<p>
Consolidated Text<br />
Prepared for Public Release<br />
Anti-Counterfeiting Trade Agreement<br />
PUBLIC Predecisional/Deliberative Draft:<br />
April 2010<br />
This draft text does not identify participants’<br />
positions in respect of square bracketed options.<br />
2<br />
CHAPTER ONE<br />
INITIAL PROVISIONS AND DEFINITIONS<br />
[ 1 : Section A: Initial Provisions<br />
ARTICLE 1.1: RELATION TO OTHER AGREEMENTS<br />
Nothing in this Agreement shall derogate from any international obligation of a<br />
Party with respect to any other Party under existing agreements to which both Parties<br />
are party.<br />
ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS 2<br />
1. Members shall give effect to the provisions of this Agreement. A Party may<br />
implement in its domestic law more extensive protection and enforcement of intellectual<br />
property rights than is required by this Agreement, provided that such protection and<br />
enforcement does not contravene the provisions of this Agreement. Members shall be<br />
free to determine the appropriate method of implementing the provisions of this<br />
Agreement within their own legal system and practice.<br />
2. Nothing in this Agreement creates any obligation with respect to the distribution<br />
of resources as between enforcement of intellectual property rights and enforcement of<br />
law in general.<br />
ARTICLE 1.3: RELATION TO STANDARDS CONCERNING AVAILABILITY AND SCOPE OF<br />
INTELLECTUAL PROPERTY RIGHTS<br />
1. This Agreement shall be without prejudice to provisions governing the<br />
availability, acquisition, scope, and maintenance of intellectual property rights<br />
contained in a Party’s law.<br />
2. It is understood that this Agreement does not create any obligation on a Party to<br />
apply measures where a right in intellectual property is not protected under the laws and<br />
regulations of that Party.<br />
ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION<br />
[A suitable provision needs to be drafted that would ensure nothing in the Agreement<br />
detracts from national legislation regarding protection of personal privacy. In the same<br />
1<br />
This Section A has been proposed as an initial discussion draft, to receive detailed reactions at the next<br />
Round.<br />
2<br />
Negotiator’s Note: Provisions on transitional arrangements (i.e., entry into force) and application to<br />
prior acts will be included in Chapter 6.<br />
3<br />
way, a suitable provision needs to be drafted regarding disclosure of commercial<br />
information]<br />
[Section B 3 : General Definitions<br />
ARTICLE 1.X: DEFINITIONS<br />
For purposes of this Agreement, unless otherwise specified:<br />
days means calendar days;<br />
intellectual property refers to all categories of intellectual property that are the subject<br />
of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of<br />
Intellectual Property Rights.<br />
Council means the ACTA Oversight Council established under Chapter Five;<br />
measure includes any law, regulation, procedure, requirement, or practice;<br />
person means either a natural person or a juridical person;<br />
right holder includes a federation or an association having the legal standing and<br />
authority to assert rights in intellectual property, and also includes a person that<br />
exclusively has any one or more of the intellectual property rights encompassed in a<br />
given intellectual property;<br />
territory means customs territory of a Party and all free trade zones of that Party;<br />
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual<br />
Property Rights, contained in Annex 1C to the WTO Agreement; 4<br />
WTO means the World Trade Organization; and<br />
WTO Agreement means the Marrakesh Agreement Establishing the World Trade<br />
Organization, done on April 15, 1994.<br />
3<br />
Section B of the Initial Provisions is still to be discussed.<br />
4<br />
For greater certainty, “TRIPS Agreement” includes any waiver in force between the Parties of any<br />
provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement.<br />
4<br />
CHAPTER TWO<br />
LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS<br />
[General Obligations 5<br />
ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT<br />
1. Procedures adopted, maintained, or applied to implement this Chapter shall be<br />
fair and equitable. They shall not be unnecessarily complicated or costly, or entail<br />
unreasonable time-limits or unwarranted delays.<br />
2. In respect of civil remedies and criminal penalties for enforcement of intellectual<br />
property rights, each Party shall take into account the need for proportionality between<br />
the seriousness of the infringement and the remedies or penalties ordered.<br />
[3. Those measures, procedures and remedies shall also be [effective,<br />
proportionate][ fair and equitable] and [deterrent]] 6 ]<br />
4. [Provision on limitations on remedies available against use by governments as<br />
well as exemptions of public authorities and official from liability to be inserted here at<br />
a later date.]<br />
5. [Define scope of the intellectual property rights covered in the Agreement]] [The<br />
scope of intellectual property rights will be defined at the start of each chapter.]<br />
Section 1: Civil Enforcement<br />
ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES<br />
In the context of this section, e] [E]ach Party shall make available to right holders [civil<br />
judicial] [or administrative] procedures concerning the enforcement of any [intellectual<br />
property right] [copyrights and related rights and trademarks].<br />
ARTICLE 2.X: INJUNCTIONS<br />
[1. ]In civil judicial proceedings concerning the enforcement of [copyright or<br />
related rights and trademarks] [intellectual property rights], each Party shall provide that<br />
its judicial authorities shall have the authority [subject to any statutory limitations under<br />
its domestic law] to issue [against the infringer an injunction aimed at prohibiting the<br />
continuation of the] [an order to a party to desist from an] infringement, including an<br />
order to prevent infringing goods from entering into the channels of commerce [and to<br />
5<br />
This General Obligations Section has been proposed as an initial discussion draft, to receive detailed<br />
reactions at the next Round.<br />
6<br />
[Move (with adjustments) Art. 2.1.2 to General Obligations.]<br />
5<br />
prevent their exportation]. 7<br />
[2. The Parties [may] shall also ensure that right holders are in a position to apply<br />
for an injunction against [infringing] intermediaries whose services are used by a<br />
third party to infringe an intellectual property right. 8 ] 9<br />
ARTICLE 2.2: DAMAGES<br />
1. Each Party shall provide that:<br />
(a) in civil judicial proceedings, its judicial authorities shall have the<br />
authority to order the infringer [who knowingly or with reasonable<br />
grounds to know, engaged in [infringing activity] of [copyright or related<br />
rights and trademarks] [intellectual property rights] to pay the right<br />
holder<br />
(i) damages adequate to compensate for the injury the right holder<br />
has suffered as a result of the infringement; or<br />
(ii) [at least in the case of copyright or related rights infringement<br />
and trademark counterfeiting,] [in the case of IPR infringements]<br />
the profits of the infringer that are attributable to the<br />
infringement, [which may be presumed to be the amount of<br />
damages] [and that are not taken into account in computing the<br />
amount of damages] [referred to in clause (i)] 10<br />
[which may be presumed to be the amount of damages referred to<br />
in clause (i)]; and<br />
(b) in determining the amount of damages for [copyright or related rights<br />
infringement and trademark counterfeiting] [infringement of intellectual<br />
property rights], its judicial authorities shall consider, inter alia, any<br />
legitimate measure of value submitted by the right holder, which may<br />
include the lost profits, the value of the infringed good or service,<br />
measured by the market price, the suggested retail price, or [the profits of<br />
the infringer that are attributable to the infringement].<br />
[7 A Party may comply with its obligation relating to exportation of infringing goods through its<br />
provisions concerning distribution [or transfer].]<br />
[8 The conditions and procedures relating to such injunction will be left to each Party’s legal system.]<br />
9<br />
At least one delegation opposes paragraph 2 and is considering its placement<br />
10<br />
At least one delegation proposes to delete (ii) as originally proposed and move (ii) into paragraph<br />
2.2.1(b).<br />
6<br />
[2. At least with respect to works, phonograms, and performances protected by<br />
copyright or related rights, and in [cases of trademark counterfeiting], in civil judicial<br />
proceedings, [As an alternative to paragraph 1,] each Party [shall][may] establish or<br />
maintain a system that provides:<br />
(a) pre-established damages;<br />
presumptions for determining the amount of damages 11 sufficient to<br />
(b)<br />
compensate the right holder for the harm caused by the infringement. 12 [;<br />
or<br />
(c) additional damages]]<br />
[3. Where the infringer did not knowingly, or with reasonable grounds to know,<br />
engage in infringing activity, each Party may [lay down that] [establish] [may authorize<br />
its] the judicial authorities may [to] order the recovery of profits or the payment of<br />
damages, which may be pre-established.]<br />
[4. Where a Party provides one of the options described in paragraph 2(a) or 2(b),<br />
that Party shall ensure that a right holder has the right to choose that option [ 13 ] as an<br />
alternative to the remedies referred to in paragraph 1.]<br />
Option 1<br />
[5. Each Party shall provide that its judicial authorities, except in exceptional<br />
circumstances, shall have the authority to order, at the conclusion of civil judicial<br />
proceedings [[at least in cases] concerning copyright or related rights infringement,<br />
[patent infringement,] or trademark infringement] that the prevailing party be awarded<br />
payment by the losing party of [ [reasonable and proportionate] legal] court costs or<br />
fees. [Each Party shall also provide that its judicial authorities, [except in exceptional<br />
circumstances], [in proceedings concerning copyright or related rights infringement or<br />
willful trademark counterfeiting,] shall have the authority to order, [in appropriate<br />
cases], that the prevailing party be awarded payment by the losing party of reasonable<br />
attorney’s fees [, and other expenses as provided for under that Party’s domestic<br />
11<br />
Such measures may include the presumption that the amount of damages is (i) the quantity of the<br />
goods infringing the right holder’s intellectual property right and actually assigned to third persons,<br />
multiplied by the amount of profit per unit of goods which would have been sold by the right holder if<br />
there had not been the act of infringement or (ii) a reasonable royalty [ or (iii) a lump sum on the basis of<br />
elements such as at least the amount of royalties or fees which would have been due if the infringer had<br />
requested authorization to use the intellectual property right in question].<br />
[12 No Party is required to apply paragraph 2 to actions for infringement against a Party or a third party<br />
acting with the authorization or consent of the Party.]<br />
[13 No Party is required to provide the right holders with more than one of the options referred to in<br />
paragraph 2.]<br />
7<br />
law]. 14 ]<br />
Option 2<br />
[5. Each Party shall provide that its judicial authorities, [in appropriate cases], shall<br />
have the authority to order, at the conclusion of civil judicial proceedings [[at least in<br />
