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FTAA - Free Trade Area of the Americas Draft Agreement Chapter XX Intellectual Property Rights CHAPTER XX INTELLECTUAL PROPERTY RIGHTS
Article 1. Nature and Scope of Obligations [1.1. Each Party shall [provide] [ensure] in its territory to the nationals of the other Parties 1 adequate and effective protection and enforcement of intellectual property rights2. Each Party shall ensure that measures to protect and enforce those rights do not themselves become barriers to legitimate trade [nor socioeconomic and technological development].]1.2. Each Party may implement in its law [, although it is not obliged to do so,] more extensive protection of intellectual property rights than is required under this Chapter, provided that such protection is not [inconsistent with][contrary to] this Chapter. 1.3. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice. [1.4. No provision of this Chapter prevents, and should not prevent, any Party from adopting measures to promote and protect public health, and it should be interpreted and implemented in a manner that takes into account each Party’s right to protect public health and, in particular, to promote access to [existing] medicines and to the research and development of new medicines.] [Article 2. General Objectives] [2.1. The protection and enforcement of intellectual property rights covered in this Chapter should contribute to the promotion of technological innovation and to the transfer and dissemination of technology in the Americas, to the mutual advantage of producers and users of technological knowledge, with a view to fostering social and economic welfare and a balance of rights and obligations.] [Article 3. General principles] [3.1. Each Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, or to promote public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this Chapter.] [3.2. The abuse of intellectual property rights by right holders or practices that unjustifiably limit trade, that prejudice local industry and employment or are detrimental to the transfer of technology shall be prevented.] [Article 4. Exhaustion of rights] [4.1. This Chapter shall not affect the authority of each Party to determine the conditions under which the exhaustion of rights related to products legitimately introduced in the market by, or with the authorization of, the right holder shall apply. However, each Party undertakes to review its domestic legislation within a period not exceeding five (5) years after the entry into force of this Agreement, in order to adopt, at a minimum, the principle of regional exhaustion in regard to all Parties.] Article 5. [Relationship to other Intellectual Property Agreements [and Joint Recommendations]3] [5.1. No clause in this Agreement shall affect in any way existing obligations that Parties have to each other under the Berne Convention for the Protection of Literary and Artistic Works.] [5.2. Each Party may enter into intellectual property treaties or cooperation agreements, provided that they are not inconsistent with the provisions of this Chapter.] [5.3. For the purpose of [granting] [ensuring] adequate and effective protection and enforcement of the intellectual property rights and obligations referred to in this Chapter, each Party shall give effect to [, at a minimum,] the principles and norms of this Chapter and the cited provisions of the following agreements:]
[5.4. Each Party shall make best efforts to ratify or accede to the International Agreements referred to in paragraph 5.3 (Section A General Aspects) if they are not a Party to them on or before the date of entry into force of this Agreement.] [5.4 Each Party that has not ratified these agreements shall [make best efforts] [have one (1) year] from the entry into force of this Agreement to ratify or accede to the international agreements referred to.] [5.5. Each Party who has not already done so shall make best efforts to ratify or accede to the following international agreements concerning registration of intellectual property rights, within a period of one (1) year within the entry into force of this Agreement:
[5.6. For all purposes, including the settlement of disputes, nothing in this Chapter shall be construed as additional or higher levels of protection than the minimum standards established in the TRIPS Agreement [, nor may it be interpreted as a reduction in the protection to levels inconsistent with the standards established in that Agreement] with the exception of matters not considered in the TRIPS Agreement, and those issues covered in the TRIPS Agreement whose scope is reserved to national legislation.]
Section B Substantive Provisions Subsection B.1. Obligations and Commitments 1.1. Each Party shall accord to the nationals of other Parties treatment no less favorable than that accorded to its own nationals with regard to the protection7 [and enjoyment] of intellectual property rights [and any benefits derived therefrom][and the rights and obligations set forth in this Chapter][, subject to the exceptions already provided in, respectively the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994), the Paris Convention (1967), the Berne Convention (1971), the Rome Convention (1961) , the Geneva Convention, and the Treaty on Intellectual Property in Respect of Integrated Circuits]. [The rights and obligations already exempted in the Agreements referred to in Article 5.2 (Section A General Aspects) shall remain exempt.] 1.2. Each Party may [avail itself of the exceptions allowed under paragraph 1.1] [derogate from paragraph 1.1.] in relation to its judicial and administrative procedures for the protection [and enforcement] of intellectual property rights including the designation of an address for service or the appointment of an agent within the jurisdiction of a Party, only where such exceptions:
[1.3. In respect of performers, producers of phonograms and broadcasting organizations, all rights under this Chapter that exceed the protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) shall be excepted from national treatment in regard to countries that are not Parties to this Agreement and of the Rome Convention, for which the principle of reciprocity shall apply.] [1.4. No Party may, as a condition of according national treatment under this Chapter, require the nationals from another Party, to comply with any formalities or conditions in order to acquire rights in respect of copyright and related rights.] Article 2. Most-Favored-Nation Treatment 2.1. With regard to the protection [and enjoyment] of intellectual property, any advantage, favour, privilege or immunity granted by a Party to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Parties. [2.2. Exempted from this obligation are any advantage, favor, privilege or immunity accorded by a Party [deriving from international agreements and, in particular, trade and integration agreements within the Americas:]
