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CONSOLIDATED TEXT
REFLECTS CHANGES MADE DURING THE SEPTEMBER 2010 TOKYO ROUND
Consolidated Text
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Informal Predecisional/Deliberative Draft:
2 October 2010
This text reflects the outcome of the 11th and final round of the negotiations held in
Tokyo. Some delegations expressed reservation on specific parts of text, which are
highlighted in the text by underlines and italic letters.
CONSOLIDATED TEXT
REFLECTS CHANGES MADE DURING SEPTEMBER 2010 TOKYO ROUND
3 December 2010
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Noting, that effective enforcement of intellectual property rights is critical to sustaining Noting that effective enforcement of intellectual property rights is critical to sustaining
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Further Noting that the proliferation of counterfeit and pirated goods as well as the
proliferation of services that distribute infringing material, undermines legitimate trade
and the sustainable development of the world economy, causes significant financial
losses for right holders and for legitimate businesses, and in some cases, provides a
source of revenue for organized crime and otherwise poses risks to the public;
Noting further that the proliferation of counterfeit and pirated goods, as well as of
services that distribute infringing material, undermines legitimate trade and sustainable
development of the world economy, causes significant financial losses for right holders
and for legitimate businesses, and, in some cases, provides a source of revenue for
organized crime and otherwise poses risks to the public;
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through more effective international enforcement; more effective international enforcement;
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including that which takes place in the digital environment, and with respect to
copyright or related rights in particular in a manner that balances the rights and
interests of the
relevant right holders, service providers and users;
Desiring to promote cooperation between service providers and rights holders with
respect to relevant infringements in the digital environment;
Desiring that ACTA operate in a manner mutually supportive of international
including infringement taking place in the digital environment, in particular with respect
to copyright or related rights
, in a manner that balances the rights and interests of the
relevant right holders, service providers, and users;
Desiring to promote cooperation between service providers and right holders to address
relevant infringements in the digital environment;
Desiring that this Agreement operates in a manner mutually supportive of international
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organizations; and
Recognizing the principles set out in the Doha Declaration on the TRIPS Agreement and
Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO
Ministerial Con
ference, held in Doha, Qatar;
Agree as f
ollows:
2
CHAPTER ONE
INITIAL PROVISIONS AND DEFINITIONS
Section A: Initial Provisions
ARTICLE 1.1: RELATION TO OTHER AGREEMENTS
organizations;
Recognizing the principles set forth in the Doha Declaration on the TRIPS Agreement
and Public Health, adopted on 14 November 2001, at the Fourth WTO Ministerial
Conference;
Here
by agree as follows:
1
CHAPTER I
INITIAL PROVISIONS AND GENERAL DEFINITIONS
Section 1: Initial Provisions
ARTICLE 1: RELATION TO OTHER AGREEMENTS
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respect to any other Party under existing agreements, including the WTO Agreement on
Trade-Related Aspects of Intellectual Property Rights
.
ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS
respect to any other Party under existing agreements, including the TRIPS Agreement.
ARTICLE 2: NATURE AND SCOPE OF OBLIGATIONS
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implement in its domestic law more extensive enforcement of intellectual property
rights than is required by this Agreement, provided that such enforcement does not
contravene the provisions of this Agreement. Each Party shall be free to determine the
appropriate method of implementing the provisions of this Agreement within its own
legal system and practice.
implement in its law more extensive enforcement of intellectual property rights than is
required by this Agreement, provided that such enforcement does not contravene the
provisions of this Agreement. Each Party shall be free to determine the appropriate
method of implementing the provisions of this Agreement within its own legal system
and practice.
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particular in Articles 7 and 8 shall apply, mutatis mutandis, to this Agreement.
ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF
particular in Articles 7 and 8, shall apply, mutatis mutandis, to this Agreement.
ARTICLE 3: RELATION TO STANDARDS
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1.
This Agreement shall be without prejudice to provisions governing the
availability, acquisition, scope, and maintenance of intellectual property rights
contained in a Party’s law
.
CONCERNING THE
AVAILABILITY
AND
SCOPE
OF
1.
This Agreement shall be without prejudice to provisions in a Party’s law
governing the availability, acquisition, scope, and maintenance of intellectual property
rights
.
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where a right in intellectual property is not protected under the laws and regulations of
that Party
.
ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION
1.
Nothing in this Agreement shall require any Party to disclose:
(a)
infor
mation the disclosure of which would be contrary to its law or its
international agreements, including laws protecting right of privacy,
3

(b)
confidential information the disclosure of which would impede law
enforcement or otherwise be contrary to the public interest, or
where a right in intellectual property is not protected under its laws and regulations.
ARTICLE 4: PRIVACY AND DISCLOSURE OF INFORMATION
1.
Nothing in this Agreement shall require a Party to disclose:
(a)
information, the disclosure of which would be contrar
y to its law,
including laws protecting privacy rights, or international agree
ments to
2
which it is part
y;
(b)
confidential information, the disclosure of which would impede law
enforcement or otherwise be contrary to the public interest; or
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legitimate commercial interests of particular enterprises, public or private.
2.
When a Party provides written information pursuant to this Agreement, the Party
receiving the information shall, subject to its domestic law and practice, refrain from
disclosing or using the information for a purpose other than that for which the
information was requested or required, except with the prior consent of the Party
providing the
information.
Section B: General Definitions
ARTICLE 1.X: DEFINITIONS
legitimate commercial interests of particular enterprises, public or
private.
2.
When a Party provides written information pursuant to the provisions of this
Agreement, the Party receiving the information shall, subject to its law and practice,
refrain from
disclosing or using the information for a purpose other than that for which
the
information was provided, except with the prior consent of the Party providing the
information.
Section 2: General Definitions
ARTICLE 5: GENERAL DEFINITIONS
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(a)
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Committee means the ACTA Committee established under Chapter Five;
competent authorities includes judicial, administrative, or law enforcement authorities
as may be appropriate in the context and in the laws of each Party;
counterfeit trademark goods means any goods, including packaging, bearing without
authorization a trademark that is identical to the trademark validly registered in respect
of such goods, or that cannot be distinguished in its essential aspects from such a
trademark, and that thereby infringes the rights of the owner of the trademark in
question under the law of the country in which the procedures set out in Section 2, 3, 4
and 5 of Chapter2 are invoked;
customs transit means the Customs procedure under which goods are transported under
Customs control from one Customs office to another;
days means calendar days unless otherwise specified;
intellectual property means all categories of intellectual property that are the subject of
Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of
Intellectual Property Rights.
in-transit goods means goods under “Customs transit” and under “transhipment”;
person means either a natural person or a legal person;
(b)
Committee means the ACTA Committee established under Chapter V
(Institutional Arrangements);
(c)
competent authorities includes the appropriate judicial, administrative,
or law enforcement authorities under a Party’s law;
(d)
counterfeit trademark goods means any goods, including packaging,
bearing without authorization a trademark which is identical to the
trademark validly registered in respect of such goods, or which cannot be
distinguished in its essential aspects from such a trademark, and which
thereby infringes the rights of the owner of the trademark in question
under the law of the country in which the procedures set forth in Chapter
II (Legal Framework for Enforcement of Intellectual Property Rights) are
invoked;
(e)
country is to be understood to have the same meaning as that set forth in
the Explanatory Notes to the WTO Agreement;
(f)
customs transit means the customs procedure under which goods are
transported under customs control from one customs office to another;
3
(g)
days means calendar days;
(h)
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;
(i)
in-transit goods means goods under customs transit or transhipment;
(j)
person means a natural person or a legal person;
(k)
pirated copyright goods means any goods which are copies made
without the consent of the right holder or person duly authorized by the
right holder in the country of production and which are made directly or
indirectly from an article where the making of that copy would have
constituted an infringement of a copyright or a related right under the law
of the country in which the procedures set forth in Chapter II (Legal
Framework for Enforcement of Intellectual Property Rights) are invoked;
(l)
right holder includes a federation or an association having the legal
standing to assert rights in intellectual property;
(m)
territory, for the purposes of Section 3 (Border Measures) of Chapter II
(Legal Framework for Enforcement of Intellectual Property Rights),
means the customs territory and all free zones1 of a Party;
(n)
transhipment means the customs procedure under which goods are
transferred under customs control from the importing means of transport
to the exporting means of transport within the area of one customs office
which is the office of both importation and exportation;
(o)
TRIPS Agreement means the Agreement on Trade-Related Aspects of
Intellectual Property Rights, contained in Annex 1C to the WTO
Agreement;
(p)
WTO means the World Trade Organization; and
(q)
WTO Agreement means the Marrakesh Agreement Establishing the
World Trade Organization, done on 15 April 1994.
1
For greater certainty, the Parties acknowledge that free zone means a part of the territory of a Party
where any goods introduced are generally regarded, insofar as import duties and taxes are concerned, as
being outside the customs territory.
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pirated copyright goods means any goods that are copies made without the consent of
the right holder or person duly authorized by the right holder in the country of
production and that are made directly or indirectly from an article where the making of
that copy would have constituted an infringement of a copyright or a related right under
the law of the country in which the procedures set out in Sections 2, 3, 4 and 5 of
Chapter2 are invoked;
right holder includes a federation or an association having the legal standing to assert
rights in intellectual property;
territory in Section 3 of Chapter 2 means customs territory of a Party and all free
zones1 of that Party;
transhipment means the Customs procedure under which goods are transferred under
Customs control from the importing means of transport to the exporting means of
transport within the area of one Customs office which is the office of both importation
and exportation;
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual
Property Rights, contained in Annex 1C to the WTO Agreement;
WTO means the World Trade Organization; and
WTO Agreement means the Marrakesh Agreement Establishing the World Trade
Organization, done on April 15, 1994;
CHAPTER TWO
CHAPTER II
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ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT
1.
Parties shall ensure that enforcement procedures are available under their law so
as to permit effective action against any act of infringement of intellectual property
ARTICLE 6: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT
1.
Each Party shall ensure that enforcement procedures are available under its law
so as to permit effective action against any act of infringement of intellectual property
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Procedures adopted, maintained, or applied to implement this Chapter shall be
1
For greater certainty, the Parties acknowledge that as used herein, free zone means a part of the territory
of a Party where any goods introduced are generally regarded, insofar as import duties and taxes are
concerned, as being outside the Customs territory.
Procedures adopted, maintained, or applied to implement the provisions of this
Chapter shall be fair and equitable, and shall provide for the rights of all participants
subject to such procedures to be appropriately protected. These procedures shall not be
unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted
delays.
3.
In implementing the provisions of this Chapter, each Party shall take into
account the need for proportionality between the seriousness of the infringement, the
interests of third parties, and the applicable measures, remedies and penalties.
4.
No provision of this Chapter shall be construed to require a Party to make its
officials subject to liability for acts undertaken in the performance of their official
duties.
Section 2: Civil Enforcement2
ARTICLE 7: AVAILABILITY OF CIVIL PROCEDURES
1.
Each Party shall make available to right holders civil judicial procedures
concerning the enforcement of any intellectual property right as specified in this
Section.
2.
To the extent that any civil remedy can be ordered as a result of administrative
procedures on the merits of a case, each Party shall provide that such procedures shall
conform to principles equivalent in substance to those set forth in this Section.
2
A Party may exclude patents and protection of undisclosed information from the scope of this Section.
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fair, equitable, and provide for the rights of all participants subject to procedures to be
appropriately protected. These procedures shall not be unnecessarily complicated or
costly, or entail unreasonable time-limits or unwarranted delays.
3.
In implementing this Chapter, each Party shall take into account the need for
proportionality between the seriousness of the infringement, the interests of third parties,
and the applicable measures, remedies and penalties.
4.
No provision of this Chapter shall be construed to require a Party to provide for
liability of officials for acts undertaken in the performance of their official duties.
Section 2: Civil Enforcement2
ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES
1.
Each Party shall make available to right holders civil judicial procedures
concerning the enforcement of any intellectual property right as specified in this section.
