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1 <p> |
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2 Consolidated Text<br /> |
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3 Prepared for Public Release<br /> |
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4 Anti-Counterfeiting Trade Agreement<br /> |
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5 PUBLIC Predecisional/Deliberative Draft:<br /> |
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6 April 2010<br /> |
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7 This draft text does not identify participants’<br /> |
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8 positions in respect of square bracketed options.<br /> |
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9 2<br /> |
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10 CHAPTER ONE<br /> |
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11 INITIAL PROVISIONS AND DEFINITIONS<br /> |
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12 [ 1 : Section A: Initial Provisions<br /> |
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13 ARTICLE 1.1: RELATION TO OTHER AGREEMENTS<br /> |
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14 Nothing in this Agreement shall derogate from any international obligation of a<br /> |
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15 Party with respect to any other Party under existing agreements to which both Parties<br /> |
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16 are party.<br /> |
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17 ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS 2<br /> |
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18 1. Members shall give effect to the provisions of this Agreement. A Party may<br /> |
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19 implement in its domestic law more extensive protection and enforcement of intellectual<br /> |
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20 property rights than is required by this Agreement, provided that such protection and<br /> |
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21 enforcement does not contravene the provisions of this Agreement. Members shall be<br /> |
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22 free to determine the appropriate method of implementing the provisions of this<br /> |
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23 Agreement within their own legal system and practice.<br /> |
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24 2. Nothing in this Agreement creates any obligation with respect to the distribution<br /> |
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25 of resources as between enforcement of intellectual property rights and enforcement of<br /> |
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26 law in general.<br /> |
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27 ARTICLE 1.3: RELATION TO STANDARDS CONCERNING AVAILABILITY AND SCOPE OF<br /> |
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28 INTELLECTUAL PROPERTY RIGHTS<br /> |
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29 1. This Agreement shall be without prejudice to provisions governing the<br /> |
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30 availability, acquisition, scope, and maintenance of intellectual property rights<br /> |
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31 contained in a Party’s law.<br /> |
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32 2. It is understood that this Agreement does not create any obligation on a Party to<br /> |
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33 apply measures where a right in intellectual property is not protected under the laws and<br /> |
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34 regulations of that Party.<br /> |
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35 ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION<br /> |
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36 [A suitable provision needs to be drafted that would ensure nothing in the Agreement<br /> |
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37 detracts from national legislation regarding protection of personal privacy. In the same<br /> |
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38 1<br /> |
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39 This Section A has been proposed as an initial discussion draft, to receive detailed reactions at the next<br /> |
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40 Round.<br /> |
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41 2<br /> |
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42 Negotiator’s Note: Provisions on transitional arrangements (i.e., entry into force) and application to<br /> |
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43 prior acts will be included in Chapter 6.<br /> |
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44 3<br /> |
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45 way, a suitable provision needs to be drafted regarding disclosure of commercial<br /> |
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46 information]<br /> |
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47 [Section B 3 : General Definitions<br /> |
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48 ARTICLE 1.X: DEFINITIONS<br /> |
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49 For purposes of this Agreement, unless otherwise specified:<br /> |
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50 days means calendar days;<br /> |
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51 intellectual property refers to all categories of intellectual property that are the subject<br /> |
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52 of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of<br /> |
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53 Intellectual Property Rights.<br /> |
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54 Council means the ACTA Oversight Council established under Chapter Five;<br /> |
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55 measure includes any law, regulation, procedure, requirement, or practice;<br /> |
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56 person means either a natural person or a juridical person;<br /> |
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57 right holder includes a federation or an association having the legal standing and<br /> |
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58 authority to assert rights in intellectual property, and also includes a person that<br /> |
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59 exclusively has any one or more of the intellectual property rights encompassed in a<br /> |
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60 given intellectual property;<br /> |
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61 territory means customs territory of a Party and all free trade zones of that Party;<br /> |
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62 TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual<br /> |
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63 Property Rights, contained in Annex 1C to the WTO Agreement; 4<br /> |
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64 WTO means the World Trade Organization; and<br /> |
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65 WTO Agreement means the Marrakesh Agreement Establishing the World Trade<br /> |
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66 Organization, done on April 15, 1994.<br /> |
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67 3<br /> |
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68 Section B of the Initial Provisions is still to be discussed.<br /> |
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69 4<br /> |
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70 For greater certainty, “TRIPS Agreement” includes any waiver in force between the Parties of any<br /> |
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71 provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement.<br /> |
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72 4<br /> |
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73 CHAPTER TWO<br /> |
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74 LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS<br /> |
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75 [General Obligations 5<br /> |
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76 ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT<br /> |
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77 1. Procedures adopted, maintained, or applied to implement this Chapter shall be<br /> |
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78 fair and equitable. They shall not be unnecessarily complicated or costly, or entail<br /> |
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79 unreasonable time-limits or unwarranted delays.<br /> |
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80 2. In respect of civil remedies and criminal penalties for enforcement of intellectual<br /> |
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81 property rights, each Party shall take into account the need for proportionality between<br /> |
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82 the seriousness of the infringement and the remedies or penalties ordered.<br /> |
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83 [3. Those measures, procedures and remedies shall also be [effective,<br /> |
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84 proportionate][ fair and equitable] and [deterrent]] 6 ]<br /> |
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85 4. [Provision on limitations on remedies available against use by governments as<br /> |
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86 well as exemptions of public authorities and official from liability to be inserted here at<br /> |
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87 a later date.]<br /> |
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88 5. [Define scope of the intellectual property rights covered in the Agreement]] [The<br /> |
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89 scope of intellectual property rights will be defined at the start of each chapter.]<br /> |
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90 Section 1: Civil Enforcement<br /> |
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91 ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES<br /> |
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92 In the context of this section, e] [E]ach Party shall make available to right holders [civil<br /> |
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93 judicial] [or administrative] procedures concerning the enforcement of any [intellectual<br /> |
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94 property right] [copyrights and related rights and trademarks].<br /> |
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95 ARTICLE 2.X: INJUNCTIONS<br /> |
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96 [1. ]In civil judicial proceedings concerning the enforcement of [copyright or<br /> |
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97 related rights and trademarks] [intellectual property rights], each Party shall provide that<br /> |
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98 its judicial authorities shall have the authority [subject to any statutory limitations under<br /> |
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99 its domestic law] to issue [against the infringer an injunction aimed at prohibiting the<br /> |
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100 continuation of the] [an order to a party to desist from an] infringement, including an<br /> |
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101 order to prevent infringing goods from entering into the channels of commerce [and to<br /> |
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102 5<br /> |
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103 This General Obligations Section has been proposed as an initial discussion draft, to receive detailed<br /> |
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104 reactions at the next Round.<br /> |
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105 6<br /> |
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106 [Move (with adjustments) Art. 2.1.2 to General Obligations.]<br /> |
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107 5<br /> |
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108 prevent their exportation]. 7<br /> |
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109 [2. The Parties [may] shall also ensure that right holders are in a position to apply<br /> |
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110 for an injunction against [infringing] intermediaries whose services are used by a<br /> |
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111 third party to infringe an intellectual property right. 8 ] 9<br /> |
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112 ARTICLE 2.2: DAMAGES<br /> |
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113 1. Each Party shall provide that:<br /> |
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114 (a) in civil judicial proceedings, its judicial authorities shall have the<br /> |
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115 authority to order the infringer [who knowingly or with reasonable<br /> |
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116 grounds to know, engaged in [infringing activity] of [copyright or related<br /> |
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117 rights and trademarks] [intellectual property rights] to pay the right<br /> |
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118 holder<br /> |
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119 (i) damages adequate to compensate for the injury the right holder<br /> |
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120 has suffered as a result of the infringement; or<br /> |
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121 (ii) [at least in the case of copyright or related rights infringement<br /> |
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122 and trademark counterfeiting,] [in the case of IPR infringements]<br /> |
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123 the profits of the infringer that are attributable to the<br /> |
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124 infringement, [which may be presumed to be the amount of<br /> |
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125 damages] [and that are not taken into account in computing the<br /> |
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126 amount of damages] [referred to in clause (i)] 10<br /> |
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127 [which may be presumed to be the amount of damages referred to<br /> |
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128 in clause (i)]; and<br /> |
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129 (b) in determining the amount of damages for [copyright or related rights<br /> |
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130 infringement and trademark counterfeiting] [infringement of intellectual<br /> |
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131 property rights], its judicial authorities shall consider, inter alia, any<br /> |
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132 legitimate measure of value submitted by the right holder, which may<br /> |