cases] concerning copyright or related rights infringement, [patent infringement,] or<br />
trademark counterfeiting] that the prevailing party be awarded payment by the losing<br />
party of court costs or fees and reasonable [and proportionate] attorney’s fees [, and any<br />
other expenses as provided for under that Party’s domestic law]. 15 ]<br />
ARTICLE 2.3: OTHER REMEDIES<br />
1. With respect to goods that have been found to be [pirated or counterfeited]<br />
[infringing an intellectual property right], each Party shall provide that in civil judicial<br />
proceedings, at the right holder’s request, its judicial authorities shall have the authority<br />
to order that such goods be [recalled, definitively removed from the channel of<br />
commerce, or] destroyed, except in exceptional circumstances, without compensation of<br />
any sort.<br />
2. Each Party shall further provide that its judicial authorities shall have the<br />
authority to order that materials and implements the predominant use of which has been<br />
in the manufacture or creation of [infringing] [pirated or counterfeit] goods be, without<br />
undue delay and without compensation of any sort, destroyed or disposed of outside the<br />
channels of commerce in such a manner as to minimize the risks of further<br />
infringements.<br />
[3. The judicial authorities shall order that those remedies be carried out at the<br />
expense of the infringer, unless particular reasons are invoked for not doing so.]<br />
[4. [In ordering those remedies, the judicial authorities][Each Party shall further<br />
provide that its judicial authority in ordering these remedies] shall take into account the<br />
need for proportionality between the seriousness of the infringement and the remedies<br />
ordered as well as the interest of third parties.] 16<br />
ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT<br />
[Without prejudice to other statutory provisions which, in particular, govern the<br />
protection of confidentiality of information sources or the processing of personal<br />
[14 For greater certainty, the term “reasonable attorney’s fees” is not intended to require a higher amount<br />
than the amount of “appropriate attorney’s fees” under the TRIPS Article 45.2.]<br />
[15 For greater certainty, the term “reasonable attorney’s fees” is not intended to require a higher amount<br />
than the amount of “appropriate attorney’s fees” under the TRIPS Article 45.2.]<br />
16<br />
This provision is to be reflected in the General Obligations Section.<br />
8<br />
data,] 17 Each Party shall provide that in civil judicial proceedings concerning the<br />
enforcement of [intellectual property rights][copyright or related rights and trademarks],<br />
its judicial authorities shall have the authority upon a justified request of the right<br />
holder, to order the [alleged] infringer [including an alleged infringer] to provide, [for<br />
the purpose of collecting evidence] any [relevant] information [information on the<br />
origin and distribution network of the infringing goods or services][in the form as<br />
prescribed in its applicable laws and regulations] that the infringer possesses or controls,<br />
[where appropriate,] to the right holder or to the judicial authorities. Such information<br />
may include information regarding any person or persons involved in any aspect of the<br />
infringement and regarding the means of production or distribution channel of such<br />
goods or services, including the identification of third persons involved in the<br />
production and distribution of the infringing goods or services or in their channels of<br />
distribution. [For greater clarity, this provision does not apply to the extent that it would<br />
conflict with common law or statutory privileges, such as legal professional privilege.] ]<br />
ARTICLE 2.5: PROVISIONAL MEASURES<br />
[X. Each Party shall provide that its judicial authorities shall have the authority, at<br />
the request of the applicant, to issue an interlocutory injunction intended to prevent any<br />
imminent infringement of an intellectual property right [copyright or related rights or<br />
trademark]. An interlocutory injunction may also be issued, under the same conditions,<br />
against an [infringing] intermediary whose services are being used by a third party to<br />
infringe an intellectual property right. Each Party shall also provide that provisional<br />
measures may be issued, even before the commencement of proceedings on the merits,<br />
to preserve relevant evidence in respect of the alleged infringement. Such measures may<br />
include inter alia the detailed description, the taking of samples or the physical seizure<br />
of documents or of the infringing goods.]<br />
1. Each Party shall [provide][ensure] that its judicial authorities [shall ]act<br />
[expeditiously][ on requests] for provisional measures inaudita altera parte, and shall<br />
endeavor to make a decision[ on such requests] without undue delay, except in<br />
exceptional cases.<br />
2. [In civil judicial proceedings concerning copyright or related rights infringement<br />
and trademark counterfeiting 18 ], each Party shall provide that its judicial authorities<br />
shall have the authority to order the seizure or other taking into custody of suspected<br />
infringing goods, materials, and implements relevant to the act of infringement [and, at<br />
least for trademark counterfeiting, documentary evidence relevant to the infringement].<br />
[3. Each Party shall provide that its [judicial][competent] authorities have the<br />
authority to require the plaintiff, with respect to provisional measures, to provide any<br />
reasonably available evidence in order to satisfy themselves with a sufficient degree of<br />
17<br />
[Negotiators Note: Study moving this clause to General Provisions section]<br />
18<br />
At least one delegation raises issue of scope of this provision.<br />
9<br />
certainty that the plaintiff’s right is being infringed or that such infringement is<br />
imminent, and to order the plaintiff to provide a reasonable security or equivalent<br />
assurance [set at a level sufficient] to protect the defendant [, ensuring compensation for<br />
any prejudice suffered when the measure is revoked or lapses due to any reason, ]and to<br />
prevent abuse. [Such security or equivalent assurance shall not unreasonably deter<br />
recourse to such procedures].<br />
Section 2: Border Measures 19 [ 20 ] [ 21 ]<br />
[ARTICLE 2.X: SCOPE OF THE BORDER MEASURES<br />
1. This section sets out the conditions for action by the competent authorities when<br />
goods are suspected of infringing intellectual property rights, within the meaning of this<br />
agreement, when they are imported, exported, in-transit or in other situations where the<br />
goods are under customs supervision.<br />
2. For the purposes of this section, “goods infringing an intellectual property right”<br />
means goods infringing any of the intellectual property rights covered by TRIPS 22 .<br />
However, Parties may decide to exclude from the scope of this section, certain rights<br />
other than trade marks, copyrights and GIs when [not protected exclusively by<br />
copyright and trade mark systems and] [protected by [non-product- or sector-specific]<br />
[registration] sui generis systems.]<br />
3. [Parties shall provide for the provisions related to border measures to be applied<br />
[at least ]in cases of trade mark counterfeiting and copyright piracy. [Parties may<br />
provide for such provisions to be applied in other cases of infringement of intellectual<br />
property rights.]]<br />
19<br />
Where a Party has dismantled substantially all controls over movement of goods across its border with<br />
another Party with which it forms part of a customs union, it shall not be required to apply the provisions<br />
of this Section at that border.<br />
[20 Each Party shall implement the obligations in respect of importation and exportation set out in this<br />
Section so as to be applied to shipments of goods consigned to {a local party/a party in the territory} but<br />
destined for outside the territory of the Party].<br />
21<br />
No Party shall be obliged to apply this section to any goods that do not infringe an intellectual property<br />
right held within the territory of that Party]. [Negotiator’s note: Study moving to General Provisions<br />
section.]<br />
[22 The provisions of this section shall also apply to confusingly similar trademark goods [ , which means<br />
any goods, including packaging, bearing without authorization a trademark that is similar to the<br />
trademark validly registered in respect of such or similar goods where there exists a likelihood of<br />
confusion on the part of the public between the trademark borne and the trademark validly registered, and<br />
that thereby infringes the rights of the owner of the trademark in question under the law of the country in<br />
which the procedures set out in this Section are invoked.]<br />
10<br />
ARTICLE 2.X: DE MINIMIS PROVISION<br />
Parties may exclude from the application of this Section small quantities of goods of a<br />
non-commercial nature contained in travelers’ personal luggage [or sent in small<br />
consignments.]<br />
ARTICLE 2.X: PROVISION OF INFORMATION FROM THE RIGHT HOLDER<br />
Each Party shall permit the competent authorities to request a right holder to supply<br />
relevant information to assist the competent authorities in taking border measures<br />
provided for under this Section. Each Party may also allow a right holder to supply<br />
relevant information to the competent authorities.<br />
ARTICLE 2.6: APPLICATION BY RIGHT HOLDER<br />
Option 1<br />
1. Each Party shall provide procedures for import [and in-transit23 ] shipments and [may]<br />
[shall] provide procedures for export shipments, by which right holders may request the<br />
competent authorities to suspend release 24 of suspected counterfeit trademark goods 25<br />
and suspected pirated copyright goods 26 [goods suspected of infringing an intellectual<br />
property right]into free circulation.<br />
23<br />
For the purposes of this Section, in-transit goods means goods under “Customs transit” and under<br />
“transhipment”. “Customs transit” means the Customs procedure under which goods are transported<br />
under Customs control from one Customs office to another. “Transhipment” means the Customs<br />
procedure under which goods are transferred under Customs control from the importing means of<br />
transport to the exporting means of transport within the area of one Customs office which is the office of<br />
both importation and exportation.]<br />
[24For the purpose of this Section, where the competent authorities suspend the release of suspected<br />
counterfeit trademark or pirated copyright goods, the authorities shall not permit the goods to be released<br />
into free circulation, exported, or subject to other customs procedures, except in exceptional<br />
circumstances.]<br />
25<br />
For purposes of this Section, counterfeit trademark goods means any goods, including packaging,<br />
bearing without authorization a trademark that is identical to the trademark validly registered in respect of<br />
such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby<br />
infringes the rights of the owner of the trademark in question under the law of the country in which the<br />
procedures set out in this Section are invoked.<br />
[It is to be understood that there shall be no obligation to apply such procedures to imports of goods put<br />
on the market in another country by or with the consent of the right holder.]<br />
26<br />
For purposes of this Section, pirated copyright goods means any goods that are copies made without<br />
the consent of the right holder or person duly authorized by the right holder in the country of production<br />