2.
To the extent that any civil remedy can be ordered as a result of administrative
procedures on the merits of a case, each Party shall provide that such procedures
conform to principles equivalent in substance to those set out in this section.
ARTICLE 2.X: INJUNCTIONS
ARTICLE 8: INJUNCTIONS
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enforcement of intellectual property rights, its judicial authorities shall have the
authority to issue an order against a party to desist from an infringement, and inter alia,
an order to that party or, where appropriate, to a third party over whom the relevant
judicial authority exercises jurisdiction, to prevent infringing goods from entering into
the channels of commerce.
enforcement of intellectual property rights, its judicial authorities have the authority to
issue an order against a party to desist from an infringement, and inter alia, an order to
that party or, where appropriate, to a third party over whom the relevant judicial
authority exercises jurisdiction, to prevent goods that involve the infringement of an
intellectual property right from entering into the channels of commerce.
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remedies available against use by government, or by third parties authorized by a
government, without the authorization of the right holders to the payment of
remuneration provided that the Party complies with the provisions of Part II of the
remedies available against use by governments, or by third parties authorized by a
government, without the authorization of the right holder, to the payment of
remuneration, provided that the Party complies with the provisions of Part II of the
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ARTICLE 2.2: DAMAGES
2
{US: For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this
Section.}
ARTICLE 9: DAMAGES
1.
Each Party shall provide that, in civil judicial proceedings concerning the
enforcement of intellectual property rights, its judicial authorities have the authority to
order the infringer who, knowingly or with reasonable grounds to know, engaged in
infringing activity to pay the right holder damages adequate to compensate for the
injury the right holder has suffered as a result of the infringement. In determining the
amount of damages for infringement of intellectual property rights, a Party’s judicial
authorities shall have the authority to consider, inter alia, any legitimate measure of
value the right holder submits, which may include lost profits, the value of the infringed
goods or services measured by the market price, or the suggested retail price.
2.
At least in cases of copyright or related rights infringement and trademark
counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial
authorities have the authority to order the infringer to pay the right holder the infringer’s
profits that are attributable to the infringement. A Party may presume those profits to be
the amount of damages referred to in paragraph 1.
3.
At least with respect to infringement of copyright or related rights protecting
works, phonograms, and performances, and in cases of trademark counterfeiting, each
Party shall also establish or maintain a system that provides for one or more of the
following:
(a)
pre-established damages; or
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1.
Each Party shall provide that in civil judicial proceedings, its judicial authorities
shall have the authority to order the infringer who knowingly or with reasonable
grounds to know, engaged in infringing activity of intellectual property rights, to pay
the right holder damages adequate to compensate for the injury the right holder has
suffered as a result of the infringement. In determining the amount of damages for
infringement of intellectual property rights, its judicial authorities shall have the
authority to consider, inter alia, any legitimate measure of value submitted by the right
holder, which may include the lost profits, the value of the infringed good or service,
measured by the market price, the suggested retail price.
2.
At least in cases of copyright or related rights infringement and trademark
counterfeiting, each Party shall provide that in civil judicial proceedings, its judicial
authorities shall have the authority to order the infringer to pay the right holder the
profits of the infringer that are attributable to the infringement. A Party’s legal system
may presume the profits of the infringer to be the amount of damages referred to in
paragraph 1.
3.
At least with respect to works, phonograms, and performances protected by
copyrights or related rights, and in cases of trademark counterfeiting, each Party shall
also establish or maintain a system that provides for one or more of the following:
(a)
pre-established damages, or
(b)
presumptions for determining the amount of damages3 sufficient to
compensate the right holder for the harm caused by the infringement, or
(b)
presumptions3 for determining the amount of damages sufficient to
compensate the right holder for the harm caused by the infringement; or
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Where a Party provides the remedy set out in paragraph 3(a) or 3(b), that Party
shall ensure that either its judicial authorities or the right holder has the right to choose
such a remedy as an alternative to the remedies referred to in paragraphs 1 and 2.
Where a Party provides the remedy referred to in subparagraph 3(a) or the
presumptions referred to in subparagraph 3(b), it shall ensure that either its judicial
authorities or the right holder has the right to choose such a remedy or presumptions as
an alternative to the remedies referred to in paragraphs 1 and 2.
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Each Party shall provide that its judicial authorities, where appropriate, shall
have the authority to order, at the conclusion of civil judicial proceedings concerning
Each Party shall provide that its judicial authorities, where appropriate, have the
authority to order, at the conclusion of civil judicial proceedings concerning
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attorney's fees or any other expenses as provided for under that Party's domestic law.
ARTICLE 2.3: OTHER REMEDIES
3
Such measures may include the presumption that the amount of damages is (i) the quantity of the goods
infringing the right holder’s intellectual property right in question and actually assigned to third persons,
multiplied by the amount of profit per unit of goods which would have been sold by the right holder if
there had not been the act of infringement, or (ii) a reasonable royalty or (iii) a lump sum on the basis of
elements such as at the least the amount of royalties or fees which would have been due if the infringer
had requested authorization to use the intellectual property right in question.
7
attorney’s fees, or any other expenses as provided for under that Party’s law.
ARTICLE 10: OTHER REMEDIES
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each Party shall provide that in civil judicial proceedings, at the right holder’s request,
its judicial authorities shall have the authority to order that such goods be destroyed,
except in exceptional circumstances, without compensation of any sort.
2.
Each Party shall further provide that its judicial authorities shall have the
authority to order that materials and implements the predominant use of which has been
in the manufacture or creation of such goods be, without undue delay and without
each Party shall provide that, in civil judicial proceedings, at the right holder’s request,
its judicial authorities have the authority to order that such infringing goods be
destroyed, except in exceptional circumstances, without compensation of any sort.
2.
Each Party shall further provide that its judicial authorities have the authority to
order that materials and implements, the predominant use of which has been in the
manufacture or creation of such infringing goods, be, without undue delay and without
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The remedies under this article may be carried out at the expense of the infringer.
ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT
Without prejudice to its domestic law that governs the protection of
confidentiality of information sources, the processing of personal data, or privilege,
each Party shall provide that in civil judicial proceedings concerning the enforcement of
intellectual property rights, its judicial authorities shall have the authority upon a
justified request of the right holder, to order the infringer, or in the alternative, the
alleged infringer to provide, at least for the purpose of collecting evidence, relevant
information as provided in its applicable laws and regulations that the infringer or
alleged infringer possesses or controls, to the right holder or to the judicial authorities.
Such information may include information regarding any person or persons involved in
any aspect of the infringement and regarding the means of production or distribution
channel of such goods or services, including the identification of third persons involved
in the production and distribution of the infringing goods or services or in their channels
of distribution.
ARTICLE 2.5: PROVISIONAL MEASURES
1.
Each Party shall provide that its judicial authorities shall have the authority to
order prompt and effective provisional measures:
(a)
against a party, or where appropriate, against a third party over whom the
A Party may provide for the remedies described in this Article to be carried out
at the infringer’s expense.
ARTICLE 11: INFORMATION RELATED TO INFRINGEMENT
Without prejudice to its law governing privilege, the protection of
confidentiality of information sources, or the processing of personal data, each Party
shall provide that, in civil judicial proceedings concerning the enforcement of
3
The presumptions referred to in subparagraph 3(b) may include a presumption that the amount of
damages is: (i) the quantity of the goods infringing the right holder’s intellectual property right in
question and actually assigned to third persons, multiplied by the amount of profit per unit of goods
which would have been sold by the right holder if there had not been the act of infringement; or (ii) a
reasonable royalty; or (iii) a lump sum on the basis of elements such as at least the amount of royalties or
fees which would have been due if the infringer had requested authorization to use the intellectual
property right in question.
7
intellectual property rights, its judicial authorities have the authority, upon a justified
request of the right holder, to order the infringer or, in the alternative, the alleged
infringer, to provide to the right holder or to the judicial authorities, at least for the
purpose of collecting evidence, relevant information as provided for in its applicable
laws and regulations that the infringer or alleged infringer possesses or controls. Such
information may include information regarding any person involved in any aspect of the
infringement or alleged infringement and regarding the means of production or the
channels of distribution of the infringing or allegedly infringing goods or services,
including the identification of third persons alleged to be involved in the production and
distribution of such goods or services and of their channels of distribution.
ARTICLE 12: PROVISIONAL MEASURES
1.
Each Party shall provide that its judicial authorities have the authority to order
prompt and effective provisional measures:
(a)
against a party or, where appropriate, a third party over whom the
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infringement of any intellectual property rights from occurring, and in
particular to prevent infringing goods from entering into the channels of
commerce;
infringement of any intellectual property right from occurring, and in
particular, to prevent goods that involve the infringement of an
intellectual property right
from entering into the channels of commerce;
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The judicial authorities shall have the authority to adopt provisional measures
inaudita altera parte where appropriate, in particular where any delay is likely to cause
irreparable harm to the right holder, or where there is a demonstrable risk of evidence
being destroyed. In proceedings conducted inaudita altera parte each Party shall
8
provide its judicial authorities with the authority to act expeditiously on requests for
provisional measures inaudita altera parte, and to make a decision without undue delay.
3.
In civil judicial proceedings concerning at least copyright or related rights
infringement and trademark counterfeiting, each Party shall provide that its judicial
authorities shall have the authority to order the seizure or other taking into custody of
suspected infringing goods, materials, and implements relevant to the act of
infringement and, at least for trademark counterfeiting, documentary evidence, either
originals or copies thereof, relevant to the infringement.
Each Party shall provide that its judicial authorities have the authority to adopt
provisional measures inaudita altera parte where appropriate, in particular where any
delay is likely to cause irreparable harm to the right holder, or where there is a
demonstrable risk of evidence being destroyed. In proceedings conducted inaudita
altera parte, each Party shall provide its judicial authorities with the authority to act
expeditiously on requests for provisional measures and to make a decision without
undue delay.
3.
At least in cases of copyright or related rights infringement and trademark
counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial
authorities have the authority to order the seizure or other taking into custody of suspect
goods, and of materials and implements relevant to the act of infringement, and, at least
for trademark counterfeiting, documentary evidence, either originals or copies thereof,
relevant to the infringement.
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unreasonably deter recourse to such procedures. 8
unreasonably deter recourse to procedures for such provisional measures.
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Section 3: Border Measures4,5,6
ARTICLE 2.X: SCOPE OF THE BORDER MEASURES
In providing, as appropriate, and consistent with a Party's domestic system of
IPR protection and without prejudice to the requirements of the TRIPS Agreement, for
effective border enforcement of intellectual property rights, a Party should do so in a
manner that does not discriminate unreasonably between intellectual property rights and
that avoids the creation of barriers to legitimate trade.
ARTICLE 2.X: SMALL CONSIGNMENTS AND PERSONAL LUGGAGE
1.
Parties shall include in the application of this section goods of a commercial
Section 3: Border Measures4, 5
ARTICLE 13: SCOPE OF THE BORDER MEASURES6
In providing, as appropriate, and consistent with its domestic system of
intellectual property rights protection and without prejudice to the requirements of the
TRIPS Agreement, for effective border enforcement of intellectual property rights, a
Party should do so in a manner that does not discriminate unjustifiably between
intellectual property rights and that avoids the creation of barriers to legitimate trade.
ARTICLE 14: SMALL CONSIGNMENTS AND PERSONAL LUGGAGE
1.
Each Party shall include in the application of this Section goods of a commercial
nature sent in small consignments.
2.
A Party may exclude from the application of this Section small quantities of
goods of a non-commercial nature contained in travellers’ personal luggage.
ARTICLE 15: PROVISION OF INFORMATION FROM THE RIGHT HOLDER
Each Party shall permit its competent authorities to request a right holder to
supply relevant information to assist the competent authorities in taking the border
measures referred to in this Section. A Party may also allow a right holder to supply
relevant information to its competent authorities.