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133 include the lost profits, the value of the infringed good or service,<br /> |
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134 measured by the market price, the suggested retail price, or [the profits of<br /> |
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135 the infringer that are attributable to the infringement].<br /> |
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136 [7 A Party may comply with its obligation relating to exportation of infringing goods through its<br /> |
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137 provisions concerning distribution [or transfer].]<br /> |
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138 [8 The conditions and procedures relating to such injunction will be left to each Party’s legal system.]<br /> |
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139 9<br /> |
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140 At least one delegation opposes paragraph 2 and is considering its placement<br /> |
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141 10<br /> |
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142 At least one delegation proposes to delete (ii) as originally proposed and move (ii) into paragraph<br /> |
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143 2.2.1(b).<br /> |
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144 6<br /> |
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145 [2. At least with respect to works, phonograms, and performances protected by<br /> |
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146 copyright or related rights, and in [cases of trademark counterfeiting], in civil judicial<br /> |
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147 proceedings, [As an alternative to paragraph 1,] each Party [shall][may] establish or<br /> |
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148 maintain a system that provides:<br /> |
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149 (a) pre-established damages;<br /> |
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150 presumptions for determining the amount of damages 11 sufficient to<br /> |
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151 (b)<br /> |
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152 compensate the right holder for the harm caused by the infringement. 12 [;<br /> |
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153 or<br /> |
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154 (c) additional damages]]<br /> |
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155 [3. Where the infringer did not knowingly, or with reasonable grounds to know,<br /> |
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156 engage in infringing activity, each Party may [lay down that] [establish] [may authorize<br /> |
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157 its] the judicial authorities may [to] order the recovery of profits or the payment of<br /> |
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158 damages, which may be pre-established.]<br /> |
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159 [4. Where a Party provides one of the options described in paragraph 2(a) or 2(b),<br /> |
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160 that Party shall ensure that a right holder has the right to choose that option [ 13 ] as an<br /> |
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161 alternative to the remedies referred to in paragraph 1.]<br /> |
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162 Option 1<br /> |
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163 [5. Each Party shall provide that its judicial authorities, except in exceptional<br /> |
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164 circumstances, shall have the authority to order, at the conclusion of civil judicial<br /> |
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165 proceedings [[at least in cases] concerning copyright or related rights infringement,<br /> |
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166 [patent infringement,] or trademark infringement] that the prevailing party be awarded<br /> |
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167 payment by the losing party of [ [reasonable and proportionate] legal] court costs or<br /> |
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168 fees. [Each Party shall also provide that its judicial authorities, [except in exceptional<br /> |
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169 circumstances], [in proceedings concerning copyright or related rights infringement or<br /> |
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170 willful trademark counterfeiting,] shall have the authority to order, [in appropriate<br /> |
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171 cases], that the prevailing party be awarded payment by the losing party of reasonable<br /> |
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172 attorney’s fees [, and other expenses as provided for under that Party’s domestic<br /> |
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173 11<br /> |
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174 Such measures may include the presumption that the amount of damages is (i) the quantity of the<br /> |
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175 goods infringing the right holder’s intellectual property right and actually assigned to third persons,<br /> |
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176 multiplied by the amount of profit per unit of goods which would have been sold by the right holder if<br /> |
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177 there had not been the act of infringement or (ii) a reasonable royalty [ or (iii) a lump sum on the basis of<br /> |
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178 elements such as at least the amount of royalties or fees which would have been due if the infringer had<br /> |
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179 requested authorization to use the intellectual property right in question].<br /> |
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180 [12 No Party is required to apply paragraph 2 to actions for infringement against a Party or a third party<br /> |
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181 acting with the authorization or consent of the Party.]<br /> |
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182 [13 No Party is required to provide the right holders with more than one of the options referred to in<br /> |
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183 paragraph 2.]<br /> |
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184 7<br /> |
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185 law]. 14 ]<br /> |
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186 Option 2<br /> |
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187 [5. Each Party shall provide that its judicial authorities, [in appropriate cases], shall<br /> |
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188 have the authority to order, at the conclusion of civil judicial proceedings [[at least in<br /> |
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189 cases] concerning copyright or related rights infringement, [patent infringement,] or<br /> |
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190 trademark counterfeiting] that the prevailing party be awarded payment by the losing<br /> |
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191 party of court costs or fees and reasonable [and proportionate] attorney’s fees [, and any<br /> |
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192 other expenses as provided for under that Party’s domestic law]. 15 ]<br /> |
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193 ARTICLE 2.3: OTHER REMEDIES<br /> |
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194 1. With respect to goods that have been found to be [pirated or counterfeited]<br /> |
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195 [infringing an intellectual property right], each Party shall provide that in civil judicial<br /> |
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196 proceedings, at the right holder’s request, its judicial authorities shall have the authority<br /> |
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197 to order that such goods be [recalled, definitively removed from the channel of<br /> |
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198 commerce, or] destroyed, except in exceptional circumstances, without compensation of<br /> |
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199 any sort.<br /> |
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200 2. Each Party shall further provide that its judicial authorities shall have the<br /> |
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201 authority to order that materials and implements the predominant use of which has been<br /> |
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202 in the manufacture or creation of [infringing] [pirated or counterfeit] goods be, without<br /> |
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203 undue delay and without compensation of any sort, destroyed or disposed of outside the<br /> |
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204 channels of commerce in such a manner as to minimize the risks of further<br /> |
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205 infringements.<br /> |
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206 [3. The judicial authorities shall order that those remedies be carried out at the<br /> |
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207 expense of the infringer, unless particular reasons are invoked for not doing so.]<br /> |
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208 [4. [In ordering those remedies, the judicial authorities][Each Party shall further<br /> |
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209 provide that its judicial authority in ordering these remedies] shall take into account the<br /> |
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210 need for proportionality between the seriousness of the infringement and the remedies<br /> |
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211 ordered as well as the interest of third parties.] 16<br /> |
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212 ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT<br /> |
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213 [Without prejudice to other statutory provisions which, in particular, govern the<br /> |
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214 protection of confidentiality of information sources or the processing of personal<br /> |
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215 [14 For greater certainty, the term “reasonable attorney’s fees” is not intended to require a higher amount<br /> |
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216 than the amount of “appropriate attorney’s fees” under the TRIPS Article 45.2.]<br /> |
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217 [15 For greater certainty, the term “reasonable attorney’s fees” is not intended to require a higher amount<br /> |
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218 than the amount of “appropriate attorney’s fees” under the TRIPS Article 45.2.]<br /> |
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219 16<br /> |
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220 This provision is to be reflected in the General Obligations Section.<br /> |
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221 8<br /> |
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222 data,] 17 Each Party shall provide that in civil judicial proceedings concerning the<br /> |
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223 enforcement of [intellectual property rights][copyright or related rights and trademarks],<br /> |
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224 its judicial authorities shall have the authority upon a justified request of the right<br /> |
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225 holder, to order the [alleged] infringer [including an alleged infringer] to provide, [for<br /> |
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226 the purpose of collecting evidence] any [relevant] information [information on the<br /> |
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227 origin and distribution network of the infringing goods or services][in the form as<br /> |
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228 prescribed in its applicable laws and regulations] that the infringer possesses or controls,<br /> |
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229 [where appropriate,] to the right holder or to the judicial authorities. Such information<br /> |
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230 may include information regarding any person or persons involved in any aspect of the<br /> |
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231 infringement and regarding the means of production or distribution channel of such<br /> |
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232 goods or services, including the identification of third persons involved in the<br /> |
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233 production and distribution of the infringing goods or services or in their channels of<br /> |
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234 distribution. [For greater clarity, this provision does not apply to the extent that it would<br /> |
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235 conflict with common law or statutory privileges, such as legal professional privilege.] ]<br /> |
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236 ARTICLE 2.5: PROVISIONAL MEASURES<br /> |
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237 [X. Each Party shall provide that its judicial authorities shall have the authority, at<br /> |
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238 the request of the applicant, to issue an interlocutory injunction intended to prevent any<br /> |
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239 imminent infringement of an intellectual property right [copyright or related rights or<br /> |
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240 trademark]. An interlocutory injunction may also be issued, under the same conditions,<br /> |
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241 against an [infringing] intermediary whose services are being used by a third party to<br /> |
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242 infringe an intellectual property right. Each Party shall also provide that provisional<br /> |
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243 measures may be issued, even before the commencement of proceedings on the merits,<br /> |
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244 to preserve relevant evidence in respect of the alleged infringement. Such measures may<br /> |
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245 include inter alia the detailed description, the taking of samples or the physical seizure<br /> |
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246 of documents or of the infringing goods.]<br /> |
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247 1. Each Party shall [provide][ensure] that its judicial authorities [shall ]act<br /> |
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248 [expeditiously][ on requests] for provisional measures inaudita altera parte, and shall<br /> |
