of exceptions or limitations to exclusive
rights that are confined 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, including fair use, fair dealing, or their equivalents.] At least one delegation opposes this footnote.
48.
47. Negotciator's Nnote: This provision may be moved and located in the civil enforcement section.
49. Negotiator's Note: Definition of person still pending in General Provisions.
50. [8. For purposes of this Article, online
service provider and provider mean a provider of online services or
network access, or the operators of facilities therefore, and includes
an entity offering the transmission, routing, or providing of
connections for digital online communications, [Can: between or
among points specified by a user, of material of the user's choosing,
without modification to the content of the material as sent or received.]
51. At least one delegation suggests moving the second and third
sentences of paragraph 3. At least one delegation suggests moving the
first and second sentences of] between
or among points specified by a user, of material of the user's
choosing, without modification to the content of the material as sent
or received.
49. In implementing Article 2.18.3, each Party may
provide limitations on the scope of injunctions available against
online service providers for infringing activities included in paragraph 3(a).
52. 0. For greater certainty, the Parties understand that [EU: these limitations
are not intended to harmonize the liability of online service provider,
but exclude liability in certain situations. Thus] the failure of an
online service provider's conduct to qualify for a limitation of
liability under its measures implementing this provision shall not bear
adversely upon the consideration of a defense by the provider that the provider's conduct is not infringing or any other defense.
53. Clarify which conditions apply to which activities.
54. [Negotiator's Note: Definition of "person" still pending in General Provisions.]
55. [For purposes of this Article, online service provider and provider
mean a provider of online services or network access, or the operators
of facilities therefore, and includes an entity offering the
transmission, routing, or providing of connections for digital online
communications, between or among points specified by a user, of
material of the user's choosing, without modification to the content of
the material as sent or received.]
56. [The activities covered in paragraph 3(a)(i) cover t1. [US/EU/CAN will provide for clarification of this provision with respect to ephe mere conduit and the activities covered in paragraph 3(a)(ii) and (iii) cover respectivelyal caching and hosting in accordance with parties legal systems.]
57. At least one delegation proposes to redraft this sub-paragraph.
58. At least one delegation proposes to include language in this
footnote to provide greater certainty that their existing national law
complies with this requirement.
59. At least one delegation has reservations about several elements in paragraph 4.
60. At least one delegation opposes inclusion of 'adequate legal protection'.
61. At least one delegation opposes inclusion of 'or owner of an exclusive license'.
62. [For the purpose of this Article, willful conduct means actual
knowledge or reasonable grounds to know that he or she is pursuing the
objective of circumventing an].
52. [US: Each party understands that a legally effective technological measure.]
63. At least one delegation opposes inclusion of 'adequate legal protection'.
64. For thenotice
or counter-notice must, at a minimum, contain information that is
reasonably sufficient to enable the online service provider to identify
the work or works claimed to have been infringed and the online
location ofthe alleged infringement.]
53. [Option US: For purposes of this Article, an effective technological measure means any technology, device, or component that, in the normal course of its operation,
[controls access to a protected work, performance, phonogram, or
protects any copyright or any rights related to copyrights.][is
controlled by the right holders through application of an access
control or protection pro is used by or at the direction or a right holder to control access, such as encryption, scrambling, or other transformation of their works, [NZ: performers] performances, or phonograms, or a copy control mechanismthat protects any copyright or rights related to copyright.] [EU:, which achieves the protection objective.]
65. [The] [I
54. [J: Each Party may
comply with its obligation under this paragraph by providing such
protection against appropriate cases of conduct referred to in
subparagraph (a) and (b), provided that it does not impair the adequacy
of legal protection or the effectiveness of legal remedies.]
55. No Party shall be obliged to apply subparagraph (a) to the unauthorized circumvention of a copy control.
56. No Party shall be obliged to apply subparagraph (a) to the unauthorized circumvention of a copy control.
57. [J: in accordance with the applicable national legislation, t] The] obligations in paragraphs (4) and (5) [are][may be] without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement. Further, [US: in implementing] paragraph (4), no Party may][paragraph (4) does not imply [US: does not create an obligation to] does not create any obligation [US: no Party may] 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 particulat technological measure, so long as the product does not otherwise violate any measure implementing paragraph (4).
58. [J: in accordance with the applicable national legislation, ] The
obligations in paragraphs (4) and (5) are without prejudice to the
rights, limitations, exceptions, or defenses to copyright or related
rights infrigement. Further, [US: in implementing] paragraph (4)[US:
does not create an obligation to] does not create an obligation [US: no
Party may] to require that the design of, or the design and selection
of parts and components for, a consumer electronics,
telecommunications, or computing product provide for a response to any
particular technological measure, so long as the product does not otherwise violate any measures implementing paragraph (4).
66. At least one delegation is to reflect on appropriate location for this provision.
67. Negotiator's Note: This provision is subject to broader government action/59. Negiciator's note: sovereign immunity provision elsewhere in the Agreement.
68. [For the purpose of this Article, willful conduct means knowingly
performing without authority any of the following acts listed under
subparagraph 6 (a) or (b), if such person knows or has reasonable
grounds to know that by so doing he is inducing, enabling,
facilitating, or concealing an infringement of any copyright or any
rights related to copyright.]
69. required for this provision
60. For purposes of this Article, [electronic] rights management information means: (a
) information that identifies a work, [KOR: or other protected subject matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] [performance, or phonogram]; the author [of the work, the performer of the performance, or the producer
of the phonogram] [or any other right holders of the subject matters
specified under Article 14 of the TRIPS Agreement]; or the owner of any right in the work, performance, or phonogram; (b
) information about the terms and conditions of the use of the work, [performance, or phonogram] [or any other right holders of the subject matters specified under Article 14 of the TRIPS Agreement]; or (cKOR: or other protected subject matters of copyrights or related rights]; or
) any numbers or codes that represent the information described in (a) or (b) above, when any of these items is attached to a copy of the work, [performance, or phonogram] [KOR: or other protected subject matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] or appears in connection with the communicatorion or making available of a work, [performance, or phonogram] [KOR: or other protected subject matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] to the public.
70. [61. Consider substituting the term "at least"
62. Subject to scope.
63. Subject to confirmation by Mor.
64. Language to be reviewed by legal experts.
65. Article 4.2 should be reviewed in relation to other proposal os in Chapter 2 regarding Information Exchange between Customs Authorities.]
71. [66. [US: For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by making it available tofor the public on the Internet.]
72. [67. [US: For greater certainty, nothing in [this sub-paragraphe] is intended to prescribe the type, format, and method of publication of the information a Party must publicize.]
73. At least one delegation reserves its right to revisit elements of this chapter at a later date.
74. The application of this provision shall not conflict with the rules
and implementation of the Dispute Settlement Understanding of the World
Trade Organization.
75. [For greater certainty, a Party may satisfy
the requirement in [Article 5.3] to publish a measure by making it
available to the public on a publically accessible Internet site.]
76. At least one delegation reserves its right to revisit elements of this chapter at a later dat68. Exact wording to be determined by the expert group.
69. [Negotiators's note: consensus may be defined in the rules and procedures, at a later stage.]
70. [Negotiator's note: will be finalized after 5.1.4]
71. Pending confirmation from the EU
72. [NZ: appropriateness to have a transparency section]
73. [Will insert a list of participants as a footnote or as part of a preamble.]
leak-20100701-1.txt
CHAPTER ONE: INITIAL PROVISIONS AND DEFINITIONS
[[1]: Section A : Initial Provisions
ARTICLE 1.1: RELATION TO OTHER AGREEMENTS
Nothing in this Aagreement shall derogate from any international[NZ/Sing/EU: any existing rights and) any obligation of a Pparty with respect to any other Party under existieng agreements to which both Parties are party., including the WTO Agreement of Trade-Related Aspects of Intellectual Property Rights.
ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS 2[2]
1. MembersEach Party shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive [US/EU/CH/NZ/CAN: protection and] enforcement of intellectual property rights than is required by this Agreement, provided that such [AUS/EU/CH/NZ/CAN: protection and] enforcement does not contravene the provisions of this Agreement. MembersEach Party shall be free
to determine the appropriate method of implementing the provisions of
this Agreement within their own legal system and practice.
2.
Nothing in this Agreement creates any obligation with respect to the
distribution of resources as between enforcement of intellectual
property rights and enforcement of law in general.
ARTICLE 1.3: RELATION TO STANDARDS CONCERNING AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS
1. This Aagreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law.
2. It is understood that this Agreemeint does not create
any obligation on a Party to apply measures where a right in
intellectual property is not protected under the laws and regulations
of that Party.
[Aus/Can/Sing/NZ: 3. No Party shall be
obliged to apply this section to any goods that do not infringe an
intellecual property right held within the territory of that Party]
ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION
[A suitable provision needs to be drafted that would ensure nNothing in theis Agreement detracts
from national legislation regarding protection of personal privacy. In
the same way, a suitable provision needs to be drafted regardingshall require any Party to disclose information the disclosure of commercial information]
[Section B[3which
would be contrary to its law or its international agreements, including
laws protecting right of privacy or confidential information the
disclosure of which would prejudice law enforcement or the legitimate
commercial interests of particular enterprises, public or private, or
otherwise be contrary to public interest[3].
AUS[4]
[AUS/NZ/Sing/CAN:
Article 1.X: 1. The 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. 2. Parties may, in formulating or amending their laws
and regulations, adopt measures necessary to protect public health and
nutrition, and to promote the public interest in sectors of vital
importance to their socio-economic and technological development,
provided that such measures are consistent with the provisions of this
Agreement. 3. Appropriate measures, provided that they are consistent
with the provisions of this Agreement, may be needed 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.] [J/Mex/Kor/US: delete this
provision] [EU: include some principles of this provision in the
Preamble][5]
Section B[6]: General Definitions
[Can: Canada reserves its position on all elements proposed in this section, pending discussion of them in negotiations]
ARTICLE 1.X: DEFINITIONS
For purposes of this Agreement, unless otherwise specified:
days means calendar days;
[MX:
In the "days" definition it is established that is would natural days.
However, in Article 2.13 there is a footnote which stipulates that
"days" refer to working days. Therefore is it suggested to make clear
the initial definition or delete such definition and establish with
footnotes if it refers to natural or working days, where appropriate]
intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of If Trade-Related Aspects of Intellectual Property Rights
[MX:
The definition of "intellectual property" refers to the figures listed
in TRIPs; however, said wording is not clear enough since words such as
"intellectual property right" and "copyrights and related rights and
trademarks" are used in all the text. Therefore, it is suggested to
define "intellectual Pproperty Rights." in Article 1 and use the same wording in all the tet in order to be uniformity.]
Council means the ACTA Oversight Council established under Chapter Five;
measure includes any law, regulation, procedure, requirement, or practicse;
person means either a natural person or a juridical person;
right
holder includes a federation or an association having the legal
standing and authority to assert rights in intellectual property, and
also includes a person that exclusively has any one or more of the
intellectgernual property rights encompassed in a given intellectual property;
territory means customs territory of a Party and all free trade zones of that Party;
TRIPS
Agreement means the Agreement on Trade-Related Aspects of Intellectual
Property Rights, contained in Annex 1C to the WTO Agreement;[4]
[7] WTO means the World Trade Organization; and
WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994.5
CHAPTER TWO: LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
s[5]
ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT
1[8]
1.
Parties shall ensure that enforcement procedures are available under
their law so as to permit effective action against any act if
infringement of intellectual property rights covered by this Agreement,
including expeditious remedies to prevent infringements and remedies
which constitute a deterrent to further 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. Procedures adopted, maintained, or applied to implement this Chapter shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
2Options 1: [Mex/US/J/NZ/Sin/CAN: 3. In respect of civil remedies and criminal penalties for enforcement of intellectual property rights, each Party shall take into account, as approriate, the need for proportionality between the seriousness of the infringement and th, the interests of third parties and the applicable remedies or penalties ordered.
[3. Those.]
Option 2: [EU/CH/Mor: 3. In respect of measures, procedures and remedies shall also be [effective, proportionate][ fair and equitable] and [deterrent]][6]]
4. [Padopted,
maintained or applied to implement this Chapter, each Party shall
ensure the need for proportionality in relation to the infringement.]
4. [US: Not withstanding the other provisions on
limitations on remedies available against use by governments as well as
exemptions of public authorities and official from liability to be
inserted here at a later date.]