Article 3. Multilateral Agreements on Acquisition and Maintenance of Protection 3.1. The obligations under Article 1 (National Treatment) and Article 2 (Most Favored Nation Treatment) do not apply to procedures provided in multilateral agreements concluded under the framework of WIPO relating to the acquisition or maintenance of intellectual property rights. [Article 4. Technology Transfer] [4.1. [Each Party agrees that the principle which underlies this Chapter and which should inform its implementation is that] the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and the transfer and dissemination of technology, to the mutual advantage of producers and users [of technology,][of technological knowledge,] in a manner conducive to social and economic welfare and to achieve a proper balance of rights and obligations.] [4.2. The needs of countries for financial resources and access to technology and knowledge, technology transfer and joint technological development under the relevant provisions of this Chapter should be considered, especially for technological capability in order to increase the competitiveness of the countries domestically and internationally.] [4.3. Accepting the principle set out in paragraph 4.1, each Party agrees to take legislative, administrative or policy measures, as appropriate, to encourage and facilitate access to, joint development and transfer of, technology among private sectors of the Parties. Such measures should take account of the needs of the Parties, having regard to their stage of development, and in particular, the special needs of those Parties that have small economies.] [4.3. Each Party shall contribute to the promotion of technological innovation and the transfer and dissemination of technology, through government regulations favorable to industry and trade, that do not hinder free competition.] [4.4. Each Party may provide in its legislation rules that prohibit contractual practices or conditions that restrict or limit the effective transfer of technology and lawful trade.] [4.5. Each Party may suspend any or all obligations established in this Chapter if the commitments on transfer of technology are not effectively implemented.] [4.5. Each Party may suspend any or all obligations established in this Chapter if the provisions of this Chapter are not effectively implemented.] [4.6. For the purpose of implementing the objectives set out in this Chapter, each Party shall:
[4.7. Each Party may offer the companies and institutions established in their territory incentives intended to promote technological change in recipient countries, and access to, and transfer of, technologies for the purpose of establishing a solid, competitive and viable technological base in recipient countries. ] [4.8. Each Party agrees to work in conjunction with other Parties for promoting the transfer and dissemination of technology and to cooperate to avoid any measure, including contractual practices or conditions, that restricts or limits technical cooperation and/or the effective transfer of technology.] [Article 5. Exercise of Rights[/Abuse of Rights]] [5.1. No Party shall allow the abusive use or abusive non-use of a right. In this regard, each Party may apply appropriate measures to [protect and promote public health and nutrition, socioeconomic and technological development of sectors of vital importance and] prevent the abusive exercise of intellectual property rights by right holders or practices that unreasonably limit trade or adversely affect the transfer of technology.] [5.2. Each Party shall take into consideration, for the recognition and exercise of such rights, the social purposes of intellectual property, which may not be used to arbitrarily or unjustifiably discriminate against or restrict technological development or technology transfer, nor cause the abuse of dominant position on the market or the elimination of competition.] [5.3. The provisions in this Chapter shall be interpreted in light of its objectives and principles.] Subsection B.2. Intellectual Property Rights Article 1. Protectable Subject Matter 1.1. Any sign or any combination of signs, capable of distinguishing goods or services of one person8 from those of other persons, shall be capable of constituting a trademark. [1.2. Each Party may require, as a condition of registration, that signs be visually perceptible.] [1.2. No Party may require that signs be visually perceptible to be eligible for registration.] [1.3. Trademarks shall include collective marks [and certification marks].] [1.3. Each Party may provide for protection of collective and certification marks.] [2.1. Each Party shall adopt the principle of first to file and priority in registration shall be determined on the date and hour of the presentation of the application.] 3.1. Each Party may establish prohibitions on the registration of trademarks, provided that they are not inconsistent with regional or multilateral agreements on intellectual property to which it is a party. Article 4. Exhaustion of Rights [4.1. The registration of a trademark shall not entitle a right holder to prevent a third party from trading goods protected by such registration if the good has already been introduced in the market in any country by the right holder or by any other person with the authorization of the right holder or by someone economically related to him, in particular when the goods and the containers or packages have been in direct contact with them and have not been modified, altered, or deteriorated. For purposes of this Article, two (2) persons are economically related where one person can exercise a decisive influence on the other, either directly or indirectly, with respect to the use of the rights on the trademark, or where a third party may exercise such an influence on both persons.] [4.1. This Chapter shall not affect the authority of each Party to determine the conditions, if any, under which the exhaustion of rights related to products legitimately introduced in the market by, or with the authorization of the owner of the trademark shall apply. However, if a Party recognizes the principle of domestic exhaustion or the principle of non-exhaustion, the right holder, based on his registration or grant, shall not prevent the circulation of patented goods or goods bearing a trademark, when legitimately introduced in the market under a compulsory license or any other safeguard. Each Party undertakes to review their domestic legislation within a period not exceeding five (5) years after the entry into force of this Agreement, in order to adopt, at a minimum, the principle of regional exhaustion in regard to all Parties.] [4.1. Each Party agrees to apply the principle of regional exhaustion of rights, i.e., the holder of the intellectual property right may not prevent the free trade of legitimate products, once lawfully introduced into the market in any Party, whether by the right holder himself or by a licensee or third party authorized by the right