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249 endeavor to make a decision[ on such requests] without undue delay, except in<br /> |
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250 exceptional cases.<br /> |
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251 2. [In civil judicial proceedings concerning copyright or related rights infringement<br /> |
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252 and trademark counterfeiting 18 ], each Party shall provide that its judicial authorities<br /> |
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253 shall have the authority to order the seizure or other taking into custody of suspected<br /> |
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254 infringing goods, materials, and implements relevant to the act of infringement [and, at<br /> |
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255 least for trademark counterfeiting, documentary evidence relevant to the infringement].<br /> |
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256 [3. Each Party shall provide that its [judicial][competent] authorities have the<br /> |
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257 authority to require the plaintiff, with respect to provisional measures, to provide any<br /> |
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258 reasonably available evidence in order to satisfy themselves with a sufficient degree of<br /> |
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259 17<br /> |
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260 [Negotiators Note: Study moving this clause to General Provisions section]<br /> |
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261 18<br /> |
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262 At least one delegation raises issue of scope of this provision.<br /> |
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263 9<br /> |
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264 certainty that the plaintiff’s right is being infringed or that such infringement is<br /> |
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265 imminent, and to order the plaintiff to provide a reasonable security or equivalent<br /> |
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266 assurance [set at a level sufficient] to protect the defendant [, ensuring compensation for<br /> |
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267 any prejudice suffered when the measure is revoked or lapses due to any reason, ]and to<br /> |
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268 prevent abuse. [Such security or equivalent assurance shall not unreasonably deter<br /> |
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269 recourse to such procedures].<br /> |
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270 Section 2: Border Measures 19 [ 20 ] [ 21 ]<br /> |
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271 [ARTICLE 2.X: SCOPE OF THE BORDER MEASURES<br /> |
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272 1. This section sets out the conditions for action by the competent authorities when<br /> |
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273 goods are suspected of infringing intellectual property rights, within the meaning of this<br /> |
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274 agreement, when they are imported, exported, in-transit or in other situations where the<br /> |
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275 goods are under customs supervision.<br /> |
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276 2. For the purposes of this section, “goods infringing an intellectual property right”<br /> |
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277 means goods infringing any of the intellectual property rights covered by TRIPS 22 .<br /> |
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278 However, Parties may decide to exclude from the scope of this section, certain rights<br /> |
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279 other than trade marks, copyrights and GIs when [not protected exclusively by<br /> |
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280 copyright and trade mark systems and] [protected by [non-product- or sector-specific]<br /> |
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281 [registration] sui generis systems.]<br /> |
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282 3. [Parties shall provide for the provisions related to border measures to be applied<br /> |
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283 [at least ]in cases of trade mark counterfeiting and copyright piracy. [Parties may<br /> |
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284 provide for such provisions to be applied in other cases of infringement of intellectual<br /> |
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285 property rights.]]<br /> |
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286 19<br /> |
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287 Where a Party has dismantled substantially all controls over movement of goods across its border with<br /> |
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288 another Party with which it forms part of a customs union, it shall not be required to apply the provisions<br /> |
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289 of this Section at that border.<br /> |
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290 [20 Each Party shall implement the obligations in respect of importation and exportation set out in this<br /> |
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291 Section so as to be applied to shipments of goods consigned to {a local party/a party in the territory} but<br /> |
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292 destined for outside the territory of the Party].<br /> |
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293 21<br /> |
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294 No Party shall be obliged to apply this section to any goods that do not infringe an intellectual property<br /> |
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295 right held within the territory of that Party]. [Negotiator’s note: Study moving to General Provisions<br /> |
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296 section.]<br /> |
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297 [22 The provisions of this section shall also apply to confusingly similar trademark goods [ , which means<br /> |
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298 any goods, including packaging, bearing without authorization a trademark that is similar to the<br /> |
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299 trademark validly registered in respect of such or similar goods where there exists a likelihood of<br /> |
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300 confusion on the part of the public between the trademark borne and the trademark validly registered, and<br /> |
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301 that thereby infringes the rights of the owner of the trademark in question under the law of the country in<br /> |
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302 which the procedures set out in this Section are invoked.]<br /> |
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303 10<br /> |
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304 ARTICLE 2.X: DE MINIMIS PROVISION<br /> |
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305 Parties may exclude from the application of this Section small quantities of goods of a<br /> |
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306 non-commercial nature contained in travelers’ personal luggage [or sent in small<br /> |
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307 consignments.]<br /> |
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308 ARTICLE 2.X: PROVISION OF INFORMATION FROM THE RIGHT HOLDER<br /> |
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309 Each Party shall permit the competent authorities to request a right holder to supply<br /> |
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310 relevant information to assist the competent authorities in taking border measures<br /> |
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311 provided for under this Section. Each Party may also allow a right holder to supply<br /> |
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312 relevant information to the competent authorities.<br /> |
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313 ARTICLE 2.6: APPLICATION BY RIGHT HOLDER<br /> |
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314 Option 1<br /> |
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315 1. Each Party shall provide procedures for import [and in-transit23 ] shipments and [may]<br /> |
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316 [shall] provide procedures for export shipments, by which right holders may request the<br /> |
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317 competent authorities to suspend release 24 of suspected counterfeit trademark goods 25<br /> |
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318 and suspected pirated copyright goods 26 [goods suspected of infringing an intellectual<br /> |
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319 property right]into free circulation.<br /> |
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320 23<br /> |
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321 For the purposes of this Section, in-transit goods means goods under “Customs transit” and under<br /> |
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322 “transhipment”. “Customs transit” means the Customs procedure under which goods are transported<br /> |
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323 under Customs control from one Customs office to another. “Transhipment” means the Customs<br /> |
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324 procedure under which goods are transferred under Customs control from the importing means of<br /> |
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325 transport to the exporting means of transport within the area of one Customs office which is the office of<br /> |
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326 both importation and exportation.]<br /> |
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327 [24For the purpose of this Section, where the competent authorities suspend the release of suspected<br /> |
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328 counterfeit trademark or pirated copyright goods, the authorities shall not permit the goods to be released<br /> |
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329 into free circulation, exported, or subject to other customs procedures, except in exceptional<br /> |
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330 circumstances.]<br /> |
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331 25<br /> |
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332 For purposes of this Section, counterfeit trademark goods means any goods, including packaging,<br /> |
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333 bearing without authorization a trademark that is identical to the trademark validly registered in respect of<br /> |
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334 such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby<br /> |
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335 infringes the rights of the owner of the trademark in question under the law of the country in which the<br /> |
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336 procedures set out in this Section are invoked.<br /> |
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337 [It is to be understood that there shall be no obligation to apply such procedures to imports of goods put<br /> |
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338 on the market in another country by or with the consent of the right holder.]<br /> |
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339 26<br /> |
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340 For purposes of this Section, pirated copyright goods means any goods that are copies made without<br /> |
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341 the consent of the right holder or person duly authorized by the right holder in the country of production<br /> |
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342 and that are made directly or indirectly from an article where the making of that copy would have<br /> |
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343 constituted an infringement of a copyright or a related right under the law of the country in which the<br /> |
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344 procedures set out in this Section are invoked.<br /> |
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345 11<br /> |
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346 Option 2<br /> |
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347 [1. Each Party shall provide procedures by which right holders may request the<br /> |
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348 competent authorities to suspend the release of goods suspected of infringing<br /> |
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349 intellectual property rights.]<br /> |
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350 2. The competent authorities shall require a right holder requesting the procedures<br /> |
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351 described in paragraph 1 to provide adequate evidence to satisfy themselves that, under<br /> |
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352 the laws of the Party providing the procedures, there is prima facie an infringement of<br /> |
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353 the right holder's intellectual property right and to supply sufficient information that<br /> |
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354 may reasonably be expected to be within the right holder’s knowledge to make the<br /> |
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355 suspected infringing goods reasonably recognizable by the competent authorities. The<br /> |
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356 requirement to provide sufficient information shall not unreasonably deter recourse to<br /> |
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357 the procedures described in paragraph 1.<br /> |
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358 3. Each Party shall provide for applications to suspend the release of suspected<br /> |
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359 infringing goods that apply to all goods 27 under customs control in its territory and<br /> |
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360 remain applicable to multiple [or in the alternative specified] shipments. Each Party<br /> |
|
361 may provide that, at the request of the right holder, the application to suspend the<br /> |
|
362 release of goods may apply to selected points of entry and exit under customs control.<br /> |
|
363 These applications for suspension shall remain applicable for a period of not less than<br /> |
|
364 [one year][or sixty days] from the date of application, or the period of protection of the<br /> |
|
365 relevant intellectual property rights under the laws of the Party providing border<br /> |
|
366 measures under this Section, whichever is shorter. Each Party may permit a right holder<br /> |
|
