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this part deals with the creation of a Electronic Industrial Design System, it is followed by rights for music, artists and writers.
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Article 20.G.3: Electronic Industrial Design System
Each Party shall provide:
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(a) a system for the electronic application for industrial design rights; and
(b) a publically available electronic information system, which shall include an online database of protected industrial designs.
Article 20.G.4: Term of Protection
Each Party shall provide a term of protection for industrial designs of at least 15 years from either: (a) the date of filing or (b) the date of grant or registration.
Section H: Copyright and Related Rights
Article 20.H.1: Definitions
For the purposes of Article 20.H.2 (Right of Reproduction) and Article 20.H.4 (Right of Distribution) through Article 20.H.13 (Collective Management), the following definitions apply with respect to performers and producers of phonograms:
broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also “broadcasting”; transmission of encrypted signals is “broadcasting” if the means for decrypting are provided to the public by the broadcasting organization or with its consent; “broadcasting” does not include transmission over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public;
communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram;
fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
performers means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;
phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audio-visual work;
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producer of a phonogram means a person that takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and
publication of a performance or phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the right holder, and provided that copies are offered to the public in reasonable quantity.
Article 20.H.2: Right of Reproduction
Each Party shall provide51 to authors, performers and producers of phonograms52 the exclusive right to authorize or prohibit all reproduction of their works, performances or phonograms in any manner or form, including in electronic form.
Article 20.H.3: Right of Communication to the Public
Without prejudice to Article 11(1)(ii), Article 11bis(1)(i) and (ii), Article 11ter(1)(ii), Article 14(1)(ii), and Article 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.53
Article 20.H.4: Right of Distribution
Each Party shall provide to authors, performers and producers of phonograms the exclusive right to authorize or prohibit the making available to the public of the original and copies54 of their works, performances and phonograms through sale or other transfer of ownership.
51 For greater certainty, the Parties understand that it is a matter for each Party’s law to prescribe that works, performances or phonograms in general or any specified categories of works, performances and phonograms are not protected by copyright or related rights unless the work, performance or phonogram has been fixed in some material form.
52 References to “authors, performers, and producers of phonograms” refer also to any of their successors in interest.
53 The Parties understand that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Chapter or the Berne Convention. The Parties further understand that nothing in this Article precludes a Party from applying Article 11bis(2) of the Berne Convention.
54 The expressions “copies” and “original and copies”, that are subject to the right of distribution in this Article, refer exclusively to fixed copies that can be put into circulation as tangible objects.
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Article 20.H.5: No Hierarchy
Each Party shall provide that in cases in which authorization is needed from both the author of a work embodied in a phonogram and a performer or producer that owns rights in the phonogram:
(a) the need for the authorization of the author does not cease to exist because the authorization of the performer or producer is also required; and
(b) the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required.
Article 20.H.6: Related Rights
1. In addition to protection afforded to performers and producers of phonograms as “nationals” under Article 20.A.8 (National Treatment), each Party shall accord the rights provided for in this Chapter to performances or phonograms first published or first fixed55 in the territory of another Party.56 A performance or phonogram shall be considered first published in the territory of a Party if it is published in the territory of that Party within 30 days of its original publication.
2. Each Party shall provide to performers the exclusive right to authorize or prohibit:
(a) the broadcasting and communication to the public of their unfixed performances, unless the performance is already a broadcast performance; and
(b) the fixation of their unfixed performances.
3. (a) Each Party shall provide to performers and producers of phonograms the exclusive right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means57 and the making available to the public of those performances or phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.
55 For the purposes of this Article, fixation means the finalization of the master tape or its equivalent.
56 For greater certainty, consistent with Article 20.A.8 (National Treatment), each Party shall accord to performances and phonograms first published or first fixed in the territory of another Party treatment no less favorable than it accords to performances or phonograms first published or first fixed in its own territory.
57 For greater certainty, the obligation under this paragraph does not include broadcasting or communication to the public, by wire or wireless means, of the sounds or representations of sounds fixed in a phonogram that are incorporated in a cinematographic or other audio-visual work.
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(b) Notwithstanding subparagraph (a) and Article 20.H.9 (Limitations and Exceptions), the application of the right referred to in subparagraph (a) to analog transmissions and non-interactive free over-the-air broadcasts, and exceptions or limitations to this right for those activities, is a matter of each Party’s law. 58
(c) Each party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article 20.H.9.1 (Limitations and Exceptions), provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.