5. [Df this
Agreement, the Parties may limit the remedies available against a
unauthorized use of intellectual property covered under this Agreement,
or against such unauthorized use by a third party that was authorized
by a government, to payment of remuneration. Such remuneration shall be
adequate to compensate for the injury the right holder has suffered,
taking into account the economic value of the use.][9]
5. [MX/Aus/Sing/NZ/US/Can: define scope of the intellectual property rights covered inby the Agreement]] [TEU/CH: the scope of intellectual property rights will be defined at the start of each chapter.]
[Aus/US/NZ/Can/Sing: This Agreement shall apply [NZ/Can/Sing: only]
[Kor: at least] to trademark counterfeiting and copyright pircay unless
oterwise specified. The Section on the Digital Environment shall apply
only to copyright and related rights.]
6. [EU: Each Party shall
ensure that the rights of the [EU/CH: defendants and] third parties
shall be duly protected and guaranteed.]
Section 1: Civil Enforcement
ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES
1. [Can/US/NZ/Sing/AUS: In the context of this section, e] [E]ach Party shall make available to right holders [civil judicial] [or administrative] procedures concerning the enforcement of any [J/CH/EU: intellectual property right] [Sing/Can/NZ/Aus/US/Mex: copyrights and related rights and trademarks].
2
. To the extent that any civil remedy can be ordered as a result of
administrative procedures on the merits of a case, each Pary shall
provide that such procedures conform to principles equivalent in
substance to those set out in this section.
ARTICLE 2.X: INJUNCTIONS
[EU/Sing: 1. ]In civil judicial proceedings concerning the enforcement of [Can/NZ/Aus/US/Sing/Mex: copyright or related rights and trademarks] [J/EU: intellectual property rights], each Party shall provide that its judicial authorities shall have the authority [Can/AUS: subject to any statutory limitations under its domestic law] [US/Kor/J/EU/CH/Mex: subject to any statutory limitations under its domestic law] to issue [against the infringer an injunction aimed at prohibiting the continuation of the] [an order to a party to desist from an] infringement, including an order to prevent infringing goods from entering into the channels of commerce [and to prevent their exportation].[7]
[.
[EU/CH: 2. The Parties [NZ/Mor/Mex: may] shall also ensure that right holders are in a position to apply for an injunction against [infringing] intermediaries whose services are used by a third party to infringe an intellectual property right.[8]][9] [10]][11]
ARTICLE 2.2: DAMAGES
1. Each Party shall provide that:
(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer [who knowingly or with reasonable grounds to know, engaged in [infringing activity] of [intellectual property rights] [copyright or related rights and, or trademarks] [intellectual property rights], to pay the right holder
(i); or
(ii)
[at least in the case of copyright or related rights infringement and
trademark counterfeiting,] [in the case of IPR infringements] the
profits of the infringer that are attributable to the infringement,
[which may be presumed to be the amount of damages] [and that are not
taken into account in computing the amount of damages] [referred to in
clause (i)][10]
[which may be presumed to be the amount of damages referred to in clause (i)]; and
(b) i.
In determining the amount of damages [US: for [copyright ors and related rights infringements and trademarks counterfeiting] [infringement of intellectual property rights], its judicial authorities shall, its judicial authorities shall have the authority to consider,
inter alia, any legitimate measure of value submitted by the right
holder, which may include the lost profits, the value of the infringed
good or service, measured by the market price, the suggested retail
price, or [the profits of the infringer that are attributable to the infringement].
[2. [At least]
in cases [EU/CH: of intellectual property rights] [of copyright or
related rights infringement and trademark counterfeiting], each Party
shall provide that in civil judicial proceedings, its judicial
authorities shall have the authority to order the infringer to pay the
right holder the profits of the infringer that are attributable to the
infringement [Kor: which may be presumed to be the amount of the
damages].
3. [US: At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in [cases of trademark counterfeiting], in civil judicial proceedings, [As an alternative to paragraph 1,] ee] [E]ach Party [shall][may] also establish or maintain a system that provides for:
(a) pre-established damages;
(, or b) presumptions for determining the amount of damages[112] sufficient to compeensate the right holder for the harm caused by the infringement.[12][; or
(c), or c) at least for copyright, additional damages]]
[3.
Where the infringer did not knowingly, or with reasonable grounds to
know, engage in infringing activity, each Party may [lay down that]
[establish] [may authorize its] the judicial authorities may [to] order
the recovery of profits or the payment of damages, which may be
pre-established.].
[4. Where a Pparty provides one of the options described in paragraph 2 (a) or 2 (b), that Party shall ensure that a right holder has the right to choose that option [[13]] as an alternative to the remedies referred to in paragraph 1.]
Option 1
[5. Each Party shall provide that its judicial authorities, except in exceptional circumstanceswhere appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings [[at
least in cases] concerning copyright or related rights infringement,
[patent infringement,] or trademark infringement] that the prevailing
party be awarded payment by the losing party of [ [reasonable and
proportionate] legal] court costs or fees. [Each Party shall also
provide that its judicial authorities, [except in exceptional
circumstances], [in proceedings concerning copyright or related rights
infringement or willful trademark counterfeiting,] shall have the
authority to order, [in appropriate caseconcerning infringement of [intellectual property rights] [copyright or related rights, or trademarks], that the prevailing party be awarded payment by the losing party of reasonable attorney's fees [, and other expenses as provided for under that Party's domestic law].[14]]
Option 2
[5.
Each Party shall provide that its judicial authorities, [in appropriate
cases], shall have the authority to order, at the conclusion of civil
judicial proceedings [[at least in cases] concerning copyright or
related rights infringement, [patent infringement,] or trademark
counterfeiting] that the prevailing party be awarded payment by the
losing party of court costs or fees and reasonable [and proportionappropriate] attorney's fees [, andor any other expenses as provided for under that Party's domestic law].[15]].
ARTICLE 2.3: OTHER REMEDIES
1. With respect to goods that have been found to be [US/Aus/Can/Sing/Kor/NZ/Mex: pirated or counterfeited] [J/EU/CH: infringing an intellectual property right],
each Party shall provide that in civil judicial proceedings, at the
right holder's request, its judicial authorities shall have the
authority to order that such goods be [recalled, definitively removed from 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 shall
have the authority to order that materials and implements the
predominant use of which has been in the manufacture or creation of [J/EU: infringing] [US/Aus/Can/Sing/NZ/Mex: pirated or counterfeit] 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.
[EU/CH/Aus/CAN: 3. The judicial authorities shall have the authority to order that those remedies be carried out at the expense of the infringer, unless particular reasons are invoked for not doing so.]
[4.
[In ordering those remedies, the judicial authorities][Each Party shall
further provide that its judicial authority in ordering these remedies]
shall take into account the need for proportionality between the
seriousness of the infringement and the remedies ordered as well as the
interest of third parties.][16].]
ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT
[Without prejudice to other statutory provisions which, in particular,its domestic law tha govcerns the protection of confidentiality of information sources or, the processing of personael data,][17] E or privilege, each Party shall provide that in civil judicial proceedings concerning the enforcement of [J/CH/EU: intellectual property rights][ [Can/NZ/Aus/Sing/US/Mex: copyright or related rights and trademarks], its judicial authorities shall have the authority upon a justified request of the right holder, to order the [alleged] infringer [including aninfirnger, or in the alternative, the alleged infringer] to provide, [at least for the purpose of collecting evidence] any [, relevant] information [information on the origin and distribution network of the infringing goods or services][in the form as prescribas provided in its applicable laws and regulations] that the infringer or alleged infringer possesses or controls, [where appropriate,] to the right holder
or to the judicial authorities. Such information may include
information regarding any person or persons involved in any aspect of
the infringement and regarding the means of production or distribution
channel of such goods or services, including the indentification of third
persons involved in the production and distribution of the infringing
goods or services or in their channels of distribution.
[For greater clarity, this provision does not apply to the extent that
it would conflict with common law or statutory privileges, such as
legal professional privilege.] ]
ARTICLE 2.5: PROVISIONAL MEASURES
[X.EU/CH/J: Each Party shall provide that its judicial authorities shall have the authority, at the request of thea applicant, to issue an interlocutory injunction provisional measure intended to prevent any imminent infringement of an intellectual property right [Can/Aus/Mex:
copyright or related rights or trademark]. Such provisional measures
may also be issued under certain conditions, in relation to an
intermediary whose serices are being usd by a third party to infringe
an [intellectual property right] [copyright or related rights or trademark]. An
interlocutory injunction may also be issued, under the same conditions,
against an [infringing] intermediary whose services are being used by a
third party to infringe an intellectual property right. Each Party shallEach Party shall [J: may] also provide that provisional measures may be issued, even before the commencement of the proceedings on the merits, to preserve relevant evidence in respect ofto the alleged infringement.
Such measures may include inter alia the detailed description, the
taking of samples or the physical seizure of documents or of the
infringing goods.]
1. Each Party shall [provide][ensure] that its judicial authorities [shall ]with the authority to act [expeditiously][ on requests] for provisional measures inaudita altera parte, and shall endeavor to make a decision[ on such requests] without undue delay, except in exceptional cases.
2. [.
2. [US/J/NZ/MX/Aus: In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting][18]3], each Party shall provide that its judicial authorities shall have the authority to
order the seizure or other taking into custody of suspected infringing
goods, materials, and implements relevant to the act of infringement [and, at least for trademark counterfeiting, [J: documents] [EU: documentary evidence], either originals or copies thereof, relevant to the infringement].
[US/J/EU/Can: 3. Each Party shall provide that its [judicial][competent] authorities have the authority to require the
plaintiff, with respect to provisional measures, to provide any
reasonably available evidence in order to satisfy themselves with a
sufficient degree of certainty that the plaintiff's right is being
infringed or that such infringement is imminent, and to order the
plaintiff to provide a reasonable security or equivalent assurance [set at a level sufficient] to proetect the defendant [EU/CH: , ensuring compensation four any prejudice suffered when the measure is revoked or lapses due to any reason, ]and to prevent abuse. []
[Kor/NZ/J:, ensuring compensation fur any prejudice suffered when the
measure is revoked or lapses due to any reason,] and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedures].
Section 2: Border Measures[19][[20]] [[21]]
[ARTICLE 2.X: SCOPE OF THE BORDER MEASURES4] [Japan:[15]]
[EU/CH: Article 2.X: Scope of the border measures]
1. This section
sets out the conditions for action by the competent authorities when
goods are suspected of infringing intellectual property rights, within
the meaning of thise agreement, when they are imported, exported, in-transit or in other situations where the goods are under customs supervision.
2.
For the purposes of this section, "goods infringing an intellectual
property right" means goods infringing any of the intellectual property
rights covered by TRIPS[2216]. However,
Parties may decide to exclude from the scope of this section, certain
rights other than trade marks, copyrights and GIs when [not protected
exclusively by copyright and trade mark systems and] [protected by
[non-product- or sector-specific] [registration] sui generis systems.]]
3. [[US/Sing/Aus/NZ/J/Can: Parties shall provide for the provisions related to border measures to be applied [US/Sing/J: at least ]] in cases of trade mark counterfeiting and copyright piracy. [US/Sing/J: Parties may provide for such provisions to be applied in other cases of infringement of intellectual property rights.]]
ARTICLE 2.X: DE MINIMIS PROVISION
Parties
may exclude from the application of this Section small quantities of
goods of a non-commercial nature contained in travelers' personal
luggage [NZ/Aus/Can/Sing/Kor/J: or sent in small consignements.][17]]
ARTICLE 2.X: PROVISION OF INFORMATION FROM THE RIGHT HOLDER
Each Party shall permit the competent authorities to request a rights holder to supply relevant information to assist
the competent authorities in taking border measures provided for under
this Section. Each Party may also allow a right holder to supply
relevant information to the competent authorities.
ARTICLE 2.6: APPLICATION BY RIGHT HOLDER
Option 1
[and in-transit[23]18] shipments and [Mor: may] [EU/KOR: shall] provide procedures for export shipments, by which right holders may request the competentd authorities to suspend release[2419] of suspected counterfeit trademark goods[250]
and suspected pirated copyright goods[21] [EU/: goods suspected of
infringing an intellectual property right] into free circulation [Kor:
or the detention of such goods].
Option 2
[US/J/NZ/Can/Sing/Aus/CH/Mex:
1. Each Party shall provide procedures for import and export
[NZ/Can/Sing/Aus: and export] shipment and my provide procedures for
in-transit[22] shipments, by which right holders may request the
competent authorities to suspend the release of the suspected
counterfeit trademark goods[23] and suspected pirated copyright goods.[26] [goods suspected of infringing an intellectual property right]into free circulation.
Option 2
[1.4]{24}]
Option 3
[EU: Each Party shall provide procedures by which right holders may request the competent authorities to suyspend the release of goods suspected of infringing intellectual property rights or detain them.]