367 to specify that an application to suspend remain applicable for a period of less than [one<br /> |
|
368 year][or sixty days].<br /> |
|
369 4. The competent authorities shall inform the applicant within a reasonable period<br /> |
|
370 whether they have accepted the application. Where the competent authorities have<br /> |
|
371 accepted the application, they shall also make known to the applicant the period of<br /> |
|
372 validity of the application.<br /> |
|
373 5. Each Party may provide, where the applicant has abused the process, or where<br /> |
|
374 there is due cause, that an application may be denied, suspended, or voided.<br /> |
|
375 ARTICLE 2.7: EX-OFFICIO ACTION<br /> |
|
376 Option 1<br /> |
|
377 1. Each Party [may] [shall] provide that its customs authorities may act upon their<br /> |
|
378 own initiative, to suspend the release of suspected counterfeit trademark goods or<br /> |
|
379 suspected pirated copyright goods with respect to imported, [exported] [, or in-transit]<br /> |
|
380 goods including suspected counterfeit trademark goods or suspected pirated copyright<br /> |
|
381 goods admitted to, withdrawn from, or located in free trade zones [goods suspected of<br /> |
|
382 infringing an intellectual property right]. [Each Party [may][shall endeavor to] provide<br /> |
|
383 27<br /> |
|
384 Whether this applies to imports, exports and/or in transit goods depends on paragraph 1.<br /> |
|
385 12<br /> |
|
386 its customs authorities the same authority as the foregoing provision of this Article in<br /> |
|
387 respect of [exported and] in-transit goods that are [suspected counterfeit trademark<br /> |
|
388 goods or suspected pirated copyright goods.]<br /> |
|
389 Option 2<br /> |
|
390 [1. Each Party shall provide that its competent authorities may act upon their own<br /> |
|
391 initiative, to suspend the release of goods suspected of infringing an intellectual<br /> |
|
392 property right.]<br /> |
|
393 2. [Each Party may also provide that its customs authorities may act, upon their<br /> |
|
394 own initiative, to suspend the release of goods suspected of infringing other intellectual<br /> |
|
395 property rights [, not covered by this section].]<br /> |
|
396 ARTICLE 2.X:<br /> |
|
397 [As an alternative to procedures in Article 2.6.1 and 2.7.1 relating to export or in-transit<br /> |
|
398 shipments, each Party shall provide that where shipments are exported from that Party,<br /> |
|
399 or shipments are in-transit through that Party, it shall cooperate to provide all available<br /> |
|
400 information to the destination Party, upon request of the destination Party, to enable<br /> |
|
401 effective enforcement against shipments of infringing 28 goods.]<br /> |
|
402 ARTICLE 2.9: SECURITY OR EQUIVALENT ASSURANCE<br /> |
|
403 Each Party shall provide that its competent authorities shall have the authority to require<br /> |
|
404 a right holder requesting procedures described under Article 2.6 to provide a reasonable<br /> |
|
405 security or equivalent assurance sufficient to protect the defendant and the competent<br /> |
|
406 authorities and to prevent abuse. Each Party shall provide that such security or<br /> |
|
407 equivalent assurance shall not unreasonably deter recourse to these procedures. Each<br /> |
|
408 Party may provide that such security may be in the form of a bond conditioned to hold<br /> |
|
409 the defendant harmless from any loss or damage resulting from any suspension of the<br /> |
|
410 release of the goods in the event the competent authorities determine that the good [is<br /> |
|
411 not a counterfeit trademark good or a pirated copyright good] [does not infringe<br /> |
|
412 intellectual property rights covered by this section]. Only in exceptional circumstances<br /> |
|
413 [or pursuant to a judicial order] may a Party permit a defendant to post a bond or other<br /> |
|
414 security to obtain possession of suspected counterfeit trademark goods or suspected<br /> |
|
415 pirated copyright goods.<br /> |
|
416 ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT<br /> |
|
417 Each Party shall adopt or maintain a procedure by which competent authorities may<br /> |
|
418 determine, within a reasonable period of time after the initiation of the procedures<br /> |
|
419 described under Article 2.X or 2.X, whether the suspected infringing goods infringe an<br /> |
|
420 intellectual property right 29 .<br /> |
|
421 28<br /> |
|
422 Subject to scope.<br /> |
|
423 29<br /> |
|
424 Subject to scope.<br /> |
|
425 13<br /> |
|
426 ARTICLE 2.11: REMEDIES<br /> |
|
427 1. Each Party shall provide its competent authorities with the authority to order the<br /> |
|
428 destruction of goods following a determination under Article 2.10 that the goods are<br /> |
|
429 infringing 30 . [In cases where such goods are not destroyed, each Party shall ensure such<br /> |
|
430 goods are disposed of outside the channels of commerce in such a manner as to avoid<br /> |
|
431 any harm to the right holder.] [or that they be disposed of outside the channels of<br /> |
|
432 commerce in such a way as to preclude injury to the right holder, except in exceptional<br /> |
|
433 circumstances.]<br /> |
|
434 2. In regard to counterfeit trademark goods, the simple removal of the trademark<br /> |
|
435 unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the<br /> |
|
436 release of goods into the channels of commerce.<br /> |
|
437 3. Each Party may provide its competent authorities with the authority to impose<br /> |
|
438 administrative penalties following a determination under Article 2.10 that the goods are<br /> |
|
439 infringing.<br /> |
|
440 ARTICLE 2.12: FEES 31<br /> |
|
441 1. Each Party shall provide that any application fee, storage fee, or destruction fee<br /> |
|
442 to be assessed by competent authorities in connection with procedures described in this<br /> |
|
443 Section shall not be used to unreasonably deter recourse to these procedures.<br /> |
|
444 ARTICLE 2.13: DISCLOSURE OF INFORMATION<br /> |
|
445 Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of<br /> |
|
446 information:<br /> |
|
447 (a) Each Party may authorize its competent authorities to provide right<br /> |
|
448 holders with information about specific shipments of goods, including<br /> |
|
449 the description and quantity, to assist in the detection of infringing<br /> |
|
450 goods;<br /> |
|
451 (b) Each Party may authorize its competent authorities to provide right<br /> |
|
452 holders with information about goods including, but not limited to, the<br /> |
|
453 description and quantity of the goods and the name and address of the<br /> |
|
454 consignor, importer, exporter or consignee, and, if known, the country of<br /> |
|
455 origin and name and address of the manufacturer of the goods to assist in<br /> |
|
456 the determination under Article 2.10 of whether goods infringe rights<br /> |
|
457 30<br /> |
|
458 Subject to scope.<br /> |
|
459 31<br /> |
|
460 At least one delegation may come back with a possible additional paragraph for Article 2,12, depending<br /> |
|
461 upon the progress of discussion in the Civil Enforcement Section.<br /> |
|
462 14<br /> |
|
463 covered by this Section;<br /> |
|
464 (c) Unless a Party has granted authority under subparagraph (b), at least in<br /> |
|
465 the case of imported goods, where competent authorities have seized or,<br /> |
|
466 in the alternative, made a determination under Article 2.10 that goods<br /> |
|
467 infringe rights covered by the section, each Party shall authorize its<br /> |
|
468 competent authorities to provide right holders within 30 days 32 of seizure<br /> |
|
469 or determination, with information about goods including, but not limited<br /> |
|
470 to, the description and quantity of the goods and the name and address of<br /> |
|
471 the consignor, importer, exporter, or consignee, and, if known, the<br /> |
|
472 country of origin and name and address of the manufacturer of the<br /> |
|
473 goods. 33<br /> |
|
474 [Article 2.X: LIABILITY OF THE COMPETENT AUTHORITIES<br /> |
|
475 [1. With respect to the border measures covered by this Section, each Party shall<br /> |
|
476 provide measures concerning the liability of competent authorities in the execution of<br /> |
|
477 their duties.]<br /> |
|
478 Option 1<br /> |
|
479 2. The acceptance of an application on its own shall not entitle the right-holder<br /> |
|
480 to compensation in the event that goods infringing an intellectual property right<br /> |
|
481 [copyright, related rights and trademarks]are not detected by [competent authorities]a<br /> |
|
482 customs office and are released or no action is taken to detain them.<br /> |
|
483 Option 2<br /> |
|
484 [2. Each Party may limit remedies sought by a right holder or other persons<br /> |
|
485 against a Party’s competent authorities as a result of mere acceptance of an<br /> |
|
486 application under Article 2.[6], where the competent authorities release, or fail to<br /> |
|
487 detect, detain, or take action against or in connection with, goods that may infringe<br /> |
|
488 [IPR] covered by this Section.]<br /> |
|
489 [3. The competent authorities shall not be liable towards the persons involved in<br /> |
|
490 the situations referred to in Article 2.6 for damages suffered by them as a result of the<br /> |
|
491 authority’s intervention, except where provided for by the law of the Party in which<br /> |
|
492 the application is made or in which the loss or damage is incurred.]]<br /> |
|
493 32<br /> |
|
494 For purposes of the Article, “days” shall mean “business days”.<br /> |
|
495 33<br /> |
|
496 Subject to agreement by at least one delegation.<br /> |
|
497 15<br /> |
|
498 Section 3: Criminal Enforcement 34<br /> |
|
499 ARTICLE 2.14: CRIMINAL OFFENSES<br /> |
|
500 1. 35 Each Party shall provide for criminal procedures and penalties to be applied at<br /> |
|
501 least in cases of willful trademark counterfeiting or copyright or related rights piracy on<br /> |
|
502 a commercial scale. 36 Willful copyright or related rights piracy on a commercial scale<br /> |
|
503 includes:<br /> |
|
504 [(a) significant willful copyright or related rights infringements that have no<br /> |
|
505 direct or indirect motivation of financial gain; and<br /> |
|
506 (b) willful copyright or related rights infringements for purposes of<br /> |
|
507 commercial advantage or financial gain. 37 ]<br /> |
|
508 [2. Each Party shall provide for criminal procedures and penalties to be applied in<br /> |
|
509 cases of [willful], [unauthorized] [importation] and [or] [domestic] [trafficking]<br /> |
|
510 [conducted] [use in the course of trade] [on a commercial scale] of labels [or<br /> |
|
511 packaging],<br /> |
|
512 (a) to which a mark has been applied [without consent of the right holder]<br /> |
|
513 which is identical to or cannot be distinguished [in its essential aspects]<br /> |
|
514 from a trademark registered in [its territory] [the Party in respect of<br /> |
|
515 certain goods or services], and<br /> |
|
516 (b) which are intended to be used [by the importer or user or, by a third party<br /> |
|
517 with the knowledge of the importer or user, for willful trademark<br /> |
|
518 counterfeiting] [on [either] the goods or [in relation to] services [for<br /> |
|
519 which is registered] [which are identical to goods or services for which<br /> |
|
520 the trademark is registered.]<br /> |
|
521 [3. Each Party shall provide for criminal procedures and penalties to be applied [in<br /> |
|
522 34<br /> |
|
523 Negotiator’s Note: Definitions of “counterfeit trademark goods” and “pirated copyright goods”<br /> |
|
524 provided for in footnotes 12 and 13 of Section 2 (Border Measures) should be used as context for this<br /> |
|
525 Section.<br /> |
|
526 35<br /> |
|
527 This provision is under internal examination by at least one delegation. Subparagraphs (a) and (b) are<br /> |
|
528 still under examination by at least one delegation. At least one is still considering paragraphs 1 and 2.<br /> |
|
529 36<br /> |
|
530 Each Party shall treat willful importation [or exportation] of counterfeit trademark goods or pirated<br /> |
|
531 copyright goods on a commercial scale [in accordance with its laws and regulations,] as unlawful<br /> |
|
532 activities subject to criminal penalties under this Article. A Party may comply with its obligation relating<br /> |
|
533 to [exportation] of pirated copyright or counterfeit trademark goods through its measures concerning<br /> |
|
534 distribution.<br /> |
|
535 37<br /> |
|
536 For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of<br /> |
|
537 value.<br /> |
|
538 16<br /> |
|
539 accordance with its laws and regulations,] against any person who, without<br /> |
|
540 authorization of the holder of copyright [or related rights] [or the theatre manager] in a<br /> |
|
541 [motion picture or other audiovisual work], [cinematographic work] [knowingly] [uses<br /> |
|
542 an audiovisual recording device to transmit or make] [makes] a copy of [, or transmits<br /> |
|
543 to the public] the motion picture or other audiovisual work, or any part thereof, from a<br /> |
|
544 performance of the motion picture or other audiovisual work in a motion picture<br /> |
|
545 exhibition facility open to the public.] 38<br /> |
|
546 ARTICLE 2.15: [CRIMINAL] LIABILITY AND PENALTIES [AND SANCTIONS]<br /> |
|
547 [1. Liability of Legal Persons<br /> |
|
548 (a) Each Party shall adopt such measures as may be necessary, consistent<br /> |
|
549 with its legal principles, to establish the liability of legal persons for the<br /> |
|
550 offences referred to in Article 2.14.<br /> |
|
551 (b) Subject to the legal principles of the Party, the liability of legal persons<br /> |
|
552 may be criminal or non-criminal.<br /> |
|
553 (c) Such liability shall be without prejudice to the criminal liability of the<br /> |
|
554 natural persons who have committed the criminal offences.]<br /> |
|
555 [2. Inciting, Aiding and Abetting<br /> |
|
556 The provisions of this section shall apply to [inciting,] aiding and abetting the offences<br /> |
|
557 referred to in Article 2.14.]] 39<br /> |
|
558 [3. Penalties and Sanctions]<br /> |
|
559 [(a)] For the [ offences] crimes referred to in [Article 2.14] [Article 2.14.1],<br /> |
|
560 each Party shall provide [effective, proportionate and dissuasive]<br /> |
|
561 penalties 40 [. The available penalties shall] that include imprisonment [as<br /> |
|
562 well as] [and] monetary fines 41 [sufficiently high to provide a deterrent<br /> |
|
563 to future acts of infringement, with a view to removing the monetary<br /> |
|
564 incentive of the infringer].<br /> |
|
565 [(b) For legal persons held liable under Article 2.15.1, each Party shall<br /> |
|
566 38<br /> |
|
567 At least one delegation has asked for the deletion of paragraph 3.<br /> |
|
568 39<br /> |
|
569 At least one delegation opposes paragraph 2, ‘Inciting, Aiding and Abetting’.<br /> |
|
570 40<br /> |
|
571 [It is understood that there is no obligation to provide penalties of imprisonment against legal persons<br /> |
|
572 for the crimes set forth in Article 2.14.].<br /> |
|
573 41<br /> |
|
574 [Negotiator’s note: [It is understood that there is no obligation for a Party to impose both imprisonment<br /> |
|
575 and monetary fines in parallel] [This does not imply an obligation for a Party to provide for the courts a<br /> |
|
576 possibility to impose both penalties in parallel.]<br /> |
|
577 17<br /> |
|
578 provide for effective, proportionate and dissuasive sanctions, including<br /> |
|
579 monetary sanctions.]<br /> |