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It is to be understood that there shall be no obligation to apply the procedures set forth in this section to It is understood that there shall be no obligation to apply the procedures set forth in this Section to
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For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section. The Parties agree that patents and protection of undisclosed information do not fall within the scope of
this Section.
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nature sent in small consignments.
2.
Parties may exclude from the application of this Section small quantities of
goods of a non-commercial nature contained in travelers’ personal luggage.
ARTICLE 2.X: PROVISION OF INFORMATION FROM RIGHT HOLDER
Each Party shall permit the competent authorities to request a right holder to
supply relevant information to assist the competent authorities in taking border
measures provided for under this Section. Each Party may also allow a right holder to
supply relevant information to the competent authorities.
ARTICLE 2.X: BORDER MEASURES
1.
Each Party shall provide procedures for import and export shipments:
(a)
by which customs authorities may act upon their own initiative, to
suspend the release of suspect goods; and
(b)
where appropriate, by which right holders may request the competent
authorities to suspend the release of suspect goods.
2.
Each Party may provide procedures for suspect goods in transit or in other
situations where the goods are under Customs control:
(a)
by which customs authorities may act upon their own initiative, to
suspend the release of, or to detain, suspect goods; and
(b)
where appropriate, by which right holders may request the competent
authorities to suspend the release of, or to detain, suspect goods.
ARTICLE 2.X: APPLICATION BY RIGHT HOLDER
1.
The competent authorities shall require a right holder requesting the procedures
described in Article 2.X.1.b and Article 2.X.2.b to provide adequate evidence to satisfy
themselves that, under the laws of the Party providing the procedures, there is prima
facie an infringement of the right holder's intellectual property right and to supply
sufficient information that may reasonably be expected to be within the right holder’s
knowledge to make the suspect goods reasonably recognizable by the competent
authorities. The requirement to provide sufficient information shall not unreasonably
deter recourse to the procedures described in Article 2.X.1.b and Article 2.X.2.b.
ARTICLE 16: BORDER MEASURES
1.
Each Party shall adopt or maintain procedures with respect to import and export
shipments under which:
(a)
its customs authorities may act upon their own initiative to suspend the
release of suspect goods; and
(b)
where appropriate, a right holder may request its competent authorities to
suspend the release of suspect goods.
2.
A Party may adopt or maintain procedures with respect to suspect in-transit
goods or in other situations where the goods are under customs control under which:
(a)
its customs authorities may act upon their own initiative to suspend the
release of, or to detain, suspect goods; and
(b)
where appropriate, a right holder may request its competent authorities to
suspend the release of, or to detain, suspect goods.
Article 17: APPLICATION BY THE RIGHT HOLDER
1.
Each Party shall provide that its competent authorities require a right holder that
requests the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border
Measures) to provide adequate evidence to satisfy the competent authorities that, under
the law of the Party providing the procedures, there is prima facie an infringement of
the right holder's intellectual property right, and to supply sufficient information that
may reasonably be expected to be within the right holder’s knowledge to make the
suspect goods reasonably recognizable by the competent authorities. The requirement
to provide sufficient information shall not unreasonably deter recourse to the procedures
described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures).
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any suspect goods7 under customs control in its territory. A Party may provide for such
applications to apply to multiple shipments. A Party may provide that, at the request of
the right holder, the application to suspend the release of, or to detain, suspect goods
may apply to selected points of entry and exit under customs control.
3.
Each Party shall ensure that its competent authorities inform the applicant within
a reasonable period whether they have accepted the application. Where its competent
authorities have accepted the application, they shall also inform the applicant of the
7
The requirement to provide for such applications is subject to the obligations to provide procedures
referred to in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures).
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suspect goods that apply to all goods7 under customs control in its territory. Each Party
may provide for such applications to apply to multiple shipments. Each Party may
provide that, at the request of the right holder, the application to suspend the release of
or to detain goods may apply to selected points of entry and exit under customs control.
3.
The competent authorities shall inform the applicant within a reasonable period
whether they have accepted the application. Where the competent authorities have
accepted the application, they shall also make known to the applicant the period of
validity of the application.
period of validity of the application.
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Each Party may provide, where the applicant has abused the process, or where
there is due cause, that an application may be denied, suspended, or voided.
ARTICLE 2.9: SECURITY OR EQUIVALENT ASSURANCE
Each Party shall provide that its competent authorities shall have the authority to
require a right holder requesting procedures described under Article 2.X.1.b and Article
2.X.2.b to provide a reasonable security or equivalent assurance sufficient to protect the
defendant and the competent authorities and to prevent abuse. Each Party shall provide
that such security or equivalent assurance shall not unreasonably deter recourse to these
procedures. Each Party may provide that such security may be in the form of a bond
conditioned to hold the defendant harmless from any loss or damage resulting from any
suspension of the release of the goods in the event the competent authorities determine
that the goods do not infringe. Only in exceptional circumstances or pursuant to a
judicial order may a Party permit a defendant to post a bond or other security to obtain
possession of suspect goods.
ARTICLE 2.10: DETERMINATION AS TO INFRINGEMENT
Each Party shall adopt or maintain a procedure by which their competent
authorities may determine, within a reasonable period of time after the initiation of the
procedures described under Article 2.X, whether the suspect goods infringe an
intellectual property right.
ARTICLE 2.11: REMEDIES
1.
Each Party shall provide its competent authorities with the authority to order the
destruction of goods following a determination under Article 2.10 that the goods are
infringing. In cases where such goods are not destroyed, each Party shall ensure such
goods are disposed of outside the channels of commerce in such a manner as to avoid
any harm to the right holder, except in exceptional circumstances.
A Party may provide that, where the applicant has abused the procedures
described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures), or where
there is due cause, its competent authorities have the authority to deny, suspend, or void
an application.
ARTICLE 18: SECURITY OR EQUIVALENT ASSURANCE
Each Party shall provide that its competent authorities have the authority to
require a right holder that requests the procedures described in subparagraphs 1(b) and
2(b) of Article 16 (Border Measures) to provide a reasonable security or equivalent
assurance sufficient to protect the defendant and the competent authorities and to
prevent abuse. Each Party shall provide that such security or equivalent assurance shall
not unreasonably deter recourse to these procedures. A Party may provide that such
security may be in the form of a bond conditioned to hold the defendant harmless from
any loss or damage resulting from any suspension of the release of, or detention of, the
goods in the event the competent authorities determine that the goods are not infringing.
A Party may, only in exceptional circumstances or pursuant to a judicial order, permit
the defendant to obtain possession of suspect goods by posting a bond or other security.
ARTICLE 19: DETERMINATION AS TO INFRINGEMENT
Each Party shall adopt or maintain procedures by which its competent
authorities may determine, within a reasonable period after the initiation of the
procedures described in Article 16 (Border Measures), whether the suspect goods
infringe an intellectual property right.
ARTICLE 20: REMEDIES
1.
Each Party shall provide that its competent authorities have the authority to
order the destruction of goods following a determination referred to in Article 19
(Determination as to Infringement) that the goods are infringing. In cases where such
goods are not destroyed, each Party shall ensure that, except in exceptional
circumstances, such goods are disposed of outside the channels of commerce in such a
manner as to avoid any harm to the right holder.
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7
Whether this applies to imports, exports and/or in transit goods depends on Article 2.X.1.b and Article
2.X.2.b.
unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit
release of the goods into the channels of commerce.
3.
A Party may provide that its competent authorities have the authority to impose
administrative penalties following a determination referred to in Article 19
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unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the
release of the goods into the channels of commerce.
3.
Each Party may provide its competent authorities with the authority to impose
administrative penalties following a determination under Article 2.10 that the goods are
infringing.
ARTICLE 2.12: FEES
(Determination as to Infringement) that the goods are infringing.
ARTICLE 21: FEES
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to be assessed by competent authorities in connection with procedures described in this
Section shall not be used to unreasonably deter recourse to these procedures.
ARTICLE 2.13: DISCLOSURE OF INFORMATION
to be assessed by its competent authorities in connection with the procedures described
in this Section shall not be used to unreasonably deter recourse to these procedures.
ARTICLE 22: DISCLOSURE OF INFORMATION
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each Party may authorize its competent authorities to provide right
holders with information about specific shipments of goods, including
the
description and quantity, to assist in the detection of infringing goods;
(b)
each Party may authorize its competent authorities to provide right
holders with information about goods including, but not limited to, the
description and quantity of the goods and the name and address of the
consignor, importer, exporter or consignee, and, if known, the country of
origin and name and address of the manufacturer of the goods to assist in
the determination under
Article 2.10 of whether goods infringe rights
covered by this section
;
a Party may authorize its competent authorities to provide a right holder
with information about specific shipments of goods, including the
description and quantity of the goods, to assist in the detection of
infringing goods;
(b)
a Party may authorize its competent authorities to provide a right holder
with information about goods, including, but not limited to, the
description and quantity of the goods, the name and address of the
consignor, importer, exporter, or consignee, and, if known, the country of
origin of the goods, and the name and address of the manufacturer of the
goods, to assist in the determination referred to in
Article 19
(Determination as to Infringement)
;
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unless a Party has granted authority under subparagraph (b), at least in
the case of imported goods, where competent authorities have seized or,
in the alternative, made a determination under Article 2.10 that goods
infringe rights covered by this section, each Party shall authorize its
competent authorities to provide right holders, within 30 days8 of seizure
or determination, with information about goods including, but not limited
to, the description and quantity of the goods and the name and address of
the consignor, importer, exporter or consignee, and, if known, the
country of origin and name and address of the manufacturer of the goods.
unless a Party has provided its competent authorities with the authority
described in subparagraph (b), at least in cases of imported goods, where
its competent authorities have seized suspect goods or, in the alternative,
made a determination referred to in Article 19 (Determination as to
Infringement) that the goods are infringing, the Party shall authorize its
competent authorities to provide a right holder, within thirty days8 of the
seizure or determination, with information about such goods, including,
but not limited to, the description and quantity of the goods, the name
and address of the consignor, importer, exporter, or consignee, and, if
known, the country of origin of the goods, and the name and address of
the manufacturer of the goods.
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ARTICLE 2.14: CRIMINAL OFFENSES
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For purposes of the Article, days” shall mean business days. For the purposes of this Article, days means business days.
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ARTICLE 23: CRIMINAL OFFENCES
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least in cases of willful trademark counterfeiting or copyright or related rights piracy on
a commercial scale.9
For the purposes of this section, acts carried out on a commercial scale include
at least those carried out as commercial activities for direct or indirect economic or
commercial advantage.
least in cases of wilful trademark counterfeiting or copyright or related rights piracy on
a commercial scale.9 For the purposes of this Section, acts carried out on a commercial
scale include at least those carried out as commercial activities for direct or indirect
economic or commercial advantage.
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cases of willful importation10 and domestic use, in the course of trade and on a cases of wilful importation10 and domestic use, in the course of trade and on a
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to or cannot be distinguished from a trademark registered in its territory; to, or cannot be distinguished from, a trademark registered in its territory;
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relation to services which are identical to goods or services for which the
trademark is registered.
3.
Each Party may provide criminal procedures and penalties in appropriate cases
for
the unauthorized copying of cinematographic works from a performance in a motion
relation to services which are identical to goods or services for which
such
trademark is registered.
3.
A Party may provide criminal procedures and penalties in appropriate cases for
the unauthorized copying of cinematographic works from a performance in a motion
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With respect to the offences specified in this Section, each Party shall ensure
that criminal liability for aiding and abetting is available under its law.
With respect to the offences specified in this Article for which a Party provides
criminal procedures and penalties
, that Party shall ensure that criminal liability for
aiding and abetting is available under its law.
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offences referred to in this article. Such liability shall be without prejudice to the
criminal liability of the natural persons who have committed the criminal offences.
ARTICLE 2.15: PENALTIES
offences specified in this Article for which the Party provides criminal procedures and
penalties
. Such liability shall be without prejudice to the criminal liability of the natural
persons who have committed the criminal offences.