and that are made directly or indirectly from an article where the making of that copy would have<br />
constituted an infringement of a copyright or a related right under the law of the country in which the<br />
procedures set out in this Section are invoked.<br />
11<br />
Option 2<br />
[1. Each Party shall provide procedures by which right holders may request the<br />
competent authorities to suspend the release of goods suspected of infringing<br />
intellectual property rights.]<br />
2. The competent authorities shall require a right holder requesting the procedures<br />
described in paragraph 1 to provide adequate evidence to satisfy themselves that, under<br />
the laws of the Party providing the procedures, there is prima facie an infringement of<br />
the right holder's intellectual property right and to supply sufficient information that<br />
may reasonably be expected to be within the right holder’s knowledge to make the<br />
suspected infringing goods reasonably recognizable by the competent authorities. The<br />
requirement to provide sufficient information shall not unreasonably deter recourse to<br />
the procedures described in paragraph 1.<br />
3. Each Party shall provide for applications to suspend the release of suspected<br />
infringing goods that apply to all goods 27 under customs control in its territory and<br />
remain applicable to multiple [or in the alternative specified] shipments. Each Party<br />
may provide that, at the request of the right holder, the application to suspend the<br />
release of goods may apply to selected points of entry and exit under customs control.<br />
These applications for suspension shall remain applicable for a period of not less than<br />
[one year][or sixty days] from the date of application, or the period of protection of the<br />
relevant intellectual property rights under the laws of the Party providing border<br />
measures under this Section, whichever is shorter. Each Party may permit a right holder<br />
to specify that an application to suspend remain applicable for a period of less than [one<br />
year][or sixty days].<br />
4. The competent authorities shall inform the applicant within a reasonable period<br />
whether they have accepted the application. Where the competent authorities have<br />
accepted the application, they shall also make known to the applicant the period of<br />
validity of the application.<br />
5. Each Party may provide, where the applicant has abused the process, or where<br />
there is due cause, that an application may be denied, suspended, or voided.<br />
ARTICLE 2.7: EX-OFFICIO ACTION<br />
Option 1<br />
1. Each Party [may] [shall] provide that its customs authorities may act upon their<br />
own initiative, to suspend the release of suspected counterfeit trademark goods or<br />
suspected pirated copyright goods with respect to imported, [exported] [, or in-transit]<br />
goods including suspected counterfeit trademark goods or suspected pirated copyright<br />
goods admitted to, withdrawn from, or located in free trade zones [goods suspected of<br />
infringing an intellectual property right]. [Each Party [may][shall endeavor to] provide<br />
27<br />
Whether this applies to imports, exports and/or in transit goods depends on paragraph 1.<br />
12<br />
its customs authorities the same authority as the foregoing provision of this Article in<br />
respect of [exported and] in-transit goods that are [suspected counterfeit trademark<br />
goods or suspected pirated copyright goods.]<br />
Option 2<br />
[1. Each Party shall provide that its competent authorities may act upon their own<br />
initiative, to suspend the release of goods suspected of infringing an intellectual<br />
property right.]<br />
2. [Each Party may also provide that its customs authorities may act, upon their<br />
own initiative, to suspend the release of goods suspected of infringing other intellectual<br />
property rights [, not covered by this section].]<br />
ARTICLE 2.X:<br />
[As an alternative to procedures in Article 2.6.1 and 2.7.1 relating to export or in-transit<br />
shipments, each Party shall provide that where shipments are exported from that Party,<br />
or shipments are in-transit through that Party, it shall cooperate to provide all available<br />
information to the destination Party, upon request of the destination Party, to enable<br />
effective enforcement against shipments of infringing 28 goods.]<br />
ARTICLE 2.9: SECURITY OR EQUIVALENT ASSURANCE<br />
Each Party shall provide that its competent authorities shall have the authority to require<br />
a right holder requesting procedures described under Article 2.6 to provide a reasonable<br />
security or equivalent assurance sufficient to protect the defendant and the competent<br />
authorities and to prevent abuse. Each Party shall provide that such security or<br />
equivalent assurance shall not unreasonably deter recourse to these procedures. Each<br />
Party may provide that such security may be in the form of a bond conditioned to hold<br />
the defendant harmless from any loss or damage resulting from any suspension of the<br />
release of the goods in the event the competent authorities determine that the good [is<br />
not a counterfeit trademark good or a pirated copyright good] [does not infringe<br />
intellectual property rights covered by this section]. Only in exceptional circumstances<br />
[or pursuant to a judicial order] may a Party permit a defendant to post a bond or other<br />
security to obtain possession of suspected counterfeit trademark goods or suspected<br />
pirated copyright goods.<br />
ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT<br />
Each Party shall adopt or maintain a procedure by which competent authorities may<br />
determine, within a reasonable period of time after the initiation of the procedures<br />
described under Article 2.X or 2.X, whether the suspected infringing goods infringe an<br />
intellectual property right 29 .<br />
28<br />
Subject to scope.<br />
29<br />
Subject to scope.<br />
13<br />
ARTICLE 2.11: REMEDIES<br />
1. Each Party shall provide its competent authorities with the authority to order the<br />
destruction of goods following a determination under Article 2.10 that the goods are<br />
infringing 30 . [In cases where such goods are not destroyed, each Party shall ensure such<br />
goods are disposed of outside the channels of commerce in such a manner as to avoid<br />
any harm to the right holder.] [or that they be disposed of outside the channels of<br />
commerce in such a way as to preclude injury to the right holder, except in exceptional<br />
circumstances.]<br />
2. In regard to counterfeit trademark goods, the simple removal of the trademark<br />
unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the<br />
release of goods into the channels of commerce.<br />
3. Each Party may provide its competent authorities with the authority to impose<br />
administrative penalties following a determination under Article 2.10 that the goods are<br />
infringing.<br />
ARTICLE 2.12: FEES 31<br />
1. Each Party shall provide that any application fee, storage fee, or destruction fee<br />
to be assessed by competent authorities in connection with procedures described in this<br />
Section shall not be used to unreasonably deter recourse to these procedures.<br />
ARTICLE 2.13: DISCLOSURE OF INFORMATION<br />
Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of<br />
information:<br />
(a) Each Party may authorize its competent authorities to provide right<br />
holders with information about specific shipments of goods, including<br />
the description and quantity, to assist in the detection of infringing<br />
goods;<br />
(b) Each Party may authorize its competent authorities to provide right<br />
holders with information about goods including, but not limited to, the<br />
description and quantity of the goods and the name and address of the<br />
consignor, importer, exporter or consignee, and, if known, the country of<br />
origin and name and address of the manufacturer of the goods to assist in<br />
the determination under Article 2.10 of whether goods infringe rights<br />
30<br />
Subject to scope.<br />
31<br />
At least one delegation may come back with a possible additional paragraph for Article 2,12, depending<br />
upon the progress of discussion in the Civil Enforcement Section.<br />
14<br />
covered by this Section;<br />
(c) Unless a Party has granted authority under subparagraph (b), at least in<br />
the case of imported goods, where competent authorities have seized or,<br />
in the alternative, made a determination under Article 2.10 that goods<br />
infringe rights covered by the section, each Party shall authorize its<br />
competent authorities to provide right holders within 30 days 32 of seizure<br />
or determination, with information about goods including, but not limited<br />
to, the description and quantity of the goods and the name and address of<br />
the consignor, importer, exporter, or consignee, and, if known, the<br />
country of origin and name and address of the manufacturer of the<br />
goods. 33<br />
[Article 2.X: LIABILITY OF THE COMPETENT AUTHORITIES<br />
[1. With respect to the border measures covered by this Section, each Party shall<br />
provide measures concerning the liability of competent authorities in the execution of<br />
their duties.]<br />
Option 1<br />
2. The acceptance of an application on its own shall not entitle the right-holder<br />
to compensation in the event that goods infringing an intellectual property right<br />
[copyright, related rights and trademarks]are not detected by [competent authorities]a<br />
customs office and are released or no action is taken to detain them.<br />
Option 2<br />
[2. Each Party may limit remedies sought by a right holder or other persons<br />
against a Party’s competent authorities as a result of mere acceptance of an<br />
application under Article 2.[6], where the competent authorities release, or fail to<br />
detect, detain, or take action against or in connection with, goods that may infringe<br />
[IPR] covered by this Section.]<br />
[3. The competent authorities shall not be liable towards the persons involved in<br />
the situations referred to in Article 2.6 for damages suffered by them as a result of the<br />
authority’s intervention, except where provided for by the law of the Party in which<br />
the application is made or in which the loss or damage is incurred.]]<br />
32<br />
For purposes of the Article, “days” shall mean “business days”.<br />
33<br />
Subject to agreement by at least one delegation.<br />
15<br />
Section 3: Criminal Enforcement 34<br />
ARTICLE 2.14: CRIMINAL OFFENSES<br />
1. 35 Each Party shall provide for criminal procedures and penalties to be applied at<br />
least in cases of willful trademark counterfeiting or copyright or related rights piracy on<br />
a commercial scale. 36 Willful copyright or related rights piracy on a commercial scale<br />
includes:<br />
[(a) significant willful copyright or related rights infringements that have no<br />
direct or indirect motivation of financial gain; and<br />
(b) willful copyright or related rights infringements for purposes of<br />
commercial advantage or financial gain. 37 ]<br />
[2. Each Party shall provide for criminal procedures and penalties to be applied in<br />
cases of [willful], [unauthorized] [importation] and [or] [domestic] [trafficking]<br />
[conducted] [use in the course of trade] [on a commercial scale] of labels [or<br />
packaging],<br />
(a) to which a mark has been applied [without consent of the right holder]<br />
which is identical to or cannot be distinguished [in its essential aspects]<br />
from a trademark registered in [its territory] [the Party in respect of<br />
certain goods or services], and<br />
(b) which are intended to be used [by the importer or user or, by a third party<br />
with the knowledge of the importer or user, for willful trademark<br />