|
580 [ARTICLE 2.16. SEIZURE, FORFEITURE[/CONFISCATION] AND DESTRUCTION<br /> |
|
581 [1. Seizure]<br /> |
|
582 (a) In case of an offence referred to in Article 2.14 [.1], each Party shall<br /> |
|
583 provide that its competent authorities shall have the authority to order<br /> |
|
584 [authorise] [at least for serious offences] the seizure of suspected<br /> |
|
585 counterfeit trademark goods or pirated copyright [or related rights]<br /> |
|
586 goods, any related materials and implements used in the commission of<br /> |
|
587 the alleged offence, documentary evidence relevant to the alleged<br /> |
|
588 offence and any assets derived from, or obtained directly or indirectly<br /> |
|
589 through the infringing activity [ 42 ].<br /> |
|
590 (b) Each Party shall, if a prerequisite for such an order, according to its<br /> |
|
591 national law, is the identification of the items, ensure that the order need<br /> |
|
592 not determine the items that are subject to seizure in more detail than<br /> |
|
593 necessary to allow their identification for the purpose of the seizure.]<br /> |
|
594 [Each Party shall provide that such orders need not individually identify<br /> |
|
595 the items that are subject to seizure, so long as they fall within specified<br /> |
|
596 categories in the relevant order.]<br /> |
|
597 [2. Forfeiture/Confiscation and Destruction]<br /> |
|
598 (a) For the offences referred to in Article 2.14[.1], each Party shall provide<br /> |
|
599 that its competent authorities shall have the authority to order<br /> |
|
600 [confiscation/][forfeiture 43 [and/]or] destruction [where appropriate] of<br /> |
|
601 all counterfeit trademark goods or pirated copyright [or related right]<br /> |
|
602 goods, of materials and implements [predominantly] used in the creation<br /> |
|
603 of counterfeit trademark goods or pirated copyright goods [or related<br /> |
|
604 rights goods], and [at least for serious offences] [forfeiture to the State]<br /> |
|
605 of the [any] assets derived from, or obtained directly or indirectly,<br /> |
|
606 through the infringing activity.<br /> |
|
607 (b) Each Party shall [provide that its competent authorities shall have the<br /> |
|
608 authority to] ensure that the counterfeit trademark goods and pirated<br /> |
|
609 copyright [or related rights] goods that have been [confiscated/] forfeited<br /> |
|
610 [to the state] under this subparagraph shall, if not destroyed, be disposed<br /> |
|
611 of outside the channels of commerce, [under the condition that the goods<br /> |
|
612 are not dangerous for the health and security of persons.] [in such a<br /> |
|
613 42<br /> |
|
614 Each Party may provide that its judicial authorities have the authority to order [fines or] the seizure of<br /> |
|
615 assets the value of which corresponds to that of such assets derived from or obtained, directly or<br /> |
|
616 indirectly, through the infringing activity.<br /> |
|
617 43<br /> |
|
618 At least one delegation to propose wording to clarify whether forfeiture to right holder or to state.<br /> |
|
619 18<br /> |
|
620 manner as to avoid any harm caused to the right holder.]<br /> |
|
621 (c) Each Party shall further ensure that [confiscation/]forfeiture and<br /> |
|
622 destruction under this subparagraph shall occur without compensation of<br /> |
|
623 any kind to the defendant.<br /> |
|
624 (d) Each Party may provide that its judicial authorities have the authority to<br /> |
|
625 order the confiscation/ forfeiture [to the state] of assets the value of<br /> |
|
626 which corresponds to that of such assets derived from or obtained<br /> |
|
627 directly or indirectly through the infringing activity.<br /> |
|
628 ARTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT<br /> |
|
629 Each Party shall provide that its competent authorities may act upon their own initiative<br /> |
|
630 to initiate investigation [or] [and/or] legal action with respect to the [criminal] offenses<br /> |
|
631 described in [Article 2.14] [Sections 3 and 4.] [at least in cases of significant public<br /> |
|
632 interest, in accordance with national law.]<br /> |
|
633 [ARTICLE 2.X. RIGHTS OF THE DEFENDANT AND THIRD PARTIES<br /> |
|
634 Each Party shall ensure that the rights of the [defendants and] third parties shall be duly<br /> |
|
635 protected and guaranteed.] 44<br /> |
|
636 Section 4: [Special Measures Related to Technological Enforcement of Intellectual<br /> |
|
637 Property in the Digital Environment]<br /> |
|
638 ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT] 45<br /> |
|
639 1. Each Party shall ensure that enforcement procedures, to the extent set forth in<br /> |
|
640 the civil and criminal enforcement sections of this Agreement, are available under its<br /> |
|
641 law so as to permit effective action against an act of [trademark, copyright or related<br /> |
|
642 rights][intellectual property rights] infringement which takes place [by means of the<br /> |
|
643 Internet][in the digital environment] , including expeditious remedies to prevent<br /> |
|
644 infringement and remedies which constitute a deterrent to further infringement.<br /> |
|
645 2. [Those measures, procedures and remedies shall also be fair and<br /> |
|
646 proportionate.] 46 *<br /> |
|
647 44<br /> |
|
648 At least one delegation proposes that this provision be reflected in the General Provisions of the<br /> |
|
649 Agreement.<br /> |
|
650 45<br /> |
|
651 At least one delegation reserves its right to revisit elements of this Section at a later date.<br /> |
|
652 46<br /> |
|
653 [See identical comment on the draft Chapter 2, Section 1 “Civil Enforcement” and Section 3 “Criminal<br /> |
|
654 Enforcement”. A suggestion is to move these provisions into Chapter 1, Section A which applies to the<br /> |
|
655 whole Agreement. Direct reference to TRIPS might also clarify the scope of these obligations.]<br /> |
|
656 19<br /> |
|
657 3. Without prejudice to the rights, limitations, exceptions, or defenses to [[ patent,<br /> |
|
658 industrial design, trademark and][copyright or related rights]][intellectual property<br /> |
|
659 rights] infringement available under its law, including with respect to the issue of<br /> |
|
660 exhaustion of rights, each Party [confirms that] [shall provide for] [civil remedies as<br /> |
|
661 well as limitations, exceptions, or defenses with respect to the application of such<br /> |
|
662 remedies, are available in its legal system in cases of third party liability[ 47 ][or liability<br /> |
|
663 for those who authorize infringement, or both] for [[patent, industrial design, trademark<br /> |
|
664 and][copyright or related rights]][intellectual property rights] infringement. 48<br /> |
|
665 Option 1<br /> |
|
666 Each Party recognizes that some persons 49 use the services of third parties,<br /> |
|
667 [ 3.<br /> |
|
668 including online service providers,[ 50 ] for engaging in [ patent, industrial design and<br /> |
|
669 trademark,] copyright or related rights infringement. Each Party also recognizes that<br /> |
|
670 legal uncertainty with respect to application of copyright and related rights, limitations,<br /> |
|
671 exceptions, and defenses in the digital environment may present barriers to the<br /> |
|
672 economic growth of, and opportunities in, electronic commerce.] 51 Accordingly, in<br /> |
|
673 order to facilitate the continued development of an industry engaged in providing<br /> |
|
674 information services online while also ensuring that measures to take adequate and<br /> |
|
675 effective action against copyright or related rights infringement are available and<br /> |
|
676 reasonable each Party [shall][ may]:<br /> |
|
677 (a) provide limitations 52 on the scope of civil remedies available against an<br /> |
|
678 47<br /> |
|
679 [For greater certainty, the Parties understand that third party liability means liability for any person who<br /> |
|
680 authorizes for a direct financial benefit, induces through or by conduct directed to promoting<br /> |
|
681 infringement, or knowingly and materially aids any act of copyright or related rights infringement by<br /> |
|
682 another. Further, the Parties also understand that the application of third party liability may include<br /> |
|
683 consideration of exceptions or limitations to exclusive rights that are confined to certain special cases that<br /> |
|
684 do not conflict with a normal exploitation of the work, performance or phonogram, and do not<br /> |
|
685 unreasonably prejudice the legitimate interests of the right holder, including fair use, fair dealing, or their<br /> |
|
686 equivalents.] At least one delegation opposes this footnote.<br /> |
|
687 48<br /> |
|
688 Negotiator’s Note: This provision may be moved and located in the civil enforcement section.<br /> |
|
689 49<br /> |
|
690 Negotiator’s Note: Definition of person still pending in General Provisions.<br /> |
|
691 50<br /> |
|
692 [For purposes of this Article, online service provider and provider mean a provider of online services<br /> |
|
693 or network access, or the operators of facilities therefore, and includes an entity offering the transmission,<br /> |
|
694 routing, or providing of connections for digital online communications, between or among points<br /> |
|
695 specified by a user, of material of the user’s choosing, without modification to the content of the material<br /> |
|
696 as sent or received.]<br /> |
|
697 51<br /> |
|
698 At least one delegation suggests moving the second and third sentences of paragraph 3. At least one<br /> |
|
699 delegation suggests moving the first and second sentences of paragraph 3.<br /> |
|
700 52<br /> |
|
701 For greater certainty, the Parties understand that [these limitations are not intended to harmonize the<br /> |
|
702 liability of online service provider, but exclude liability in certain situations. Thus] the failure of an<br /> |
|
703 online service provider’s conduct to qualify for a limitation of liability under its measures implementing<br /> |
|
704 20<br /> |
|
705 online service provider for infringing activities that occur by<br /> |
|
706 (i) automatic technical processes, and<br /> |
|
707 (ii) the actions of the provider’s users that are not directed or<br /> |
|
708 initiated by that provider and when the provider does not select<br /> |
|
709 the material, and<br /> |
|
710 (iii) the provider referring or linking users to an online location,<br /> |
|
711 when, in cases of subparagraphs (ii) and (iii) 53 , the provider does not<br /> |
|
712 have actual knowledge of the infringement and is not aware of facts or<br /> |
|
713 circumstances from which infringing activity is apparent; and ]<br /> |
|
714 Option 2<br /> |
|
715 [Each Party recognizes that some persons 54 use the services of third parties, including<br /> |
|
716 online service providers,[ 55 ] for engaging in intellectual property rights infringements.<br /> |
|
717 (a) In this respect, each Party shall provide limitation on the [liability of] [ scope of<br /> |
|
718 civil remedies available against an] on-line service provider[s] for infringing<br /> |
|
719 activities 56 that occur by 57<br /> |
|
720 (i) automatic technical processes [ that keep the provider from taking<br /> |
|
721 measures to prevent the infringement], or<br /> |
|
722 (ii) the actions of the provider ́s users that are not initiated nor<br /> |
|
723 modified by that provided and when the provider does not select<br /> |
|
724 the material or<br /> |
|
725 (iii) the storage of information provided by the recipient of the service<br /> |
|
726 or at the request of the recipient of the service,<br /> |
|
727 when exercising the activities as stipulated in paragraph 3(a)(ii) and/or (iii) the online<br /> |
|
728 service providers act [takes appropriate measures] expeditiously, in accordance with<br /> |
|
729 applicable law [s], [such as those] to remove or disable access to infringing material or<br /> |
|
730 infringing activity upon obtaining actual knowledge of the infringement [or the fact that<br /> |
|
731 this provision shall not bear adversely upon the consideration of a defense by the provider that the<br /> |
|
732 provider’s conduct is not infringing or any other defense.<br /> |
|
733 53<br /> |
|
734 Clarify which conditions apply to which activities.<br /> |
|
735 54<br /> |
|
736 [Negotiator’s Note: Definition of “person” still pending in General Provisions.]<br /> |
|
737 [55 For purposes of this Article, online service provider and provider mean a provider of online<br /> |
|
738 services or network access, or the operators of facilities therefore, and includes an entity offering the<br /> |
|
739 transmission, routing, or providing of connections for digital online communications, between or among<br /> |
|
740 points specified by a user, of material of the user’s choosing, without modification to the content of the<br /> |
|
741 material as sent or received.]<br /> |
|
742 [56 The activities covered in paragraph 3(a)(i) cover the mere conduit and the activities covered in<br /> |
|
743 paragraph 3(a)(ii) and (iii) cover respectively caching and hosting in accordance with parties legal<br /> |
|
744 systems.]<br /> |
|
745 57<br /> |
|
746 At least one delegation proposes to redraft this sub-paragraph.<br /> |
|
747 21<br /> |
|
748 the information at the initial source has been removed or disabled.] [or having<br /> |
|
749 reasonable grounds to know that the infringement is occurring]]<br /> |
|
750 Option 1<br /> |
|
751 (b) condition the application of the provisions of subparagraph (a) on<br /> |
|
752 meeting the following requirements:<br /> |
|
753 (i) an online service provider adopting and reasonably<br /> |
|
754 implementing a policy[ 58 ] to address the unauthorized storage or<br /> |
|
755 transmission of materials protected by copyright or related rights<br /> |
|
756 [ except that no Party may condition the limitations in<br /> |
|
757 subparagraph (a) on the online service provider’s monitoring its<br /> |
|
758 services or affirmatively seeking facts indicating that infringing<br /> |
|
759 activity is occurring]; and<br /> |
|
760 (ii) an online service provider expeditiously removing or disabling<br /> |
|
761 access to material or [activity][alleged infringement], upon<br /> |
|
762 receipt [of legally sufficient notice of alleged infringement,][of<br /> |
|
763 an order from a competent authority] and in the absence of a<br /> |
|
764 legally sufficient response from the relevant subscriber of the<br /> |
|
765 online service provider indicating that the notice was the result<br /> |
|
766 of mistake or misidentification.<br /> |
|
767 except that the provisions of (ii) shall not be applied to the extent that the<br /> |
|
768 online service provider is acting solely as a conduit for transmissions<br /> |
|
769 through its system or network.]<br /> |
|
770 Option 2:<br /> |
|
771 [Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority,<br /> |
|
772 in accordance with the Parties legal system, requiring the service provider to terminate<br /> |
|
773 or prevent an infringement, nor does it affect the possibility of the parties establishing<br /> |
|
774 procedures governing the removal or disabling of access to information<br /> |
|
775 The Parties shall not impose a general monitoring requirement on providers when acting<br /> |
|
776 in accordance with this paragraph 3.]<br /> |
|
777 [ 3 ter. Each Party shall enable right holders, who have given effective notification to<br /> |
|
778 an online service provider of materials that they claim with valid reasons to be<br /> |
|
