Secret Trans-Pacific Partnership Agreement (TPP) - IP Chapter

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

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

Read the full press release here

Read WikiLeaks editorial on this Chapter - US, Australia isolated in TPP negotiations

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



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













































This Document Contains TPP CONFIDENTIAL Information TPP Negotiations, R18 MODIFIED HANDLING AUTHORIZED IP Group

Intellectual Property [Rights] Chapter

30 August

2013

































COVER PAGE





INTELLECTUAL PROPERTY [RIGHTS] CHAPTER





CONSOLIDATED TEXT









































CHAPTER QQ





{INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL PROPERTY}

















For the purposes of this Chapter:





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

















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





Enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade; reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems; maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property. protect the ability of Parties to identify, promote access to and preserve the public domain; Ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade; Promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.]

[NZ/CA/SG/CL/MY/VN propose. g. The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Support each Party's right to protect public health, including by facilitating timely access to affordable medicines.]













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





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





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









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













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













The Parties have reached the following understandings regarding this Chapter:





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





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





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













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





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





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





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





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





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









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









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









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





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

















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





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





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





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





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









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





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













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













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

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





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





[US/MX propose; BN oppose: 4. Nothing in this Chapter shall require a Party to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest [PE oppose: or would prejudice the legitimate commercial interests of particular enterprises, public or private].]













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





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





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













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













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





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





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

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





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





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





[CL/VN Alternative Proposal:





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





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





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

COOPERATION





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

















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









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





(a) Patent Cooperation Treaty;





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





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





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





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





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













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





developments in domestic and international intellectual property policy intellectual property administration and registration systems





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













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





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

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





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

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





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





























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













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





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





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













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





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













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





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









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





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





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





[US/BN/CL/PE/MX/CA/JP/NZ/SG/VN propose; AU/MY oppose: 4. Each Party shall [PE/BN/MX/CA propose: according to domestic laws] provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, [SG/VN propose: as being already well-known before the registration or use of the first-mentioned trademark,] for related goods or services, if the use of that trademark is likely to cause confusion [CA/SG/VN oppose: or to deceive or risk associating the trademark with the owner of the well-known trademark, or constitutes unfair exploitation of the reputation of the well-known trademark.]]













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





providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trademark; providing the opportunity for the applicant to respond to communications from the competent authorities, to contest an initial refusal, and to appeal judicially any final refusal to register a trademark; providing an opportunity to oppose the registration of a trademark or to seek cancellation of a trademark; and

requiring that administrative decisions in oppositions and cancellation proceedings be reasoned and in writing. Written decisions may be provided electronically.













Each Party shall provide:





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













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





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





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













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









No Party may require recordal of trademark licenses:





a. to establish the validity of the license;





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





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









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













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









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





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





in accordance with each Party's laws regarding protection of privacy and personal data.





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





























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









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





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





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





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





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





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





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









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





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

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

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









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





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









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





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









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





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





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





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





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





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









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





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





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





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





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













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

















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





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





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





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





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





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





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





(c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production.] [MX propose: (d) and the diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods as such; software as such; methods to present information as such; and aesthetic creations and artistic or literary works.]





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





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





Each Party shall disregard at least information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure[ [ ] : was made by the patent applicant or by a person who obtained the information directly or indirectly from the patent applicant,





and





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





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









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









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









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













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





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









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









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









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





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





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





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









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





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





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





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





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





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









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









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









Article QQ.E.13 : {Exceptions / Regulatory Review Exception}





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





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





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





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





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





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





limit the applicability of subparagraph 6(c) to a single patent term adjustment for each new pharmaceutical product that is being reviewed for marketing approval; require the basis for the adjustment to be the first marketing approval granted to the pharmaceutical product in that Party;

and limit the period of the adjustment to no more than 5 years.

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





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





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





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





the safety or efficacy information previously submitted in support of the marketing approval; or evidence of the existence of the marketing approval,

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





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





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





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





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





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





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





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

the new clinical information submitted in support of a prior marketing approval in the other territory; or evidence of the existence of a prior marketing approval that was based on the new clinical information in the other territory,





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





[US: Additional Provisions relating to Pharmaceutical Products





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





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





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









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





(a) provide a transparent and effective system to:





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

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





an automatic delay of the grant of marketing approval that remains in place for a period of time designed to ensure sufficient opportunity to adjudicate disputes concerning the validity or infringement of allegedly infringed patents; and judicial or administrative procedures, including effective provisional measures, to allow for the timely adjudication of disputes concerning the validity or infringement of an allegedly infringed patent.