counterfeiting] [on [either] the goods or [in relation to] services [for<br />
which is registered] [which are identical to goods or services for which<br />
the trademark is registered.]<br />
[3. Each Party shall provide for criminal procedures and penalties to be applied [in<br />
34<br />
Negotiator’s Note: Definitions of “counterfeit trademark goods” and “pirated copyright goods”<br />
provided for in footnotes 12 and 13 of Section 2 (Border Measures) should be used as context for this<br />
Section.<br />
35<br />
This provision is under internal examination by at least one delegation. Subparagraphs (a) and (b) are<br />
still under examination by at least one delegation. At least one is still considering paragraphs 1 and 2.<br />
36<br />
Each Party shall treat willful importation [or exportation] of counterfeit trademark goods or pirated<br />
copyright goods on a commercial scale [in accordance with its laws and regulations,] as unlawful<br />
activities subject to criminal penalties under this Article. A Party may comply with its obligation relating<br />
to [exportation] of pirated copyright or counterfeit trademark goods through its measures concerning<br />
distribution.<br />
37<br />
For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of<br />
value.<br />
16<br />
accordance with its laws and regulations,] against any person who, without<br />
authorization of the holder of copyright [or related rights] [or the theatre manager] in a<br />
[motion picture or other audiovisual work], [cinematographic work] [knowingly] [uses<br />
an audiovisual recording device to transmit or make] [makes] a copy of [, or transmits<br />
to the public] the motion picture or other audiovisual work, or any part thereof, from a<br />
performance of the motion picture or other audiovisual work in a motion picture<br />
exhibition facility open to the public.] 38<br />
ARTICLE 2.15: [CRIMINAL] LIABILITY AND PENALTIES [AND SANCTIONS]<br />
[1. Liability of Legal Persons<br />
(a) Each Party shall adopt such measures as may be necessary, consistent<br />
with its legal principles, to establish the liability of legal persons for the<br />
offences referred to in Article 2.14.<br />
(b) Subject to the legal principles of the Party, the liability of legal persons<br />
may be criminal or non-criminal.<br />
(c) Such liability shall be without prejudice to the criminal liability of the<br />
natural persons who have committed the criminal offences.]<br />
[2. Inciting, Aiding and Abetting<br />
The provisions of this section shall apply to [inciting,] aiding and abetting the offences<br />
referred to in Article 2.14.]] 39<br />
[3. Penalties and Sanctions]<br />
[(a)] For the [ offences] crimes referred to in [Article 2.14] [Article 2.14.1],<br />
each Party shall provide [effective, proportionate and dissuasive]<br />
penalties 40 [. The available penalties shall] that include imprisonment [as<br />
well as] [and] monetary fines 41 [sufficiently high to provide a deterrent<br />
to future acts of infringement, with a view to removing the monetary<br />
incentive of the infringer].<br />
[(b) For legal persons held liable under Article 2.15.1, each Party shall<br />
38<br />
At least one delegation has asked for the deletion of paragraph 3.<br />
39<br />
At least one delegation opposes paragraph 2, ‘Inciting, Aiding and Abetting’.<br />
40<br />
[It is understood that there is no obligation to provide penalties of imprisonment against legal persons<br />
for the crimes set forth in Article 2.14.].<br />
41<br />
[Negotiator’s note: [It is understood that there is no obligation for a Party to impose both imprisonment<br />
and monetary fines in parallel] [This does not imply an obligation for a Party to provide for the courts a<br />
possibility to impose both penalties in parallel.]<br />
17<br />
provide for effective, proportionate and dissuasive sanctions, including<br />
monetary sanctions.]<br />
[ARTICLE 2.16. SEIZURE, FORFEITURE[/CONFISCATION] AND DESTRUCTION<br />
[1. Seizure]<br />
(a) In case of an offence referred to in Article 2.14 [.1], each Party shall<br />
provide that its competent authorities shall have the authority to order<br />
[authorise] [at least for serious offences] the seizure of suspected<br />
counterfeit trademark goods or pirated copyright [or related rights]<br />
goods, any related materials and implements used in the commission of<br />
the alleged offence, documentary evidence relevant to the alleged<br />
offence and any assets derived from, or obtained directly or indirectly<br />
through the infringing activity [ 42 ].<br />
(b) Each Party shall, if a prerequisite for such an order, according to its<br />
national law, is the identification of the items, ensure that the order need<br />
not determine the items that are subject to seizure in more detail than<br />
necessary to allow their identification for the purpose of the seizure.]<br />
[Each Party shall provide that such orders need not individually identify<br />
the items that are subject to seizure, so long as they fall within specified<br />
categories in the relevant order.]<br />
[2. Forfeiture/Confiscation and Destruction]<br />
(a) For the offences referred to in Article 2.14[.1], each Party shall provide<br />
that its competent authorities shall have the authority to order<br />
[confiscation/][forfeiture 43 [and/]or] destruction [where appropriate] of<br />
all counterfeit trademark goods or pirated copyright [or related right]<br />
goods, of materials and implements [predominantly] used in the creation<br />
of counterfeit trademark goods or pirated copyright goods [or related<br />
rights goods], and [at least for serious offences] [forfeiture to the State]<br />
of the [any] assets derived from, or obtained directly or indirectly,<br />
through the infringing activity.<br />
(b) Each Party shall [provide that its competent authorities shall have the<br />
authority to] ensure that the counterfeit trademark goods and pirated<br />
copyright [or related rights] goods that have been [confiscated/] forfeited<br />
[to the state] under this subparagraph shall, if not destroyed, be disposed<br />
of outside the channels of commerce, [under the condition that the goods<br />
are not dangerous for the health and security of persons.] [in such a<br />
42<br />
Each Party may provide that its judicial authorities have the authority to order [fines or] the seizure of<br />
assets the value of which corresponds to that of such assets derived from or obtained, directly or<br />
indirectly, through the infringing activity.<br />
43<br />
At least one delegation to propose wording to clarify whether forfeiture to right holder or to state.<br />
18<br />
manner as to avoid any harm caused to the right holder.]<br />
(c) Each Party shall further ensure that [confiscation/]forfeiture and<br />
destruction under this subparagraph shall occur without compensation of<br />
any kind to the defendant.<br />
(d) Each Party may provide that its judicial authorities have the authority to<br />
order the confiscation/ forfeiture [to the state] of assets the value of<br />
which corresponds to that of such assets derived from or obtained<br />
directly or indirectly through the infringing activity.<br />
ARTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT<br />
Each Party shall provide that its competent authorities may act upon their own initiative<br />
to initiate investigation [or] [and/or] legal action with respect to the [criminal] offenses<br />
described in [Article 2.14] [Sections 3 and 4.] [at least in cases of significant public<br />
interest, in accordance with national law.]<br />
[ARTICLE 2.X. RIGHTS OF THE DEFENDANT AND THIRD PARTIES<br />
Each Party shall ensure that the rights of the [defendants and] third parties shall be duly<br />
protected and guaranteed.] 44<br />
Section 4: [Special Measures Related to Technological Enforcement of Intellectual<br />
Property in the Digital Environment]<br />
ARTICLE 2.18 [ENFORCEMENT PROCEDURES IN THE DIGITAL ENVIRONMENT] 45<br />
1. Each Party shall ensure that enforcement procedures, to the extent set forth in<br />
the civil and criminal enforcement sections of this Agreement, are available under its<br />
law so as to permit effective action against an act of [trademark, copyright or related<br />
rights][intellectual property rights] infringement which takes place [by means of the<br />
Internet][in the digital environment] , including expeditious remedies to prevent<br />
infringement and remedies which constitute a deterrent to further infringement.<br />
2. [Those measures, procedures and remedies shall also be fair and<br />
proportionate.] 46 *<br />
44<br />
At least one delegation proposes that this provision be reflected in the General Provisions of the<br />
Agreement.<br />
45<br />
At least one delegation reserves its right to revisit elements of this Section at a later date.<br />
46<br />
[See identical comment on the draft Chapter 2, Section 1 “Civil Enforcement” and Section 3 “Criminal<br />
Enforcement”. A suggestion is to move these provisions into Chapter 1, Section A which applies to the<br />
whole Agreement. Direct reference to TRIPS might also clarify the scope of these obligations.]<br />
19<br />
3. Without prejudice to the rights, limitations, exceptions, or defenses to [[ patent,<br />
industrial design, trademark and][copyright or related rights]][intellectual property<br />
rights] infringement available under its law, including with respect to the issue of<br />
exhaustion of rights, each Party [confirms that] [shall provide for] [civil remedies as<br />
well as limitations, exceptions, or defenses with respect to the application of such<br />
remedies, are available in its legal system in cases of third party liability[ 47 ][or liability<br />
for those who authorize infringement, or both] for [[patent, industrial design, trademark<br />
and][copyright or related rights]][intellectual property rights] infringement. 48<br />
Option 1<br />
Each Party recognizes that some persons 49 use the services of third parties,<br />
[ 3.<br />
including online service providers,[ 50 ] for engaging in [ patent, industrial design and<br />
trademark,] copyright or related rights infringement. Each Party also recognizes that<br />
legal uncertainty with respect to application of copyright and related rights, limitations,<br />
exceptions, and defenses in the digital environment may present barriers to the<br />
economic growth of, and opportunities in, electronic commerce.] 51 Accordingly, in<br />
order to facilitate the continued development of an industry engaged in providing<br />
information services online while also ensuring that measures to take adequate and<br />
effective action against copyright or related rights infringement are available and<br />
reasonable each Party [shall][ may]:<br />
(a) provide limitations 52 on the scope of civil remedies available against an<br />
47<br />
[For greater certainty, the Parties understand that third party liability means liability for any person who<br />
authorizes for a direct financial benefit, induces through or by conduct directed to promoting<br />
infringement, or knowingly and materially aids any act of copyright or related rights infringement by<br />
another. Further, the Parties also understand that the application of third party liability may include<br />
consideration of exceptions or limitations to exclusive rights that are confined to certain special cases that<br />
do not conflict with a normal exploitation of the work, performance or phonogram, and do not<br />
unreasonably prejudice the legitimate interests of the right holder, including fair use, fair dealing, or their<br />
equivalents.] At least one delegation opposes this footnote.<br />
48<br />
Negotiator’s Note: This provision may be moved and located in the civil enforcement section.<br />
49<br />
Negotiator’s Note: Definition of person still pending in General Provisions.<br />