779 infringing their copyright or related rights, to expeditiously obtain from that provider<br /> |
|
780 information on the identity of the relevant subscriber.<br /> |
|
781 58<br /> |
|
782 At least one delegation proposes to include language in this footnote to provide greater certainty that<br /> |
|
783 their existing national law complies with this requirement.<br /> |
|
784 22<br /> |
|
785 3 quater. Each Party shall promote the development of mutually supportive<br /> |
|
786 relationships between online service providers and right holders to deal effectively with<br /> |
|
787 patent, industrial design, trademark and copyright or related rights infringement which<br /> |
|
788 takes place by means of the Internet, including the encouragement of establishing<br /> |
|
789 guidelines for the actions which should be taken.]<br /> |
|
790 [4. 59 In order to provide adequate legal protection 60 and effective legal remedies<br /> |
|
791 against the circumvention of effective technological measures that are used by authors,<br /> |
|
792 [performers or producers of phonograms] [the right holder of any copyright or related<br /> |
|
793 rights or owner of an exclusive license 61 ] in connection with the exercise of their rights<br /> |
|
794 and that restrict unauthorized acts in respect of their works, [performances, and<br /> |
|
795 phonograms] [or other subject matters specified under Article 14 of the TRIPS<br /> |
|
796 Agreement], each Party shall provide for civil remedies, [or] [as well as] criminal<br /> |
|
797 penalties in appropriate cases of willful conduct [ 62 ] , that apply to:<br /> |
|
798 [Each Party shall provide for adequate legal protection63 and effective legal remedies, in<br /> |
|
799 the form of civil remedies or criminal penalties in appropriate cases of willful conduct,<br /> |
|
800 against the circumvention of effective technological measures that are used by authors,<br /> |
|
801 performers or producers or phonograms in connection with the exercise of their rights<br /> |
|
802 and that restrict unauthorized acts in respect of their works, performances, and<br /> |
|
803 phonogram. These shall apply to:]<br /> |
|
804 the unauthorized circumvention of an effective technological measure 64<br /> |
|
805 (a)<br /> |
|
806 [that controls access to a protected work, performance, or phonogram];<br /> |
|
807 and<br /> |
|
808 (b) the manufacture, importation, or circulation of a [technology], service,<br /> |
|
809 device, product, [component, or part thereof, that is: [marketed] or<br /> |
|
810 primarily designed or produced for the purpose of circumventing an<br /> |
|
811 effective technological measure; or that has only a limited commercially<br /> |
|
812 59<br /> |
|
813 At least one delegation has reservations about several elements in paragraph 4.<br /> |
|
814 60<br /> |
|
815 At least one delegation opposes inclusion of ‘adequate legal protection’.<br /> |
|
816 61<br /> |
|
817 At least one delegation opposes inclusion of ‘or owner of an exclusive license’.<br /> |
|
818 62<br /> |
|
819 [For the purpose of this Article, willful conduct means actual knowledge or reasonable grounds to know<br /> |
|
820 that he or she is pursuing the objective of circumventing any effective technological measure.]<br /> |
|
821 63<br /> |
|
822 At least one delegation opposes inclusion of ‘adequate legal protection’.<br /> |
|
823 64<br /> |
|
824 For the purposes of this Article, effective technological measure means any technology, device, or<br /> |
|
825 component that, in the normal course of its operation, [controls access to a protected work, performance,<br /> |
|
826 phonogram, or protects any copyright or any rights related to copyrights.][is controlled by the right<br /> |
|
827 holders through application of an access control or protection process such as encryption, scrambling, or<br /> |
|
828 other transformation of their works, performances or phonograms, or a copy control mechanism, which<br /> |
|
829 achieves the protection objective.]<br /> |
|
830 23<br /> |
|
831 significant purpose or use other than circumventing an effective<br /> |
|
832 technological measure.]]<br /> |
|
833 [5. [4.2] Each Party shall provide [that a] [adequate legal protection against a]<br /> |
|
834 violation of a measure implementing paragraph (4) [is a separate civil or criminal<br /> |
|
835 offense,] independent of any infringement of copyright or related rights. 65 ] 66<br /> |
|
836 Option 1<br /> |
|
837 [Further, [each Party may adopt exceptions and limitations to measures implementing<br /> |
|
838 paragraph 4 so long as they do not significantly impair the adequacy of legal protection<br /> |
|
839 of those measures or the effectiveness of legal remedies for violations of those<br /> |
|
840 measures.] 67<br /> |
|
841 Option 2<br /> |
|
842 [ 5. Each Party may provide for measures which would safeguard the benefit of<br /> |
|
843 certain exceptions and limitations to copyright and related rights, in accordance with its<br /> |
|
844 legislation.]<br /> |
|
845 [6. [In order to] [Each Party shall] provide adequate and effective legal remedies to<br /> |
|
846 protect [ electronic] rights management information[, e]<br /> |
|
847 [ E]ach Party shall provide for civil remedies, [or] [as well as] criminal penalties] in<br /> |
|
848 appropriate cases of willful [ 68 ] conduct, that apply to any person performing [without<br /> |
|
849 authority] any of the following acts knowing [or with respect to civil remedies having<br /> |
|
850 reasonable grounds to know] that it will induce, enable, facilitate, or conceal an<br /> |
|
851 infringement of any copyright or related right:<br /> |
|
852 to remove or alter any [electronic] right management information69<br /> |
|
853 (a)<br /> |
|
854 65<br /> |
|
855 [The] [In accordance with the applicable national legislation, the] obligations in paragraphs (4) and (5)<br /> |
|
856 [are][may be] without prejudice to the rights, limitations, exceptions, or defenses to copyright or related<br /> |
|
857 rights infringement. Further, [in implementing paragraph (4), no Party may][paragraph (4) does not<br /> |
|
858 imply any obligation to] require that the design of, or the design and selection of parts and components<br /> |
|
859 for, a consumer electronics, telecommunications, or computing product provide for a response to any<br /> |
|
860 particular technological measure, so long as the product does not otherwise violate any measures<br /> |
|
861 implementing paragraph (4).<br /> |
|
862 66<br /> |
|
863 At least one delegation is to reflect on appropriate location for this provision.<br /> |
|
864 67<br /> |
|
865 Negotiator’s Note: This provision is subject to broader government action/sovereign immunity<br /> |
|
866 provision elsewhere in the Agreement.<br /> |
|
867 68<br /> |
|
868 [For the purpose of this Article, willful conduct means knowingly performing without authority any of<br /> |
|
869 the following acts listed under subparagraph 6 (a) or (b), if such person knows or has reasonable grounds<br /> |
|
870 to know that by so doing he is inducing, enabling, facilitating, or concealing an infringement of any<br /> |
|
871 copyright or any rights related to copyright.]<br /> |
|
872 69<br /> |
|
873 For purposes of this Article, [electronic] rights management information means:<br /> |
|
874 (a) information that identifies a work, [or other subject matters specified under Article 14 of the TRIPS<br /> |
|
875 Agreement] [performance, or phonogram]; the author [of the work, the performer of the performance, or<br /> |
|
876 the producer of the phonogram] [or any other right holders of the subject matters specified under Article<br /> |
|
877 24<br /> |
|
878 (b) to distribute, import for distribution, broadcast, communicate, or make<br /> |
|
879 available to the public copies of works, [or other subject matters<br /> |
|
880 specified under Article 14 of the TRIPS Agreement] [performances, or<br /> |
|
881 phonograms], knowing that [electronic]rights management information<br /> |
|
882 has been removed or altered without authority.]<br /> |
|
883 [7.] [6.2] Each Party may adopt [limitations or] exceptions to the requirements of<br /> |
|
884 subparagraphs (a) and (b) [of paragraph (6)] [so long as they do not significantly impair<br /> |
|
885 the adequacy of legal protection or effectiveness of legal remedies for violations of<br /> |
|
886 those measures.]<br /> |
|
887 14 of the TRIPS Agreement]; or the owner of any right in the work, performance, or phonogram;<br /> |
|
888 (b) information about the terms and conditions of the use of the work, [performance, or phonogram] [or<br /> |
|
889 any other right holders of the subject matters specified under Article 14 of the TRIPS Agreement]; or<br /> |
|
890 (c) any numbers or codes that represent the information described in (a) or (b) above,when any of these<br /> |
|
891 items is attached to a copy of the work, [performance, or phonogram] [or other subject matters specified<br /> |
|
892 under Article 14 of the TRIPS Agreement] or appears in connection with the communicator or making<br /> |
|
893 available of a work, [performance, or phonogram] [or other subject matters specified under Article 14 of<br /> |
|
894 the TRIPS Agreement] to the public.<br /> |
|
895 25<br /> |
|
896 CHAPTER THREE<br /> |
|
897 INTERNATIONAL COOPERATION<br /> |
|
898 ARTICLE 3.1: INTERNATIONAL ENFORCEMENT COOPERATION<br /> |
|
899 1. Each Party recognizes that international [enforcement] cooperation [is vital [ to<br /> |
|
900 realize [fully] effective protection of intellectual property rights] [ in order to deal with<br /> |
|
901 the increasingly global problem of the trade in counterfeit and pirated goods]] [plays an<br /> |
|
902 important role in the protection of copyright and trademark rights]and should be<br /> |
|
903 [undertaken] [encouraged] regardless of the origin of the infringing goods or the<br /> |
|
904 location [or nationality] of the right holder [of the intellectual property rights.<br /> |
|
905 2. In order to combat [intellectual property right infringement, in particular,]<br /> |
|
906 trademark counterfeiting and copyright piracy, each Party shall promote [may, as it<br /> |
|
907 deems appropriate, ] cooperation [measures, where appropriate,] among the [relevant]<br /> |
|
908 competent authorities of the Parties [concerned with] [responsible for] enforcement of<br /> |
|
909 intellectual property rights. Such [cooperation includes][ measures may include]<br /> |
|
910 [cooperation shall include][may include] law enforcement cooperation with respect to<br /> |
|
911 criminal investigation or prosecution [concerning] [relating to] the offences covered by<br /> |
|
912 this Agreement and [border measures] [cooperation at the border], [which may be<br /> |
|
913 conducted bilaterally or multilaterally] Particular attention shall be devoted to the<br /> |
|
914 circulation of IPR infringing goods detrimental to the health and safety.]<br /> |
|
915 3. Each Party [shall][ may], consistent with the [existing][domestic law and policy<br /> |
|
916 and the] [international agreements and arrangements to which such Party is a party],<br /> |
|
917 [conduct][ undertake] enforcement cooperation [foreseen] [activities as provided]<br /> |
|
918 [international cooperation as set out ] in this Chapter [,in line with the international<br /> |
|
919 agreements and arrangements to which such Party is a party.] [Each Party may also<br /> |
|
920 conduct enforcement cooperation or provide assistance to another Party pursuant to<br /> |
|
921 other international agreements, arrangements, and practices, and in accordance with its<br /> |
|
922 domestic law and policies.]<br /> |
|
923 [4. Nothing in this Chapter and Chapter 4 shall require any Party to disclose<br /> |
|
924 confidential information which would be contrary to its laws, regulations, policies, legal<br /> |
|
925 practices and applicable international agreements and arrangements, including laws<br /> |
|
926 protecting investigative techniques, right of privacy or confidential information for law<br /> |
|
927 enforcement, or otherwise be contrary to public interest, or would prejudice the<br /> |
|
928 legitimate commercial interests of particular enterprises, public or private.]<br /> |
|
929 [4. The Parties understand that obligations under this Chapter and Chapter 4 are<br /> |
|
930 subject to the domestic laws, policies, resource allocation and law enforcement<br /> |
|
931 priorities of each Party.]<br /> |
|
932 26<br /> |
|
933 ARTICLE 3.2: INFORMATION SHARING<br /> |
|
934 1. [In order to ensure effective enforcement of the provisions of this Agreement,] each<br /> |
|
935 Party [[shall][ may] promote sharing or exchanging] [may, as it deems appropriate,<br /> |
|
936 share or exchange ] with other Parties [of the following information ][ as appropriate<br /> |
|
937 and mutually agreed]:<br /> |
|
938 (a) information collected by the Party under provisions of Chapter 4,<br /> |
|
939 including statistical data and information on best practices including<br /> |
|
940 those relating to[risk analysis] [risk management]; and<br /> |
|
941 (b) information on [the] development [and implementation] of legislative<br /> |
|
942 and regulatory measures [of the] [by the] Party [related to the protection<br /> |
|
943 and enforcement of intellectual property rights].<br /> |
|
944 For this purpose, the Parties shall endeavour to establish appropriate modalities<br /> |
|
945 including holding of periodical meetings.<br /> |
|
946 [Parties shall endeavor to establish an observatory as a tool for collecting information]<br /> |
|
947 2. Each Party shall ensure, as appropriate and mutually agreed, [within the limits of<br /> |
|
948 [its] national legislation][ consistent with its domestic laws] , policies, [legal] practices,<br /> |
|
949 and applicable [existing] international agreements and arrangements, that its competent<br /> |
|
950 authorities have the [ability] [authority] to provide the competent authorities of any<br /> |
|
951 other [Parties][ Party], either on request or on its own initiative, with information<br /> |
|
952 [[necessary to ensure][ to facilitate][ to allow] a proper application of laws concerning<br /> |
|
953 enforcement of intellectual property rights and to prevent, investigate, [and repress acts<br /> |
|
954 of intellectual property right infringements][ or prosecute infringement of Intellectual<br /> |
|
955 property rights ] [related to the enforcement of intellectual property rights].<br /> |
|
956 ARTICLE 3.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE<br /> |
|
957 1. [In order to facilitate the implementation of this Agreement or the accession<br /> |
|
958 thereto,] [Developed country] Parties shall [endeavour to] provide, on request and on<br /> |
|
959 mutually agreed terms and conditions, assistance in capacity building and technical<br /> |
|
960 assistance[in improving enforcement of intellectual property rights,] [focused on<br /> |
|
961 initiatives to combat the trade in counterfeit and pirated goods] in favour of developing<br /> |
|
962 country Parties to this Agreement and [, where appropriate,] [for third countries ][for<br /> |
|
963 countries not a Party to this Agreement.][ Parties shall make all reasonable efforts to<br /> |
|
964 ensure that such capacity building and technical assistance are compatible and do not<br /> |
|
965 overlap with similar activities provided by international organizations active in the field<br /> |
|
966 of intellectual property.] [The provision of assistance under this Article and Articles<br /> |
|
967 3.3.2 and 3.3.3 is subject to the availability of resources on the part of the donor Party.]<br /> |