2. The competent
authorities shall require a right holder requesting the procedures
described in paragraph 1 to provide adequate evidence to satisfy
themselves that, under the laws of the Party providing the procedures,
there is prima facie an infringement of the right holder's intellectual
property right and to supply that sufficient information that
may reasonably be expected to be within the right holder's knowledge to
make the suspected infringing goods reasonably recognizable byto the competent authorities.
The requirement to provide sufficient information shall not
unreasonably deter recourse to the procedures described in paragraph 1.
3. Each Party shall provide for applications to suspend the release of suspected infringing goods that apply to all goods[275] under customs control in its territory and remain applicable to multiple [Sing: or in the alternative specified] shipments [US: or where there is a specific shipment at issue, the application will apply to specified shipments]. Each Party may provide that, at the request of the right holder, the application
to suspend the release of goods may apply to selected points of entry
and exit under customs control. These applications for suspension shall
remain applicable for a period of not less than [NZ/US/CH/J/EU/Kor/Can/AUS/Mor: one year][ [Sing: or sixty days]
from the date of application, or the period of protection of the
relevant intellectual property rights under the laws of the Party
providing border measures under this Section, whichever is shorter.
Each Party may permit a right holder to specify that an application to
suspend remain applicable for a period of less than [one year][or sixty days].NZ/US/CH/J/EU/Kor/Can/AUS/Mor: one year] [Sing: or sixty days].
[Sing:
3. Each Party shall provide for applications to suspend the release of
suspected infringing goods that apply to all goods[26] under customs
control in its territory and that shall remain applicable for a
reasonable period. Each Party may [J (drafting suggestion): shall [or
shall endeavor]] provide for such applications to apply to multiple
shipments. Each Party may provide that, at the request of the right
holder, the applications may appy to selected points of entry and exit
under customs control.]
4. The competent
authorities shall inform the applicant within a reasonable period
whether they have accepted the application. Where the competent
authorities have accepted the application, they shall also make known
to the applicant the period of validity of the application.
5.
Each Party may provide, where the applicant has abused the process, or
where there is due cause, that an application may be denied, suspended,
or voided.
ARTICLE 2.7: EX-OFFICIO ACTION
Option
[may] [shallshall [NZ: may] provide that its
customs authorities may act upon their own initiative, to suspend the
release of suspected counterfeit trademark goods or suspected pirated
copyright goods with respect to imported, [US/J/Mex: exported] [US/J/NZ/Mex: , or in-transit]
goods including suspected counterfeit trademark goods or suspected
pirated copyright goods admitted to, withdrawn from, or located in free
trade zones [EU/CH: goods suspected of infringing an intellectual property right]. [Aus/Can/NZ/Sing: Each Party [may][shall endeavor to] provide its customs authorities the same authority as the foregoing provision of this Article in respect of [exported and] in-transit goods that are [suspected counterfeit trademark goods or suspected pirated copyright goods.]
Option 2
[n initiative, to suspend the release of goods suspected of infringing an intellectual property right.]
2. [Each Party may also provide that its customs authorities may act, upon their own [27]initiative, to suspend the release of goods suspected of infringing other intellectual property rights [EU, not covered by this section].]
ARTICLE 2.X:
[Aus/NZ: As an alternative to procedures in Article 2.6.1 and 2.7.1 relating to export or in-transit shipments, each Party [shall/may] provide that where shipments are exported from that Party, or shipments are in-transit through that Party, it shall cooperate to provide all availablehave
the authority, (drafting suggestion Can: consistent with the Party's
bilateral infroamtion sharing agreements) to provide sufficient information to the destination Party, upon request of the destination Party, to enableabout such shipments, to promot effective enforcement against shipments of infringing[28] goods.]
ARTICLE 2.9: SECURITY OR EQUIVALENT ASSURANCE
Each Party shall provide that its competent authorities shall have the authority to require a right holder requesting procedures described under Article 2.6 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. Each Party may
provide that such security may be in the form of a bond conditioned to
hold the defenddnant harmless from any losos or damage resulting from any suspension of the of the release of the gfoods in the event the competent authorities determine that the good [US/J/Can/Aus/Kor/Mor/Sing: is not a counterfeit trademark good or a pirated copyright good] [EU/CH: does not infringe intellectual property rights covered by this section]. Only in exceptional circumstances [ or pursuant to a judicial order] may a
Party permit a defendant to post a bond or other security to obtain
possession of suspected counterfeit trademark goods or suspected
pirated copyrights goods.
ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT
Each Party shall adopt or maintain a procedure by which their competent authorities may determine, within a reasdonable periode of time after the
initiation of the procedures described under Article 2.X or 2.X,
whether the suspected infringing goods infringe an intellectual
property right[29].
ARTICLE 2.11: REMEDIES
1. Each Party shall provide its competent aupthorities with the authority to order the destruction of goods following a determinnnmation under Airticle 2.10 that the goods are infringing.[30]. [ In cases where such
goods are not destroyed, each Party shall ensure such goods are
disposed of outside the channels of commerce in such a manner as to
avoid any harm to the right holder.] [or that they be disposed of outside the channels of commerce in such a way as to preclude injury to the right holder, except in exceptional circumstances.]
2. 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.
3.
Each Party may provide its competent authorities with the authority to
impose administrative penalties following a determination under Article
2.10 that the goods are infringing.
ARTICLE 2.12: FEES[31]
1. Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by competent authorities in connection with prorcedures described in this Section shall not be used to unreasonably deter recourse to these procedures.
ARTICLE 2.13: DISCLOSURE OF INFORMATION
Without prejudice to a Party's laws pertaining to[31] the privacy or confidentiality of information:
(a) Eeach Party may authorize its competent authorities to provide right holders with information about specific shipments of goods, including the description and quantity, to assist in the detection of infringing[32] goods;
(b) Eeach Party may authorize its competent authorities to provide right holders with information about goods
including, but not limited to, the description and quantity of the
goods and the name and address of the consignor, importer, exporter or
consignee, and, if known, the country of origin and name and address of
the manufacturer of the goods to assist in the determination under
Article 2.10 of whether goods infringe rights covered by this Ssection;
(c) Uunless a Party
has granted authority under subparagraph (b), at least in the case of
imported goods, where competent authorities have seized or, in the
alternative, made a determination under Article 2.10 that goods
infringe rights covered by theis section, each Party shall authorize its competent authorities to provide right holders, within 30 days[323] of seizure
or determination, with information about goods including, but not
limited to, the description and quantity of the goods and the name and
address of the consignor, importer, exporter,
or consignee, and, if known, the country of origin and name and address
of the manufacturer of the goods.[33]
[Article 2.X: LIABILITY OF THE COMPETENT AUTHORITIES
[1.
With respect to the border measures covered by this Section, each Party
shall provide measures concerning the liability of competent
authorities in the execution of their duties.]
Option 1
2.
The acceptance of an application on its own shall not entitle the
right-holder to compensation in the event that goods infringing an
intellectual property right [copyright, related rights and
trademarks]are not detected by [competent authorities]a customs office
and are released or no action is taken to detain them.
Option 2
[2.
Each Party may limit remedies sought by a right holder or other persons
against a Party's competent authorities as a result of mere acceptance
of an application under Article 2.[6], where the competent authorities
release, or fail to detect, detain, or take action against or in
connection with, goods that may infringe [IPR] covered by this Section.]
[3.
The competent authorities shall not be liable towards the persons
involved in the situations referred to in Article 2.6 for damages
suffered by them as a result of the authority's intervention, except
where provided for by the law of the Party in which the application is
made or in which the loss or damage is incurred.]]ress of
the consignor, importer, exporter or consignee, and, if known, the
country of origin and name and adress of the manufacturer of the goods.
ARTICLE 2.X
Negotiator's note: Mex will submit draft text on customs' liability concerning accepting applications.
Section 3: Criminal Enforcement[34]
ARTICLE 2.14: CRIMINAL OFFENSES
1.[35]
Each Party shall provide for criminal procedures and penalties to be
applied at least in cases of willful trademark counterfeitingt or copyright or related rights piracy on a commercial scale.[36] Willful copyright or related rights piracy on a commercial scale includes:
[(a) significant willful copyright or related rights infringements that have no[EU:
[J: For the purpose of this Agreement,] [US: Infringements] Acts [Can:
of piracy] carried out on a commercial scale are [US/CH: include at
least] those carried out in the context of commercial activity for direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for purposes ofeconomic or commercial advantage or financial gain.[37];
[[US/J/CH: however a Party may exclude][EU: this excludes] such acts
carried out by end consumers.][US: Each Party may treat acts carried
out by end consumers as outside the scope ot this Section.]
[2. Each Party shall provide for criminal procedures and penalties to be applied in cases of [willful], [unauthorized] [importation[37]] and [or] [domestic] [trafficking] [conducted] [use use, in the course of trade] [ and on a commercial scale], of labels [or packaging],
(a):
a. to which a mark has been applied [without the consent of the right holder] which is identical to or cannot be distinguished [in its essential aspects] from a trademark registered in [its territory] [the Party in respect of certain goods or services], and
(b)[38]; and b. which are intended to be used [by
the importer or user or, by a third party with the knowledge of the
importer or user, for willful trademark counterfeiting] [on [either] thein the course of trade on goods or [in relation to] services [for which is registered] [which are identical to goods or services for which the trademark is registered.]
[3.
Each Party shall provide for criminal procedures and penalties to be
applied [in accordance with its laws and regulations,] against any
person who, without authorization of the holder of copyright [or
related rights] [or the theatre manager] in a [motion picture or other
audiovisual work], [cinematographic work] [knowingly] [usesEU: 3. The provisions of this section shall apply to aiding and audiovisual
recording device to transmit or make] [makes] a copy of [, or transmits
to the public] the motion picture or other audiovisual work, or any
part thereof, from a performance of the motion picture or other
audiovisual work in a motion picture exhibition facility open to the
public.][38]
ARTICLE 2.15: [CRIMINAL] LIABILITY AND PENALTIES [AND SANCTIONS]
[1. Liability of Legal Persons
bettin the offences referred to in Article 2.14.]
[EU: 4. (a) Each Party shall adopt such measures as may be necessary, consistentd with its its legal principles, to establish the liability of legal persons for the offences referred to in Article 2.14.
.
]. (c) Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the criminal offences.]
[2. Inciting, Aiding and Abetting
The provis3. Each Party shall provide for criminal procedures and penalties to be applied against any person who, withou authorizations of this section shall apply to [incite holder of copyright [or related rights] in [Mor: an audiovisual work, including,] aiding and abetting the offences referred to in Article 2.14.]]
cinematographic work [Can: or the theatre manager] [knowingly] [US:
uses an audiovisual work, or any part thereof, from a performance of
the cinematorgraphic of other audiovisual work in a cinematographic
work exhibition facitility open to the public.[39]
[3. Penalties and Sanctions]
[(a)]Option
J: 3. Each Party may provide for more specific criminal procedures and
penalties to be applied against any person who, withou authorization,
makes a copy of a cinematographic work for private use from a
performance or a movie theatre.]
[EU/Sing: delete paragraph 3]
ARTICLE 2.15: PENALTIES
[EU: For the [EU: offences] crimes referred to in [EU: Article 2.14] [Article.1 to 2.14.3] [US: 2.14.1], each Party shall provide [EU/CH/Kor/Mor: effective, proportionate and dissuasive] penalties[40] [. The available penalties shall] that include imprisonment [US/NZ/Sing/J/CH/Mex/Aus/Kor: as well as] [EU/CH/Mor: and] monetary fines[41] [US/NZ/Sing/J/CH/Mex/Aus/Kor: sufficiently high to provide a deterrent to future acts of infringement, with a view to removing the monetary incentive of the infringer].
[(b)
[ARTICLE 2.16. SEIZURE, FORFEITURE[/CONFISCATION] AND DESTRUCTION
[1.
[EU: Article 2.16 Seizure]
(a) , forfeiture, and destruction
1. [In case of an offence referred to in Article 2.14 [.1], e,] Each Party shall provide that its competent authorities shall have the authority to order [authorise] [at least for serious offencesCan: authorise] the seizure of suspected
counterfeit trademark goods or pirated copyright [or related rights]
goods, any related materials and implements used in the commission of
the alleged offence, documentary evidence relevant to the alleged
offence and anythe assets derived from, or obtained directly or indirectly through the alleged infringing activity [[42]].
(b).
2. [EU: Each Party shall, if a prerequisite for such and order, according to its national law, is the identification of the items, ensure that the order need not determine the items that are subject to seizure in more detail than necessary to allow their identification for the purpose of the seizure.] [US: Each Party shall provide that such orders
need not individually identify the items that are subject to seizure,
so long as they fall within specified categories in the relevant order.]