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Each Party shall treat willful importation or exportation of counterfeit trademark goods or pirated Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated
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Article. A Party may comply with its obligation relating to exportation and importation of pirated
copyright or counterfeit trademark goods by providing for distribution, sale or offer for sale of counterfeit
trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to
criminal penalties.
Article. A Party may comply with its obligation relating to importation and exportation of counterfeit
trademark goods or pirated copyright goods by providing for distribution, sale or offer for sale of such
goods on a commercial scale as unlawful activities subject to criminal penalties.
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A Party may comply with its obligations relating to this article by providing for criminal procedures A Party may comply with its obligations under this paragraph by providing for criminal procedures
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For the offences specified in 2.14.1, 2.14.2, 2.14.3, and 2.14.4, each Party shall
provide penalties that include imprisonment as well as monetary fines12 sufficiently
high to provide a deterrent to future acts of infringement, consistently with the level of
penalties applied for crimes of a corresponding gravity.
ARTICLE 2.16: SEIZURE, FORFEITURE AND DESTRUCTION
1.
For the offences specified in Article 2.14.1, 2.14.2, 2.14.3, and 2.14.4, each
Party shall provide that its competent authorities shall have the authority to order the
seizure of suspected counterfeit trademark goods or pirated copyright goods, any related
ARTICLE 24: PENALTIES
For offences specified in paragraphs 1, 2, and 4 of Article 23 (Criminal
Offences), each Party shall provide penalties that include imprisonment as well as
monetary fines12 sufficiently high to provide a deterrent to future acts of infringement,
consistently with the level of penalties applied for crimes of a corresponding gravity.
ARTICLE 25: SEIZURE, FORFEITURE, AND DESTRUCTION
1.
With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23
(Criminal Offences) for which a Party provides criminal procedures and penalties, that
Party shall provide that its competent authorities have the authority to order the seizure
of suspected counterfeit trademark goods or pirated copyright goods, any related
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evidence relevant to the alleged offence and the assets derived from, or obtained directly
or indirectly through the alleged infringing activity.
evidence relevant to the alleged offence, and the assets derived from, or obtained
directly or indirectly through, the alleged infringing activity.
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prerequisite for such an order, that Party shall not require the items to be described in
greater detail than necessary to identify them for purposes of seizure.
3.
For the offences specified in Article 2.14.1, 2.14.2, 2.14.3, and 2.14.4, each
Party shall provide that its competent authorities shall have the authority to order
prerequisite for issuing an order referred to in paragraph 1, that Party shall not require
the items to be described in greater detail than necessary to identify them for the
purpose
of seizure.
3.
With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23
(Criminal Offences) for which a Party provides criminal procedures and penalties
, that
Party shall provide that its competent authorities have the authority to order the
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that forfeiture or destruction of such goods shall occur without compensation of any
kind to the infringer.
that the forfeiture or destruction of such goods shall occur without compensation of any
sort to the infringer.
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For the offences specified in Article 2.14.1, 2.14.2, 2.14.3, and 2.14.4, each
Party shall provide that its competent authorities shall have the authority to order
With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23
(Criminal Offences) for which a Party provides criminal procedures and penalties, that
Party shall provide that its competent authorities have the authority to order the
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offences, of the assets derived from, or obtained directly or indirectly, through the
infringing activity. Each Party shall ensure that forfeiture or destruction of such
materials, implements, or assets shall occur without compensation of any kind to the
offences, of the assets derived from, or obtained directly or indirectly through, the
infringing activity. Each Party shall ensure that the forfeiture or destruction of such
materials, implements, or assets shall occur without compensation of any sort to the
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12
It is understood that there is no obligation for a Party to provide for the possibility of imprisonment
and monetary fines to be imposed in parallel.
14
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Each Party may provide that its judicial authorities have the authority to order:
(a)
the seizure of assets the value of which corresponds to that of such assets
derived from or obtained directly or indirectly through the allegedly
With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23
(Criminal Offences) for which a
Party provides criminal procedures and penalties, that
Party m
ay provide that its judicial authorities have the authority to order:
(a)
the seizure of assets the value of which corresponds to that of the assets
derived from, or obtained directly or indirectly through, the allegedly
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12
It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and
monetary fines to be imposed in parallel.
14
(b)
the forfeiture of assets the value of which corresponds to that of such
assets derived from or obtained directly or indirectly through the
(b)
the forfeiture of assets the value of which corresponds to that of the
assets derived from, or obtained directly or indirectly through, the
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ARTICLE 2.17: EX OFFICIO CRIMINAL ENFORCEMENT ARTICLE 26: EX OFFICIO CRIMINAL ENFORCEMENT
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criminal offences described in Article 2.14. criminal offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal
Offences) for which that Party provides criminal procedures and penalties.
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ARTICLE 2.18: ENFORCEMENT IN THE DIGITAL ENVIRONMENT ARTICLE 27: ENFORCEMENT IN THE DIGITAL ENVIRONMENT
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the civil and criminal enforcement sections of this Agreement, are available under its
law so as to permit effective action against an act of intellectual property rights
infringement
which takes place in the digital environment, including expeditious
Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are available under its
law so as to permit effective action against an act of infringement of intellectual
property rights which takes place in the digital environment, including expeditious
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infringement.
2.
Each Party’s enforcement procedures shall apply to infringement of at least
trademark and copyright or related rights over digital networks, including the unlawful
use of means of widespread distribution for infringing purposes. These procedures shall
be implemented in a manner that avoids the creation of barriers to legitimate activity,
including electronic commerce, and, consistent with each Party’s law, preserves
fundamental principles such as freedom of expression, fair process, and privacy.13
3.
Each Party shall endeavor to promote cooperative efforts within the business
community to effectively address at least trademark and copyright or related rights
infringement while preserving legitimate competition and consistent with each Party’s
law, preserving fundamental principles such as freedom of expression, fair process, and
privacy.
4.
Each Party may provide, in accordance with its laws and regulations, its
competent authorities with the authority to order an online service provider to disclose
expeditiously to a right holder information sufficient to identify a subscriber whose
account was allegedly used for infringement, where that right holder has filed a legally
sufficient claim of infringement of at least trademark and copyrights or related rights
and where such information is being sought for the purpose of protecting or enforcing at
least the right holder’s trademark and copyright or related rights. These procedures
infringements.
2.
Further to paragraph 1, each Party’s enforcement procedures shall apply to
infringement of copyright or related rights over digital networks, which may include the
unlawful use of means of widespread distribution for infringing purposes. These
procedures shall be implemented in a manner that avoids the creation of barriers to
legitimate activity, including electronic commerce, and, consistent with that Party’s law,
preserves fundamental principles such as freedom of expression, fair process, and
privacy.13
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preserving the legitimate interests of right holders. preserving the legitimate interests of right holder.
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shall be implemented in a manner that avoids the creation of barriers to legitimate
activity, including electronic commerce, and, consistent with each Party’s law,
preserves fundamental principles such as freedom of expression, fair process, and
3.
Each Party shall endeavour to promote cooperative efforts within the business
community to effectively address trademark and copyright or related rights infringement
while preserving legitimate competition and, consistent with that Party’s law, preserving
fundamental principles such as freedom of expression, fair process, and privacy.
4.
A Party may provide, in accordance with its laws and regulations, its competent
authorities with the authority to order an online service provider to disclose
expeditiously to a right holder information sufficient to identify a subscriber whose
account was allegedly used for infringement, where that right holder has filed a legally
sufficient claim of trademark or copyright or related rights infringement, and where
such information is being sought for the purpose of protecting or enforcing those rights.
These procedures shall be implemented in a manner that avoids the creation of barriers
to legitimate activity, including electronic commerce, and, consistent with that Party’s
law, preserves fundamental principles such as freedom of expression, fair process, and
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performers or producers of phonograms in connection with the exercise of their rights in,
and that restrict acts in respect of, their works, performances, and phonograms, which
are not authorized by the authors, the performers or the producers of phonograms
performers or producers of phonograms in connection with the exercise of their rights
in, and that restrict acts in respect of, their works, performances, and phonograms,
which are not authorized by the authors, the performers or the producers of phonograms
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In order to provide such adequate legal protection and effective legal remedies,
each Party shall provide protection at least against:
In order to provide the adequate legal protection and effective legal remedies
referred to in paragraph 5
, each Party shall provide protection at least against:
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14
For the purposes of this Article, technological measures means any technology, device, or component
that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works,
performances, or phonograms, which are not authorized by authors, performers or producers of
phonograms, as provided for by a Party’s law. Without prejudice to the scope of copyright or related
rights contained in a Party’s law, technological measures shall be deemed effective where the use of
protected works, performances, or phonograms is controlled by authors, performers or producers of
phonograms through the application of a relevant access control or protection process, such as encryption
or scrambling, or a copy control mechanism, which achieves the objective of protection.
16
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circumventing an effective technological measure.15
14
For the purposes of this Agreement, technological measure means any technology, device, or
component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of
works, performances or phonograms, which are not authorized by authors, performers, or producers of
phonograms, as provided for by a Party`s law. Without prejudice to the scope of copyright or related
rights contained in a Party`s law, technological measures shall be deemed effective where the use of
protected works, performances or phonograms is controlled by authors, performers, or producers of
phonograms through the application of a relevant access control or protection process, such as encryption
or scrambling, or a copy control mechanism, which achieves the objective of protection.
15
In implementing paragraphs 5 and 6, 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 contravene any measures implementing these paragraphs.
16
circumventing an effective technological measure. 15
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remedies having reasonable grounds to know, that it will induce, enable, facilitate, or
conceal an infringement of any copyright or related right:
(a)
to remove or alter any electronic right management information
remedies, having reasonable grounds to know, that it will induce, enable, facilitate, or
conceal an infringement of any copyright or related rights:
(a)
to remove or alter any electronic rights management information;
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paragraphs 5 and 7, each Party may adopt or maintain appropriate limitations or
exceptions to measures implementing paragraphs 5, 6 and 7. Further, the obligations in
paragraphs 5, 6 and 7 are without prejudice to the rights, limitations, exceptions, or
defenses to copyright or related rights infringement under a Party’s law.
CHAPTER THREE
the provisions of paragraphs 5 and 7, a Party may adopt or maintain appropriate
limitations or exceptions to measures implementing the provisions of paragraphs 5, 6,
and 7. The obligations set forth in paragraphs 5, 6, and 7 are without prejudice to the
rights, limitations, exceptions, or defences to copyright or related rights infringement
under a Party’s law.
15
In implementing paragraphs 5 and 6, 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 contravene its measures implementing these paragraphs.
16
For the purposes of this Article, rights management information means:
(a) information that identifies the work, the performance, or the phonogram; the author of the work,
the performer of the performance, or the producer of the phonogram; or the owner of any right in
the work, performance, or phonogram;
(b) information about the terms and conditions of use of the work, performance, or phonogram; or
(c) any numbers or codes that represent the information described in (a) and (b) above;
when any of these items of information is attached to a copy of a work, performance, or phonogram, or
appears in connection with the communication or making available of a work, performance, or
phonogram to the public.
17
CHAPTER III
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ARTICLE 3.1: ENFORCEMENT EXPERTISE, INFORMATION AND DOMESTIC COORDINATION ARTICLE 28: ENFORCEMENT EXPERTISE, INFORMATION, AND DOMESTIC COORDINATION
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competent authorities responsible for enforcement of intellectual property rights.
2.
Each Party shall promote collection and analysis of statistical data and other
relevant information concerning infringements of intellectual property rights as well as
collection of information on best practices to prevent and combat those infringements.
competent authorities responsible for the enforcement of intellectual property rights.
2.
Each Party shall promote the collection and analysis of statistical data and other
relevant information concerning intellectual property rights infringements as well as the
collection of information on best practices to prevent and combat infringements.