Article 20.H.7: Term of Protection for Copyright and Related Rights
Each Party shall provide that in cases in which the term of protection of a work, performance or phonogram is to be calculated:
(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death;59 and
(b) on a basis other than the life of a natural person, the term shall be:
(i) not less than 75 years from the end of the calendar year of the first authorized publication60 of the work, performance or phonogram; or
(ii) failing such authorized publication within 25 years from the creation of the work, performance or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance or phonogram.
58 For the purposes of this subparagraph the Parties understand that a Party may provide for the retransmission of non-interactive, free over-the-air broadcasts, provided that these retransmissions are lawfully permitted by that Party’s government communications authority; any entity engaging in these retransmissions complies with the relevant rules, orders or regulations of that authority; and these retransmissions do not include those delivered and accessed over the Internet. For greater certainty this footnote does not limit a Party’s ability to avail itself of this subparagraph.
59 The Parties understand that if a Party provides its nationals a term of copyright protection that exceeds life of the author plus 70 years, nothing in this Article or Article 20.A.8 (National Treatment) shall preclude that Party from applying Article 7(8) of the Berne Convention with respect to the term in excess of the term provided in this subparagraph of protection for works of another Party.
60 For greater certainty, for the purposes of subparagraph (b), if a Party’s law provides for the calculation of term from fixation rather than from the first authorized publication that Party may continue to calculate the term from fixation.
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Article 20.H.8: Application of Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement
Each Party shall apply Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement, mutatis mutandis, to works, performances and phonograms, and the rights in and protections afforded to that subject matter as required by this Section.
Article 20.H.9: Limitations and Exceptions
1. With respect to this Section, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.
2. This Article does not reduce or extend the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WCT or the WPPT.
Article 20.H.10: Contractual Transfers
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right61 in a work, performance or phonogram:
(a) may freely and separately transfer that right by contract; and
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(b) by virtue of contract, including contracts of employment underlying the creation of works, performances or phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right.62
Article 20.H.11: Technological Protection Measures (TPMs)63
1. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide64 that any person who:
(a) knowingly, or having reasonable grounds to know65, circumvents without authority any effective technological measure that controls access to a protected work, performance, or phonogram66; or
(b) manufactures, imports, distributes, offers for sale or rental to the public, or otherwise provides devices, products, or components, or offers to the public or provides services, that:
(i) are promoted, advertised, or otherwise marketed by that person for the purpose of circumventing any effective technological measure,
62 Nothing in this Article affects a Party’s ability to establish: (i) which specific contracts underlying the creation of works, performances or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and (ii) reasonable limits to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.
63 Nothing in this Agreement requires a Party to restrict the importation or domestic sale of a device that does not render effective a technological measure the only purpose of which is to control market segmentation for legitimate physical copies of a cinematographic film, and is not otherwise a violation of its law.
64 A Party that, prior to the date of entry into force of this Agreement, maintains legal protections for technological protection measures consistent with Article 18.H.11.1, may maintain its current scope of limitations, exceptions, and regulations regarding circumvention.
65 For greater certainty, for the purposes of this subparagraph, a Party may provide that reasonable grounds to know may be demonstrated through reasonable evidence, taking into account the facts and circumstances surrounding the alleged illegal act.
66 For greater certainty, no Party is required to impose civil or criminal liability under this subparagraph for a person that circumvents any effective technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, performance or phonogram, but does not control access to that work, performance or phonogram.
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(ii) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or
(iii) are primarily designed, produced, or performed for the purpose of circumventing any effective technological measure,
shall be liable and subject to the remedies provided for in Article 20.J.4.18 (Civil and Administrative Procedures and Remedies).67
Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a non-profit library, archive, educational institution, or public noncommercial broadcasting entity, is found to have engaged willfully and for the purposes of commercial advantage or private financial gain in any of the foregoing activities.
Such criminal procedures and penalties shall include the application to such activities listed in subparagraphs (a), (c), and (f) of Article 20.J.7.6 as applicable to infringements, mutatis mutandis.
2. In implementing paragraph 1, no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measure implementing paragraph 1.
3. Each Party shall provide that a violation of a measure implementing this Article is a separate cause of action, independent of any infringement that might occur under the Party’s law on copyright and related rights.
4. Each Party shall confine exceptions and limitations to measures implementing paragraph 1 to the following activities, which shall be applied to relevant measures in accordance with paragraph 568:
(a) noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs;
(b) noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, unfixed performance, or display of
67 For greater certainty, no Party is required to impose liability under this Article and Article 20.H.12 (RMI) for actions taken by that Party or a third person acting with authorization or consent of the Party.