holder, provided that the products and the containers or packaging that have been in direct contact with such products have not been modified or altered. Each Party shall have two (2) years from the entry into force of this Agreement to incorporate this principle in their national legislation.] [5.1. The owner of a registered trademark shall have the exclusive right to prevent all persons not having the owner's consent from using in the course of trade identical or similar signs [, including geographical indications,] for goods or services [that are identical or similar] [that are related] to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion.] [In case of the use of an identical sign for [identical][identical or similar][related] goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of each Party making rights available on the basis of use.] [6.1. Each Party shall protect well known marks pursuant to Article 6 bis of the Paris Convention and Article 16.2 and 16.3 of the TRIPS Agreement.] [6.2. In applying Article 6 bis of the Paris Convention, no Party shall require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services.] [6.3. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those identified by a well-known trademark, whether registered or not, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark and provided that the interests of the owner of the trademark are likely to be damaged by such use.] [7.1. Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the trademark owner and of third parties.] [7.1. Each Party may establish exceptions pursuant to Article 17 of the TRIPS Agreement.] 8.1. Initial registration and each renewal of registration of a trademark shall be for a term of not less than ten (10) years [from the date of filing of the application or the date of its registration according to the legislation of each Party]. The registration of a trademark shall be renewable indefinitely. [9.1. Each Party shall apply the provisions of Article 19 of the TRIPS Agreement.] [9.1. Use of a trademark shall be required by a Party to maintain registration of a trademark.] [9.2. In procedures for cancellation due to non-use, according to the national legislation of each Party, the burden of proof on actual use of the trademarks shall be on the holder of the mark.] [Article 10. Other Requirements] [10.1 Each Party shall apply Article 20 of the TRIPS Agreement.] Article 11. Licensing and Assignment [11.1. Each Party may determine the conditions for the licensing and assignment of trademarks pursuant to Article 21 of the TRIPS Agreement.] [11.2. Licensing agreements shall be in writing and registered with the competent body of the Party and shall not include clauses that restrain trade. If a license is not registered it shall not have effect against third parties.] [11.2. The competent authorities of each Party may implement mechanisms for the recording of trademark licenses.] [11.2. No Party shall require recordal of trademark licenses to establish the validity of the license or to assert any rights in a trademark.] 12.1. Each Party shall ensure that procedures for applying for, processing, registering and maintaining the registration of trademarks are sufficiently clear and transparent, respecting principles of due process. [12.2. Each Party shall provide a system for the registration of trademarks, which shall include:
[12.3. Each Party shall work, to the maximum degree practical, to provide a system for the electronic application, processing, registration and maintenance of trademarks.] [12.4. International Classification System
[12.5. Each Party shall publish each trademark either before its registration or promptly after it is registered, and shall afford a reasonable opportunity for petitions to cancel the registration. In addition, each Party [may][shall], afford an opportunity for the registration of a trademark to be opposed.] [Article 13. Domain names on the Internet] [Article XX. Domain names on the Internet] [13.1. Each Party shall participate in the Government Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) to promote appropriate country code Top Level Domain (ccTLD) administration and delegation practices and appropriate contractual relationships for the administration of the ccTLDs in the Hemisphere. Each Party shall have its domestic Network Information Centers (NICs) participate in the ICANN Uniform Dispute Resolution Procedure (UDRP) to address the problem of cyber-piracy of trademarks.] [13.1. Each Party shall make efforts, to the extent possible, to promote an adequate administration of domain names.] Subsection B.2.b. Geographical Indications [1.1. “Geographical indication” shall be understood to be the name of a particular country, region or locality, or a name that, without being that of a particular country, region or locality, refers to a specific geographical zone, which serves to designate a product originating therein, the qualities, reputation or other characteristics of which are due exclusively or essentially to the geographical environment in which it is produced, including both natural and human factors.] [1.2. Any sign, or any combination of signs, capable of identifying a good or service as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good or service is essentially attributable to the geographical origin of the good or service, shall be capable of constituting a geographical indication.] Article 2. Protection of Geographical Indications [2.1. Each Party shall protect geographical indications pursuant to its legislation and Articles 22, 23 paragraphs 1-3 and 24 paragraphs 4-9 of the TRIPS Agreement [, at the request of the competent authorities or interested parties of the Party where the geographical indication is protected].] [2.2. Geographical indications protected in a Party shall not be considered common or generic for distinguishing the good, while its protection in the country of origin subsists.] [Article 3. Protectable Subject Matter] [3.1. The use of geographical indications] in relation to natural, agricultural, handicraft or industrial products from the Parties shall be exclusively reserved for the producers, manufacturers and craftsmen who have their production or manufacturing facilities in the locality or region of the Party identified or referred to by such indication. [Only producers, manufacturers and craftsmen authorized to use a registered geographical indication are allowed to use with it the expression “Geographical Indication”].] Article 4. [Right of Action][Ownership] [4.1. Each Party may establish that the declaration of protection of a geographical indication be made ex-officio or at the request of persons who can prove a legitimate interest, understood as a natural or juridical person directly engaged in the extraction, production or manufacture of the goods to be covered by the geographical indication as well as producer associations. State, departmental, provincial or municipal authorities shall also be considered