50<br />
[For purposes of this Article, online service provider and provider mean a provider of online services<br />
or network access, or the operators of facilities therefore, and includes an entity offering the transmission,<br />
routing, or providing of connections for digital online communications, between or among points<br />
specified by a user, of material of the user’s choosing, without modification to the content of the material<br />
as sent or received.]<br />
51<br />
At least one delegation suggests moving the second and third sentences of paragraph 3. At least one<br />
delegation suggests moving the first and second sentences of paragraph 3.<br />
52<br />
For greater certainty, the Parties understand that [these limitations are not intended to harmonize the<br />
liability of online service provider, but exclude liability in certain situations. Thus] the failure of an<br />
online service provider’s conduct to qualify for a limitation of liability under its measures implementing<br />
20<br />
online service provider for infringing activities that occur by<br />
(i) automatic technical processes, and<br />
(ii) the actions of the provider’s users that are not directed or<br />
initiated by that provider and when the provider does not select<br />
the material, and<br />
(iii) the provider referring or linking users to an online location,<br />
when, in cases of subparagraphs (ii) and (iii) 53 , the provider does not<br />
have actual knowledge of the infringement and is not aware of facts or<br />
circumstances from which infringing activity is apparent; and ]<br />
Option 2<br />
[Each Party recognizes that some persons 54 use the services of third parties, including<br />
online service providers,[ 55 ] for engaging in intellectual property rights infringements.<br />
(a) In this respect, each Party shall provide limitation on the [liability of] [ scope of<br />
civil remedies available against an] on-line service provider[s] for infringing<br />
activities 56 that occur by 57<br />
(i) automatic technical processes [ that keep the provider from taking<br />
measures to prevent the infringement], or<br />
(ii) the actions of the provider ́s users that are not initiated nor<br />
modified by that provided and when the provider does not select<br />
the material or<br />
(iii) the storage of information provided by the recipient of the service<br />
or at the request of the recipient of the service,<br />
when exercising the activities as stipulated in paragraph 3(a)(ii) and/or (iii) the online<br />
service providers act [takes appropriate measures] expeditiously, in accordance with<br />
applicable law [s], [such as those] to remove or disable access to infringing material or<br />
infringing activity upon obtaining actual knowledge of the infringement [or the fact that<br />
this provision shall not bear adversely upon the consideration of a defense by the provider that the<br />
provider’s conduct is not infringing or any other defense.<br />
53<br />
Clarify which conditions apply to which activities.<br />
54<br />
[Negotiator’s Note: Definition of “person” still pending in General Provisions.]<br />
[55 For purposes of this Article, online service provider and provider mean a provider of online<br />
services or network access, or the operators of facilities therefore, and includes an entity offering the<br />
transmission, routing, or providing of connections for digital online communications, between or among<br />
points specified by a user, of material of the user’s choosing, without modification to the content of the<br />
material as sent or received.]<br />
[56 The activities covered in paragraph 3(a)(i) cover the mere conduit and the activities covered in<br />
paragraph 3(a)(ii) and (iii) cover respectively caching and hosting in accordance with parties legal<br />
systems.]<br />
57<br />
At least one delegation proposes to redraft this sub-paragraph.<br />
21<br />
the information at the initial source has been removed or disabled.] [or having<br />
reasonable grounds to know that the infringement is occurring]]<br />
Option 1<br />
(b) condition the application of the provisions of subparagraph (a) on<br />
meeting the following requirements:<br />
(i) an online service provider adopting and reasonably<br />
implementing a policy[ 58 ] to address the unauthorized storage or<br />
transmission of materials protected by copyright or related rights<br />
[ except that no Party may condition the limitations in<br />
subparagraph (a) on the online service provider’s monitoring its<br />
services or affirmatively seeking facts indicating that infringing<br />
activity is occurring]; and<br />
(ii) an online service provider expeditiously removing or disabling<br />
access to material or [activity][alleged infringement], upon<br />
receipt [of legally sufficient notice of alleged infringement,][of<br />
an order from a competent authority] and in the absence of a<br />
legally sufficient response from the relevant subscriber of the<br />
online service provider indicating that the notice was the result<br />
of mistake or misidentification.<br />
except that the provisions of (ii) shall not be applied to the extent that the<br />
online service provider is acting solely as a conduit for transmissions<br />
through its system or network.]<br />
Option 2:<br />
[Paragraph 3(a) shall not affect the possibility for a judicial or administrative authority,<br />
in accordance with the Parties legal system, requiring the service provider to terminate<br />
or prevent an infringement, nor does it affect the possibility of the parties establishing<br />
procedures governing the removal or disabling of access to information<br />
The Parties shall not impose a general monitoring requirement on providers when acting<br />
in accordance with this paragraph 3.]<br />
[ 3 ter. Each Party shall enable right holders, who have given effective notification to<br />
an online service provider of materials that they claim with valid reasons to be<br />
infringing their copyright or related rights, to expeditiously obtain from that provider<br />
information on the identity of the relevant subscriber.<br />
58<br />
At least one delegation proposes to include language in this footnote to provide greater certainty that<br />
their existing national law complies with this requirement.<br />
22<br />
3 quater. Each Party shall promote the development of mutually supportive<br />
relationships between online service providers and right holders to deal effectively with<br />
patent, industrial design, trademark and copyright or related rights infringement which<br />
takes place by means of the Internet, including the encouragement of establishing<br />
guidelines for the actions which should be taken.]<br />
[4. 59 In order to provide adequate legal protection 60 and effective legal remedies<br />
against the circumvention of effective technological measures that are used by authors,<br />
[performers or producers of phonograms] [the right holder of any copyright or related<br />
rights or owner of an exclusive license 61 ] in connection with the exercise of their rights<br />
and that restrict unauthorized acts in respect of their works, [performances, and<br />
phonograms] [or other subject matters specified under Article 14 of the TRIPS<br />
Agreement], each Party shall provide for civil remedies, [or] [as well as] criminal<br />
penalties in appropriate cases of willful conduct [ 62 ] , that apply to:<br />
[Each Party shall provide for adequate legal protection63 and effective legal remedies, in<br />
the form of civil remedies or criminal penalties in appropriate cases of willful conduct,<br />
against the circumvention of effective technological measures that are used by authors,<br />
performers or producers or phonograms in connection with the exercise of their rights<br />
and that restrict unauthorized acts in respect of their works, performances, and<br />
phonogram. These shall apply to:]<br />
the unauthorized circumvention of an effective technological measure 64<br />
(a)<br />
[that controls access to a protected work, performance, or phonogram];<br />
and<br />
(b) the manufacture, importation, or circulation of a [technology], service,<br />
device, product, [component, or part thereof, that is: [marketed] or<br />
primarily designed or produced for the purpose of circumventing an<br />
effective technological measure; or that has only a limited commercially<br />
59<br />
At least one delegation has reservations about several elements in paragraph 4.<br />
60<br />
At least one delegation opposes inclusion of ‘adequate legal protection’.<br />
61<br />
At least one delegation opposes inclusion of ‘or owner of an exclusive license’.<br />
62<br />
[For the purpose of this Article, willful conduct means actual knowledge or reasonable grounds to know<br />
that he or she is pursuing the objective of circumventing any effective technological measure.]<br />
63<br />
At least one delegation opposes inclusion of ‘adequate legal protection’.<br />
64<br />
For the purposes of this Article, effective technological measure means any technology, device, or<br />
component that, in the normal course of its operation, [controls access to a protected work, performance,<br />
phonogram, or protects any copyright or any rights related to copyrights.][is controlled by the right<br />
holders through application of an access control or protection process such as encryption, scrambling, or<br />
other transformation of their works, performances or phonograms, or a copy control mechanism, which<br />
achieves the protection objective.]<br />
23<br />
significant purpose or use other than circumventing an effective<br />
technological measure.]]<br />
[5. [4.2] Each Party shall provide [that a] [adequate legal protection against a]<br />
violation of a measure implementing paragraph (4) [is a separate civil or criminal<br />
offense,] independent of any infringement of copyright or related rights. 65 ] 66<br />
Option 1<br />
[Further, [each Party may adopt exceptions and limitations to measures implementing<br />
paragraph 4 so long as they do not significantly impair the adequacy of legal protection<br />
of those measures or the effectiveness of legal remedies for violations of those<br />
measures.] 67<br />
Option 2<br />
[ 5. Each Party may provide for measures which would safeguard the benefit of<br />
certain exceptions and limitations to copyright and related rights, in accordance with its<br />
legislation.]<br />
[6. [In order to] [Each Party shall] provide adequate and effective legal remedies to<br />
protect [ electronic] rights management information[, e]<br />
[ E]ach Party shall provide for civil remedies, [or] [as well as] criminal penalties] in<br />
appropriate cases of willful [ 68 ] conduct, that apply to any person performing [without<br />
authority] any of the following acts knowing [or with respect to civil remedies having<br />
reasonable grounds to know] that it will induce, enable, facilitate, or conceal an<br />
infringement of any copyright or related right:<br />
to remove or alter any [electronic] right management information69<br />
(a)<br />
65<br />
[The] [In accordance with the applicable national legislation, the] obligations in paragraphs (4) and (5)<br />
[are][may be] without prejudice to the rights, limitations, exceptions, or defenses to copyright or related<br />
rights infringement. Further, [in implementing paragraph (4), no Party may][paragraph (4) does not<br />
imply any obligation to] require that the design of, or the design and selection of parts and components<br />
for, a consumer electronics, telecommunications, or computing product provide for a response to any<br />
particular technological measure, so long as the product does not otherwise violate any measures<br />
implementing paragraph (4).<br />
66<br />
At least one delegation is to reflect on appropriate location for this provision.<br />
67<br />