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facilitate joint actions by, its competent authorities responsible for enforcement of facilitate joint actions by, its competent authorities responsible for the enforcement of
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16
For purposes of this Article, electronic rights management information means:
(a) information that identifies a work, performance, or phonogram; the author of the work, the performer
of the performance, or the producer of the phonogram; or the owner of any right in the work, performance,
or phonogram;
(b) information about the terms and conditions of the use of the work, performance, or phonogram; or
(c) any numbers or codes that represent the information described in (a) or (b) above,
when any of these items is attached to a copy of the work, performance, or phonogram or appears in
connection with the communication or making available of a work, performance, or phonogram to the
public.
17
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Each Party shall endeavor to promote, where appropriate, the establishment and Each Party shall endeavour to promote, where appropriate, the establishment and
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competent authorities may hear the views of right holders and other relevant competent authorities may receive the views of right holders and other relevant
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ARTICLE 3.2: MANAGEMENT OF RISK AT BORDER ARTICLE 29: MANAGEMENT OF RISK AT BORDER
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property rights, the appropriate competent authorities of each Party may:
(a)
consult with the relevant stakeholders, and the appropriate competent
authorities of other Parties responsible for enforcement of intellectual
property rights to identify and address significant risks and promote
actions to mitigate those risks;
(b)
share information with the appropriate competent authorities of other
Parties on border enforcement of intellectual property rights, including
relevant information to better identify and target shipments for inspection.
2.
Where a Party seizes imported goods infringing intellectual property rights, the
Party’s competent authorities may provide the Party of export with information
necessary for identification of the parties and goods involved in the exportation of the
seized goods. The competent authorities of the Party of export may take action against
these parties and future shipments in accordance with its laws.
ARTICLE 3.3: TRANSPARENCY/ PUBLICATION OF ENFORCEMENT PROCEDURES AND
PRACTICES
For the purposes of promoting transparency in the administration of its
intellectual property rights enforcement system, each Party shall take appropriate
measures, pursuant to its domestic laws and policies, to publish or make available to the
public information on:
(a)
procedures available regarding the enforcement of intellectual property
rights including competent authorities for enforcement of intellectual
property rights and contact points for assistance;
(b)
relevant laws, regulations, final judicial decisions and administrative
rulings of general application pertaining to enforcement of intellectual
property rights; and
property rights, the competent authorities of a Party may:
(a)
consult with the relevant stakeholders, and the competent authorities of
other Parties responsible for the enforcement of intellectual property
rights to identify and address significant risks, and promote actions to
mitigate those risks; and
(b)
share information with the competent authorities of other Parties on
border enforcement of intellectual property rights, including relevant
information to better identify and target for inspection shipments
suspected of containing infringing goods.
2.
Where a Party seizes imported goods infringing an intellectual property right, its
competent authorities may provide the Party of export with information necessary for
identification of the parties and goods involved in the exportation of the seized goods.
The competent authorities of the Party of export may take action against those parties
and future shipments in accordance with that Party’s law.
ARTICLE 30: TRANSPARENCY
18
To promote transparency in the administration of its intellectual property rights
enforcement system, each Party shall take appropriate measures, pursuant to its law and
policies, to publish or otherwise make available to the public information on:
(a)
procedures available under its law for enforcing intellectual property
rights, its competent authorities responsible for such enforcement, and
contact points available for assistance;
(b)
relevant laws, regulations, final judicial decisions, and administrative
rulings of general application pertaining to the enforcement of
intellectual property rights; and
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efforts to ensure effective enforcement and protection system of its efforts to ensure an effective system of enforcement and protection of
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ARTICLE 3.4: PUBLIC AWARENESS
18
ARTICLE 31: PUBLIC AWARENESS
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ARTICLE 3.5: ENVIRONMENTAL CONSIDERATIONS IN DESTRUCTION OF INFRINGING ARTICLE 32: ENVIRONMENTAL CONSIDERATIONS IN DESTRUCTION OF INFRINGING
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consistently with each Party’s laws and regulations on environmental matters.
CHAPTER FOUR
consistently with the laws and regulations on environmental matters of the Party in
which the destruction takes place
.
19

CHAPTER IV
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ARTICLE 4.1: INTERNATIONAL COOPERATION
1.
Each Party recognizes that international cooperation is vital to realize effective
protection of intellectual property rights and should be encouraged regardless of the
origin of the goods infringing intellectual property rights, or the location or nationality
of the right holder.
2.
In order to combat intellectual property rights infringement, in particular,
trade
mark counterfeiting and copyright piracy, each Party shall promote cooperation,
where appropriate, a
mong the competent authorities of the Parties responsible for
ARTICLE 33: INTERNATIONAL COOPERATION
1.
Each Party recognizes that international cooperation is vital to realizing effective
protection of intellectual property rights and that it should be encouraged regardless of
the
origin of the goods infringing intellectual property rights, or the location or
nationality
of the right holder.
2.
In order to combat intellectual property rights infringement, in particular
trademark counterfeiting and copyright or related rights piracy
, the Parties shall promote
cooperation
, where appropriate, among their competent authorities responsible for the
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Each Party understands that cooperation under this Chapter shall be conducted
consistent with relevant international agreements as well as subject to the domestic laws,
policies, resource allocation and law enforcement priorities of the Parties.
ARTICLE 4.2: INFORMATION SHARING
Without prejudice to Articles 2.4 and 3.2, each Party shall endeavor to exchange
with other Parties the following:
(a)
information collected by a Party under provisions of Chapter 3, including
statistical data and information on
best practices;
(b)
information on legislative and regulatory measures by a Party related to
the protection and enforcement of intellectual property
rights; and
Cooperation under this Chapter shall be conducted consistent with relevant
international agreements, and subject to the laws, policies, resource allocation, and law
enforcement priorities of each
Party.
ARTICLE 34: INFORMATION SHARING
Without prejudice to the provisions of Article 29 (Management of Risk at
Border)
, each Party shall endeavour to exchange with other Parties:
(a)
information the Party collects under the provisions of Chapter III
(Enforcement Practices), includ
ing statistical data and information on
best practices;
(b)
information on its legislative and regulatory measures related to the
protection and enforcement of intellectual propert
y rights; and
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ARTICLE 4.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
19
1
.
Each Party shall endeavor to provide, on request and on mutually agreed terms
and conditions, assistance in capacity building and technical assistance in improving
enforcement of intellectual property rights for Parties to this Agreement and, where
appropriate, for prospective Parties to this Agreement. Such capacity building and
ARTICLE 35: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1.
Each Party shall endeavour to provide, upon request and on mutually agreed
terms
and conditions, assistance in capacity building and technical assistance in
improving the enforcement of intellectual property rights to other Parties to this
Agreement and, where appropriate, to prospective Parties. The capacity building and
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20
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development and implementation of national legislation related to development and implementation of national legislation related to the
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training of officials on enforcement of intellectual property rights; and training of officials on the enforcement of intellectual property rights; and
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For the purposes of paragraph 1, each Party shall endeavor to work closely with
other Parties and, where appropriate, countries or separate customs territories not a
Party to this Agreement.
3.
Each Party may undertake the activities described in this Article in conjunction
with relevant private sector or international organizations. Each Party shall strive to
avoid unnecessary duplication of the activities described in this Article with respect to
other international efforts.
CHAPTER FIVE
Each Party shall endeavour to work closely with other Parties and, where
appropriate, non-Parties to this Agreement for the purpose of implementing the
provisions of paragraph 1.
A Party may undertake the activities described in this Article in conjunction with
3.
relevant private sector or international organizations. Each Party shall strive to avoid
unnecessary duplication between the activities described in this Article and other
international cooperation activities.
21
CHAPTER V
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ARTICLE 5.1: THE ACTA COMMITTEE
1.

The Parties hereby establish the ACTA Committee, and each Party shall be
represented on that Committee.
2.
ARTICLE 36: THE ACTA COMMITTEE
The Parties hereby establish the ACTA Committee.
represe
nted on the Committee.
1.
2.
E
ach Party shall be
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(b)
consider matters concerning the development of this Agreement;
(c)
consider any proposed amendments to this Agreement in accordance with
Article 42 (Amendments);
(d)
decide, in accordance with paragraph 2 of Article 43 (Accession), upon
the terms of accession to this Agreement of any Member of the WTO;
and
(e)
3.
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(b)
consider matters concerning the development of this Agreement
(c)
consider in accordance with Article 6.4 any proposed amendments to this
Agreement;
(d)
approve in accordance with Article 6.5.2 the terms of accession to this
Agreement of any Member of the WTO seeking to become Party to this
Agreement; and
20
(e)
3.
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establish ad hoc committees or working groups to assist the Committee
in carrying out its responsibilities under paragraph 2, or to assist a
prospective Party upon its request in acceding to this Agreement in
accordance with Article 43 (Accession);
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make recommendations regarding implementation and operation of the
Agreement, including endorsing best practice guidelines related thereto;
make recommendations regarding the implementation and operation of
this Agreement, including by endorsing best practice guidelines related
thereto;
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share with third parties information and best practices on reducing share information and best practices with third parties on reducing
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1.
establish ad hoc committees or working groups to assist the Committee
in carrying out its responsibilities under paragraph 2, as well as, upon
request, to assist prospective parties in joining this Agreement;
take such other action in the exercise of its functions as the Committee
may decide.
(a)
The Committee shall adopt its rules and procedures within a reasonable
period of time after entry into force of the Agreement, and shall invite
those signatories that are not yet Parties to participate in the Committee’s
deliberations on rules and procedures.
(i)
Such rules and procedures shall include provisions with respect to
chairing and hosting meetings, performance of organizational
duties relevant to the Agreement and its operation,
(ii)
Such rules and procedures may include provisions with respect to
granting observer status, and any other matter the Committee
decides necessary for its proper operation.
(b)
The Committee may amend the rules and procedures.
(c)
Notwithstanding paragraph 5, during the first five years following entry
into force of the Agreement, the Committee may adopt or amend its rules
or procedures upon the consensus of the signatories, including those
signatories that are not yet Parties to the Agreement.
(d)
After the period specified in subparagraph (c), the Committee may adopt
or amend rules or procedures upon the consensus of the Parties to the
Agreement.
21
(e)
Notwithstanding subparagraph (d), the Committee may decide that the
adoption or amendment of a particular rule or procedure requires
consensus of the signatories, including those signatories that are not yet
Parties to the Agreement.
5.
take other actions in the exercise of its functions.
4.
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Committee may otherwise decide by consensus. The committee shall be deemed to Committee may otherwise decide by consensus. The Committee shall be deemed to
22
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its work shall be in English. its work shall be in the English language.
5.
The Committee shall adopt its rules and procedures within a reasonable period
after the entry into force of this Agreement, and shall invite those Signatories not Parties
to this Agreement to participate in the Committee’s deliberations on those rules and
procedures. The rules and procedures:
(a)
(b)
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shall address such matters as chairing and hosting meetings, and the
performance of organizational duties relevant to this Agreement and its
operation; and
may also address such matters as granting observer status, and any other
matter the Committee decides necessary for its proper operation.
The Committee may amend the rules and procedures.
7.
Notwithstanding the provisions of paragraph 4, during the first five years
following the entry into force of this Agreement, the Committee’s decisions to adopt or
amend the rules and procedures shall be taken by consensus of the Parties and those
Signatories not Parties to this Agreement.
8.
After the period specified in paragraph 7, the Committee may adopt or amend
the rules and procedures upon the consensus of the Parties to this Agreement.
9.
Notwithstanding the provisions of paragraph 8, the Committee may decide that
the adoption or amendment of a particular rule or procedure requires the consensus of
the Parties and those Signatories not Parties to this Agreement.
10.
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period of time after entry into force of this Agreement, pursuant to Article 6.2.1.
7.
period after the entry into force of this Agreement.
1
1.
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8.
The Committee shall strive to avoid unnecessary duplication of other
international efforts regarding the enforcement of intellectual
property rights.