[2. Forfeiture/Confiscation and Destruction]
(a) 3. [For the offences referred to in Article 2.14[.1], e,] Each Party shall provide that its competent authorities shall have the authority to order [confiscation/][forfeiture[43] [and/]forfeiture or] destruction [where appropriate] of all counterfeit trademark goods or pirated copyright [or related rights] goods, of materials and implements [predominantly [EU: predominantly] used in the creation of counterfeit trademark goods or pirated copyright goods [or related rights] goods], and [Aus/Can/J/Sing/CH/NZ: at least for [serious offences] [forfeiture to the State] [US: indictable] offences [J/CH:[42]]] of the [any] assets derived from, or obtained directly or indirectly, through the infringing activity.
(b) Each Party shall [4. Each Party shall provide that its competent authorities shall have the authority to [EU/J: provide that its competent authorities shall have the authority to] ensure that the counterfeit trademark goods and pirated copyright [or related rights] goods that have been [confiscated/] forfeited [to the state]forfeited under this subparagraph shall, if not destroyed, be disposed of outside the channels of commerce, [EU: under the condition that the goods are not dangerous for the health and security of persons.] [US/CH/NZ/EU: in such a manner as to avoid any harm caused to the right holder.]
(c)
5. Each Party shall further ensure that [confiscation/]forfeiture and destruction under this subparagraph shall occur without compensation of any kind to the defendant.
(d)6.
Each Party may provide that its judicial authorities have the authority
to order the seizure or forfeiture, of assets of value of which
corresponds to that of such assets derived from or obtained directly of
indirectly through the infringing or allegedly infringing [NZ: or
allegedly infringing] activity. [option NZ: Each Party may provide that its judicial authorities have the authority to order: a) the confiscation/ forfeiture [to the state]seizure of assets the value of which corresponds to that of such assets derived from or obtained directly or indirectly through the allegedly
infringing activity; and b) the seizure or forfeityre of assets [, or
the imposition of fines] the value of which correspond to that of such
assets derived from or obtained directly or indirectly through the infringing activity.
AR
ACTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT
Each Party shall provide that its competent authorities may act upon their own initiative to initiate investigation [or] [and/or] legal action with respect to the [criminal] offensces described in [Article 2.14] [Sections 3 and 4.] [EU: at least in cases of significant public interest, in accordance with national law.]
[ARTICLE 2.X. RIGHTS OF THE DEFENDANT AND THIRD PARTIES
Each Party shall ensure that the rights of the [defendants and] third parties shall be duly protected and guaranteed.][44]
Section 4: [Special Measures Related to Technological Enforcement of Intellectual Property in the Digital Environment]
ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT][454]
1. Each Party shall ensure
that enforcement procedures, to the extent set forth in the civil and
criminal enforcement sections of this Agreement, are available under
its law so as to permit effective action against an act of [US/Aus/NZ/Can/Sing/MX: trademark, copyright or related rights][ [J/EU/CH: intellectual property rights] infringement which takes place [US/Sing/MX: by means of the Iinternet][EU/CHZ: in the digital environment] , including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.
2. [[EU/CH/NZ: Those measures, procedures and remedies shall also be fair and proportionate.][46]*
35]
2. Without prejudice to the rights, limitations, exceptions, or defenses to [[J: patent, industrial design, trademark and][US/NZ/Aus/J/Sing/Can/MX: copyright or related rights]][EU/CH: intelIlectual property rights] infringement available under its law, including with respect to the issue of exhaustion of rights, each Party [US: confirms that] [CH: shall provide for] [US/J: civil remedies as
well as limitations, exceptions, or defenses with respect to the
application of such remedies, are available in its legal system in
cases of third party liability[[476]][Can/NS/Sing/Aus: or liability for those who authorize infringement, or both] for [[patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement.[48]
Option 1
[3.
Each Party recognizes that some persons[49] use the services of third
parties, including online service providers,[[50]] for engaging in [
patent, industrial design and trademark,] copyright or related rights
infringement. Each Party also recognizes that legal uncertainty with
respect to application of copyright and related rights, limitations,
exceptions, and defenses in the digital environment may present
barriers to the economic growth of, and opportunities in, electronic
commerce.][51] Accordingly, in order to facilitate the continued
development of an industry engaged in providing information services
online while also ensuring that measures to take adequate and effective
action against copyright or related rights infringement are available
and reasonable each Party [shall][ may]:
(a) provide
limitations[52] on the scope of civil remedies available against an
online service provider for infringing activities that occur by
(i) automatic technical processes, and
(ii)
the actions of the provider's users that are not directed or initiated
by that provider and when the provider does not select the material, and
(iii) the provider referring or linking users to an online location,
when,
in cases of subparagraphs (ii) and (iii)[53], the provider does not
have actual knowledge of the infringement and is not aware of facts or
circumstances from which infringing activity is apparent; and ]
Option 2
[Each
Party recognizes that some persons[54] use the services of third
parties, including online service providers,[[55]] for engaging in
intellectual property rights infringements.
(a) In this respect,
each Party shall provide limitation on the [liability of] [ scope of
civil remedies available against an] on-line service provider[s] for
infringing activities[56J: patent, industrial design,
trademark and][US/NZ/Aus/Sing/Can/J/MX: copyright or related
rights]][EU/CH: intellectual property rights] infringement.[47]
3. Each Party shall [CH: may] provide at least
(a)
that online service providers[48] shall not be held liable or shall not
be subject to monetary remedies[49] for at least civil copyright or
related rights infringements[50] that occur by[57]
any of the following:
* (i) automatic technical processes [J: that keep the provider from taking measures to prevent the infringement], or
(ii) the actions of the provider's users that aresuch as those] as part of the transmission of material when the online service provider did not initiated nor modified by that provided and when the provider does not select the material or
(iii) the storage of information provided by the transmission, did not select or modify the material, and did not select the recipients of the service or at the request of the recipient of the service,
when
exercising the activities as stipulated in paragraph 3(a)(ii) and/or
(iii) the online service providers act [takes appropriate measures]
expeditiously, in accordance with applicable law [s], [such as those]
to remove or disable access tomaterial[[51]];
*
(ii) the automatic, intermediate, and temporary storage of material
made available online by a person other the online service provider and
transmitted by the online service provider to its users without
modification pf the materiel; or
* (iii) [storage of materiel
provided by a user of the online service provider [US/Can: or][EU: and
including] referring or linking users to an online location containing infringing material or infringing
activity upon obtaining actual knowledge of the infringement [or the
fact that the information at the initial source has been removed or
disabled.] [or having reasonable grounds to know that the infringement
is occurring]]
Option 1
(b) conditionactivity.]
(b) that the application of the provisions of subparagraph (a) on meeting the following requirements:
(i)
an online service provider adopting and reasonably implementing a
policy[[58]] to address the unauthorized storage or transmission of
materials protected by copyright or related rights [ ex(ii)
is conditioned on an online service provider [J: take appropriate
measures] expeditiously [Can: or within a defined period of time] [J:
such as those to remove or disable] removing or disabling access to
material upon [J: obtaining actual knowledge of the infringement or
having reasonable grounds to kow that the infringement is occurring] receipt that
no Party may condition the limitations in subparagraph (a) on the
online service provider's monitoring its services or affirmatively
seeking facts indicating thatof a legally sufficient notice
of alleged infringement concerning material that has previously been
remove from the originating site.
(c) that the application of the provisions of subparagraph (a)(iii) is conditioned on
[US: (i)] an online service provider not receiving a financial benefit directly attributable to the infringing activity, is occurring]n a case in which the service provider has the right and ability to control such activity; and]
* [(i) [US: (ii)] an online service provider expeditiously[J: taking appropriate measures] expeditiously [J: such as those to remove or disable] removing or disabling access to material or [activity][alleged infringement],
(A) upon obtaining actual knowledge that the material or an activity
using the material is infringing, such as [US/Aus: for example] upon receipt [of a legally sufficient notices[52] of alleged infringement,][of an order from a competent authority] [US/Aus: and] in the absence of a legally sufficient response from the relevant subscriber of the online service providalleged infringer indicating that the notice was the result of mistake or misidentification.
except that the provisions of (ii) shall not be applied to the extent;]
(B) in the absence of actual knowledge, when the online service
provider [J: has reasonable grounds to know that the infringement is
occurring] is aware of facts or circumstances from which infringement
activity is apparent. [Can: or]
(iii) [Can: the service provider
not knowing of a decision of a court of competent jurisdiction that the
hosted materials are infringing]
3 bis No Party's legislation may condition the limitations in subparagraph (a) on an obligation that the online service provider is acting solely as a conduit for transmissions through its system or network.]
Option 2:
[Paragraph
3(a) shall not affect the possibility for a judicial or administrative
authority, in accordance with the Parties legal system, requiring the
service provider to terminate or prevent an infringement, nor does it
affect the possibility of the parties establishing procedures governing
the removal or disabling of access to information
The Parties shall not impose a general monitoring requirement on providers when acting in accordance with this paragraph 3.]monitors
its services or [CH: in any other way] actively or affirmatively seeks
facts indicating that intringing activity is occurring.
[J: 3 ter. Each Party shall enablsure
that its judicial authorities have the authority to order an online
service provider to expeditiously disclose the information of the
relevant subscribter to the right holders, who have given effective notification to an online service provider of materials that theylegally sufficient claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscribertrademarks or copyright or related rights.
3 quater. Each Pparty shall endeavor to promote the development
of mutually supportive relationships between online service providers
and right holders to deal effectively with patent, industrial design,
trademark and copyright or relatedr rights infringement which
takes place by means of the Internet, including the encouragement of
establishing guidelines for the actions which should be taken.]
[4.[59] In order toEU/J/CH/Mex/Sing/Mor/Aus: 4. Each Party shall provide adequate legal protection[60] and effective legal remedies [US: at least] against the circumvention of effective technological measures[53] that [US: are used by authors, [performers or, or at the direction of, ] authors, and [NZ: performers] performers and producers of phonograms] [the right holder of any copyright or related rights or owner of an exclusive license[61]]US: use] use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, [NZ: performances] performances, and phonograms]
[or other subject matters specified under Article 14 of the TRIPS
Agreement], each Party shall provide for civil remedies, [or] [as well
as] criminal penalties, which are not authorized by the
authors, the [NZ: performers] performers or the producers of phonograms
concerned or permitted by law. [US: In order to provide such adequate
legal protection and effective legal remedies, each Party shall provide
protection at least against:][54] Adequate legal protection shall be
provided, in appropriate cases of willful conduct [[62]] , that apply to:
[Each
Party shall provide for adequate legal protection[63] and effective
legal remedies, in the form of civil remedies or criminal penalties in
appropriate cases of willful conduct, against the circumvention of
effective technological measures that are used by authors, performers
or producers or phonograms in connection with the exercise of their
rights and that restrict unauthorized acts in respect of their works,
performances, and phonogram. These shall apply to:]
(a), at least against:
(a) [NZ: the unauthorized circumvention of an effective technological measure[64] [that controls access to a protected work, performance, or phonogram
[US: that restricts acts not authorized by the right holder and is ]
carried out knowingly or with reasonable grounds to know [55];] and the
unauthorized circumvention of an effective technological measure [US:
that restricts acts not authorized by the right holder and is ] carried
out knowingly or with reasonable grounds to know [56]; and
(b) the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] ordistribution
[US: of, or offer to distribute, a device or product, that circumvents
an effectie technological measure and is either:] of a device that has
predominant function of circumventing an effective technological
measure and that is any of the following:
* (i) [US: marketed
for the purpose of circumventing an effective technological measure]
marketed for the purpose of circumventing an effective technological
measure;
* (ii) primarily designed or produced for the purpose of circumventing an effective technological measure; or that
* (iii) has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]]
[5. [4.2]
Option 1
5. Each Party shall provide [that a] [that effective legal remedies [EU: effective legal remedies] [EU: adequate legal protection] against a] violation of a measure implementing paragraphe (4) [is a separate civil or criminal offense,] independent of anyindependant of any [J: other unlawful activities] infringement of copyright or related rights.[65]][6657]
Option 1
[Further, [e2
5.