Negotiator’s Note: This provision is subject to broader government action/sovereign immunity<br />
provision elsewhere in the Agreement.<br />
68<br />
[For the purpose of this Article, willful conduct means knowingly performing without authority any of<br />
the following acts listed under subparagraph 6 (a) or (b), if such person knows or has reasonable grounds<br />
to know that by so doing he is inducing, enabling, facilitating, or concealing an infringement of any<br />
copyright or any rights related to copyright.]<br />
69<br />
For purposes of this Article, [electronic] rights management information means:<br />
(a) information that identifies a work, [or other subject matters specified under Article 14 of the TRIPS<br />
Agreement] [performance, or phonogram]; the author [of the work, the performer of the performance, or<br />
the producer of the phonogram] [or any other right holders of the subject matters specified under Article<br />
24<br />
(b) to distribute, import for distribution, broadcast, communicate, or make<br />
available to the public copies of works, [or other subject matters<br />
specified under Article 14 of the TRIPS Agreement] [performances, or<br />
phonograms], knowing that [electronic]rights management information<br />
has been removed or altered without authority.]<br />
[7.] [6.2] Each Party may adopt [limitations or] exceptions to the requirements of<br />
subparagraphs (a) and (b) [of paragraph (6)] [so long as they do not significantly impair<br />
the adequacy of legal protection or effectiveness of legal remedies for violations of<br />
those measures.]<br />
14 of the TRIPS Agreement]; or the owner of any right in the work, performance, or phonogram;<br />
(b) information about the terms and conditions of the use of the work, [performance, or phonogram] [or<br />
any other right holders of the subject matters specified under Article 14 of the TRIPS Agreement]; or<br />
(c) any numbers or codes that represent the information described in (a) or (b) above,when any of these<br />
items is attached to a copy of the work, [performance, or phonogram] [or other subject matters specified<br />
under Article 14 of the TRIPS Agreement] or appears in connection with the communicator or making<br />
available of a work, [performance, or phonogram] [or other subject matters specified under Article 14 of<br />
the TRIPS Agreement] to the public.<br />
25<br />
CHAPTER THREE<br />
INTERNATIONAL COOPERATION<br />
ARTICLE 3.1: INTERNATIONAL ENFORCEMENT COOPERATION<br />
1. Each Party recognizes that international [enforcement] cooperation [is vital [ to<br />
realize [fully] effective protection of intellectual property rights] [ in order to deal with<br />
the increasingly global problem of the trade in counterfeit and pirated goods]] [plays an<br />
important role in the protection of copyright and trademark rights]and should be<br />
[undertaken] [encouraged] regardless of the origin of the infringing goods or the<br />
location [or nationality] of the right holder [of the intellectual property rights.<br />
2. In order to combat [intellectual property right infringement, in particular,]<br />
trademark counterfeiting and copyright piracy, each Party shall promote [may, as it<br />
deems appropriate, ] cooperation [measures, where appropriate,] among the [relevant]<br />
competent authorities of the Parties [concerned with] [responsible for] enforcement of<br />
intellectual property rights. Such [cooperation includes][ measures may include]<br />
[cooperation shall include][may include] law enforcement cooperation with respect to<br />
criminal investigation or prosecution [concerning] [relating to] the offences covered by<br />
this Agreement and [border measures] [cooperation at the border], [which may be<br />
conducted bilaterally or multilaterally] Particular attention shall be devoted to the<br />
circulation of IPR infringing goods detrimental to the health and safety.]<br />
3. Each Party [shall][ may], consistent with the [existing][domestic law and policy<br />
and the] [international agreements and arrangements to which such Party is a party],<br />
[conduct][ undertake] enforcement cooperation [foreseen] [activities as provided]<br />
[international cooperation as set out ] in this Chapter [,in line with the international<br />
agreements and arrangements to which such Party is a party.] [Each Party may also<br />
conduct enforcement cooperation or provide assistance to another Party pursuant to<br />
other international agreements, arrangements, and practices, and in accordance with its<br />
domestic law and policies.]<br />
[4. Nothing in this Chapter and Chapter 4 shall require any Party to disclose<br />
confidential information which would be contrary to its laws, regulations, policies, legal<br />
practices and applicable international agreements and arrangements, including laws<br />
protecting investigative techniques, right of privacy or confidential information for law<br />
enforcement, or otherwise be contrary to public interest, or would prejudice the<br />
legitimate commercial interests of particular enterprises, public or private.]<br />
[4. The Parties understand that obligations under this Chapter and Chapter 4 are<br />
subject to the domestic laws, policies, resource allocation and law enforcement<br />
priorities of each Party.]<br />
26<br />
ARTICLE 3.2: INFORMATION SHARING<br />
1. [In order to ensure effective enforcement of the provisions of this Agreement,] each<br />
Party [[shall][ may] promote sharing or exchanging] [may, as it deems appropriate,<br />
share or exchange ] with other Parties [of the following information ][ as appropriate<br />
and mutually agreed]:<br />
(a) information collected by the Party under provisions of Chapter 4,<br />
including statistical data and information on best practices including<br />
those relating to[risk analysis] [risk management]; and<br />
(b) information on [the] development [and implementation] of legislative<br />
and regulatory measures [of the] [by the] Party [related to the protection<br />
and enforcement of intellectual property rights].<br />
For this purpose, the Parties shall endeavour to establish appropriate modalities<br />
including holding of periodical meetings.<br />
[Parties shall endeavor to establish an observatory as a tool for collecting information]<br />
2. Each Party shall ensure, as appropriate and mutually agreed, [within the limits of<br />
[its] national legislation][ consistent with its domestic laws] , policies, [legal] practices,<br />
and applicable [existing] international agreements and arrangements, that its competent<br />
authorities have the [ability] [authority] to provide the competent authorities of any<br />
other [Parties][ Party], either on request or on its own initiative, with information<br />
[[necessary to ensure][ to facilitate][ to allow] a proper application of laws concerning<br />
enforcement of intellectual property rights and to prevent, investigate, [and repress acts<br />
of intellectual property right infringements][ or prosecute infringement of Intellectual<br />
property rights ] [related to the enforcement of intellectual property rights].<br />
ARTICLE 3.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE<br />
1. [In order to facilitate the implementation of this Agreement or the accession<br />
thereto,] [Developed country] Parties shall [endeavour to] provide, on request and on<br />
mutually agreed terms and conditions, assistance in capacity building and technical<br />
assistance[in improving enforcement of intellectual property rights,] [focused on<br />
initiatives to combat the trade in counterfeit and pirated goods] in favour of developing<br />
country Parties to this Agreement and [, where appropriate,] [for third countries ][for<br />
countries not a Party to this Agreement.][ Parties shall make all reasonable efforts to<br />
ensure that such capacity building and technical assistance are compatible and do not<br />
overlap with similar activities provided by international organizations active in the field<br />
of intellectual property.] [The provision of assistance under this Article and Articles<br />
3.3.2 and 3.3.3 is subject to the availability of resources on the part of the donor Party.]<br />
2. For the purpose of paragraph 1, [developed country]Parties shall [, at the request<br />
of developing country Parties and on mutually agreed terms and conditions, ] work<br />
27<br />
closely with [developing country] [other]Parties [and, where appropriate, countries not a<br />
Party to this Agreement or separate customs territories,] [to enact] [implement and to ]<br />
or strengthen their [domestic] [ national] legislation, as appropriate, and assist them in<br />
improving their national intellectual property law enforcement capacities through<br />
sharing best practices concerning intellectual property law enforcement and providing<br />
relevant technical training for enforcement officials.<br />
3. [[Developed country][Developed and developing country] Parties] [Each Party]<br />
may undertake the obligations under this Article in conjunction with relevant private<br />
sector or international organizations.<br />
[4. Parties shall put in place a special allocation Fund to finance ACTA initiatives on<br />
capacity building and technical assistance]<br />
[5. Parties shall, in the implementation and administration of this Agreement, take into<br />
account developing countries needs in the field of financing and technical assistance. In<br />
this respect, States Parties to the Agreement agree:<br />
(a) To support, developing countries efforts, for the implementation of the<br />
Agreement and the integration of anti-counterfeiting and anti-hacking<br />
actions in national development strategies. This assistance shall be<br />
designed to help developing countries to harmonize their laws, to carry<br />
out their obligations and to exercise their rights as Members.<br />
(b) To ensure predictable and sustainable financing.<br />
(c) To promote coordination of technical assistance activities with the<br />
bilateral donors, WTO Secretariat, WIPO as well as with other relevant<br />
international intergovernmental institutions.<br />
States Parties shall review annually the implementation of this Article].<br />
(d)<br />
[5. State parties shall endeavour to provide technical assistance in the following<br />
areas:<br />
(a) Promoting the culture of intellectual property.<br />
(b) Training professionals in charge of the protection of the rightholders<br />
involved in the protection of intellectual Property.<br />
(c) Capacity building and experience sharing among institutions in charge of<br />
fighting counterfeiting and piracy.<br />
(d) Tools for measuring the economic impact of counterfeiting on the market<br />
and evaluating the anti counterfeiting and anti-hacking actions.<br />
28<br />
(e) Conducting joint operations at the regional and international levels.<br />
(f) Enforcement of laws regarding fighting counterfeiting and piracy trough<br />
the Internet.<br />
Technical assistance shall be extended to all other types of actions facilitating the<br />
implementation and the applicability of the ACTA Agreement].<br />
29<br />
CHAPTER FOUR<br />
ENFORCEMENT PRACTICES<br />
ARTICLE 4.1: ENFORCEMENT EXPERTISE, INFORMATION AND DOMESTIC COORDINATION<br />
1. Each Party shall [[facilitate] [ encourage][as it deems appropriate foster the]<br />
development of] [develop] specialized expertise [of][in its] competent authorities<br />
concerned with enforcement of [intellectual property rights] [copyright and trademark<br />
rights] , in order to [ensure] [promote] effective enforcement of [intellectual property<br />
rights] [copyright and trademark rights] [One means of implementation is through<br />
specialized law enforcement authorities for the investigation and prosecution of cases<br />
concerning the infringement of intellectual property rights.]<br />