ARTICLE 5.2: CONTACT POINTS
1.
Each Party shall designate a contact point to facilitate communications among
12.
The Committee shall strive to avoid unnecessary duplication between its
activities and other international efforts regarding the enforcement of intellectual
property rights.
ARTICLE 37: CONTACT POINTS
23
1.
Each Party shall designate a contact point to facilitate communications between
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2.
On the request of a Party, the contact point of another Party shall identify an
appropriate office or official and assist, as necessary, in facilitating communication
between the office or official concerned and the requesting Party.
ARTICLE 5.3: CONSULTATION
1.
Each Party may request in writing consultations with another Party with respect
to any matter affecting the implementation of this Agreement. The requested Party shall
On the request of another Party, a Party’s contact point shall identify an
appropriate office or official to whom the requesting Party’s inquiry may be addressed,
and assist, as necessary, in facilitating communications between the office or official
concerned and the requesting Party.
2.
ARTICLE 38: CONSULTATIONS
1.
A Party may request in writing consultations with another Party with respect to
any matter affecting the implementation of this Agreement. The requested Party shall
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adequate opportunity for such consultations.
2.
Any such consultations, including particular positions taken by Parties therein,
shall be confidential, and without prejudice to the rights of either Party in any other
proceeding, including ones under the auspices of the WTO Understanding on Rules and
Procedures Governing the Settlement of Disputes.
3.
The Parties may by mutual agreement notify the result of consultations referred
to in this Article to the Committee.
22
CHAPTER SIX
adequate opportunity to consult.
2.
The consultations, including particular positions taken by consulting Parties,
shall be kept confidential and be without prejudice to the rights or positions of either
Party in any other proceeding, including a proceeding under the auspices of the
Understanding on Rules and Procedures Governing the Settlement of Disputes
contained in Annex 2 to the WTO Agreement.
3.
The consulting Parties may, by mutual consent, notify the Committee of the
result of their consultations under this Article.
24
CHAPTER VI
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ARTICLE 6.1: SIGNATURE ARTICLE 39: SIGNATURE
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negotiation17 from [date] until [date] at the Depositary. Note: the dates will reflect a 2
year period
.
ARTICLE 6.2: ENTRY INTO FORCE OF THE AGREEMENT
1.
This Agreement shall enter into force 30 days after the deposit of the sixth
instrument of ratification, acceptance, or approval as between those signatories which
have deposited their respective instruments of ratification, acceptance or approval.
2.
For each signatory that deposits its instrument of ratification, acceptance, or
approval after the deposit of the sixth instrument of ratification, acceptance, or approval,
this A
greement shall enter into force for that signatory 30 days after the date of deposit
of its instrument of ratification, acceptance or approval.
ARTICLE 6.3: WITHDRAWAL
A Party may withdraw from this Agreement by means of a written notification to
the Depositary. Such withdrawal shall take effect 180 days after the notification is
received by the Depositary.
ARTICLE 6.4: AMENDMENTS
1.
Each Party may propose amendments to this Agreement to the Committee. The
negotiation,17 and by any other WTO Members the participants may agree to by
consens
us, from 31 March 2011 until 31 March 2013.
ARTICLE 40: ENTRY INTO FORCE
1.
This Agreement shall enter into force thirty days after the date of deposit of the
sixth instrument of ratification, acceptance, or approval as between those Signatories
that
have deposited their respective instruments of ratification, acceptance, or approval.
2.
This Agreement shall enter into force for each Signatory that deposits its
instrument of ratification, acceptance, or approval after the deposit of the sixth
instrument of ratification, acceptance, or approval, thirty days after the date of deposit
by such Si
gnatory of its instrument of ratification, acceptance, or approval.
ARTICLE 41: WITHDRAWAL
A Party may withdraw from this Agreement by means of a written notification
to
the Depositary. The withdrawal shall take effect 180 days after the Depositary
receives the notification.
ARTICLE 42: AMENDMENTS
1.
A Party may propose amendments to this Agreement to the Committee. The
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acceptance, ratification, or approval.
2.
Such amendment shall enter into force 90 days after the date that all the Parties
have deposited their respective instruments of acceptance, ratification or approval with
the Depositary.
ARTICLE 6.5: BECOMING PARTY TO THE AGREEMENT
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Which shall comprise Australia, Austria, Belgium, Bulgaria, Canada, Cyprus, the Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, the Republic of
Korea, Latvia, Lithuania, Luxembourg, Malta, Morocco, the Netherlands, New Zealand, Poland, Portugal,
Romania, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, the United
Mexican States, the United States, and the European Union.
23
1.
After the expiration of the period provided in Article 6.1, any Member of the
WTO may apply to accede to this Agreement.
Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the
Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the
European Union, the Republic of Finland, the French Republic, the Federal Republic of Germany, the
Hellenic Republic, the Republic of Hungary, Ireland, the Italian Republic, Japan, the Republic of Korea,
the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of
Malta, the United Mexican States, the Kingdom of Morocco, the Kingdom of the Netherlands, New
Zealand, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Singapore, the
Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss
Confederation, the United Kingdom of Great Britain and Northern Ireland, and the United States of
America.
25
ratification, acceptance, or approval.
2.
Any amendment shall enter into force ninety days after the date that all the
Parties have deposited their respective instruments of ratification, acceptance, or
approval with the Depositary.
ARTICLE 43: ACCESSION
1.
After the expiration of the period provided in Article 39 (Signature), any
Member of the WTO may apply to accede to this Agreement.
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The applicant shall become a Party to this Agreement 30 days after the deposit
of its instrument of acceptance, ratification, or approval of those terms of accession with
the Depository.
ARTICLE 6.6: TEXTS OF THE AGREEMENT
This Agreement shall be signed in the English, French and Spanish languages,
which shall be equally authentic.
ARTICLE 6.7: DEPOSITARY
Japan shall be the Depositary of this Agreement.
24
This Agreement shall enter into force for the applicant thirty days after the date
of deposit of its instrument of accession based upon the terms of accession referred to in
paragraph 2.
ARTICLE 44: TEXTS OF THE AGREEMENT
This Agreement shall be signed in a single original in the English, French, and
Spanish languages, each version being equally authentic.
ARTICLE 45: DEPOSITARY
The Government of Japan shall be the Depositary of this Agreement.
26

Anti-Counterfeiting Trade Agreement 3 December 2010 The Parties to this Agreement, Noting that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally; Noting further that the proliferation of counterfeit and pirated goods, as well as of services that distribute infringing material, undermines legitimate trade and sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and, in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public; Desiring to combat such proliferation through enhanced international cooperation and more effective international enforcement; Intending to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in their respective legal systems and practices; Desiring to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade; Desiring to address the problem of infringement of intellectual property rights, including infringement taking place in the digital environment, in particular with respect to copyright or related rights, in a manner that balances the rights and interests of the relevant right holders, service providers, and users; Desiring to promote cooperation between service providers and right holders to address relevant infringements in the digital environment; Desiring that this Agreement operates in a manner mutually supportive of international enforcement work and cooperation conducted within relevant international organizations; Recognizing the principles set forth in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001, at the Fourth WTO Ministerial Conference; Hereby agree as follows: 1 CHAPTER I INITIAL PROVISIONS AND GENERAL DEFINITIONS Section 1: Initial Provisions ARTICLE 1: RELATION TO OTHER AGREEMENTS Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including the TRIPS Agreement. ARTICLE 2: NATURE AND SCOPE OF OBLIGATIONS 1. Each Party shall give effect to the provisions of this Agreement. A Party may implement in its law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice. 2. Nothing in this Agreement creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and enforcement of law in general. 3. The objectives and principles set forth in Part I of the TRIPS Agreement, in particular in Articles 7 and 8, shall apply, mutatis mutandis, to this Agreement. ARTICLE 3: RELATION TO STANDARDS INTELLECTUAL PROPERTY RIGHTS CONCERNING THE AVAILABILITY AND SCOPE OF 1. This Agreement shall be without prejudice to provisions in a Party’s law governing the availability, acquisition, scope, and maintenance of intellectual property rights. 2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under its laws and regulations. ARTICLE 4: PRIVACY AND DISCLOSURE OF INFORMATION 1. Nothing in this Agreement shall require a Party to disclose: (a) information, the disclosure of which would be contrary to its law, including laws protecting privacy rights, or international agreements to 2 which it is party; (b) confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public interest; or (c) confidential information, the disclosure of which would prejudice the legitimate commercial interests of particular enterprises, public or private. 2. When a Party provides written information pursuant to the provisions of this Agreement, the Party receiving the information shall, subject to its law and practice, refrain from disclosing or using the information for a purpose other than that for which the information was provided, except with the prior consent of the Party providing the information. Section 2: General Definitions ARTICLE 5: GENERAL DEFINITIONS For the purposes of this Agreement, unless otherwise specified: (a) ACTA means the Anti-Counterfeiting Trade Agreement; (b) Committee means the ACTA Committee established under Chapter V (Institutional Arrangements); (c) competent authorities includes the appropriate judicial, administrative, or law enforcement authorities under a Party’s law; (d) counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country in which the procedures set forth in Chapter II (Legal Framework for Enforcement of Intellectual Property Rights) are invoked; (e) country is to be understood to have the same meaning as that set forth in the Explanatory Notes to the WTO Agreement; (f) customs transit means the customs procedure under which goods are transported under customs control from one customs office to another; 3 (g) days means calendar days; (h) 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; (i) in-transit goods means goods under customs transit or transhipment; (j) person means a natural person or a legal person; (k) pirated copyright goods means any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country in which the procedures set forth in Chapter II (Legal Framework for Enforcement of Intellectual Property Rights) are invoked; (l) right holder includes a federation or an association having the legal standing to assert rights in intellectual property; (m) territory, for the purposes of Section 3 (Border Measures) of Chapter II (Legal Framework for Enforcement of Intellectual Property Rights), means the customs territory and all free zones1 of a Party; (n) transhipment means the customs procedure under which goods are transferred under customs control from the importing means of transport to the exporting means of transport within the area of one customs office which is the office of both importation and exportation; (o) TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement; (p) WTO means the World Trade Organization; and (q) WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994. 1 For greater certainty, the Parties acknowledge that free zone means a part of the territory of a Party where any goods introduced are generally regarded, insofar as import duties and taxes are concerned, as being outside the customs territory. 4 CHAPTER II LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS Section 1: General Obligations ARTICLE 6: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT 1. Each Party shall ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. 2. Procedures adopted, maintained, or applied to implement the provisions of this Chapter shall be fair and equitable, and shall provide for the rights of all participants subject to such procedures to be appropriately protected. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 3. In implementing the provisions of this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties. 4. No provision of this Chapter shall be construed to require a Party to make its officials subject to liability for acts undertaken in the performance of their official duties. Section 2: Civil Enforcement2 ARTICLE 7: AVAILABILITY OF CIVIL PROCEDURES 1. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right as specified in this Section. 2. To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that such procedures shall conform to principles equivalent in substance to those set forth in this Section. 2 A Party may exclude patents and protection of undisclosed information from the scope of this Section. 5 ARTICLE 8: INJUNCTIONS 1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce. 2. Notwithstanding the other provisions of this Section, a Party may limit the remedies available against use by governments, or by third parties authorized by a government, without the authorization of the right holder, to the payment of remuneration, provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use. In other cases, the remedies under this Section shall apply or, where these remedies are inconsistent with a Party’s law, declaratory judgments and adequate compensation shall be available. ARTICLE 9: DAMAGES 1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to order the infringer who, knowingly or with reasonable grounds to know, engaged in infringing activity to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price. 2. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer’s profits that are attributable to the infringement. A Party may presume those profits to be the amount of damages referred to in paragraph 1. 3. At least with respect to infringement of copyright or related rights protecting works, phonograms, and performances, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following: (a) pre-established damages; or 6 (b) presumptions3 for determining the amount of damages sufficient to compensate the right holder for the harm caused by the infringement; or (c) at least for copyright, additional damages. 4. Where a Party provides the remedy referred to in subparagraph 3(a) or the presumptions referred to in subparagraph 3(b), it shall ensure that either its judicial authorities or the right holder has the right to choose such a remedy or presumptions as an alternative to the remedies referred to in paragraphs 1 and 2. 