interested parties when the geographical indications in question are located within their jurisdiction.] [5.1. No Party shall permit the importation, manufacture or sale of a product that uses a geographical indication protected in another Party, unless it has been manufactured [and certified] therein, pursuant to its laws, regulations and other norms applicable to that product.] [5.1. The owner of a geographical indication shall have the exclusive right to prevent all persons not having the owner's consent from using in trade identical or similar signs, including trademarks, for goods or services that are related to those in respect of which the owner’s geographical indication is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign for related goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Parties’ making rights available on the basis of use.] Article 6. [Relation to Trademark Protection] [6.1. Signs that reproduce, imitate or include a protected geographical indication for the same good, or for different goods, may not be registered as trademarks where such use might cause likelihood of confusion or of association with the indication.] [Article 7. [Procedural Issues] [Transparency] ] [7.1. If Parties provide for notification and/or recordal as a legal means to protect geographical indications:
Subsection B.2.c. Copyright and Related Rights [For the purposes of the provisions on Copyright and Related Rights, the following will be understood to mean:] -[Author: [Natural*] person who produces the [intellectual] creation;] -[Author: Natural person who creates a literary or artistic work;] -[Performer: the person who performs, sings, reads, recites, interprets or in any way executes a [literary and artistic] work [or an expression of folklore];] -[Performers: all actors, singers, musicians, dancers, or other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;] -[Competent National Authority: Body appointed for the purpose by the relevant national legislation;] -[Copy: Physical medium in which the work is embodied as a result of an act of reproduction;] -[Successor in interest: The person, whether natural person or legal entity, to whom the rights recognized in the law are transferred, in whole or in part, by any means;] -[Successor in title: The person, whether natural person or legal entity, to whom rights accorded by this Chapter are transferred by any means;] -[Distribution to the public: Act of making available to the public the original of the work, or [one (1) or more] copies thereof, [on a phonogram or a permanent or temporary image of the work,] through sale, rental, loan or any other means [, known or to be known, of transferring ownership or possession of the original or copy];] -[Distribution to the public: any act by which the copies of a work are offered directly or indirectly to the general public or to a part thereof. [Distribution to the public through sale, rental, public loan or any other transfer of the ownership or possession of the original of the work, or copies thereof that have not been subject to distribution authorized by the author. The rental of a copy of an audiovisual work, of a work contained in a soundtrack, of a computer program, regardless of the ownership of the copy.]] -[Broadcast: The [direct or indirect] transmission of sounds or images and sounds, over a distance for public reception[, through any medium or procedure, either through cable or wireless];] -[Expressions of folklore: Productions using elements characteristic of the traditional cultural patrimony, consisting of all literary and artistic works created in the national territory by unknown or unidentified authors presumed to be nationals or members of their ethnic communities, and that are transmitted from generation to generation and reflects the traditional artistic or literary perspective of a community;] -[Fixation: The incorporation of signs, sounds or images, [or] a combination thereof[, or a digital representation thereof,] in a physical material that enables them to be [read,] perceived, reproduced or communicated[, or any other form of use];] -[Phonogram: Any [first time] [exclusively aural] fixation of the sounds of a performance or of other sounds[, or of a [digital] representation thereof, other than [in the form of] a fixation included in [a cinematographic or] an audiovisual work]. [Phonographic and magnetic [and digital] recordings shall be considered copies of phonograms];] -[Rights management information: Information which 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, or information about the terms and conditions of the use of the work, performance or phonogram, and any numbers or codes that represent such information, when any of these items is attached to a copy of the work, performance or phonogram or appears in conjunction with the communication or making available of a work, performance or phonogram to the public. Nothing in the provisions on Copyright and Related Rights requires the owner of any right in the work, performance or phonogram to attach rights management information to copies of it or to cause rights management information to appear in connection with a communication of the work, performance or phonogram to the public.] -[Effective technological measure: Any technology, device or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other subject matter, or protects any copyright or any rights related to copyright.] -[Work: Any original intellectual creation of an artistic, scientific or literary nature, susceptible of disclosure or reproduction in any form;] -[Audiovisual work: Any creation expressed by a series of linked images, [which give it the sensation of movement,] with or without the incorporation of sound, [which is] intended essentially for showing by means of projection apparatus or any other means of communicating images and sounds, independently [of the nature or] of the characteristics of the physical medium in which said work is embodied;] -[Audiovisual work: work consisting of a sequence of connected images, with or without sound, intended for exhibition by means of a suitable device for public communication of sound and images;] -[Audiovisual work: a work resulting from the fixation of images, with or without sound, intended for creating, by means of reproduction thereof, the impression of movement independently of the processes used to capture it, the carrier used initially or subsequently to fix it, as well as the means used for conveying it;] -[Broadcasting organization: Radio or television company that transmits programs to the public[, and makes decisions on the programs to be transmitted];] -[Producer: Person, whether natural person or legal entity, who has the initiative for, coordination of, and responsibility for producing the work; for example, an audiovisual work or a computer program;] -[Producer: the natural person or legal entity who takes the initiative to and has the responsibility for the first fixation