2. Each Party shall [promote collection and analysis of] [endeavor to collect]<br />
statistical data and other [relevant] information [, which such Party determines is useful<br />
and relevant,] [concerning infringement of intellectual property rights [ within its<br />
territory], especially] trade in counterfeit trademark goods and pirated copyright goods.<br />
Each Party shall [further] promote collection of information on best practices to prevent<br />
and combat [intellectual property right infringement] [trademark counterfeiting and<br />
copyright piracy].<br />
3. Each Party shall [, as it deems appropriate,] [, as appropriate,] [endeavour to<br />
enhance] [promote] internal coordination among, [and facilitate joint actions by], [such<br />
Party’s] [the] competent authorities [concerned with ][ responsible for] enforcement of<br />
intellectual property rights [through an appropriate coordinating [ body][ bodies] or<br />
other relevant mechanisms]<br />
4. [In order to promote effective enforcement of intellectual property rights,] each<br />
Party shall [, as it deems appropriate,] [endeavour to encourage][ promote] [the]<br />
establishment and maintenance of formal or informal mechanisms, [as appropriate,]<br />
such as public and/or private advisory groups, whereby competent authorities may hear<br />
[the views of] right holders and other relevant stakeholders [where appropriate] [foster<br />
dialogue and information exchanges with shareholders in its territory] .<br />
ARTICLE 4.2: MANAGEMENT OF RISK AT BORDER 70<br />
1. Each Party shall adopt and maintain appropriate measures that facilitate<br />
activities of custom authorities for better identifying and targeting for inspection at its<br />
border, shipments [that [could] contain] [which are suspected to contain] [counterfeit<br />
trademark goods or pirated copyright goods] [goods infringing intellectual property<br />
rights.] Such activities may include,[ subject to paragraph 2 of Article 3.2] [clause in<br />
article 3.4. is applicable]:<br />
70<br />
[Article 4.2 should be reviewed in relation to other proposal on Chapter 2 regarding Information<br />
Exchange between Customs Authorities.]<br />
30<br />
(a) contact with relevant stakeholders and with relevant authorities to<br />
identify and address risks;<br />
(b) exchanging available data with custom authorities of other Parties<br />
regarding significant seizures of [counterfeit and pirated] [infringing]<br />
goods by customs, wherever possible; and<br />
(c) sharing information with custom authorities of other Parties on<br />
approaches that are developed to provide greater effectiveness in<br />
targeting shipments that could contain [counterfeit and pirated]<br />
[infringing] goods.<br />
[2. To better identify and target shipments for inspection that are suspected to<br />
contain counterfeit trademark goods or pirated copyright goods, each Party may:<br />
(a) consult with relevant stakeholders and with competent authorities<br />
responsible for intellectual property rights enforcement to identify and<br />
address significant risks and promote actions to mitigate those risks;<br />
(b) when appropriate, exchange data with border authorities of other Parties;<br />
and<br />
(c) share information with border authorities of other Parties on approaches<br />
that are developed to provide greater effectiveness in the border<br />
enforcement of intellectual property rights, including approaches for<br />
targeting shipments that could contain counterfeit and pirated goods.<br />
3. Each Party shall provide that its competent authorities may conduct audits of an<br />
importer’s business records, including methods of payment and purchase contracts, as<br />
well as its internal controls to track illicit financial gains and expose business practices<br />
related to trademark counterfeiting and copyright piracy.]<br />
ARTICLE 4.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND<br />
PRACTICES<br />
Option 1<br />
[1. For the purpose of [further] promoting transparency in the administration of [the]<br />
intellectual property right enforcement system, each Party shall take appropriate<br />
measures [pursuant to domestic laws and policies,] [available] to publish or make<br />
available to the public information [within a reasonable period of time] on:<br />
(a) procedures [available] regarding the enforcement of intellectual property<br />
rights including competent authorities for enforcement of intellectual<br />
property rights and contact points for assistance to right holders;<br />
[(b) relevant laws, regulations, [final judicial decisions ] and administrative<br />
rulings of general application pertaining to enforcement of intellectual<br />
31<br />
property rights;]<br />
[(c) applications [forms]for the suspension by the competent authorities of<br />
the release of goods [infringing intellectual property right] [suspected<br />
counterfeit and pirated goods ] as a border measure;] and<br />
(d) its efforts to ensure effective enforcement of intellectual property rights<br />
and [an effective][intellectual property protection system] including any<br />
statistical data that the Party may collect.]<br />
Option 2<br />
[1. For the purpose of promoting transparency in the administration of its<br />
intellectual property rights enforcement system, each Party shall:<br />
(a) provide that final judicial decisions or administrative rulings of general<br />
applicability pertaining to the enforcement of intellectual property rights<br />
shall be in writing and shall state any relevant findings of fact and the<br />
reasoning or the legal basis upon which the decisions are based. Each<br />
Party shall also provide that such decisions or rulings shall be<br />
published 71, or otherwise made publicly available, in a national language<br />
in such a manner as to enable governments and interested persons to<br />
become acquainted with them.<br />
(b) identify in a manner readily available to the public, the competent<br />
authorities for intellectual property enforcement and contact points where<br />
right holders may seek assistance;<br />
(c) [publish applications for the suspension by the competent authorities of<br />
the release of suspected counterfeit and pirated goods as a border<br />
measure;] and<br />
(d) publicize information on its efforts to ensure effective enforcement of<br />
intellectual property rights in its domestic intellectual property rights<br />
system, including any statistical information that the Party may collect<br />
for such purposes. 72 ]<br />
Option 1<br />
[2. Nothing in this [Chapter and Chapter 3][ Agreement] shall require any Party to<br />
disclose {confidential} information which would impede the enforcement of its laws<br />
and regulations, including laws protecting investigative techniques, right of privacy or<br />
71<br />
[For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by<br />
making it available to the public on the Internet.]<br />
72<br />
[For greater certainty, nothing in [this sub-paragraph] is intended to prescribe the type, format, and<br />
method of publication of the information a Party must publicize.]<br />
32<br />
confidential information for law enforcement, or otherwise be contrary to [its domestic<br />
laws or policy, or] the public interest, or would prejudice the legitimate commercial<br />
interests of particular enterprises, public or private.<br />
Option 2<br />
[2. Nothing in paragraphs 1, 2 and 3 shall require Members to disclose personal<br />
information, or confidential information which would impede law enforcement or<br />
otherwise be contrary to the public interest or could prejudice the legitimate commercial<br />
interests of particular enterprises, public or private.]<br />
[3. In civil legal proceedings instituted for infringement of an intellectual property<br />
right, the judicial authorities may order, at the request of the applicant and at the<br />
expense of the infringer, appropriate measures for the dissemination of the information<br />
concerning the decision, including displaying the decision and publishing it in full or in<br />
part. Parties may apply this provision to other judicial and administrative proceedings.]<br />
ARTICLE 4.4: PUBLIC AWARENESS<br />
Each Party shall [take [necessary] [such][appropriate]] [promote the adoption of<br />
appropriate] measures [as it deems appropriate] to enhance] [will promote] [including<br />
educational projects, designed to raise] public awareness of the importance of [the<br />
protection of ][ protecting] intellectual property rights and the detrimental effects of<br />
intellectual property right infringement, including educational [and dissemination]<br />
projects. [Such measures may include joint initiatives with the private sector.]<br />
[ARTICLE 4.5: DESTRUCTION OF INFRINGING GOODS<br />
In cases where confiscated goods found to be infringing intellectual property rights are<br />
to be destroyed, Parties shall endeavour to take environmental concerns into account<br />
when deciding on the destruction method. ]<br />
33<br />
CHAPTER FIVE<br />
INSTITUTIONAL ARRANGEMENTS 73<br />
ARTICLE 5.1: THE [OVERSIGHT] [STEERING] [COMMITTEE]<br />
1. The [Contracting] Parties [hereby establish][ [shall have a] the<br />
[Oversight][ACTA] [Steering] Committee, comprising [[representatives of] [each of]<br />
the Parties] [one delegate from each Party who may be assisted by alternative delegates,<br />
advisors and experts.]<br />
2. The Committee shall:<br />
(a) supervise the implementation of this Agreement; [including a periodic<br />
mutual evaluation process of the implementation of the Agreement by<br />
the parties, according to the principles of equal treatment and a fair<br />
hearing.]<br />
(b) [oversee [its][the] [the Agreement’s] further elaboration [or<br />
development?] [of this Agreement], [deal with matters concerning the<br />
amendment and development of this Agreement] while ensuring that<br />
such[elaboration][ development]does not duplicate other international<br />
efforts regarding the enforcement of intellectual property rights;<br />
(c) [[resolve][facilitate the avoidance of] disputes that may arise regarding<br />
[its][the] interpretation or application[ 74 ] [of this Agreement]; ]and<br />
(d) consider any other matter that may affect the operation of this<br />
Agreement.<br />
3. The Committee may:<br />
(a) [establish,] [and delegate [tasks] tasks/responsibilities] to, ad hoc or<br />
standing committees working groups or [Government] experts<br />
groups;][to assist the Committee in accomplishing its tasks;][a Task-<br />
Force to undertake the monitoring and the evaluation of the Agreement,<br />
namely by reviewing the implementation of Parties' obligations, as<br />
defined in Article 5.1.2.a) and assisting candidate countries to join the<br />
Agreement. This Task-Force should consist of experts appointed by the<br />
Parties and agreed upon by the Oversight Committee;]<br />
(b) seek the advice of non-governmental persons or groups [from the State<br />
73<br />
At least one delegation reserves its right to revisit elements of this chapter at a later date.<br />
74<br />
The application of this provision shall not conflict with the rules and implementation of the Dispute<br />
Settlement Understanding of the World Trade Organization.<br />
34<br />
Parties];<br />
(c) [make recommendations regarding the implementation of the Agreement<br />
[including endorsing best practice guidelines for implementing the<br />
Agreement, identifying and monitoring techniques of piracy and<br />
counterfeiting and their evolution]];<br />
(d) assist non-Party governments in assessing the benefits of accession to the<br />
Agreement [and share information and best practices on reducing IPR<br />
infringements];<br />
(e) [support international organizations in the enforcement of intellectual<br />
property rights;] and<br />
(f) take such other action in the exercise of its functions as the Parties may<br />