5. Each Party shall provide that its judicial authorities, where appropriate, have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, or trademarks, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney’s fees, or any other expenses as provided for under that Party’s law. ARTICLE 10: OTHER REMEDIES 1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that, in civil judicial proceedings, at the right holder’s request, its judicial authorities have the authority to order that such infringing goods be destroyed, except in exceptional circumstances, without compensation of any sort. 2. Each Party shall further provide that its judicial authorities have the authority to order that materials and implements, the predominant use of which has been in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. 3. A Party may provide for the remedies described in this Article to be carried out at the infringer’s expense. ARTICLE 11: INFORMATION RELATED TO INFRINGEMENT Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of 3 The presumptions referred to in subparagraph 3(b) may include a presumption that the amount of damages is: (i) the quantity of the goods infringing the right holder’s intellectual property right in question and actually assigned to third persons, multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not been the act of infringement; or (ii) a reasonable royalty; or (iii) a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property right in question. 7 intellectual property rights, its judicial authorities have the authority, upon a justified request of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution. ARTICLE 12: PROVISIONAL MEASURES 1. Each Party shall provide that its judicial authorities have the authority to order prompt and effective provisional measures: (a) against a party or, where appropriate, a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property right from occurring, and in particular, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce; (b) to preserve relevant evidence in regard to the alleged infringement. 2. Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its judicial authorities with the authority to act expeditiously on requests for provisional measures and to make a decision without undue delay. 3. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the seizure or other taking into custody of suspect goods, and of materials and implements relevant to the act of infringement, and, at least for trademark counterfeiting, documentary evidence, either originals or copies thereof, relevant to the infringement. 4. Each Party shall provide that its authorities have the authority to require the applicant, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse. Such security or equivalent assurance shall not 8 unreasonably deter recourse to procedures for such provisional measures. 5. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures. Section 3: Border Measures4, 5 ARTICLE 13: SCOPE OF THE BORDER MEASURES6 In providing, as appropriate, and consistent with its domestic system of intellectual property rights protection and without prejudice to the requirements of the TRIPS Agreement, for effective border enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate unjustifiably between intellectual property rights and that avoids the creation of barriers to legitimate trade. ARTICLE 14: SMALL CONSIGNMENTS AND PERSONAL LUGGAGE 1. Each Party shall include in the application of this Section goods of a commercial nature sent in small consignments. 2. A Party may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travellers’ personal luggage. ARTICLE 15: PROVISION OF INFORMATION FROM THE RIGHT HOLDER Each Party shall permit its competent authorities to request a right holder to supply relevant information to assist the competent authorities in taking the border measures referred to in this Section. A Party may also allow a right holder to supply relevant information to its competent authorities. 4 Where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border. 5 It is understood that there shall be no obligation to apply the procedures set forth in this Section to goods put on the market in another country by or with the consent of the right holder. 6 The Parties agree that patents and protection of undisclosed information do not fall within the scope of this Section. 9 ARTICLE 16: BORDER MEASURES 1. Each Party shall adopt or maintain procedures with respect to import and export shipments under which: (a) its customs authorities may act upon their own initiative to suspend the release of suspect goods; and (b) where appropriate, a right holder may request its competent authorities to suspend the release of suspect goods. 2. A Party may adopt or maintain procedures with respect to suspect in-transit goods or in other situations where the goods are under customs control under which: (a) its customs authorities may act upon their own initiative to suspend the release of, or to detain, suspect goods; and (b) where appropriate, a right holder may request its competent authorities to suspend the release of, or to detain, suspect goods. Article 17: APPLICATION BY THE RIGHT HOLDER 1. Each Party shall provide that its competent authorities require a right holder that requests the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures) to provide adequate evidence to satisfy the competent authorities that, under the law of the Party providing the procedures, there is prima facie an infringement of the right holder's intellectual property right, and to supply sufficient information that may reasonably be expected to be within the right holder’s knowledge to make the suspect goods reasonably recognizable by the competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures). 2. Each Party shall provide for applications to suspend the release of, or to detain, any suspect goods7 under customs control in its territory. A Party may provide for such applications to apply to multiple shipments. A Party may provide that, at the request of the right holder, the application to suspend the release of, or to detain, suspect goods may apply to selected points of entry and exit under customs control. 3. Each Party shall ensure that its competent authorities inform the applicant within a reasonable period whether they have accepted the application. Where its competent authorities have accepted the application, they shall also inform the applicant of the 7 The requirement to provide for such applications is subject to the obligations to provide procedures referred to in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures). 10 period of validity of the application. 4. A Party may provide that, where the applicant has abused the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures), or where there is due cause, its competent authorities have the authority to deny, suspend, or void an application. ARTICLE 18: SECURITY OR EQUIVALENT ASSURANCE Each Party shall provide that its competent authorities have the authority to require a right holder that requests the procedures described in subparagraphs 1(b) and 2(b) of Article 16 (Border Measures) to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. A Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of, or detention of, the goods in the event the competent authorities determine that the goods are not infringing. A Party may, only in exceptional circumstances or pursuant to a judicial order, permit the defendant to obtain possession of suspect goods by posting a bond or other security. ARTICLE 19: DETERMINATION AS TO INFRINGEMENT Each Party shall adopt or maintain procedures by which its competent authorities may determine, within a reasonable period after the initiation of the procedures described in Article 16 (Border Measures), whether the suspect goods infringe an intellectual property right. ARTICLE 20: REMEDIES 1. Each Party shall provide that its competent authorities have the authority to order the destruction of goods following a determination referred to in Article 19 (Determination as to Infringement) that the goods are infringing. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. 2. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce. 3. A Party may provide that its competent authorities have the authority to impose administrative penalties following a determination referred to in Article 19 11 (Determination as to Infringement) that the goods are infringing. ARTICLE 21: FEES Each Party shall provide that any application fee, storage fee, or destruction fee to be assessed by its competent authorities in connection with the procedures described in this Section shall not be used to unreasonably deter recourse to these procedures. ARTICLE 22: DISCLOSURE OF INFORMATION Without prejudice to a Party’s laws pertaining to the privacy or confidentiality of information: (a) a Party may authorize its competent authorities to provide a right holder with information about specific shipments of goods, including the description and quantity of the goods, to assist in the detection of infringing goods; (b) a Party may authorize its competent authorities to provide a right holder with information about goods, including, but not limited to, the description and quantity of the goods, the name and address of the consignor, importer, exporter, or consignee, and, if known, the country of origin of the goods, and the name and address of the manufacturer of the goods, to assist in the determination referred to in Article 19 (Determination as to Infringement); (c) unless a Party has provided its competent authorities with the authority described in subparagraph (b), at least in cases of imported goods, where its competent authorities have seized suspect goods or, in the alternative, made a determination referred to in Article 19 (Determination as to Infringement) that the goods are infringing, the Party shall authorize its competent authorities to provide a right holder, within thirty days8 of the seizure or determination, with information about such goods, including, but not limited to, the description and quantity of the goods, the name and address of the consignor, importer, exporter, or consignee, and, if known, the country of origin of the goods, and the name and address of the manufacturer of the goods. Section 4: Criminal Enforcement 8 For the purposes of this Article, days means business days. 12 ARTICLE 23: CRIMINAL OFFENCES 1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale.9 For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage. 2. Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful importation10 and domestic use, in the course of trade and on a commercial scale, of labels or packaging:11 (a) to which a mark has been applied without authorization which is identical to, or cannot be distinguished from, a trademark registered in its territory; and (b) which are intended to be used in the course of trade on goods or in relation to services which are identical to goods or services for which such trademark is registered. 3. A Party may provide criminal procedures and penalties in appropriate cases for the unauthorized copying of cinematographic works from a performance in a motion picture exhibition facility generally open to the public. 4. With respect to the offences specified in this Article for which a Party provides criminal procedures and penalties, that Party shall ensure that criminal liability for aiding and abetting is available under its law. 5. Each Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability, which may be criminal, of legal persons for the offences specified in this Article for which the Party provides criminal procedures and penalties. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the criminal offences. 9 Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to importation and exportation of counterfeit trademark goods or pirated copyright goods by providing for distribution, sale or offer for sale of such goods on a commercial scale as unlawful activities subject to criminal penalties. 10 A Party may comply with its obligation relating to importation of labels or packaging through its measures concerning distribution. 11 A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to be applied to attempts to commit a trademark offence. 13 ARTICLE 24: PENALTIES For offences specified in paragraphs 1, 2, and 4 of Article 23 (Criminal Offences), each Party shall provide penalties that include imprisonment as well as monetary fines12 sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity. ARTICLE 25: SEIZURE, FORFEITURE, AND DESTRUCTION 1. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence, and the assets derived from, or obtained directly or indirectly through, the alleged infringing activity. 2. Where a Party requires the identification of items subject to seizure as a prerequisite for issuing an order referred to in paragraph 1, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure. 3. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the forfeiture or destruction of all counterfeit trademark goods or pirated copyright goods. In cases where counterfeit trademark goods and pirated copyright goods are not destroyed, the competent authorities shall ensure that, except in exceptional circumstances, such goods shall be disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder. Each Party shall ensure that the forfeiture or destruction of such goods shall occur without compensation of any sort to the infringer. 4. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the forfeiture or destruction of materials and implements predominantly used in the creation of counterfeit trademark goods or pirated copyright goods and, at least for serious offences, of the assets derived from, or obtained directly or indirectly through, the infringing activity. Each Party shall ensure that the forfeiture or destruction of such materials, implements, or assets shall occur without compensation of any sort to the infringer. 12 It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and monetary fines to be imposed in parallel. 14 5. With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which a Party provides criminal procedures and penalties, that Party may provide that its judicial authorities have the authority to order: (a) the seizure of assets the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the allegedly infringing activity; and (b) the forfeiture of assets the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity. ARTICLE 26: EX OFFICIO CRIMINAL ENFORCEMENT Each Party shall provide that, in appropriate cases, its competent authorities may act upon their own initiative to initiate investigation or legal action with respect to the criminal offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which that Party provides criminal procedures and penalties. Section 5: Enforcement of Intellectual Property Rights in the Digital Environment ARTICLE 27: ENFORCEMENT IN THE DIGITAL ENVIRONMENT 1. Each Party shall ensure that enforcement procedures, to the extent set forth in Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are available under its law so as to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements. 2. Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.13 13 For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the legitimate interests of right holder. 15 3. Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy. 4. A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. 5. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures14 that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances, and phonograms, which are not authorized by the authors, the performers or the producers of phonograms concerned or permitted by law. 6. In order to provide the adequate legal protection and effective legal remedies referred to in paragraph 5, each Party shall provide protection at least against: (a) to the extent provided by its law: (i) (ii) (b) the unauthorized circumvention of an effective technological measure carried out knowingly or with reasonable grounds to know; and the offering to the public by marketing of a device or product, including computer programs, or a service, as a means of circumventing an effective technological measure; and the manufacture, importation, or distribution of a device or product, including computer programs, or provision of a service that: 14 For the purposes of this Article, technological measures means any technology, device, or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works, performances, or phonograms, which are not authorized by authors, performers or producers of phonograms, as provided for by a Party’s law. Without prejudice to the scope of copyright or related rights contained in a Party’s law, technological measures shall be deemed effective where the use of protected works, performances, or phonograms is controlled by authors, performers or producers of phonograms through the application of a relevant access control or protection process, such as encryption or scrambling, or a copy control mechanism, which achieves the objective of protection. 