[US/Sing/NZ/Aus: Each Party shall provide that a violation of a measure
implementing paragraph (4) is independent of any [J: other unlawful
activities] [J: infrigement of copyrighted or related rights]
infrigement of copyright or related rights.[58]]
ARTICLE 2.18.X
Each Pparty may adopt and maintain exceptions andor limitations to measures [Can: measures] [Can: provisions] implementing paragraph 4(4), so long as they do not significantly impair the adequacy of legal protection of those [Can: those] [Can: technological] measures or the effectiveness of legal remedies for violations of those measures.][67]
Option 2
[
5. Each Party may provide for measures which would safeguard the
benefit of certain exceptions and limitations to copyright and related
rights, in accordance with its legislation.]
[6. [In order to] [E[59]
6. To protect electronic rights management information, each Party shall] provide adequate and
effective legal remedies to protect [ electronic] rights management
information[, e] [ E]ach Party shall provide for civil remedies, [or]
[as well as] criminal penalties] in appropriate cases of willful [[68]]
conduct, that apply tolegal protection and effective legal remedies against any person performing [without authority] any of the following acts knowing [, or with respect to civil remedies having reasonable grounds to know], that it will induce, enable, facilitate, or conceal an infringement of any copyright or [Ca: with respect to phonograms any] related right:
(a) to [Sing: knowingly] remove or alter any [electronic] right management information[690]
(b) to distribute, [Can: or] import for distribution [Can: to an extent that the copyright owner is prejudically affected], broadcast, communicate [Can: ,], or make available to the public copies of works, [or otherKOR[61]{61}: or other protected subjkect matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] [performances, or phonograms], knowing that [electronic] rights management information has been removed or altered without authority.]
[7.] [6.2] Each Party may adopt [limitations or] exceptions to the requirements of subparagraphs (a) and (b) [of paragraph (6)] [and
maintain exceptions or limitations to measures [Can: measures] [Can:
provisions] implementing paragraph (4) [EU/CH/US: and (5)], so long as they do not significantly impair the adequacy of legal protection orf those [Can: those] [Can: technological] measures or the effectiveness of legal remedies for violations of those measures.]
CHAPTER THREE: INTERNATIONAL COOPERATION[62]
ARTICLE 3.1: INTERNATIONAL ENFORCEMENT COOPERATION
1. Each Party recognizes that internmational [enforcement] cooperation [is vital [ to realize [fully] effective protection of intellectual property rights]
[ in order to deal with the increasingly global problem of the trade in
counterfeit and pirated goods]] [plays an important role in the
protection of copyright and trademark rights] and should be [undertaken] [encouraged] regardless of the origin of the goods infringing goodsintellectual property rights, or the location [or nationality] of the right holder [of the intellectual property rights.
2. In order to combat [intellectual property rights infringement, in particular,] trademark counterfeiting and copyright piracy, each Party shall promote [may, as it deems appropriate, ] cooperation [measures, where appropriate,] among the [relevant] competent authorities of the Parties [concerned with] [responsible for] enforcement of intellectual property rights. Such [cooperation includes][ measures may include] [cooperation shall include][may include]may include law enforcement cooperation with respect to criminal investigation
or prosecution [concerning] [relating to] the offences covered by this
Agreement and [border measures] [cooperation at the border], [which may
be conducted bilaterally or multilaterally] Particular attention shall
be devoted to the circulation of IPR infringing goods detrimental to
the health and safety.]
3. Each Party [shall][ may], consistent
with the [existing][domestic law and policy and the] [international
agreements and arrangements to which such Party is a party], [conduct][
undertake] enforcement cooperation [foreseen] [activities as provided]
[international cooperation as set out ] in this Chapter [,in line with
the international agreements and arrangements to which such Party is a
party.] [Each Party may also conduct enforcement cooperation or provide
assistance to another Party pursuant to other international agreements,
arrangements, and practices, and in accordance with its domestic law
and policies.]
[4. Nothing in this Chapter and Chapter 4 shall
require any Party to disclose confidential information which would be
contrary to its laws, regulations, policies, legal practices and
applicable international agreements and arrangements, including laws
protecting investigative techniques, right of privacy or confidential
information for law enforcement, or otherwise be contrary to public
interest, or would prejudice the legitimate commercial interests of
particular enterprises, public or private.]
[4. The Parties understand that obligationsenforcement and border measures covered by this Agreement.
3. Each Party understands that cooperation under this Chapter and Chapter 4shall be conducted consistent with relevant intemational agreements as well as subject to the domestic laws, policies, resource allocation and law enforcement priorities of each Party.]the Parties.
ARTICLE 3.2: INFORMATION SHARING
1. [In
order to ensure effective enforcement of the provisions of this
Agreement,] each Party [[shall][ may] promote sharing or exchanging]
[may, as it deems appropriate, share or exchange ] with other Parties [The Parties shall endeavor to promote the exchange of the following information ][ as appropriate and mutually agreed]:
:
(a) information collected by thea Party under provisions of Chapter 4, including statistical data and information on best practices including those relating to[risk analysis] [risk management]; and
[the] development [and implementation] of legislative and regulatory measures [of the] [by the]by a Party [related to the protection and enforcement of intellectual property rights].
For this purpose, the Parties shall endeavour to establish appropriate modalities including holding of periodical meetings.
[Parties shall endeavor to establish an observatory as a tool for collecting information]
2. Each Party 2. Each Party [shall ensure], as appropriate and mutually agreed, [within
the limits of [its] national legislation][ consistent with its domestic
laws] , policies, [legal] practices, and applicable [existing]
international agreements and arrangements, that its competent authorities have the [ability] [authority] to provide the competent authorities of any other [Parties][ Party], either on request or on itstheir own initiative, with information [[necessary
to ensure][ to facilitate][ to allow] a proper application of laws
concerning enforcement of intellectual property rights and to prevent,
investigate, [and repress acts of intellectual property right
infringements][ or prosecute infringement of Intellectual property
rights ] [related to the enforcement of intellectual property rights].on the enforcement of intellectual property rights.
ARTICLE 3.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1. [In order to facilitate the implementation of this Agreement or the accession thereto,] [Developed country]Each Partiesy shall [endeavour to] provide, on request and on mutually agreed terms and conditions [Mor: and on mutually agreed terms and conditions], assistance in capacity building and technical assistance[ in improving enforcement of intellectual property rights,] [focused on initiatives to combat the trade in counterfeit and pirated goods] in favour of developing country or Parties to this Agreement and [, where appropriate,] [for third countries ][for countries not a for prospective Partyies to thise Agreement.][ Parties shall make all reasonable efforts to ensure that s Such capacity building and technical assistance are
compatible and do not overlap with similar activities provided by
international organizations active in the field of intellectual
property.] [The provision of assistance under this Article and Articles
3.3.2 and 3.3.3 is subject to the availability of resourcemay cover such areas as :
(a) enhancement of public awareness on intellectual property rights;
(b) development and implementation of national legislation related to enforcement of intellectual property rights;
(c) training of officials on enforcement of intellectual property rights; and
(d) coordinated operations con the part of the donor Party.]ducted at the regional and mulilateral levels.
2. For the purposes of paragraph 1, [developed country]Parties shall [, at the request of developing country Parties and on mutually agreed terms and conditions, ]each Party shall endeavor to work closely with [developing country] [other] Parties [and, where appropriate, countries not a Party to this Agreement or separate customs territories,]
[to enact] [implement and to ] or strengthen their [domestic] [
national] legislation, as appropriate, and assist them in improving
their national intellectual property law enforcement capacities through
sharing best practices concerning intellectual property law enforcement
and providing relevant technical training for enforcement officials.
3. [[Developed country][Developed and developing country] Parties] [ not a Party to the Agreement.[63]
3. Each PaArty] may undertake the obligations underactivities described in this Article in conjunction with relevant [private sector] or international organizations.
[4.
Parties shall put in place a special allocation Fund to finance ACTA
initiatives on capacity building and technical assistance]
[5.
Parties shall, in the implementation and administration of this
Agreement, take into account developing countries needs in the field of
financing and technical assistance. In this respect, States Parties to
the Agreement agree:
(a) To support, developing countries
efforts, for the implementation of the Agreement and the integration of
anti-counterfeiting and anti-hacking actions in national development
strategies. This assistance shall be designed to help developing
countries to harmonize their laws, to carry out their obligations and
to exercise their rights as Members.
(b) To ensure predictable and sustainable financing.
(c)
To promote coordination of technical assistance activities with the
bilateral donors, WTO Secretariat, WIPO as well as with other relevant
international intergovernmental institutions.
(d) States Parties shall review annually the implementation of this Article].
[5. State parties shall endeavour to provide technical assistance in the following areas:
(a) Promoting the culture of intellectual property.
(b) Training professionals in charge of the protection of the rightholders involved in the protection of intellectual Property.
(c) Capacity building and experience sharing among institutions in charge of fighting counterfeiting and piracy.
(d)
Tools for measuring the economic impact of counterfeiting on the market
and evaluating the anti counterfeiting and anti-hacking actions.
(e) Conducting joint operations at the regional and international levels.
(f) Enforcement of laws regarding fighting counterfeiting and piracy trough the Internet.
Technical
assistance shall be extended to all other types of actions facilitating
the implementation and the applicability of the ACTA Agreement].sations.
Each Party shall strive to avoid unnecessary duplication of the
activities described in this Article with respect to other
international efforts.[64]
CHAPTER FOUR: ENFORCEMENT PRACTICES
ARTICLE 4.1 : ENFORCEMENT EXPERTISE, INFORMATION AND DOMESTIC COORDINATION
1. Each Party shall [[J:facilitate] [NZ: encourage][ [sing : as it deems appropriate foster the] development of] [US : develop] specialized expertise [J: of][Sing: in its] competent authorities concerned whith enforcement of [J: intellectual property rights] [Sing/NZ: copyright and trademark rights] , in order to [J: ensure] [Sing : promote] effective enforcement of [J: intellectual property rights] [Sing : copyright and trademark rights] [CAN: in order to ensure effective enforcement of intellectual property rights]. [US: One means of implementation is through specialized law enforcement authorities for the investigation and proesecution of cases concerning the infringement of intellectual property rights.]
[AUS : Reserve its position on this article.]
2. Each Party shall [J: promote collection and analysis of] [Sing: endeavor to collect] statistical data and other [[J: relevant] [Sing:relevant] information [Sing: , which such Party determines is useful and relevant,] [J: concerning infringement of intellectual property rights [Sing: within its territory], especially] [CAN/NZ: infringement of intellectual property right, especially] trade in counterfeit trademark goods and pirated copyright goods [EU: , especially trade in counterfeit trademark goods and pirated copyright goods]. Each Party shall [J:further] [US: further] promote collection of information on best practices to prevent and combat [J: intellectual property right infringement] [CAN: trademark counterfeiting and copyright piracy].
[Sing: , especially trade in counterfeit trademark goods and pirated
copyright goods. Each Party shall further promote collection of
information on best practices to prevent and combat intellectual
property right infringement.]
3. Each Party shall [Sing: , as it deems appropriate,] [US: , as appropriate,] [J: endeavour to enhance] [US: promote] internal coordination among, [J: and facilitate joint actions by], [ [US/CAN : and facilitate joint actions by], [Sing: such Party's] [US: the] competent authorities [J: concerned with ][US: responsible for] enforcement of intellectual property rights [J: through an appropriate coordinating [J: body][EU: bodies] or other relevant mechanismes] [Sing: through an appropriate coordinating body or other relevant mechanisms]
4. [J: In order to promote effective enforcement of intellectual property rights,] [US/CAN: In order to promote effective enforcement of intellectual property rights,] each Party shall [Sing: , as it deems appropriate,] [J: endeavour to encourage][EU: endeavour to encourage][ ] [US: promote] [US/EU: the ] establishment and maintenance of formal or informal mechanisms, [US: as appropriate, ] such as public and/or private advisory groups, whereby competent authorities may hear [US: the views of ] right holders and other relevant stakeholders [J: where appropriate] [US/EU:
where appropriate] [Sing: encourage establishment and maintenance of
formal or informal mechanisms, such as public and/or private advidory
groups, whereby competent authorities may hear right holders and other
relevant stakeholders where appropriate foster dialogue and information exchanges with shareholders in its territory] .
[NZ: Reserve its position on this paragraph]
ARTICLE 4.2: MANAGEMENT OF RISK AT BORDER[70]
1. 65]
Each Party shall adopt and
maintain appropriate measures that facilitate activities of custom
authorities for better identifying and targeting for inspection at its
border, shipments [J: that [EU: could] contain] [CAN/CH: which are suspected to contain] [J: counterfeit trademark goods or pirated copyright goods] [EU: goods infringing intellectual property rights.] Such activities may include,[ [J: subject to paragraph 2 of Article 3.2] [EU: clause in article 3.4. is applicable]:
(a) contact with relevant stakeholders and with relevant authorities to identify and address risks;
eater effectiveness in targeting shipments that could contain [J: counterfeit and pirated] [EU: infringing] goods.