68 Any Party may request consultations with the other Parties to consider how to address, under paragraph 4, activities of a similar nature that a Party identifies after the date this Agreement enters into force.
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a work, performance, or phonogram and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of technologies for scrambling and descrambling of information;
(c) the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing paragraph (1)(b);
(d) noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network;
(e) noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work;
(f) lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes;
(g) access by a nonprofit library, archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and
(h) in addition, a Party may provide additional exceptions or limitations for noninfringing uses of a particular class of works, performances, or phonograms, when an actual or likely adverse impact on those noninfringing uses is demonstrated by substantial evidence in a legislative, regulatory or administrative proceeding in accordance with the Party’s law.
5. The exceptions and limitations to measures implementing paragraph 1 for the activities set forth in paragraph 4 may only be applied as follows, and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures under the Party’s legal system:
(a) Measures implementing subparagraph (1)(a) may be subject to exceptions and limitations with respect to each activity set forth in paragraph (4).
(b) Measures implementing subparagraph (1)(b), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions and limitations with respect to
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activities set forth in subparagraph (4) (a), (b), (c), (d), and (f).
(c) Measures implementing paragraph (1)(b), as they apply to effective technological measures that protect any copyright or any rights related to copyright, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (4)(a) and (f).
6. Effective technological measure means any technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects any copyright or any rights related to copyright.69
Article 20.H.12: Rights Management Information (RMI)70
1. In order to provide adequate and effective legal remedies to protect RMI:
(a) each Party shall provide that any person that, without authority, and knowing, or having reasonable grounds to know, that it would induce, enable, facilitate or conceal an infringement of the copyright or related right of authors, performers or producers of phonograms:
(i) knowingly71 removes or alters any RMI;
(ii) knowingly distributes or imports for distribution RMI knowing that the RMI has been altered without authority;72 or
(iii) knowingly distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances or phonograms, knowing that RMI has been removed or altered without authority,
is liable and subject to the remedies set out in Article 20.J.4 (Civil and Administrative Procedures and Remedies).
69 For greater certainty, a technological measure that can, in a usual case, be circumvented accidentally is not an “effective” technological measure.
70 A Party may comply with the obligations in this Article by providing legal protection only to electronic RMI.
71 For greater certainty, a Party may extend the protection afforded by this paragraph to circumstances in which a person engages without knowledge in the acts in sub-subparagraphs (i), (ii) and (iii), and to other related right holders.
72 A Party may also meet its obligation under this sub-subparagraph, if it provides effective protection for original compilations, provided that the acts described in this sub-subparagraph are treated as infringements of copyright in those original compilations.
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Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged willfully and for purposes of commercial advantage or financial gain in any of the above activities.
A Party may provide that the criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution or public non-commercial broadcasting entity.73
2. For greater certainty, nothing prevents a Party from excluding from a measure that implements paragraph 1 a lawfully authorized activity that is carried out for the purpose of law enforcement, essential security interests or other related governmental purposes, such as the performance of a statutory function.
3. For greater certainty, nothing in this Article shall obligate a Party to require a right holder in a work, performance or phonogram to attach RMI to copies of the work, performance or phonogram, or to cause RMI to appear in connection with a communication of the work, performance or phonogram to the public.
4. RMI 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 referred to in subparagraphs (a) and (b),
if 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.
Article 20.H.13: Collective Management
The Parties recognize the important role of collective management societies for copyright and related rights in collecting and distributing royalties74 based on practices that are fair, efficient,
73 For greater certainty, a Party may treat a broadcasting entity established without a profit-making purpose under its law as a public non-commercial broadcasting entity.
74 For greater certainty, royalties may include equitable remuneration.
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transparent and accountable, which may include appropriate record keeping and reporting mechanisms.
Section I: Trade Secrets75, 76
In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention, each Party shall ensure that persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state-owned enterprises) without their consent in a manner contrary to honest commercial practices.
Article 20.I.1: Civil Protection and Enforcement
In fulfilling its obligation under paragraphs 1 and 2 of Article 39 of the TRIPS Agreement, each Party shall:
(a) provide civil judicial procedures77 for any person lawfully in control of a trade secret to prevent, and obtain redress for, the misappropriation of the trade secret by any other person; and
(b) not limit the duration of protection for a trade secret, so long as the conditions in Article 20.I.3 (Definitions) exist.