decide.<br />
[4. One-half of the members of the Committee shall constitute a quorum.]<br />
5. The Committee shall [establish its rules and procedures][ at its first meeting<br />
adopt its rules of procedures] [including rules for the convocation of extraordinary<br />
sessions]. All decisions of the Committee shall be taken by consensus, [except as the<br />
Committee may otherwise decide [by consensus]]. [The working language of the<br />
Committee shall be English.]<br />
6. The Committee shall convene [at least [once a year]] [once every two years] [in<br />
regular session]. [T]he Committee shall be chaired [and hosted][ successively by each<br />
Party][by a volunteering Party] [in English alphabetically] . [assisted by a Vice-Chair<br />
from the Party due to chair and host the subsequent meeting.] [A Special session may be<br />
called for by one Party and convened if the majority of the Parties does not oppose such<br />
request. The Special session shall be chaired by the Party chairing the Regular session<br />
of that year. The Committee shall preferably meet in Geneva.]<br />
[7. The Committee’s role as set forth in Article 5.1 shall not include any<br />
oversight or supervision relating to domestic or international criminal investigations or<br />
enforcement of specific intellectual property cases.]<br />
ARTICLE 5.2: THE SECRETARIAT<br />
1. The Party that is the Chair of the Committee shall provide the Secretariat to the<br />
Committee for [the calendar year][the two calendar years beginning with the calendar<br />
year [immediately prior to that]] in which the Committee shall be convened with that<br />
Party as Chair.<br />
2. The functions of the Secretariat shall be:<br />
35<br />
(a) to provide assistance to the Committee [as required, and];<br />
(b) [to provide administrative support to the Chair][to perform the<br />
administrative tasks concerning this Agreement.]<br />
(c) [to elaborate all documents resulted from ordinary or extraordinary<br />
sessions]<br />
(d) [to submit documents derived from ordinary or extraordinary sessions to<br />
all parties]<br />
ARTICLE 5.3: CONTACT POINTS<br />
1. [Each Party shall designate a [current] contact point to facilitate communications<br />
[between the][ with other] Parties on any matter covered by this Agreement.]<br />
[The][Each Party shall transmit the] [name, [and][physical] address, telephone number<br />
[and e-mail address]] of that contact point [shall be transmitted] to the Depositary [prior<br />
to the entry into force of the Agreement for that Party], who shall circulate the<br />
information to the Parties.<br />
2. On the request of [another][one] Party, the contact point [of another Party] shall<br />
identify [the] [according to the matter concerned, an appropriate] office or official<br />
[responsible for the matter concerned] and assist, as necessary, in facilitating<br />
communication between the [responsible] office or official concerned with the<br />
requesting Party.<br />
[ARTICLE 5.4: TRANSPARENCY<br />
Option 1<br />
[1. Each Party shall ensure that its laws, regulations,[procedures] [final judicial<br />
decisions], and administrative rulings of general application respecting any matter<br />
covered by this Agreement are promptly [in an appropriate time] published or otherwise<br />
made publicly available [in a national language,] in such a manner as to enable<br />
governments and interested persons to become acquainted with them.]<br />
Option 2<br />
[1. Each Party shall ensure that final judicial decisions or administrative rulings of<br />
general applicability pertaining to the enforcement of intellectual property rights shall<br />
be in writing and shall state any relevant findings of fact and the reasoning or the legal<br />
basis upon which the decisions are based. Each Party shall also ensure that such<br />
decisions or rulings shall be published 75 , or otherwise made publicly available, in a<br />
national language in such a manner as to enable governments and interested persons to<br />
become acquainted with them.]<br />
[75For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by<br />
making it available to the public on a publically accessible Internet site.]<br />
36<br />
[2. Each Party shall notify the laws and regulations referred to in [paragraph (1)][<br />
Article 4.3] to the Oversight Committee in order to assist that Committee in its review<br />
of the operation of this Agreement.]<br />
3. Each Party shall supply, in response to a written request from another Party,<br />
information regarding its laws, regulations, [procedures][ final judicial decisions] and<br />
administrative rulings of general application [respecting][ with respect to] any matter<br />
covered by this Agreement.<br />
4. Nothing in paragraphs [1, 2 and 3][1 and 2] shall require a Party to disclose<br />
{confidential} information which would impede law enforcement or otherwise be<br />
contrary to [domestic laws and policies, or] the public interest or would prejudice the<br />
legitimate commercial interests of particular enterprises, public or private.<br />
ARTICLE 5.5: CONSULTATION<br />
Each Party shall [accord sympathetic consideration to, and shall] afford adequate<br />
opportunity for consultation regarding, such representations as may be made [to it] by<br />
another Party with respect to any matter affecting the operation of this Agreement.<br />
[ ARTICLE 5.6: OBSERVERS<br />
Countries candidate to become a Party to the Agreement may be invited [by the<br />
Committee] to attend sessions or parts thereof of the Oversight Committee as<br />
observers. An invitation under the same status may be extended [by the Committee]<br />
to international organizations active in the field of intellectual property and to non-<br />
governmental groups of intellectual property stake-holders]<br />
37<br />
CHAPTER SIX<br />
FINAL PROVISIONS 76<br />
[ARTICLE X : TRANSPARENCY<br />
1. Each Party shall ensure that its laws, regulations, procedures, and administrative<br />
rulings of general application respecting any matter covered by this Agreement are<br />
promptly published or otherwise made publicly available in such a manner as to enable<br />
governments and interested persons to become acquainted with them.<br />
2. Each Party shall notify the laws and regulations referred to in paragraph (1) to<br />
the Oversight Committee in order to assist that Committee in its review of the operation<br />
of this Agreement.<br />
3. Each Party shall supply, in response to a written request from another Party,<br />
information regarding its laws, regulations, procedures, and administrative rulings of<br />
general application respecting any matter covered by this Agreement.<br />
4. Nothing in paragraphs 1, 2 and 3 shall require a Party to disclose confidential<br />
information which would impede law enforcement or otherwise be contrary to the<br />
public interest or would prejudice the legitimate commercial interests of particular<br />
enterprises, public or private.]<br />
ARTICLE 6.1: BECOMING PARTY TO THE AGREEMENT<br />
1. [ Any member of the [World Intellectual Property Organisation] [World Trade<br />
Organization] [or the World Trade Organization (WTO)] [or of the United Nations] may<br />
become party to this Agreement.[ Decisions on accession shall be taken by the<br />
Oversight Committee. The Oversight Committee shall approve the agreement on the<br />
terms of accession by [unanimity][a two-thirds majority of the Parties]].<br />
2. Any Intergovernmental Organization which [the Committee decides] meets the<br />
requirements of paragraph 5 may become party to this Agreement. The Organization<br />
shall inform the Depositary of its competence [in respect of matters governed by this<br />
Agreement], and any subsequent changes in its competence, with respect to the matters<br />
governed by this Agreement. The Organization and its member States may, without,<br />
however, any derogation from the obligations under this Agreement, decide on their<br />
respective responsibilities for the performance of their obligations under this Agreement<br />
[without, however, any derogation from the obligations under this Agreement].<br />
3. A [State or Intergovernmental Organization][ member of any organization<br />
identified in paragraph 1] may become party to this Agreement by:<br />
76<br />
At least one delegation reserves its right to revisit elements of this chapter at a later date.<br />
38<br />
(a) signature followed by the deposit of an instrument of ratification, acceptance<br />
or approval, or<br />
(b) the deposit of an instrument of accession.<br />
4. The instruments referred to in paragraph (3) shall be deposited with the<br />
Depositary.<br />
5. In this Article, “Intergovernmental Organization” means an organization<br />
constituted by, and composed of, States of any region of the world, which has<br />
competence in respect of matters governed by this Agreement, has its own legislation<br />
providing for intellectual property protection and binding on all its member States, and<br />
has been duly authorized, in accordance with its internal procedures, to sign, ratify,<br />
accept, approve or accede to this Agreement.<br />
ARTICLE 6.2: ENTRY INTO FORCE OF THE AGREEMENT<br />
1. This Agreement shall enter into force, with respect to each of the [first five<br />
States or Intergovernmental Organizations] [[five] members of either organization<br />
identified in Article 6.1.1] which have deposited their instruments of ratification,<br />
acceptance, approval or accession, [three months] [90 days] after the date on which the<br />
[fifth] instrument of ratification, acceptance, approval or accession has been deposited.<br />
2. With respect to any [State or Intergovernmental Organization][member of either<br />
organization identified in Article 6.1.1] not covered by paragraph (1), this Agreement<br />
shall enter into force Can: three months][90 days] after the date on which that [State of<br />
Intergovernmental Organization][member of either organization identified in Article<br />
6.1.1] has deposited its instrument of ratification, acceptance, approval or accession.<br />
ARTICLE 6.3: WITHDRAWAL<br />
A Party may withdraw from this Agreement by means of a written notification to the<br />
Depositary. Such withdrawal shall take effect [one year][six months] after the<br />
notification was received by the Depositary.<br />
ARTICLE 6.4: AMENDMENTS<br />
1. [Any Party may initiate a proposal to amend the provisions of this Agreement by<br />
submitting such proposal [to the Oversight Committee]]. This Agreement may be<br />
amended by the Parties on the basis of a [previous] text adopted by the<br />
[Oversight][ACTA][ Steering] Committee.[ Each Party may propose amendments to the<br />
Agreement to the Committee. The Committee shall decide upon the proposed<br />
amendments by consensus.]<br />
2. The Parties shall deposit their respective instruments of ratification, acceptance<br />
or approval of any such amendment with the Depositary.<br />
39<br />
3. Such amendment shall enter into force on the [first day of the third month<br />
following] [90 days after the date of] [three months after the date of] the deposit of the<br />
last of the instruments of ratification, acceptance or approval of all the Parties.<br />
ARTICLE 6.5: TEXTS OF THE AGREEMENT<br />
[This Agreement is established in [a single original in the][English][, French][,<br />
Spanish][, Arabic] languages, all texts being equally authentic.] [In case of any<br />
inconsistency between the texts, the English version shall prevail.]<br />
ARTICLE 6.6: DEPOSITARY<br />
[Name of [State][ entity]] shall be the Depositary of this Agreement.<br />
ARTICLE 6.7: SIGNATURE<br />
This Agreement shall be open for signature between [date] and [date] with the<br />
[Government of] .......... [the [country][entity]] that exercises the functions of<br />
Depositary].</p>