[2US: 1. To better identify and target shipments for inspection that are suspected to contain counterfeit trademark goods or pirated copyrtight goods, each Party may:
(a)
consult with relevant stakeholders and with competent authorities
responsible for intellectual property rights enforcement to identify
and address significant risks and promote actions to mitigate those
risks;
, exchange data with border authorities of other Parties; and
32. Each PaArty shall provide that its competent authorities may conduct
audits of an importer's business records, including methods of payment
and purchase contracts, as well as its internal controls to track
illicit fincancial gains and expose business practices related to trademark counterfeiting and copyright piracy.]
[KOR:
Article 4.2 should be reviewed in relation to other proposal on Chapter
2 regarding Information Exchange between Customs Authorities.
[Article XX: Information Exchange Between Customs Authorities
If
the customs authority of an importing party seizes counterfeit
trademark goods or pirated goods to be imported, the party may request
the customs authority of the exporting party to take proper measures to
the exporters of the goods concerned. The requesting party shall
provide information necessary for the identification of the goods
concerned by the customs authority of the requested party.]
[CAN: Reserve its position on US proposal and Korea proposal.] [MX: Move this paragraph to Boarde Measure section.]
ARTICLE 4.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND PRACTICES
Option 1
[
including competent authorities for enforcement of intellectual property rights and contact points for assistance to right holders;
[]
[ [Sing: delete subparagraph]
(c) applications [EU:forms]for the suspension by the competent authorities of the release of goods [J: infringing intellectual property right] [US/CAN/CH: suspected counterfeit and pirated goods ] as a border measure;] and
and
[Sing: delete subparagraph]
[CH:
Dafa protection laws in Switzerland may limit the possibility to
publish applications for the suspension of the release of goods.]
(d) its efforts to ensure effective enforcement of intellectual property rights and [US: an effective][ [J : intellectual property protection system] [Sing: intellectual property protection system] including any [US: any] statistical data that the Party may collect.]
Option 2
[
(a) provide that final judicial decisions lor admininistrative
rulings of general applicability pertaining to the enforcement of
intellectual property rights shall be in writing and shall state any
relevant findings of fact and the reasoning or the legal basis upon
which the decisions are based. Each Party shall also provide that such decisions or rulings shall be published[71],66]
or otherwise made publicly available, in a national language in such a
manner as to enable governments and interested persons to become
acquainted with them.
[72]][67]
Option 1
[ informrnation which would impede the
enforcement of its laws and regulations, including laws protecting
investigative techniques, right of privacy or confidential information
for law enforcement, or otherwise be contrary to [US: its domestic laws
or policy, or] the public interest, or would prejudice the legitimate
commercial interests of particular enterprises, public or private.
Option 2
[[EU: Move this paragraph to Chapter 3.1.4]
[AUS: 2. Nothing in paragraphs
1, 2 and 3 shall require Members to disclose personal information, or
confidential information which would impede law enforcement or
otherwise be contrary to the public interest or could prejudice the
legitimate commercial interests of particular enterprises, public or
private.]
[3NZ: It is NZ's
preference for this article to be developed into separate general
"Transparency" provision within ACTA that would apply "horizontally"
across the Agreement, rather than having transparency obligations
peppered throughout individual chapters.]
[EU: 2. In civil legal proceedings instituted for infringement of an intellectual property right, the
judicial authorities may order, at the request of the applicant and at
the expense of the infringer, appropriate measures for the
dissemination of the information concerning the decision, including
displaying the decision and publishing it in full or in part. Parties
may apply this provision to other judicial and administrative
proceedings.]
ARTICLE 4.4: PUBLIC AWARENESS
Each Party shall [take [J:necessary] [CAN: necessary] [Sing: such][AUS: appropriate]] [US: promote the adoption of appropriate] measures [Sing: as it deems appropriate] to enhance] [NZ: will promote] [US/MX: including educational projects,. designed to raise] public awareness of the importance of [J: the protection of ][US: protecting] intellectual property rights and the detrimental effects of intellectual property right infringement, including educational [J: and dissemination] [CAN: and dissemination] projects. [US/CAN/MX: Such measures may include joint initiatives with the private sector.]
[ARTICLE 4.5: DESTRUCTION OF INFRINGING GOODS
[EU: Article 4.5: Destruction of infringing goodsIn cases where confiscated goods found to bhe infringing intellectual property rights are to bhe destroyed, Parties shall endeavour to take environmental concerns into account when deciding on the destruction method. ]
CHAPTER FIVE: INSTITUTIONAL ARRANGEMENTS[73]
ARTICLE 5.1: THE [OVERSIGHT] [STEERING] [ACTA COMMITTEE]
1. The [Contracting] Parties [Each Party to this Agreement shall be represented in the ACTA Committee hereby establish][
[shall have a] the [Oversight][ACTA] [Steering] Committee, comprising
[[representatives of] [each of] the Parties] [one delegate from each
Party who may be assisted by alternative delegates, advisors and
experts.]ed by the Parties[68].
2. The Committee shall:
supervisereview the implementation of
this Agreement; [including a periodic mutual evaluation process of the
implementation of the Agreement by the parties, according to the
principles of equal treatment and a fair hearing.]
(b) [oversee [its][the] [the Agreement's] further elaboration [or development?] [of this Agreement], [deal withand operation of this Agreement;
(b) consider matters concerning the amendment and developement of this Agreement] while ensuring that such[elaboration][ development]does not duplicate;
(c) consider in accordance with Article 6.4 any amedments to the Agreement;
(d) approve the terms of accession to the agreement for WTO-Members seeking to become Party to this Agreement; and
(e) consider any other matter that may affect the implementation and operation of this Agreement.
3. The Committee may:
(a)
establish ad hoc committees or working groups to assist the Committee
in accomplishing its responsibilities under paragraph 2, as well as,
upon request, to assist prospective Parties in joining the Agreement;
(b) seek the advide of non-governmental persons or groups;
(c)
make recommendations regarding implemenation and operation of the
Agreement, including endorsing best practice guidelines related thereto;
(d)
share information and best practices on reducing intellectual property
rights infringement, including techniues for indentifying and
monitoring piracy and counterfeiting; and
(e) take sucj other action in the exercise of its functions os the Committee may decide.
4.
[AUS/Mex: All negotiating parties to the ACTA shall have the
opportunity to contribute to and endorse the rules of procedure of the
Committee.] The Committee shall adopt its rules and procedures
[EU/Kor/Mor: no later than its first meeting] [no later than its first
meeting] [US: within a reasonable period of time after its first
meeting]. Such rules and procedures shall include provisions with
respect to chairing and hosting meetings, performance of organizational
duties relevant to the Agrement and its operation, and may include
provisions with respect to observer status, and any other matter the
committee decides necessary for its proper operation. [J/Mex: The
Committee may amend, as required rules and procedures.] [NZ/US/J: The
Committee shall adopt its rules and procedures [US/J: within a
reasonable period of time]. The Committee shall invite [those] [AUS:
negotiating parties to ACTA] signatories [that are not yet parties] to
participate to the Committee's deliberation on rules and procedures.
Decisions adopting rules and procedures shall be taken by the Committee
if there is a consensus of all the signatories [Mex: and of Parties]
[whether or not they are parties of the Agreement].
5. All
decisions of the Committee shall be taken by consensus[69], except as
the Committee may otherwise decide by consensus. The working language
of the Committee shall be English.[70]
6. The Committee shall
convene at least once every year, with the first meeting held within a
reasonable period of time after entry into force of the Agreement,
pursuant to Article 6.2.1.
7. The Committee's role shall not
include any oversith or supervision relating to domestic or
international enforcement or criminal investifations of specific
intellectual property cases.
8. The Committee shall strice to avoid unnecessary duplication of other international efforts regarding the enforcement of intellectual property rights;
(c)
[[resolve][facilitate the avoidance of] disputes that may arise
regarding [its][the] interpretation or application[[74] ] [of this
Agreement]; ]and
(d) consider any other matter that may affect the operation of this Agreement.
3. The Committee may:
(a)
[establish,] [and delegate [tasks] tasks/responsibilities] to, ad hoc
or standing committees working groups or [Government] experts
groups;][to assist the Committee in accomplishing its tasks;][a
Task-Force to undertake the monitoring and the evaluation of the
Agreement, namely by reviewing the implementation of Parties'
obligations, as defined in Article 5.1.2.a) and assisting candidate
countries to join the Agreement. This Task-Force should consist of
experts appointed by the Parties and agreed upon by the Oversight
Committee;]
(b) seek the advice of non-governmental persons or groups [from the State Parties];
(c)
[make recommendations regarding the implementation of the Agreement
[including endorsing best practice guidelines for implementing the
Agreement, identifying and monitoring techniques of piracy and
counterfeiting and their evolution]];
(d) assist non-Party
governments in assessing the benefits of accession to the Agreement
[and share information and best practices on reducing IPR
infringements];
(e) [support international organizations in the enforcement of intellectual property rights;] and
(f) take such other action in the exercise of its functions as the Parties may decide.
[4. One-half of the members of the Committee shall constitute a quorum.]
5.
The Committee shall [establish its rules and procedures][ at its first
meeting adopt its rules of procedures] [including rules for the
convocation of extraordinary sessions]. All decisions of the Committee
shall be taken by consensus, [except as the Committee may otherwise
decide [by consensus]]. [The working language of the Committee shall be
English.]
6. The Committee shall convene [at least [once a
year]] [once every two years] [in regular session]. [T]he Committee
shall be chaired [and hosted][ successively by each Party][by a
volunteering Party] [in English alphabetically] . [assisted by a
Vice-Chair from the Party due to chair and host the subsequent
meeting.] [A Special session may be called for by one Party and
convened if the majority of the Parties does not oppose such request.
The Special session shall be chaired by the Party chairing the Regular
session of that year. The Committee shall preferably meet in Geneva.]
[7.
The Committee's role as set forth in Article 5.1 shall not include any
oversight or supervision relating to domestic or international criminal
investigations or enforcement of specific intellectual property cases.]
ARTICLE 5.2: THE SECRETARIAT
1.
The Party that is the Chair of the Committee shall provide the
Secretariat to the Committee for [the calendar year][the two calendar
years beginning with the calendar year [immediately prior to that]] in
which the Committee shall be convened with that Party as Chair.
2. The functions of the Secretariat shall be:
(a) to provide assistance to the Committee [as required, and];
(b) [to provide administrative support to the Chair][to perform the administrative tasks concerning this Agreement.]
(c) [to elaborate all documents resulted from ordinary or extraordinary sessions]
(d) [to submit documents derived from ordinary or extraordinary sessions to all parties]
ARTICLE 5.3.
ARTICLE 5.2: CONTACT POINTS
1. [Each Party shall designate a [current] contact point to facilitate communications [between the][ with other]amond the Parties on any matter covered by this Agreement.]
[The][Each Party shall transmit the] [name, [and][physical] address,
telephone number [and e-mail address]] of that contact point [shall be
transmitted] to the Depositary [prior to the entry into force of the
Agreement for that Party], who shall circulate the information to the
Parties.
2. On the request of [another][one]a Party, the contact point [of another Party] shall identify [the] [according to the matter concerned, an appropriate] office or official [responsible for the matter concerned] and assist, as necessary, in facilitating communication between the [responsible] office or official concerned withand the requesting Party.
[ARTICLE 5.4: TRANSPARENCY
Option 1
[1.
Each Party shall ensure that its laws, regulations,[procedures] [final
judicial decisions], and administrative rulings of general application
respecting any matter covered by this Agreement are promptly [in an
appropriate time] published or otherwise made publicly available [in a
national language,] in such a manner as to enable governments and
interested persons to become acquainted with them.]
Option 2
[1.
Each Party shall ensure that final judicial decisions or administrative
rulings of general applicability pertaining to the enforcement of
intellectual property rights shall be in writing and shall state any
relevant findings of fact and the reasoning or the legal basis upon
which the decisions are based. Each Party shall also ensure that such
decisions or rulings shall be published[75], or otherwise made publicly
available, in a national language in such a manner as to enable
governments and interested persons to become acquainted with them.]
[2.
Each Party shall notify the laws and regulations referred to in
[paragraph (1)][Article 4.3] to the Oversight Committee in order to
assist that Committee in its review of the operation of this Agreement.]
3.
Each Party shall supply, in response to a written request from another
Party, information regarding its laws, regulations, [procedures][ final
judicial decisions] and administrative rulings of general application
[respecting][ with respect to] any matter covered by this Agreement.