16 (i) is primarily designed or produced for the purpose of circumventing an effective technological measure; or (ii) has only a limited commercially significant purpose other than circumventing an effective technological measure. 15 7. To protect electronic rights management information,16 each Party shall provide adequate legal protection and effective legal remedies against any person knowingly performing without authority any of the following acts knowing, or with respect to civil remedies, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any copyright or related rights: (a) to remove or alter any electronic rights management information; (b) to distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, performances, or phonograms, knowing that electronic rights management information has been removed or altered without authority. 8. In providing adequate legal protection and effective legal remedies pursuant to the provisions of paragraphs 5 and 7, a Party may adopt or maintain appropriate limitations or exceptions to measures implementing the provisions of paragraphs 5, 6, and 7. The obligations set forth in paragraphs 5, 6, and 7 are without prejudice to the rights, limitations, exceptions, or defences to copyright or related rights infringement under a Party’s law. 15 In implementing paragraphs 5 and 6, 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 contravene its measures implementing these paragraphs. 16 For the purposes of this Article, rights management information means: (a) information that identifies the work, the performance, or the phonogram; the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram; (b) information about the terms and conditions of use of the work, performance, or phonogram; or (c) any numbers or codes that represent the information described in (a) and (b) above; when any of these items of information is attached to a copy of a work, performance, or phonogram, or appears in connection with the communication or making available of a work, performance, or phonogram to the public. 17 CHAPTER III ENFORCEMENT PRACTICES ARTICLE 28: ENFORCEMENT EXPERTISE, INFORMATION, AND DOMESTIC COORDINATION 1. Each Party shall encourage the development of specialized expertise within its competent authorities responsible for the enforcement of intellectual property rights. 2. Each Party shall promote the collection and analysis of statistical data and other relevant information concerning intellectual property rights infringements as well as the collection of information on best practices to prevent and combat infringements. 3. Each Party shall, as appropriate, promote internal coordination among, and facilitate joint actions by, its competent authorities responsible for the enforcement of intellectual property rights. 4. Each Party shall endeavour to promote, where appropriate, the establishment and maintenance of formal or informal mechanisms, such as advisory groups, whereby its competent authorities may receive the views of right holders and other relevant stakeholders. ARTICLE 29: MANAGEMENT OF RISK AT BORDER 1. In order to enhance the effectiveness of border enforcement of intellectual property rights, the competent authorities of a Party may: (a) consult with the relevant stakeholders, and the competent authorities of other Parties responsible for the enforcement of intellectual property rights to identify and address significant risks, and promote actions to mitigate those risks; and (b) share information with the competent authorities of other Parties on border enforcement of intellectual property rights, including relevant information to better identify and target for inspection shipments suspected of containing infringing goods. 2. Where a Party seizes imported goods infringing an intellectual property right, its competent authorities may provide the Party of export with information necessary for identification of the parties and goods involved in the exportation of the seized goods. The competent authorities of the Party of export may take action against those parties and future shipments in accordance with that Party’s law. ARTICLE 30: TRANSPARENCY 18 To promote transparency in the administration of its intellectual property rights enforcement system, each Party shall take appropriate measures, pursuant to its law and policies, to publish or otherwise make available to the public information on: (a) procedures available under its law for enforcing intellectual property rights, its competent authorities responsible for such enforcement, and contact points available for assistance; (b) relevant laws, regulations, final judicial decisions, and administrative rulings of general application pertaining to the enforcement of intellectual property rights; and (c) its efforts to ensure an effective system of enforcement and protection of intellectual property rights. ARTICLE 31: PUBLIC AWARENESS Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringement. ARTICLE 32: ENVIRONMENTAL CONSIDERATIONS IN DESTRUCTION OF INFRINGING GOODS The destruction of goods infringing intellectual property rights shall be done consistently with the laws and regulations on environmental matters of the Party in which the destruction takes place. 19 CHAPTER IV INTERNATIONAL COOPERATION ARTICLE 33: INTERNATIONAL COOPERATION 1. Each Party recognizes that international cooperation is vital to realizing effective protection of intellectual property rights and that it should be encouraged regardless of the origin of the goods infringing intellectual property rights, or the location or nationality of the right holder. 2. In order to combat intellectual property rights infringement, in particular trademark counterfeiting and copyright or related rights piracy, the Parties shall promote cooperation, where appropriate, among their competent authorities responsible for the enforcement of intellectual property rights. Such cooperation may include law enforcement cooperation with respect to criminal enforcement and border measures covered by this Agreement. 3. Cooperation under this Chapter shall be conducted consistent with relevant international agreements, and subject to the laws, policies, resource allocation, and law enforcement priorities of each Party. ARTICLE 34: INFORMATION SHARING Without prejudice to the provisions of Article 29 (Management of Risk at Border), each Party shall endeavour to exchange with other Parties: (a) information the Party collects under the provisions of Chapter III (Enforcement Practices), including statistical data and information on best practices; (b) information on its legislative and regulatory measures related to the protection and enforcement of intellectual property rights; and (c) other information as appropriate and mutually agreed. ARTICLE 35: CAPACITY BUILDING AND TECHNICAL ASSISTANCE 1. Each Party shall endeavour to provide, upon request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving the enforcement of intellectual property rights to other Parties to this Agreement and, where appropriate, to prospective Parties. The capacity building and technical assistance may cover such areas as: 20 (a) enhancement of public awareness on intellectual property rights; (b) development and implementation of national legislation related to the enforcement of intellectual property rights; (c) training of officials on the enforcement of intellectual property rights; and (d) coordinated operations conducted at the regional and multilateral levels. 2. Each Party shall endeavour to work closely with other Parties and, where appropriate, non-Parties to this Agreement for the purpose of implementing the provisions of paragraph 1. A Party may undertake the activities described in this Article in conjunction with 3. relevant private sector or international organizations. Each Party shall strive to avoid unnecessary duplication between the activities described in this Article and other international cooperation activities. 21 CHAPTER V INSTITUTIONAL ARRANGEMENTS ARTICLE 36: THE ACTA COMMITTEE The Parties hereby establish the ACTA Committee. represented on the Committee. 1. 2. Each Party shall be The Committee shall: (a) (b) consider matters concerning the development of this Agreement; (c) consider any proposed amendments to this Agreement in accordance with Article 42 (Amendments); (d) decide, in accordance with paragraph 2 of Article 43 (Accession), upon the terms of accession to this Agreement of any Member of the WTO; and (e) 3. review the implementation and operation of this Agreement; consider any other matter that may affect the implementation and operation of this Agreement. The Committee may decide to: (a) establish ad hoc committees or working groups to assist the Committee in carrying out its responsibilities under paragraph 2, or to assist a prospective Party upon its request in acceding to this Agreement in accordance with Article 43 (Accession); (b) seek the advice of non-governmental persons or groups; (c) make recommendations regarding the implementation and operation of this Agreement, including by endorsing best practice guidelines related thereto; (d) share information and best practices with third parties on reducing intellectual property rights infringements, including techniques for identifying and monitoring piracy and counterfeiting; and (e) take other actions in the exercise of its functions. 4. All decisions of the Committee shall be taken by consensus, except as the Committee may otherwise decide by consensus. The Committee shall be deemed to 22 have acted by consensus on a matter submitted for its consideration, if no Party present at the meeting when the decision is taken formally objects to the proposed decision. English shall be the working language of the Committee and the documents supporting its work shall be in the English language. 5. The Committee shall adopt its rules and procedures within a reasonable period after the entry into force of this Agreement, and shall invite those Signatories not Parties to this Agreement to participate in the Committee’s deliberations on those rules and procedures. The rules and procedures: (a) (b) 6. shall address such matters as chairing and hosting meetings, and the performance of organizational duties relevant to this Agreement and its operation; and may also address such matters as granting observer status, and any other matter the Committee decides necessary for its proper operation. The Committee may amend the rules and procedures. 7. Notwithstanding the provisions of paragraph 4, during the first five years following the entry into force of this Agreement, the Committee’s decisions to adopt or amend the rules and procedures shall be taken by consensus of the Parties and those Signatories not Parties to this Agreement. 8. After the period specified in paragraph 7, the Committee may adopt or amend the rules and procedures upon the consensus of the Parties to this Agreement. 9. Notwithstanding the provisions of paragraph 8, the Committee may decide that the adoption or amendment of a particular rule or procedure requires the consensus of the Parties and those Signatories not Parties to this Agreement. 10. The Committee shall convene at least once every year unless the Committee decides otherwise. The first meeting of the Committee shall be held within a reasonable period after the entry into force of this Agreement. 11. For greater certainty, the Committee shall not oversee or supervise domestic or international enforcement or criminal investigations of specific intellectual property cases. 12. The Committee shall strive to avoid unnecessary duplication between its activities and other international efforts regarding the enforcement of intellectual property rights. ARTICLE 37: CONTACT POINTS 23 1. Each Party shall designate a contact point to facilitate communications between the Parties on any matter covered by this Agreement. On the request of another Party, a Party’s contact point shall identify an appropriate office or official to whom the requesting Party’s inquiry may be addressed, and assist, as necessary, in facilitating communications between the office or official concerned and the requesting Party. 2. ARTICLE 38: CONSULTATIONS 1. A Party may request in writing consultations with another Party with respect to any matter affecting the implementation of this Agreement. The requested Party shall accord sympathetic consideration to such a request, provide a response, and afford adequate opportunity to consult. 2. The consultations, including particular positions taken by consulting Parties, shall be kept confidential and be without prejudice to the rights or positions of either Party in any other proceeding, including a proceeding under the auspices of the Understanding on Rules and Procedures Governing the Settlement of Disputes contained in Annex 2 to the WTO Agreement. 3. The consulting Parties may, by mutual consent, notify the Committee of the result of their consultations under this Article. 24 CHAPTER VI FINAL PROVISIONS ARTICLE 39: SIGNATURE This Agreement shall remain open for signature by participants in its negotiation,17 and by any other WTO Members the participants may agree to by consensus, from 31 March 2011 until 31 March 2013. ARTICLE 40: ENTRY INTO FORCE 1. This Agreement shall enter into force thirty days after the date of deposit of the sixth instrument of ratification, acceptance, or approval as between those Signatories that have deposited their respective instruments of ratification, acceptance, or approval. 2. This Agreement shall enter into force for each Signatory that deposits its instrument of ratification, acceptance, or approval after the deposit of the sixth instrument of ratification, acceptance, or approval, thirty days after the date of deposit by such Signatory of its instrument of ratification, acceptance, or approval. ARTICLE 41: WITHDRAWAL A Party may withdraw from this Agreement by means of a written notification to the Depositary. The withdrawal shall take effect 180 days after the Depositary receives the notification. ARTICLE 42: AMENDMENTS 1. A Party may propose amendments to this Agreement to the Committee. The Committee shall decide whether to present a proposed amendment to the Parties for 17 Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Union, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, Ireland, the Italian Republic, Japan, the Republic of Korea, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the United Mexican States, the Kingdom of Morocco, the Kingdom of the Netherlands, New Zealand, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Singapore, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. 25 ratification, acceptance, or approval. 2. Any amendment shall enter into force ninety days after the date that all the Parties have deposited their respective instruments of ratification, acceptance, or approval with the Depositary. ARTICLE 43: ACCESSION 1. After the expiration of the period provided in Article 39 (Signature), any Member of the WTO may apply to accede to this Agreement. 2. The Committee shall decide upon the terms of accession for each applicant. 3. This Agreement shall enter into force for the applicant thirty days after the date of deposit of its instrument of accession based upon the terms of accession referred to in paragraph 2. ARTICLE 44: TEXTS OF THE AGREEMENT This Agreement shall be signed in a single original in the English, French, and Spanish languages, each version being equally authentic. ARTICLE 45: DEPOSITARY The Government of Japan shall be the Depositary of this Agreement. 26

acta/compare (last edited 2010-12-10 17:49:06 by awessels)

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