of the phonogram or the audiovisual work, whatever the nature of the carrier used;] -[Producer of a phonogram: The person, or the legal entity, under whose initiative, coordination and responsibility, the first fixation of the sounds of a performance or other sounds are taken;] -[Producer of phonograms: Natural person or legal entity who takes the initiative and has responsibility and coordination of the first fixation of the sounds of a performance or other sounds, and digital representations thereof;] -[Producer of a phonogram: a person or legal entity who through his initiative, under his responsibility and coordination takes the first fixation of the sounds of an interpretation, performance or other sounds, or representation thereof;] -[Computer programs: The expression in words, codes, plans or any other form of a set of instructions which, on being incorporated into an automated reading device, is capable of making a computer, an electronic or similar device capable of processing information to execute a specific task or produce a specific result. Software also includes technical documentation and users’ manuals. [The protection of computer programs includes both operating and application software, either in source code or object code, as well as technical documentation and users’ manuals;]] -[Publication: Production and offering copies to the public, with the consent of the right holder, provided that copies are offered to the public in a reasonable quantity, bearing in mind the nature of the work;] -[Publication: the act of lawfully making a work available to the public, with the author’s consent, in sufficient amounts to satisfy reasonable needs given the nature of the work. Representation of dramatic, dramatico-musical, or cinematographic works, the performance of a musical work, public recital of a literary work, transmission or broadcast of literary or artistic works, exhibition of a work of art, or the construction of an architectural design do not constitute publication;] -[Publication: the offering of a literary or artistic work to the public, with the consent of the author, or any other copyright holder, through any form or process, in a quantity of copies that reasonably satisfies the needs of the public;] -[Public: Aggregation of individuals, whether or not in the same place, that have access by any medium to a work, artistic performance, phonogram or broadcast, regardless of whether they do so at the same time or in different times and places;] -[Public: any aggregation of individuals intended to be the object of, and capable of perceiving, communications or performances of works, regardless of whether they can do so at the same or different times or in the same or different places, provided that such an aggregation is larger than a family and its immediate circle of acquaintances or is not a group comprising a limited number of individuals having similarly close ties that has not been formed for the principal purpose of receiving such performances and communications of works;] -[Public: includes for the purposes of copyright and related rights with respect to rights of communication and performance of works provided for under Articles 11, 11bis.(i) and 14.1.(ii) of the Berne Convention, with respect to dramatic, dramatico-musical, musical, literary, artistic or cinematographic works, at least, any aggregation of individuals intended to be the object of, and capable of perceiving, communications or the performance of works, regardless of whether they can do so at the same or different times or in the same or different places, provided that such an aggregation is larger than a family and its immediate circle of acquaintances or is not a group comprising a limited number of individuals having similarly close ties that has not been formed for the principal purpose of receiving such performances and communications of works;] -[Broadcasting: [Communication at a distance by] [The] wireless transmission [, including via satellites,] of sounds, or images and sounds, or representations thereof, for public reception, and the transmission of encrypted signals, where the means of decrypting are provided to the public by broadcasting organizations or with their consent;] -[Broadcasting: communication at a distance of sounds, or images and sounds, or representations or both, via electromagnetic waves propagated through space without artificial guidance, for the purpose of their reception by the public;] -[Public performance: Any representation, diffusion, [interpretation] or performance carried out in theaters, cinemas, concert halls, dance halls, restaurants, [social, sport or recreation] clubs [of any nature], [shops,] commercial establishments, industries and banks, hotels, means of transport, stadiums, gymnasiums, amphitheaters, radio and television, and all those carried out outside the private domicile, whether or not for direct or indirect profit, and either with participation by artist-interpreters or performers or through phono-mechanical processes audiovisual or electronic.] -[Reproduction: the realization, by any medium, of one (1) or more copies of a work, phonogram, or of a sound or audiovisual fixation, either total or partial, permanent or temporary, on any type of material base, including storage by electronic media;] -[Reproduction: the fixation [, by any procedure,] of the work [or intellectual production,] in a [physical support or] medium that makes possible its communication [, including electronic storage, as well as the] [or the] making of [one or more] copies of a work [, directly or indirectly, temporarily or permanently, in whole or in part,] by any means [or process] [and in any form known or to be known].] -[Reproduction includes any act designed to accomplish, in any manner or through any procedure, the material fixation of the work, or to obtain copies of all or part thereof; among other means, by printing, drawing, sound recording, photography, modeling, or through procedures using graphic or visual arts, as well as by mechanical, electronic, phonographic or audiovisual recording methods.] -[Retransmission: Relaying of a signal or of a program received from another source, through the distribution of signs, sounds or images by wireless means, or by wire, cable, fiber optics or other comparable means;] -[Retransmission: the simultaneous [or subsequent] broadcast by a broadcasting entity of a broadcast from another broadcasting entity;] -[Encrypted program-carrying satellite signal: means a program-carrying satellite signal that is transmitted in a form whereby the aural or visual characteristics, or both, are modified or altered for the purpose of preventing the unauthorized reception, by persons without the authorized equipment that is designed to eliminate the effects of such modification or alteration, of a program carried in that signal;] -[Right holder. Natural or juridical person who, as author or successor in title or assignee, holds the economic