|
968 2. For the purpose of paragraph 1, [developed country]Parties shall [, at the request<br /> |
|
969 of developing country Parties and on mutually agreed terms and conditions, ] work<br /> |
|
970 27<br /> |
|
971 closely with [developing country] [other]Parties [and, where appropriate, countries not a<br /> |
|
972 Party to this Agreement or separate customs territories,] [to enact] [implement and to ]<br /> |
|
973 or strengthen their [domestic] [ national] legislation, as appropriate, and assist them in<br /> |
|
974 improving their national intellectual property law enforcement capacities through<br /> |
|
975 sharing best practices concerning intellectual property law enforcement and providing<br /> |
|
976 relevant technical training for enforcement officials.<br /> |
|
977 3. [[Developed country][Developed and developing country] Parties] [Each Party]<br /> |
|
978 may undertake the obligations under this Article in conjunction with relevant private<br /> |
|
979 sector or international organizations.<br /> |
|
980 [4. Parties shall put in place a special allocation Fund to finance ACTA initiatives on<br /> |
|
981 capacity building and technical assistance]<br /> |
|
982 [5. Parties shall, in the implementation and administration of this Agreement, take into<br /> |
|
983 account developing countries needs in the field of financing and technical assistance. In<br /> |
|
984 this respect, States Parties to the Agreement agree:<br /> |
|
985 (a) To support, developing countries efforts, for the implementation of the<br /> |
|
986 Agreement and the integration of anti-counterfeiting and anti-hacking<br /> |
|
987 actions in national development strategies. This assistance shall be<br /> |
|
988 designed to help developing countries to harmonize their laws, to carry<br /> |
|
989 out their obligations and to exercise their rights as Members.<br /> |
|
990 (b) To ensure predictable and sustainable financing.<br /> |
|
991 (c) To promote coordination of technical assistance activities with the<br /> |
|
992 bilateral donors, WTO Secretariat, WIPO as well as with other relevant<br /> |
|
993 international intergovernmental institutions.<br /> |
|
994 States Parties shall review annually the implementation of this Article].<br /> |
|
995 (d)<br /> |
|
996 [5. State parties shall endeavour to provide technical assistance in the following<br /> |
|
997 areas:<br /> |
|
998 (a) Promoting the culture of intellectual property.<br /> |
|
999 (b) Training professionals in charge of the protection of the rightholders<br /> |
|
1000 involved in the protection of intellectual Property.<br /> |
|
1001 (c) Capacity building and experience sharing among institutions in charge of<br /> |
|
1002 fighting counterfeiting and piracy.<br /> |
|
1003 (d) Tools for measuring the economic impact of counterfeiting on the market<br /> |
|
1004 and evaluating the anti counterfeiting and anti-hacking actions.<br /> |
|
1005 28<br /> |
|
1006 (e) Conducting joint operations at the regional and international levels.<br /> |
|
1007 (f) Enforcement of laws regarding fighting counterfeiting and piracy trough<br /> |
|
1008 the Internet.<br /> |
|
1009 Technical assistance shall be extended to all other types of actions facilitating the<br /> |
|
1010 implementation and the applicability of the ACTA Agreement].<br /> |
|
1011 29<br /> |
|
1012 CHAPTER FOUR<br /> |
|
1013 ENFORCEMENT PRACTICES<br /> |
|
1014 ARTICLE 4.1: ENFORCEMENT EXPERTISE, INFORMATION AND DOMESTIC COORDINATION<br /> |
|
1015 1. Each Party shall [[facilitate] [ encourage][as it deems appropriate foster the]<br /> |
|
1016 development of] [develop] specialized expertise [of][in its] competent authorities<br /> |
|
1017 concerned with enforcement of [intellectual property rights] [copyright and trademark<br /> |
|
1018 rights] , in order to [ensure] [promote] effective enforcement of [intellectual property<br /> |
|
1019 rights] [copyright and trademark rights] [One means of implementation is through<br /> |
|
1020 specialized law enforcement authorities for the investigation and prosecution of cases<br /> |
|
1021 concerning the infringement of intellectual property rights.]<br /> |
|
1022 2. Each Party shall [promote collection and analysis of] [endeavor to collect]<br /> |
|
1023 statistical data and other [relevant] information [, which such Party determines is useful<br /> |
|
1024 and relevant,] [concerning infringement of intellectual property rights [ within its<br /> |
|
1025 territory], especially] trade in counterfeit trademark goods and pirated copyright goods.<br /> |
|
1026 Each Party shall [further] promote collection of information on best practices to prevent<br /> |
|
1027 and combat [intellectual property right infringement] [trademark counterfeiting and<br /> |
|
1028 copyright piracy].<br /> |
|
1029 3. Each Party shall [, as it deems appropriate,] [, as appropriate,] [endeavour to<br /> |
|
1030 enhance] [promote] internal coordination among, [and facilitate joint actions by], [such<br /> |
|
1031 Party’s] [the] competent authorities [concerned with ][ responsible for] enforcement of<br /> |
|
1032 intellectual property rights [through an appropriate coordinating [ body][ bodies] or<br /> |
|
1033 other relevant mechanisms]<br /> |
|
1034 4. [In order to promote effective enforcement of intellectual property rights,] each<br /> |
|
1035 Party shall [, as it deems appropriate,] [endeavour to encourage][ promote] [the]<br /> |
|
1036 establishment and maintenance of formal or informal mechanisms, [as appropriate,]<br /> |
|
1037 such as public and/or private advisory groups, whereby competent authorities may hear<br /> |
|
1038 [the views of] right holders and other relevant stakeholders [where appropriate] [foster<br /> |
|
1039 dialogue and information exchanges with shareholders in its territory] .<br /> |
|
1040 ARTICLE 4.2: MANAGEMENT OF RISK AT BORDER 70<br /> |
|
1041 1. Each Party shall adopt and maintain appropriate measures that facilitate<br /> |
|
1042 activities of custom authorities for better identifying and targeting for inspection at its<br /> |
|
1043 border, shipments [that [could] contain] [which are suspected to contain] [counterfeit<br /> |
|
1044 trademark goods or pirated copyright goods] [goods infringing intellectual property<br /> |
|
1045 rights.] Such activities may include,[ subject to paragraph 2 of Article 3.2] [clause in<br /> |
|
1046 article 3.4. is applicable]:<br /> |
|
1047 70<br /> |
|
1048 [Article 4.2 should be reviewed in relation to other proposal on Chapter 2 regarding Information<br /> |
|
1049 Exchange between Customs Authorities.]<br /> |
|
1050 30<br /> |
|
1051 (a) contact with relevant stakeholders and with relevant authorities to<br /> |
|
1052 identify and address risks;<br /> |
|
1053 (b) exchanging available data with custom authorities of other Parties<br /> |
|
1054 regarding significant seizures of [counterfeit and pirated] [infringing]<br /> |
|
1055 goods by customs, wherever possible; and<br /> |
|
1056 (c) sharing information with custom authorities of other Parties on<br /> |
|
1057 approaches that are developed to provide greater effectiveness in<br /> |
|
1058 targeting shipments that could contain [counterfeit and pirated]<br /> |
|
1059 [infringing] goods.<br /> |
|
1060 [2. To better identify and target shipments for inspection that are suspected to<br /> |
|
1061 contain counterfeit trademark goods or pirated copyright goods, each Party may:<br /> |
|
1062 (a) consult with relevant stakeholders and with competent authorities<br /> |
|
1063 responsible for intellectual property rights enforcement to identify and<br /> |
|
1064 address significant risks and promote actions to mitigate those risks;<br /> |
|
1065 (b) when appropriate, exchange data with border authorities of other Parties;<br /> |
|
1066 and<br /> |
|
1067 (c) share information with border authorities of other Parties on approaches<br /> |
|
1068 that are developed to provide greater effectiveness in the border<br /> |
|
1069 enforcement of intellectual property rights, including approaches for<br /> |
|
1070 targeting shipments that could contain counterfeit and pirated goods.<br /> |
|
1071 3. Each Party shall provide that its competent authorities may conduct audits of an<br /> |
|
1072 importer’s business records, including methods of payment and purchase contracts, as<br /> |
|
1073 well as its internal controls to track illicit financial gains and expose business practices<br /> |
|
1074 related to trademark counterfeiting and copyright piracy.]<br /> |
|
1075 ARTICLE 4.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND<br /> |
|
1076 PRACTICES<br /> |
|
1077 Option 1<br /> |
|
1078 [1. For the purpose of [further] promoting transparency in the administration of [the]<br /> |
|
1079 intellectual property right enforcement system, each Party shall take appropriate<br /> |
|
1080 measures [pursuant to domestic laws and policies,] [available] to publish or make<br /> |
|
1081 available to the public information [within a reasonable period of time] on:<br /> |
|
1082 (a) procedures [available] regarding the enforcement of intellectual property<br /> |
|
1083 rights including competent authorities for enforcement of intellectual<br /> |
|
1084 property rights and contact points for assistance to right holders;<br /> |
|
1085 [(b) relevant laws, regulations, [final judicial decisions ] and administrative<br /> |
|
1086 rulings of general application pertaining to enforcement of intellectual<br /> |
|
1087 31<br /> |
|
1088 property rights;]<br /> |
|
1089 [(c) applications [forms]for the suspension by the competent authorities of<br /> |
|
1090 the release of goods [infringing intellectual property right] [suspected<br /> |
|
1091 counterfeit and pirated goods ] as a border measure;] and<br /> |
|
1092 (d) its efforts to ensure effective enforcement of intellectual property rights<br /> |
|
1093 and [an effective][intellectual property protection system] including any<br /> |
|
1094 statistical data that the Party may collect.]<br /> |
|
1095 Option 2<br /> |
|
1096 [1. For the purpose of promoting transparency in the administration of its<br /> |
|
1097 intellectual property rights enforcement system, each Party shall:<br /> |
|
1098 (a) provide that final judicial decisions or administrative rulings of general<br /> |
|
1099 applicability pertaining to the enforcement of intellectual property rights<br /> |
|
1100 shall be in writing and shall state any relevant findings of fact and the<br /> |
|
1101 reasoning or the legal basis upon which the decisions are based. Each<br /> |
|
1102 Party shall also provide that such decisions or rulings shall be<br /> |
|
1103 published 71, or otherwise made publicly available, in a national language<br /> |
|
1104 in such a manner as to enable governments and interested persons to<br /> |
|
1105 become acquainted with them.<br /> |
|
1106 (b) identify in a manner readily available to the public, the competent<br /> |
|
1107 authorities for intellectual property enforcement and contact points where<br /> |
|
1108 right holders may seek assistance;<br /> |
|
1109 (c) [publish applications for the suspension by the competent authorities of<br /> |
|
1110 the release of suspected counterfeit and pirated goods as a border<br /> |
|
1111 measure;] and<br /> |
|
1112 (d) publicize information on its efforts to ensure effective enforcement of<br /> |
|
1113 intellectual property rights in its domestic intellectual property rights<br /> |
|
1114 system, including any statistical information that the Party may collect<br /> |
|
1115 for such purposes. 72 ]<br /> |
|
1116 Option 1<br /> |
|
1117 [2. Nothing in this [Chapter and Chapter 3][ Agreement] shall require any Party to<br /> |
|
1118 disclose {confidential} information which would impede the enforcement of its laws<br /> |
|
1119 and regulations, including laws protecting investigative techniques, right of privacy or<br /> |
|
1120 71<br /> |
|
1121 [For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by<br /> |
|
1122 making it available to the public on the Internet.]<br /> |
|
1123 72<br /> |
|
1124 [For greater certainty, nothing in [this sub-paragraph] is intended to prescribe the type, format, and<br /> |
|
1125 method of publication of the information a Party must publicize.]<br /> |
|
1126 32<br /> |
|
1127 confidential information for law enforcement, or otherwise be contrary to [its domestic<br /> |
|
1128 laws or policy, or] the public interest, or would prejudice the legitimate commercial<br /> |
|
1129 interests of particular enterprises, public or private.<br /> |
|
1130 Option 2<br /> |
|
1131 [2. Nothing in paragraphs 1, 2 and 3 shall require Members to disclose personal<br /> |
|
1132 information, or confidential information which would impede law enforcement or<br /> |
|
1133 otherwise be contrary to the public interest or could prejudice the legitimate commercial<br /> |
|
1134 interests of particular enterprises, public or private.]<br /> |
|
1135 [3. In civil legal proceedings instituted for infringement of an intellectual property<br /> |
|
1136 right, the judicial authorities may order, at the request of the applicant and at the<br /> |
|
1137 expense of the infringer, appropriate measures for the dissemination of the information<br /> |
|
1138 concerning the decision, including displaying the decision and publishing it in full or in<br /> |
|
1139 part. Parties may apply this provision to other judicial and administrative proceedings.]<br /> |
|
1140 ARTICLE 4.4: PUBLIC AWARENESS<br /> |
|
1141 Each Party shall [take [necessary] [such][appropriate]] [promote the adoption of<br /> |
|
1142 appropriate] measures [as it deems appropriate] to enhance] [will promote] [including<br /> |
|
1143 educational projects, designed to raise] public awareness of the importance of [the<br /> |
|
1144 protection of ][ protecting] intellectual property rights and the detrimental effects of<br /> |
|
1145 intellectual property right infringement, including educational [and dissemination]<br /> |
|
1146 projects. [Such measures may include joint initiatives with the private sector.]<br /> |
|
1147 [ARTICLE 4.5: DESTRUCTION OF INFRINGING GOODS<br /> |
|
1148 In cases where confiscated goods found to be infringing intellectual property rights are<br /> |
|
1149 to be destroyed, Parties shall endeavour to take environmental concerns into account<br /> |
|
1150 when deciding on the destruction method. ]<br /> |
|
1151 33<br /> |
|
1152 CHAPTER FIVE<br /> |
|
1153 INSTITUTIONAL ARRANGEMENTS 73<br /> |
|
1154 ARTICLE 5.1: THE [OVERSIGHT] [STEERING] [COMMITTEE]<br /> |
|
1155 1. The [Contracting] Parties [hereby establish][ [shall have a] the<br /> |
|
1156 [Oversight][ACTA] [Steering] Committee, comprising [[representatives of] [each of]<br /> |
|
1157 the Parties] [one delegate from each Party who may be assisted by alternative delegates,<br /> |
|
1158 advisors and experts.]<br /> |
|
1159 2. The Committee shall:<br /> |
|
1160 (a) supervise the implementation of this Agreement; [including a periodic<br /> |
|
1161 mutual evaluation process of the implementation of the Agreement by<br /> |
|
1162 the parties, according to the principles of equal treatment and a fair<br /> |
|
1163 hearing.]<br /> |
|
1164 (b) [oversee [its][the] [the Agreement’s] further elaboration [or<br /> |
|
1165 development?] [of this Agreement], [deal with matters concerning the<br /> |
|
1166 amendment and development of this Agreement] while ensuring that<br /> |
|
1167 such[elaboration][ development]does not duplicate other international<br /> |
|
1168 efforts regarding the enforcement of intellectual property rights;<br /> |