4.
Nothing in paragraphs [1, 2 and 3][1 and 2] shall require a Party to
disclose {confidential} information which would impede law enforcement
or otherwise be contrary to [domestic laws and policies, or] the public
interest or would prejudice the legitimate commercial interests of
particular enterprises, public or private.
ARTICLE 5.5
ARTICLE 5.3: CONSULTATION
1. Each Party shall [[Mex/Kor:
may request in writing consultation with another Party regarding the
implementation and operation of this Agreement. The requested Party]
shall accord sympathetic consideration to [Mex: such request], and shall] afford [CH: upon request] adequate opportunity for consultation regarding, such [representations] [statements] as may be made [to it] by another Party with respect to any matter affecting the operimplementation of this Agreement.
[ARTICLE 5.6: OBSERVERS
Countries candidate to bec
2. Each Party shall supply, in response to a written request frome a Party to the Agreement may be invited [by the Committee] to attend sessions or pnother
Party, information regarding its laws, regulations, procedures, [final
judicial decisions,][71], or administrative rulings of general
application with respect to any matter covered by this Agreement.[72]
3. Any such consultations, including particular positions taken by Parties thereof
of the Oversight Committee as observers. An invitation under the same
status may be extended [by the Committee] to international
organizations active in the field of intellectual property and to
non-governmental groups of intellectual property stake-holders]in,
shall be confidential, and without prejudice to the rights of eith
Party in any other proceeding, including ones under the auspices of the
WTO Understanding on Rules and Procedures Governing the Settlement of
Disputes.
4. The Parties may by mutual agreement notify the
result of consultation referred to in paragraph 2 of this Article to
the Committee.
CHAPTER SIX: FINAL PROVISIONS[76]
[ARTICLE X : TRANSPARENCY
1.
Each Party shall ensure that its laws, regulations, procedures, and
administrative rulings of general application respecting any matter
covered by this Agreement are promptly published or otherwise made
publicly available in such a manner as to enable governments and
interested persons to become acquainted with them.
2. Each Party
shall notify the laws and regulations referred to in paragraph (1) to
the Oversight Committee in order to assist that Committee in its review
of the operation of this Agreement.
3. Each Party shall supply,
in response to a written request from another Party, information
regarding its laws, regulations, procedures, and administrative rulings
of general application respecting any matter covered by this Agreement.
4.
Nothing in paragraphs 1, 2 and 3 shall require a Party to disclose
confidential information which would impede law enforcement or
otherwise be contrary to the public interest or would prejudice the
legitimate commercial interests of particular enterprises, public or
private.]
ARTICLE 6.1: BECOMING PARTY TO THE AGREEMENT
1. [
Any member of the [World Intellectual Property Organisation] [World
Trade Organization] [or the World Trade Organization (WTO)] [or of the
United Nations] may become party to this Agreement.[ Decisions on
accession shall be taken by the Oversight Committee. The Oversight
Committee shall approve the agreement on the terms of accession by
[unanimity][a two-thirds majority of the Parties]].
2. Any
Intergovernmental Organization which [the Committee decides] meets the
requirements of paragraph 5 may become party to this Agreement. The
Organization shall inform the Depositary of its competence [in respect
of matters governed by this Agreement], and any subsequent changes in
its competence, with respect to the matters governed by this Agreement.
The Organization and its member States may, without, however, any
derogation from the obligations under this Agreement, decide on their
respective responsibilities for the performance of their obligations
under this Agreement [without, however, any derogation from the
obligations under this Agreement].
3. A [State or
Intergovernmental Organization][ member of any organization identified
in paragraph 1] may become party to this Agreement by:
(a) signature followed by the deposit of an instrument of ratification, acceptance or approval, or
(b) the deposit of an instrument of accession.
4. The instruments referred to in paragraph (3) shall be deposited with the Depositary.
5.
In this Article, "Intergovernmental Organization" means an organization
constituted by, and composed of, States of any region of the world,
which has competence in respect of matters governed by this Agreement,
has its own legislation providing for intellectual property protection
and binding on all its member States, and has been duly authorized, in
accordance with its internal procedures, to sign, ratify, accept,
approve or accede to this Agreement.
Aritcle 6.1: Signature
This Agreement shall remain open for signature by participants[73] in its negociation from [date] until [date] at the Depositary
ARTICLE 6.2: ENTRY INTO FORCE OF THE AGREEMENT
1. This Agreement shall enter into force, with respect to each [[30] days after the deposit of the [first five States or Intergovernmental Organizations] [[five] members of either organization identified in Article 6.1.1]fth instrument of ratification, acceptance or approval between those states which have deposited instruments of ratification, acceptance or approval][, with respect to each of the first [five] signatories which deposit their instruments of ratification, acceptance, approval or accession, [three months] [90aceptance, [30] days] after the date on which the [fifth] instrument of ratification, acceptance, approval or accession has beenacceptance is deposited.]
2. With respect to any
[State or Intergovernmental Organization][member of either organization
identified in Article 6.1.1] not covered by paragraph (1), this
Agreement shall enter into force [three months][90 days] after the date
on which that [State of Intergovernmental Organization][member of
either organization identified in Article 6.1.1] has deposited
acceptance deposited [after entry into force of the Agreement pursuant
to paragraph (1)][JP: after the date on which the fifth instrument of
acceptance [CH: , ratification or approval] is deposited], this
Agreement shall enter into force [3] days after the date on which [JP: its instrument of] [the] acceptance [CH: , ratification or approval] is deposited by a signatory.
[CA: 2. For each additionnal signatory that deposits its instrument of ratification, acceptance, approval or accession.
or approval after the entry into force of the Agreement [NZ: after the
date on which the fifth instrument of acceptance is deposited], the
Agreement shall enter into force that signatory [30] days after the
date of deposit of its instrument of ratification, acceptance or
approval.]
ARTICLE 6.3: WITHDRAWAL
A
Party may withdraw from this Agreement by means of a written
notification to the Depositary. Such withdrawal shall take effect [one year][six months]180 days after the notification wais received by the Depositary.
ARTICLE 6.4: AMENDMENTS
1. [Any
Party may initiate a proposal to amend the provisions of this Agreement
by submitting such proposal [to the Oversight Committee]]. This
Agreement may be amended by the Parties on the basis of a [previous]
text adopted by the [Oversight][ACTA][ Steering] Committee.[Each
Party propose amendments to the Agreement to the Commitee. Any decision
by the Commitee to present the proposed amendments to the Parties for
adoption shall be taken by consensus.
2. The Parties shall
deposit their respective intruments of acceptance [NZ: , ratification
or approval] of any such amendment with the Depositary.
3. Such
amendment shall enter into force 90 days after the date that all the
Parties have deposited instruments of acceptance [NZ: , ratification or
approval].
[JP: 1. Each Party may propose amendments to the Agreement to the Committee. The Committee shall decide uponAny decision to adopt the proposed amendments shall be made by consensus.]
2. The Pparties shall deposit their respective instruments of ratification, acceptance or approval of any such amendments with the Depositaory.
3. Such amendments shall enter into force on the [first day of the third month following] [90 days after the date of] [three months after the date of] the deposit of the last of90 days after the date that all the Parties have deposited the instruments of ratification, acceptance or approval of all the Parties.
ARTICLE 6.5.
4.
Notwithstanding the propositions of paragraphs 2 and 3 of this Article,
amendments not involving new obligations for the Parties shall enter
into force on the date of their adoption by the Committee. The decision
of the Committee on whether the amendments involve such obligation or
not shall be made by consensus.]
ARTICLE 6.5: BECOMING PARTY TO THE AGREEMENT
1.
After the expiration of the period provided in Article 6.1, any Member
of the World Trade Organisation ("WTO") may [apply to become Party to
this Agreement.] [JP: become a Party to this Agreement by the deposit
of an instrument of accession. As to that Party, this Agreement shall
enter into force 90 days after the date of such deposit.]
2. The Committee shall approve the terms of accession for each applicant by consensus.
3.
After the Committee approves of the terms of accession to the
Agreement, the applicant shall become a Party to the Agreement [30]
days after the deposit of an instrument of acceptance [US: ratification
or approval] [Mex: acceptance accession] with the depository.
ARTICLE 6.6: TEXTS OF THE AGREEMENT
[This Agreement is establishshall be [signed in [a single originalfficial copy in the][ English][, language] [CA: signed in the English and French][, Spanish][, Arabic] languages, all text languages, both copies being equally authentic.] [In case of any inconsistency between the texts, the English version shall prevail.]and copies established in the [insert name(s) of language(s)].
ARTICLE 6.67: DEPOSITAORY
[Name of [State][ entity]] shall be the Depositaory of this Agreement.
ARTICLE 6.7: SIGNATURE
This
Agreement shall be open for signature between [date] and [date] with
the [Government of] ......... [the [country][entity]] that exercises
the functions of Depositary].Footnotes
1. This Section A has been proposed as an initial discussion draft by the US, to receive detailed reactions at the next Round.
2. Negotciator's Note: Provisions on transitional arrangements (i.e.,I.E. entry into force) and application to prior acts will be included in Chapter 6.
3. Subject to confirmation by the US and NZ delegations.
4. Subject to confirmation by AUS for deleting the paragraph (original
wording: When a Party provides written information pursuant to a
request or requirements under this Agreement, the Party receiving the
information shall not disclose or use the information for a purpose
other than that for which it was requested or required, except with the
prior consent of the Party providing the information [Mex: unless a
judicial order warrants it.)
5. Not a legal issue ; decision by HoD to include or not.
6. Section B of the Initial Provisions is still to be discussed.
4. 7. For greater certainty, "TRIPS
Agreement" includes any waiver in force between the Parties of any
provision of the TRIPS Agreement granted by WTO Members in accordance
with the WTO Agreement.
58. This General Obligations Section has been proposed as an initial discussion draft by the US, to receive detailed reactions at the next Round.
6. [Move (with adjustments) Art. 2.1.2 to General Obligations.]
7. [A Party may comply with its obligation relating to exportation of
infringing goods through its provisions concerning distribution [or
transfer].]
8. [
9. Delegations need more time for further consultations.
10. [EU: {10} The conditions and procedures relating to such injunection will be left to each Party's legal system.]
9. At least one delegation11. US, NZ, CAN, A7S, Mex, J, opposes paragraph 2 and is. The US and J are considering its placement
10. At least one delegation proposes to delete (ii) as originally proposed and move (ii) into paragraph 2.2.1(b).
11. Such measures may include the presumption that the amount of
damages is (i) the quantity of the goods infringing the right holder's
intellectual property right and actually assigned to third persons,
multiplied by the amount of profit per unit of goods which would have
been sold by the right holder if there had not been the act of
infringement or (ii) a reasonable royalty [ or (iii) a lump sum on the
basis of elements such as at least the amount of royalties or fees
which would have been due if the infringer had requested authorization
to use the intellectual property right in question].
12. [No Party
is required to apply paragraph 2 to actions for infringement against a
Party or a third party acting with the authorization or consent of the
Party.]
13. [No Party is required to provide the right holders with more than one of the options referred to in paragraph 2.]
14. [For greater certainty, the term "reasonable attorney's fees" is
not intended to require a higher amount than the amount of "appropriate
attorney's fees" under the TRIPS Article 45.2.]
15. [For greater
certainty, the term "reasonable attorney's fees" is not intended to
require a higher amount than the amount of "appropriate attorney's
fees" under the TRIPS Article 45.2.]
16. This provision is to be reflected in the General Obligations Section.
17. [Negotiators Note: Study moving this clause to General Provisions section]
18. At least one delegation2. See footnote 11 to be kept
13. EU raises issue of scope of this provision.
19. 4. Where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border.
20. [15. [J: Each Party shall implement
the obligations in respect of importation and exportation set out in
this Section so as to be applied to shipments of goods consigned to {[a local party/a party in the territory}] but destined for outside the territory of the Party].
21.
No Party shall be obliged to apply this section to any goods that do
not infringe an intellectual property right held within the territory
of that Party]. [Negotiator's note: Study moving to General Provisions
section.]
22. [16. Aus/KOR/CH/J: The provisions of this section shall also apply to confusingly similar trademark goods [J: , which
means any goods, including packaging, bearing without authorization a
trademark that is similar to the trademark validly registered in
respect of such or similar goods where there exists a liklelihood
of confusion on the part of the public between the trademark borne and
the trademark validly registered, and that thereby infringesd
the rights of the owner of the trademark in question under the law of
the country in which the procedures set out in this Section are
invoked.]]
23. 17.