rights derived from literary or artistic works;] -[Ownership: The holding of rights recognized under this Chapter;] -[Transmission or broadcasting: the dissemination of sounds or of sounds and images by wireless means, satellite signals, wire, cable or other channel, optical media or any other wireless means;] -[Cable transmission: transmission by wire, cable, fiber optic cable or any other analogous means for the transmission of signals;] -[Fair use: Use that does not interfere with the normal exploitation of the work or [unreasonably] [unjustifiably] prejudice the legitimate interests of the author [or the right holder;]] -[Personal use: Reproduction or other use of the work of another person in a single copy, exclusively for an individual’s own purposes, in cases such as research and personal entertainment;] [For the purposes of this Chapter, the following definitions apply with respect to performers and producers of phonograms:] -[Performers: 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; ] -[Fixation: means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;] -[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 audiovisual work;10] -[Producer of a phonogram: means the person, or the legal entity, who or which 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;] -[Publication of a fixed performance or a phonogram: means the offering of copies of the fixed performance or the phonogram to the public, with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity;] -[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’ where the means for decrypting are provided to the public by the broadcasting organization or with its consent.] Copyright Article 2. [Protectable Subject Matter] [Scope of protection] [2.1. The following are not subject to copyright, among other:
[2.1. The Protection conferred by Copyright to any original creation, of a literary or artistic nature, is not extended to any idea, procedure, system, process, operating method, concept, or principle, independently of the manner in which it is described, explained, illustrated in said work or incorporated into same.] [3.1. Moral rights shall be protected, at a minimum, pursuant to Article 6 bis of the Berne Convention.] [3.2. National legislation of each Party may recognize other moral rights.] [4.1. Each Party shall grant to the authors or other rightholders the exclusive right to authorize, by any means, the use or exploitation of the literary or artistic work, with such limitations and exceptions as may be determined in national laws.] [4.1. Each Party shall grant the authors or, when applicable, their successors in title, the exclusive right to authorize or prohibit with respect to literary and artistic works:
[4.2. The different modalities of using [literary or artistic] works or [performers and producers of phonograms] are independent of each other, the authorization granted by the author [, performer or by the producer], respectively, shall not extend to any other uses.] Article 5. Right of reproduction [5.1. The author, or his successors in title or in interest where applicable, shall have the exclusive right to [carry out] authorize or prohibit the reproduction of the work directly or indirectly, temporarily or permanently, in whole or in part, by any process and in any form known or to be known.] [5.1. Each Party shall grant the authors of literary and artistic works [and other holders of exclusive rights], the exclusive right of authorizing the reproduction of their works by any procedure and in any manner, including by digital means. Each Party may determine that the right of exclusivity of reproduction shall not be applicable when that reproduction is temporary and merely for the purpose of making the work perceptible on electronic media or when it is transitory or incidental, provided that it occurs during the course of use of the work duly authorized by the owner. It shall also be lawful to make a single copy of computer programs for security or backup purposes. ] Article 6. Right of distribution [6.1. [Authors of literary and artistic works shall enjoy] [Each Party shall provide to authors, to performers and to producers of phonograms and to their successors in interest] [the exclusive right of authorizing] [the making available to the public of the original and copies of their works [and phonograms] through sale or other transfer of ownership [of the original or of a copy of the work with the authorization of the author].] [6.2. Each Party shall grant authors and other right holders the exclusive rights to authorize the making of the original and copies of their works available to the public by means of sale or other transfer of ownership, or by means of a user’s license.] [As used in this Article, the expressions “copies” and “original and copies,” being subject to the right of distribution refer exclusively to fixed copies that can be put into circulation as tangible objects.] [6.3. Nothing in this Chapter shall affect the freedom of a Party to determine the conditions, if any, under which the exhaustion of the rights in paragraph 6.2 (Copyright) applies after the first sale or other transfer of ownership of the original or copies of the works with the authorization of the author. [Each Party shall undertake to reexamine its national legislation within a period not exceeding five (5) years from the entry into force of this Chapter to adopt, at a minimum, the principle of regional exhaustion in regards to countries signatories to this Chapter.]] [6.4. Each Party shall provide to authors, to performers, to producers or phonograms and to their successors in interest the right to authorize or prohibit the importation into each Party’s territory of copies of the work, performance, or phonogram, including where the imported copies were made with the authorization of the author, performer or producer of the phonogram or their successors in interest.] Article 7. [Right of Participation] [7.1. In respect of the original works of art and original manuscripts of writers and composers, each Party shall grant the author -or after his death, to the persons or institutions to which the rights are conferred under national legislation- the unalienable right to participate in sales of the work made after the initial transfer by the author.] Article 8. Right of communication to the public [8.1. The author, or his successors in title where applicable, shall have the exclusive right to carry out, authorize or prohibit the communication of the work to the public by any means serving to convey the words, signs, sounds or images thereof. Communication to the public shall be understood to mean any act by which two (2) or more persons, whether or not gathered together in the same place, may have access to the work without the prior distribution of copies to each one of them, and especially the following:
[8.1. [Authors of literary and artistic works shall enjoy] [Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors, to performers and to producers of phonograms and to their successors in interest] [the exclusive right to authorize [or prohibit] the communication to the public of their works [, performances or phonograms] by wire or wireless means, including the making available to the public of their works [, performances and phonograms] in such a way that members of the public may access them from a place and at a time individually chosen by them.]] [8.1. Each Party shall grant the authors of literary and artistic works the exclusive right to authorize any communication of their works to the public by wire or wireless means, including the making available to the public of their works, such that members of the public may access them from a place and at a time individually chosen by them.] [8.2. This right may be subject, in the case of performers and producers of phonograms, to national exceptions or limitations for traditional free over-the-air broadcasting and further, with respect to other non-interactive transmissions, may be subject to national limitations in certain special cases as may be set forth in national law or regulations, provided that such limitations do not conflict with a normal exploitation of performances or phonograms and do not unreasonably prejudice the interests of such rightholders.] [8.3. The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication to the public. [It is further understood that nothing in Article 8 (Right of Communication to the Public) precludes a Party from applying Article 11 bis(2) of the Berne Convention.]] [9.1. With respect to the term of protection, the provisions of the Berne Convention shall be applicable.] [9.1. Each Party shall provide that:
[9.1. Each Party shall provide that:
[9.2. The term of protection for authors of photographic works shall be fifty (50) years counted from the end of the calendar year of their making.] Article 10. Limitations and exceptions [10.1. Each Party shall confine limitations or exceptions [to Copyright] [to exclusive rights] [to copyright or related rights] [to rights set forth in this Article] 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.] [10.1. Each Party may provide, in their national legislation, limitations and exceptions to the rights provided to authors of literary or artistic works in this Section in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.] Article 11. [Protection of existing subject matter] [11.1. Each Party shall apply the provisions of Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (and Article 14.6 of the TRIPS Agreement), mutatis mutandis, to the subject matter, rights and obligations provided for in this Chapter.] Article 12. [Transfer of Rights] [12.1. Each Party shall provide that for copyright and related rights:
[12.1. Economic rights may be transferred or licensed on a contractual basis, without prejudice to the laws of each country on copyright and related rights applicable in conformity with the rules of international private law.
[12.2. No Party may grant translation and reproduction licenses permitted under the Appendix to the Berne Convention where legitimate needs in that Party’s territory for copies or translations of the work could be met by the right holder’s voluntary actions but for obstacles created by the Party’s measures.] [Related rights] Article 13. [Safeguard of Copyright with respect to related rights] [13.1. Protection granted under this Chapter for related rights shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Chapter may be interpreted as prejudicing such protection.] Article 14. [Points of attachment] [14.1. Each Party shall accord the protection provided under this Chapter to the performers and producers of phonograms who are nationals of other Parties and to performances or phonograms first published or first fixed in a Party. A performance or phonogram shall be considered first published in any Party in which it is published within thirty (30) days of its original publication.12] Article 15. [Economic Rights of Performers in Their Unfixed Performances] [15.1. Each Party shall provide to performers the right to authorize or prohibit:
With respect to all rights of performers and producers of phonograms, the enjoyment and exercise of these rights provided for in this Chapter shall not be subject to any formality.] Article 16. Rights of Performers [Moral Rights]13 [16.1.
[16.1. Performers have the moral rights of integrity and authorship of their performances, even after the transfer of the economic rights. Each Party may authorize in their domestic legislation the reduction, compacting, editing or dubbing of the work under the responsibility of the producer, who shall not distort the artist’s performance.] [Economic Rights of Performers] [16.2. Each Party shall grant performers the right to authorize or prohibit:
[The provisions of Article 14.6 of the TRIPS Agreement shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.] [16.2. Performers shall enjoy the exclusive right to authorize or prohibit, as regards their performances:
f) The making available to the public of their fixed performances;
Performers shall have the right to an equitable and single remuneration for the direct or indirect use for the broadcast or any communication to the public of published phonograms for commercial purposes, which may be shared with producers of phonograms in accordance with terms established in the national legislation of the Parties.] Article 17. Rights of Producers of Phonograms [17.1. Each Party shall grant producers of phonograms the exclusive right to authorize or prohibit:
[17.1. Producers of phonograms shall enjoy the exclusive right to authorize or prohibit with respect to their phonograms:
Producers of phonograms shall have the right to an equitable and single remuneration for the direct or indirect use for the broadcast or any communication to the public of published phonograms for commercial purposes, which may be shared with performers in accordance with terms established in the national legislation of the Parties.] Article 18. Rights of Broadcasting Organizations [18.1 Each Party shall grant to broadcasting organizations the [exclusive] right to authorize or prohibit [the following acts when undertaken without their authorization]:
[Where a Party does not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of TRIPS Article 14.3.] [The broadcast referred to in Article 18.1 shall include the production of program-carrying signals intended for a broadcasting or telecommunication satellite, and also distribution to the public by a body that broadcasts or disseminates the transmissions of others received by means of such a satellite.]] [18.1. Each Party shall provide for protection for broadcasting organizations as determined by the relevant international instrument.] [18.1 Broadcasting organizations shall enjoy the right to authorize or prohibit:
Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention.] Article 19. Term of Protection [19.1.