|
1169 (c) [[resolve][facilitate the avoidance of] disputes that may arise regarding<br /> |
|
1170 [its][the] interpretation or application[ 74 ] [of this Agreement]; ]and<br /> |
|
1171 (d) consider any other matter that may affect the operation of this<br /> |
|
1172 Agreement.<br /> |
|
1173 3. The Committee may:<br /> |
|
1174 (a) [establish,] [and delegate [tasks] tasks/responsibilities] to, ad hoc or<br /> |
|
1175 standing committees working groups or [Government] experts<br /> |
|
1176 groups;][to assist the Committee in accomplishing its tasks;][a Task-<br /> |
|
1177 Force to undertake the monitoring and the evaluation of the Agreement,<br /> |
|
1178 namely by reviewing the implementation of Parties' obligations, as<br /> |
|
1179 defined in Article 5.1.2.a) and assisting candidate countries to join the<br /> |
|
1180 Agreement. This Task-Force should consist of experts appointed by the<br /> |
|
1181 Parties and agreed upon by the Oversight Committee;]<br /> |
|
1182 (b) seek the advice of non-governmental persons or groups [from the State<br /> |
|
1183 73<br /> |
|
1184 At least one delegation reserves its right to revisit elements of this chapter at a later date.<br /> |
|
1185 74<br /> |
|
1186 The application of this provision shall not conflict with the rules and implementation of the Dispute<br /> |
|
1187 Settlement Understanding of the World Trade Organization.<br /> |
|
1188 34<br /> |
|
1189 Parties];<br /> |
|
1190 (c) [make recommendations regarding the implementation of the Agreement<br /> |
|
1191 [including endorsing best practice guidelines for implementing the<br /> |
|
1192 Agreement, identifying and monitoring techniques of piracy and<br /> |
|
1193 counterfeiting and their evolution]];<br /> |
|
1194 (d) assist non-Party governments in assessing the benefits of accession to the<br /> |
|
1195 Agreement [and share information and best practices on reducing IPR<br /> |
|
1196 infringements];<br /> |
|
1197 (e) [support international organizations in the enforcement of intellectual<br /> |
|
1198 property rights;] and<br /> |
|
1199 (f) take such other action in the exercise of its functions as the Parties may<br /> |
|
1200 decide.<br /> |
|
1201 [4. One-half of the members of the Committee shall constitute a quorum.]<br /> |
|
1202 5. The Committee shall [establish its rules and procedures][ at its first meeting<br /> |
|
1203 adopt its rules of procedures] [including rules for the convocation of extraordinary<br /> |
|
1204 sessions]. All decisions of the Committee shall be taken by consensus, [except as the<br /> |
|
1205 Committee may otherwise decide [by consensus]]. [The working language of the<br /> |
|
1206 Committee shall be English.]<br /> |
|
1207 6. The Committee shall convene [at least [once a year]] [once every two years] [in<br /> |
|
1208 regular session]. [T]he Committee shall be chaired [and hosted][ successively by each<br /> |
|
1209 Party][by a volunteering Party] [in English alphabetically] . [assisted by a Vice-Chair<br /> |
|
1210 from the Party due to chair and host the subsequent meeting.] [A Special session may be<br /> |
|
1211 called for by one Party and convened if the majority of the Parties does not oppose such<br /> |
|
1212 request. The Special session shall be chaired by the Party chairing the Regular session<br /> |
|
1213 of that year. The Committee shall preferably meet in Geneva.]<br /> |
|
1214 [7. The Committee’s role as set forth in Article 5.1 shall not include any<br /> |
|
1215 oversight or supervision relating to domestic or international criminal investigations or<br /> |
|
1216 enforcement of specific intellectual property cases.]<br /> |
|
1217 ARTICLE 5.2: THE SECRETARIAT<br /> |
|
1218 1. The Party that is the Chair of the Committee shall provide the Secretariat to the<br /> |
|
1219 Committee for [the calendar year][the two calendar years beginning with the calendar<br /> |
|
1220 year [immediately prior to that]] in which the Committee shall be convened with that<br /> |
|
1221 Party as Chair.<br /> |
|
1222 2. The functions of the Secretariat shall be:<br /> |
|
1223 35<br /> |
|
1224 (a) to provide assistance to the Committee [as required, and];<br /> |
|
1225 (b) [to provide administrative support to the Chair][to perform the<br /> |
|
1226 administrative tasks concerning this Agreement.]<br /> |
|
1227 (c) [to elaborate all documents resulted from ordinary or extraordinary<br /> |
|
1228 sessions]<br /> |
|
1229 (d) [to submit documents derived from ordinary or extraordinary sessions to<br /> |
|
1230 all parties]<br /> |
|
1231 ARTICLE 5.3: CONTACT POINTS<br /> |
|
1232 1. [Each Party shall designate a [current] contact point to facilitate communications<br /> |
|
1233 [between the][ with other] Parties on any matter covered by this Agreement.]<br /> |
|
1234 [The][Each Party shall transmit the] [name, [and][physical] address, telephone number<br /> |
|
1235 [and e-mail address]] of that contact point [shall be transmitted] to the Depositary [prior<br /> |
|
1236 to the entry into force of the Agreement for that Party], who shall circulate the<br /> |
|
1237 information to the Parties.<br /> |
|
1238 2. On the request of [another][one] Party, the contact point [of another Party] shall<br /> |
|
1239 identify [the] [according to the matter concerned, an appropriate] office or official<br /> |
|
1240 [responsible for the matter concerned] and assist, as necessary, in facilitating<br /> |
|
1241 communication between the [responsible] office or official concerned with the<br /> |
|
1242 requesting Party.<br /> |
|
1243 [ARTICLE 5.4: TRANSPARENCY<br /> |
|
1244 Option 1<br /> |
|
1245 [1. Each Party shall ensure that its laws, regulations,[procedures] [final judicial<br /> |
|
1246 decisions], and administrative rulings of general application respecting any matter<br /> |
|
1247 covered by this Agreement are promptly [in an appropriate time] published or otherwise<br /> |
|
1248 made publicly available [in a national language,] in such a manner as to enable<br /> |
|
1249 governments and interested persons to become acquainted with them.]<br /> |
|
1250 Option 2<br /> |
|
1251 [1. Each Party shall ensure that final judicial decisions or administrative rulings of<br /> |
|
1252 general applicability pertaining to the enforcement of intellectual property rights shall<br /> |
|
1253 be in writing and shall state any relevant findings of fact and the reasoning or the legal<br /> |
|
1254 basis upon which the decisions are based. Each Party shall also ensure that such<br /> |
|
1255 decisions or rulings shall be published 75 , or otherwise made publicly available, in a<br /> |
|
1256 national language in such a manner as to enable governments and interested persons to<br /> |
|
1257 become acquainted with them.]<br /> |
|
1258 [75For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by<br /> |
|
1259 making it available to the public on a publically accessible Internet site.]<br /> |
|
1260 36<br /> |
|
1261 [2. Each Party shall notify the laws and regulations referred to in [paragraph (1)][<br /> |
|
1262 Article 4.3] to the Oversight Committee in order to assist that Committee in its review<br /> |
|
1263 of the operation of this Agreement.]<br /> |
|
1264 3. Each Party shall supply, in response to a written request from another Party,<br /> |
|
1265 information regarding its laws, regulations, [procedures][ final judicial decisions] and<br /> |
|
1266 administrative rulings of general application [respecting][ with respect to] any matter<br /> |
|
1267 covered by this Agreement.<br /> |
|
1268 4. Nothing in paragraphs [1, 2 and 3][1 and 2] shall require a Party to disclose<br /> |
|
1269 {confidential} information which would impede law enforcement or otherwise be<br /> |
|
1270 contrary to [domestic laws and policies, or] the public interest or would prejudice the<br /> |
|
1271 legitimate commercial interests of particular enterprises, public or private.<br /> |
|
1272 ARTICLE 5.5: CONSULTATION<br /> |
|
1273 Each Party shall [accord sympathetic consideration to, and shall] afford adequate<br /> |
|
1274 opportunity for consultation regarding, such representations as may be made [to it] by<br /> |
|
1275 another Party with respect to any matter affecting the operation of this Agreement.<br /> |
|
1276 [ ARTICLE 5.6: OBSERVERS<br /> |
|
1277 Countries candidate to become a Party to the Agreement may be invited [by the<br /> |
|
1278 Committee] to attend sessions or parts thereof of the Oversight Committee as<br /> |
|
1279 observers. An invitation under the same status may be extended [by the Committee]<br /> |
|
1280 to international organizations active in the field of intellectual property and to non-<br /> |
|
1281 governmental groups of intellectual property stake-holders]<br /> |
|
1282 37<br /> |
|
1283 CHAPTER SIX<br /> |
|
1284 FINAL PROVISIONS 76<br /> |
|
1285 [ARTICLE X : TRANSPARENCY<br /> |
|
1286 1. Each Party shall ensure that its laws, regulations, procedures, and administrative<br /> |
|
1287 rulings of general application respecting any matter covered by this Agreement are<br /> |
|
1288 promptly published or otherwise made publicly available in such a manner as to enable<br /> |
|
1289 governments and interested persons to become acquainted with them.<br /> |
|
1290 2. Each Party shall notify the laws and regulations referred to in paragraph (1) to<br /> |
|
1291 the Oversight Committee in order to assist that Committee in its review of the operation<br /> |
|
1292 of this Agreement.<br /> |
|
1293 3. Each Party shall supply, in response to a written request from another Party,<br /> |
|
1294 information regarding its laws, regulations, procedures, and administrative rulings of<br /> |
|
1295 general application respecting any matter covered by this Agreement.<br /> |
|
1296 4. Nothing in paragraphs 1, 2 and 3 shall require a Party to disclose confidential<br /> |
|
1297 information which would impede law enforcement or otherwise be contrary to the<br /> |
|
1298 public interest or would prejudice the legitimate commercial interests of particular<br /> |
|
1299 enterprises, public or private.]<br /> |
|
1300 ARTICLE 6.1: BECOMING PARTY TO THE AGREEMENT<br /> |
|
1301 1. [ Any member of the [World Intellectual Property Organisation] [World Trade<br /> |
|
1302 Organization] [or the World Trade Organization (WTO)] [or of the United Nations] may<br /> |
|
1303 become party to this Agreement.[ Decisions on accession shall be taken by the<br /> |
|
1304 Oversight Committee. The Oversight Committee shall approve the agreement on the<br /> |
|
1305 terms of accession by [unanimity][a two-thirds majority of the Parties]].<br /> |
|
1306 2. Any Intergovernmental Organization which [the Committee decides] meets the<br /> |
|
1307 requirements of paragraph 5 may become party to this Agreement. The Organization<br /> |
|
1308 shall inform the Depositary of its competence [in respect of matters governed by this<br /> |
|
1309 Agreement], and any subsequent changes in its competence, with respect to the matters<br /> |
|
1310 governed by this Agreement. The Organization and its member States may, without,<br /> |
|
1311 however, any derogation from the obligations under this Agreement, decide on their<br /> |
|
1312 respective responsibilities for the performance of their obligations under this Agreement<br /> |
|
1313 [without, however, any derogation from the obligations under this Agreement].<br /> |
|
1314 3. A [State or Intergovernmental Organization][ member of any organization<br /> |
|
1315 identified in paragraph 1] may become party to this Agreement by:<br /> |
|
1316 76<br /> |
|
1317 At least one delegation reserves its right to revisit elements of this chapter at a later date.<br /> |
|
1318 38<br /> |
|
1319 (a) signature followed by the deposit of an instrument of ratification, acceptance<br /> |
|
1320 or approval, or<br /> |
|
1321 (b) the deposit of an instrument of accession.<br /> |
|
1322 4. The instruments referred to in paragraph (3) shall be deposited with the<br /> |
|
1323 Depositary.<br /> |
|
1324 5. In this Article, “Intergovernmental Organization” means an organization<br /> |
|
1325 constituted by, and composed of, States of any region of the world, which has<br /> |
|
1326 competence in respect of matters governed by this Agreement, has its own legislation<br /> |
|
1327 providing for intellectual property protection and binding on all its member States, and<br /> |
|
1328 has been duly authorized, in accordance with its internal procedures, to sign, ratify,<br /> |
|
1329 accept, approve or accede to this Agreement.<br /> |
|
1330 ARTICLE 6.2: ENTRY INTO FORCE OF THE AGREEMENT<br /> |
|
1331 1. This Agreement shall enter into force, with respect to each of the [first five<br /> |
|
1332 States or Intergovernmental Organizations] [[five] members of either organization<br /> |
|
1333 identified in Article 6.1.1] which have deposited their instruments of ratification,<br /> |
|
1334 acceptance, approval or accession, [three months] [90 days] after the date on which the<br /> |
|
1335 [fifth] instrument of ratification, acceptance, approval or accession has been deposited.<br /> |
|
1336 2. With respect to any [State or Intergovernmental Organization][member of either<br /> |
|
1337 organization identified in Article 6.1.1] not covered by paragraph (1), this Agreement<br /> |
|
1338 shall enter into force Can: three months][90 days] after the date on which that [State of<br /> |
|
1339 Intergovernmental Organization][member of either organization identified in Article<br /> |
|
1340 6.1.1] has deposited its instrument of ratification, acceptance, approval or accession.<br /> |
|
1341 ARTICLE 6.3: WITHDRAWAL<br /> |
|
1342 A Party may withdraw from this Agreement by means of a written notification to the<br /> |
|
1343 Depositary. Such withdrawal shall take effect [one year][six months] after the<br /> |
|
1344 notification was received by the Depositary.<br /> |
|
1345 ARTICLE 6.4: AMENDMENTS<br /> |
|
1346 1. [Any Party may initiate a proposal to amend the provisions of this Agreement by<br /> |
|
1347 submitting such proposal [to the Oversight Committee]]. This Agreement may be<br /> |
|
1348 amended by the Parties on the basis of a [previous] text adopted by the<br /> |
|
1349 [Oversight][ACTA][ Steering] Committee.[ Each Party may propose amendments to the<br /> |
|
1350 Agreement to the Committee. The Committee shall decide upon the proposed<br /> |
|
1351 amendments by consensus.]<br /> |
|
1352 2. The Parties shall deposit their respective instruments of ratification, acceptance<br /> |
|
1353 or approval of any such amendment with the Depositary.<br /> |
|
1354 39<br /> |
|
1355 3. Such amendment shall enter into force on the [first day of the third month<br /> |
|
1356 following] [90 days after the date of] [three months after the date of] the deposit of the<br /> |
|
1357 last of the instruments of ratification, acceptance or approval of all the Parties.<br /> |
|
1358 ARTICLE 6.5: TEXTS OF THE AGREEMENT<br /> |
|
1359 [This Agreement is established in [a single original in the][English][, French][,<br /> |
|
1360 Spanish][, Arabic] languages, all texts being equally authentic.] [In case of any<br /> |
|
1361 inconsistency between the texts, the English version shall prevail.]<br /> |
|
1362 ARTICLE 6.6: DEPOSITARY<br /> |
|
1363 [Name of [State][ entity]] shall be the Depositary of this Agreement.<br /> |
|
1364 ARTICLE 6.7: SIGNATURE<br /> |
|
1365 This Agreement shall be open for signature between [date] and [date] with the<br /> |
|
1366 [Government of] .......... [the [country][entity]] that exercises the functions of<br /> |
|
1367 Depositary].</p> |