[NZ: For greater certainty, Parties may apply this Section where a
consignement forms part of a series of small consignements that may
reasonably be considered to have been undertaken or arranged for the
purpose of meeting the conditions of an exclusion.]
18. For the purposes of this Section, in-transit gfoods means goods
under "Customs transit" and under "transhipment". "Customs transit"
means the Customs procedure under which goods are transported under
Customs control from one Customs office to another. "Transhipment"
means the Customs procedure under which goods are transferred under
Customs control from the importing means of transport to the exporting
means of transport within the area of one Customs office which is the
office of both importation and exportation.]
24. [19. [US/J: For the purpose of this Section, where
the competent authorities suspend the release of suspected counterfeit
trademark or pirated copyright goods, the authorities shall not permit
the goods to be released into free circulation, exported, or subject to
other customs proceddeures, except in exceptional circumstances.]
25. 0. For purposes of this Section, 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, ot that canno be distinguised
in its essential aspects from such a trademark, and that thereby
infringes the rights of the owner of the trademark in question under
the law of the country in which the procedures set out in this Section
are invoked.
an/US: It is to be understood that there shall be no
obligation to apply such procedures to imports of goods pu on the
market in another country by or with the consent of the right holder.]
21. For purposes of this Section, pirated copyright goods means any
goods that are copies made without the consent of the right holder or
person duly authorizied 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 in which
the procedures set out in this Section are invoked.
22. [US/J: {22}
For the purpose of this Section, where the competent authorities
suspend the release of suspected counterfeit trademark or pirated
copyright goods, the authorities shall not permit the goods to be
released into free circulation, exported, or subject to other customs
procedures, except in exceptional circumstances.]
23. For purposes
of this Section, 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 question under the law of the country in which the
procedures set out in this Section are invoked.
Ian/US: lt is to be understood that there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder.]
26. 4.
For purposes of this Section, pirated copyright goods means any goods
that are copies made without the consent of the right holder or person
duly authorizied 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 in which the procedures set out in this Section are invoked.
27. 5. Whether this applies to imports, exports and/or in transit goods depends on paragraph 1.-transit goods depends on paragraph 1.
26. Whether this applies to imports, exports and/or in-transit goods depends on paragraph 1.
27. Negotiator's note: Subject to 1.4
28. Subject to scope.
29. Subject to scope.
30. Subject to scope.
31.
At least one delegation may come back with a possible additional
paragraph for Article 2,12, depending upon the progress of discussion
in the Civil Enforcement Section.
32. Negotiator's note: legal scrubbing pending.
32. Subject to scope.
33. For purpproses of the Articles, "days" shall mean "business days".
33. Subject to agreement by at least one delegation.
34. Negotiator's Note: Definitions of "counterfeit trademark goods" and "pirated copyright goods" provided for in footnotes 12 and 13[ ] and [ ] of Section 2 (Boarder Measures) should be used as context for this Section.
35. This provision is under internal examination by
at least one delegation. Subparagraphs (a) and (b) are still under
examination by at least one delegation. At least one is still
considering paragraphs 1 and 2in the EU.
36. Each Party shall treat willfull importation [or exportation] [Sing/Can: or exportation] of counterfeit trademark goods or pirated copyright goods on a commercial scale [J/EU: , in accordance with its laws and regulations,] as
unlawful activities subject to criminal penalties under this Article. A
Party may comply with its obligation relating to [exportation] [EU: and importation] of pirated copyright or counterfeit trademark goods through its measures concerning distribution.
37. For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of value.
38. A
Party may comply with its obligation relating to importation of labels
or packaging through its measures concerning distribution.
38. To be checked in legal scrubbing.
39. At least one delegation has asked for the deletion of paragraph 3.
39. At least one delegation opposes paragraph 2, 'Inciting, Aiding and Abetting'.
40. [US: It is understood that there is no obligation to provide penalties of imprisonment against legal persons for the crimes set forth in Article 2.14.].
41. [Negotiator's note: [US: It is understood that there is no obligation for a Party to impose both imprisonment and monetary fines in parallel] [EU: This does not imply an obligation for a Party to provide for the courts a possibility to impose both penalties in parallel.]
42. Each Party may provide
that its judicial authorities have the authority to order [fines or]
the seizure of assets the value of which corresponds to that of such
assets derived from or obtained, directly or indirectly, through the
infringing activity.
43. At least one delegation to propose wording to clarify whether forfeiture to right holder or to state.
44. At least one delegation proposes that this provision be reflected in the General Provisions of the Agreement.
45. At least one delegation reserves itsdefine “serious offences" in accordance with its national law.
43. Each Party may define "serious offences"' in accordance with its national law.
44. Canada and Mexico reserve their right to revisit elements of this Section at a later date.
46. [5. [EU/CH/NZ: See identical comment on the draft Chapter
2, Section 1 "Civil Enforcement" and Section 3 "Criminal Enforcement".
A suggestion is to move these provisions into Chapter 1, Section A
which applies to the whole Agreement. Direct reference to TRIPS might
also clarify the scope of thesre obligations.]
47. [6. [US/MX: For greater certainty, the Parties understand that third
party liability means liability for any person who authorizes for a
direct financial benefit, induces through or by conduct directed to
promoting infringement, or knowingly and materially aids any act of
copyright or related rights infringement by another. Further, the
Parties also understand that the application of third party liability
may include consideration of exceptions or limitations to exclusive
rights that are confined 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, including fair use, fair dealing, or their equivalents.] At least one delegation opposes this footnote.
48.
47. Negotciator's Nnote: This provision may be moved and located in the civil enforcement section.
49. Negotiator's Note: Definition of person still pending in General Provisions.
50. [8. For purposes of this Article, online
service provider and provider mean a provider of online services or
network access, or the operators of facilities therefore, and includes
an entity offering the transmission, routing, or providing of
connections for digital online communications, [Can: between or
among points specified by a user, of material of the user's choosing,
without modification to the content of the material as sent or received.]
51. At least one delegation suggests moving the second and third
sentences of paragraph 3. At least one delegation suggests moving the
first and second sentences of] between or among points
specified by a user, of material of the user's choosing, without
modification to the content of the material as sent or received.
49. In implementing Article 2.18.3, each Party may provide limitations
on the scope of injunctions available against online service providers
for infringing activities included in paragraph 3(a).
52. 0. For greater certainty, the Parties understand that [EU: these limitations
are not intended to harmonize the liability of online service provider,
but exclude liability in certain situations. Thus] the failure of an
online service provider's conduct to qualify for a limitation of
liability under its measures implementing this provision shall not bear
adversely upon the consideration of a defense by the provider that the provider's conduct is not infringing or any other defense.
53. Clarify which conditions apply to which activities.
54. [Negotiator's Note: Definition of "person" still pending in General Provisions.]
55. [For purposes of this Article, online service provider and provider
mean a provider of online services or network access, or the operators
of facilities therefore, and includes an entity offering the
transmission, routing, or providing of connections for digital online
communications, between or among points specified by a user, of
material of the user's choosing, without modification to the content of
the material as sent or received.]
56. [The activities covered in paragraph 3(a)(i) cover t1. [US/EU/CAN will provide for clarification of this provision with respect to ephe mere conduit and the activities covered in paragraph 3(a)(ii) and (iii) cover respectivelyal caching and hosting in accordance with parties legal systems.]
57. At least one delegation proposes to redraft this sub-paragraph.
58. At least one delegation proposes to include language in this
footnote to provide greater certainty that their existing national law
complies with this requirement.
59. At least one delegation has reservations about several elements in paragraph 4.
60. At least one delegation opposes inclusion of 'adequate legal protection'.
61. At least one delegation opposes inclusion of 'or owner of an exclusive license'.
62. [For the purpose of this Article, willful conduct means actual
knowledge or reasonable grounds to know that he or she is pursuing the
objective of circumventing an].
52. [US: Each party understands that a legally effective technological measure.]
63. At least one delegation opposes inclusion of 'adequate legal protection'.
64. For thenotice
or counter-notice must, at a minimum, contain information that is
reasonably sufficient to enable the online service provider to identify
the work or works claimed to have been infringed and the online
location ofthe alleged infringement.]
53. [Option US: For purposes of this Article, an effective technological measure means any technology, device, or component that, in the normal course of its operation,
[controls access to a protected work, performance, phonogram, or
protects any copyright or any rights related to copyrights.][is
controlled by the right holders through application of an access
control or protection pro is used by or at the direction or a right holder to control access, such as encryption, scrambling, or other transformation of their works, [NZ: performers] performances, or phonograms, or a copy control mechanismthat protects any copyright or rights related to copyright.] [EU:, which achieves the protection objective.]
65. [The] [I
54. [J: Each Party may
comply with its obligation under this paragraph by providing such
protection against appropriate cases of conduct referred to in
subparagraph (a) and (b), provided that it does not impair the adequacy
of legal protection or the effectiveness of legal remedies.]
55. No Party shall be obliged to apply subparagraph (a) to the unauthorized circumvention of a copy control.
56. No Party shall be obliged to apply subparagraph (a) to the unauthorized circumvention of a copy control.
57. [J: in accordance with the applicable national legislation, t] The] obligations in paragraphs (4) and (5) [are][may be] without prejudice to the rights, limitations, exceptions, or defenses to copyright or related rights infringement. Further, [US: in implementing] paragraph (4), no Party may][paragraph (4) does not imply [US: does not create an obligation to] does not create any obligation [US: no Party may] 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 particulat technological measure, so long as the product does not otherwise violate any measure implementing paragraph (4).
58. [J: in accordance with the applicable national legislation, ] The
obligations in paragraphs (4) and (5) are without prejudice to the
rights, limitations, exceptions, or defenses to copyright or related
rights infrigement. Further, [US: in implementing] paragraph (4)[US:
does not create an obligation to] does not create an obligation [US: no
Party may] to require that the design of, or the design and selection
of parts and components for, a consumer electronics,
telecommunications, or computing product provide for a response to any
particular technological measure, so long as the product does not otherwise violate any measures implementing paragraph (4).
66. At least one delegation is to reflect on appropriate location for this provision.
67. Negotiator's Note: This provision is subject to broader government action/59. Negiciator's note: sovereign immunity provision elsewhere in the Agreement.
68. [For the purpose of this Article, willful conduct means knowingly
performing without authority any of the following acts listed under
subparagraph 6 (a) or (b), if such person knows or has reasonable
grounds to know that by so doing he is inducing, enabling,
facilitating, or concealing an infringement of any copyright or any
rights related to copyright.]
69. required for this provision
60. For purposes of this Article, [electronic] rights management information means: (a
) information that identifies a work, [KOR: or other protected subject matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] [performance, or phonogram]; the author [of the work, the performer of the performance, or the producer
of the phonogram] [or any other right holders of the subject matters
specified under Article 14 of the TRIPS Agreement]; or the owner of any right in the work, performance, or phonogram; (b
) information about the terms and conditions of the use of the work, [performance, or phonogram] [or any other right holders of the subject matters specified under Article 14 of the TRIPS Agreement]; or (cKOR: or other protected subject matters of copyrights or related rights]; or
) any numbers or codes that represent the information described in (a) or (b) above, when any of these items is attached to a copy of the work, [performance, or phonogram] [KOR: or other protected subject matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] or appears in connection with the communicatorion or making available of a work, [performance, or phonogram] [KOR: or other protected subject matters specified under Article 14 of the TRIPS Agreementof copyrights or related rights] to the public.
70. [61. Consider substituting the term "at least"
62. Subject to scope.
63. Subject to confirmation by Mor.
64. Language to be reviewed by legal experts.
65. Article 4.2 should be reviewed in relation to other proposal os in Chapter 2 regarding Information Exchange between Customs Authorities.]
71. [66. [US: For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by making it available tofor the public on the Internet.]
72. [67. [US: For greater certainty, nothing in [this sub-paragraphe] is intended to prescribe the type, format, and method of publication of the information a Party must publicize.]
73. At least one delegation reserves its right to revisit elements of this chapter at a later date.
74. The application of this provision shall not conflict with the rules
and implementation of the Dispute Settlement Understanding of the World
Trade Organization.
75. [For greater certainty, a Party may satisfy
the requirement in [Article 5.3] to publish a measure by making it
available to the public on a publically accessible Internet site.]
76. At least one delegation reserves its right to revisit elements of this chapter at a later dat68. Exact wording to be determined by the expert group.
69. [Negotiators's note: consensus may be defined in the rules and procedures, at a later stage.]
70. [Negotiator's note: will be finalized after 5.1.4]
71. Pending confirmation from the EU
72. [NZ: appropriateness to have a transparency section]
73. [Will insert a list of participants as a footnote or as part of a preamble.]