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





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





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





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





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





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









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





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





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









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









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





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













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





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





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





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





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





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





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













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













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





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





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





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









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





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





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





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





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





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





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





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





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





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

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





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





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





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

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

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





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





(a) information about genetic resources [NZ/CL/AU/CA oppose: and their derivatives] and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] can be useful in assessing patent applications against existing eligibility criteria; and (b) the intellectual property system is one possible means to protect the traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] and traditional cultural expressions of indigenous and local communities.]





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





(a) in determining prior art, ensuring that readily available documented information related to genetic resources [NZ/CL/AU/CA oppose: and their derivatives] or traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] is taken into account; (b) an opportunity to cite, in writing, to the appropriate examining authority prior art that may have a bearing on patentability; (c) where applicable and appropriate, the use of databases or digital libraries containing traditional knowledge [CL oppose: associated genetic resources [NZ/AU/CA oppose: and their derivatives]]; and

(d) cooperation in the training of patent examiners in the examination of patent applications related to genetic resources [NZ/CL/AU/CA oppose: and their derivatives] and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]].]





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





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





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





























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













{COPYRIGHT AND RELATED RIGHTS}













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









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









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





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





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





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





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





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





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









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









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









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







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





may freely and separately transfer that right by contract; and





by virtue of a contract, including contracts of employment underlying the creation of works, [BN/SG/MY/VN/NZ/CL oppose: performances,] and phonograms, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right.





[CL: (c) Each Party may establish:





(i) which specific contracts underlying the creation of works or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and (ii) reasonable limits to the provisions in [paragraph 2(a)] [cross reference to QQ.G.9(a)-(b)] to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.]













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









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





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



shall be liable and subject to the remedies set out in Article [12.12] . [CL propose: If the conduct is carried out in good faith without knowledge that the conduct in prohibited, a Party may exempt acts prohibited under this subparagraph that are carried out in connection with a nonprofit library, archive or educational institution]. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, [CA/CL propose: museum,] archive, educational institution, or [CA/CL oppose: public noncommercial broadcasting entity,] [CA propose: any other nonprofit entity as determined by a Party's law] is found to have engaged [CA oppose: willfully and for purposes of commercial advantage [CL oppose: or private financial gain]] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [SG/AU/PE/CL oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b), and (f) of Article [15.5] as applicable to infringements, mutatis mutandis. [] ][CL propose: No Party is required to impose civil or criminal liability for a person who circumvents any effective

technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, but does not control access to such work].





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

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

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

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

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





[CA oppose: noninfringing uses [SG oppose: of a work, performance, or phonogram] in a particular class of works, [SG oppose: performances, or phonograms] when an actual or likely adverse impact on those noninfringing uses [CL propose: or exceptions or limitations to copyright or related rights with respect to users] is [PE oppose: credibly demonstrated] [PE propose: found] [CL propose: demonstrated or recognized] in a legislative or administrative review or proceeding [SG oppose: by substantial evidence]; provided that [AU/PE oppose: any limitation or exception adopted in reliance upon this clause shall have effect for a renewable period of not more than three [SG propose: four] years] [AU/PE propose: any such review or proceeding is conducted at least once every four years] from the date of conclusion of such review or proceeding.] [CA propose: (xi) Each Party may provide further exceptions and limitations to measures implementing subparagraph (a) in relation to non infringing uses as determined through a legislative, regulatory, judicial, or administrative process in accordance with the Party's law, following due consideration of the actual or potential adverse impact on those non infringing uses.]





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





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





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









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













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

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

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

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





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













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





each Party [VN oppose: shall] [VN: may] provide [VN oppose: that] [VN: legal remedies against] any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of [CA oppose: any] [CA propose: the] copyright or related right [VN oppose: ,] [VN: :]

knowingly removes or alters any [CA/JP propose: electronic] rights management information; [MY/BN/VN/CA/JP oppose: distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority; or] [CA propose: knowingly] distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, [CL/NZ/MY/SG/VN oppose: performances,] or phonograms, knowing that [CA/JP propose: electronic] rights management information has been removed or altered without authority [VN oppose: ,] [VN: .]





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





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





(c) Rights management information means:





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





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





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













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









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





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









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





(a) Each Party shall provide to [