Article 20. [Limitations and exceptions to related rights] [20.1. Each Party may provide in their national legislation for the same kinds of limitations or exceptions with regard to the protection of performers, producers of phonograms [and broadcasting organizations] as they provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works. Each Party shall confine any limitations of or exceptions to rights provided for in this Chapter to certain special cases which do not conflict with a normal exploitation of the performance or phonogram [or broadcast] and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram [or of broadcasting organizations.] ] [Obligations common to copyright and related rights] Article 21. Protection of program-carrying satellite signals [21.1. Within one (1) year from the date of entry into force of this Agreement, each Party shall make it:
Each Party shall provide that any civil offense established under subparagraph b) of paragraph 21.1, shall be actionable by any person that holds an interest in the content of such signal.] [21.1. Each Party shall consider, as a civil offense, jointly or not with a criminal offense, and in conformity with their national legislation, the manufacture, importation, sale, renting or leasing or any other activity that permits the use of a device or system that is primarily of assistance in decoding an encrypted program carrying satellite signal without the authorization of the lawful distributor of that signal.] [21.1. Each Party shall make it:
Each Party shall provide that any civil offense established under paragraph 21.1.c) shall be actionable by any person that holds an interest in the encrypted programming signal or the content thereof.] Article 22. [Obligations concerning technological measures] [22.1. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers, producers of phonograms, or broadcasting organizations or their successors in title in connection with the exercise of their rights under this Agreement or the Berne Convention and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law. In accordance with the preceding paragraph, technological measures shall not affect the exercise of the exceptions or limitations established in national legislation.] [22.1. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, by performers, by producers of phonograms and their successors in interest in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances and phonograms, each Party shall provide that any person who:
[22.2. The prohibition referred to in Article 22.1.b) prohibits circumvention of technological measures and does not require an affirmative response to such measures. This Article does not 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. This does not provide a defense to a claim of violation of Article 22.1.b).] [22.3. Each Party shall provide that a violation of the law implementing the provisions of this Article is independent of any infringement that might occur under the Party’s law on copyright and related rights.] Article 23. [Obligations concerning rights management information] [23.1. In order to provide adequate and effective legal remedies to protect rights management information
[23.1. Parties shall provide adequate and effective legal remedies against any person knowingly performing 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 right covered by this Agreement:
Article 24. [Collective Administration of Rights] [24.1. Each Party shall facilitate and encourage collective administration of the rights enshrined in this Chapter, recognizing the legitimacy of societies formed for this purpose to exercise such rights, under the terms of their own statutes, and enforce them in administrative and judicial proceedings, without presenting any legal title other than those statutes. There shall be a presumption, in the absence of evidence to the contrary, that the rights so exercised have been directly or indirectly entrusted to them by their respective owners. Each Party shall establish measures to guarantee that societies are obliged to administer the rights that their owners entrust them with. The decisions and actions of societies for the collective administration of rights shall be guided by transparency and due participation of their respective members. Societies for the collective administration of rights shall be subject to inspection and supervision by the State.] [Article 25. Government use of Computer Programs] [25.1. Each Party shall issue appropriate administrative or executive decrees, laws, orders or regulations mandating that all government agencies use only computer programs authorized for intended use. Such instruments shall actively regulate the acquisition and management of software for such government use.] [Subsection B.2.d. Protection of [Expressions of] Folklore] [Article 1. Protection of [Expressions of] Folklore] [1.1. Each Party shall ensure effective protection of all expressions of folklore and artistic expressions, of the traditional and folk culture.] [1.1. Each Party shall ensure effective protection of all expressions of folklore, particularly those forms that are the product of the traditional and folk culture of indigenous people and communities, Afro-American and local communities.] [1.1. Each Party shall protect traditional and popular culture manifested in any kind of folklore expression and production, as well as creations of popular art or craftwork.] [1.2. Each Party shall provide that any fixation, representation or publication, communication or use in any form of a literary, artistic, folk art or craft work, shall identify the community or ethnic group to which it belongs.] Subsection B.2.e. Patents [for Inventions] Article 1. Patentable Subject Matter [1.1. [Subject to the provisions of Article 3 (Exceptions to Patentability),] each Party shall make patents available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.] [For purposes of this Article, a Party may treat the terms "inventive step" and "capable of industrial application" as being synonymous with the terms "non-obvious" and "useful", respectively.] [1.1. Each Party shall apply Article [27.1] [27] of the TRIPS Agreement.] [1.2. Each Party shall exclude information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure was made or authorized by, or derived from, the patent applicant and occurs within twelve (12) months prior of the date of filing of the application in the Party.] [1.2. Disclosure of an invention in any part of the world during the twelve (12) months prior to the filing date of the application or the recognized priority, as applicable, shall not affect the novelty of said invention, provided that the disclosure derives directly or indirectly from actions undertaken by the inventor or by third parties on the basis of information they obtain directly or indirectly from the inventor.] [1.3. Subject to the exceptions in this Chapter, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether the products are imported or locally produced.] [Each Party may prohibit, regulate, or limit the exploitation of patented inventions, and no provision of this Chapter shall be construed in any other manner.] [1.4. Microorganisms shall be patentable as long as different measures are adopted as a result of the review established in Article 27.3 (b) of the TRIPS Agreement. For this purpose, account shall be taken of the commitments assumed by the Parties under the Convention on Biological Diversity.] [1.5. The following shall not be considered inventions, among others:]
[2.1. Each Party shall apply the principle of first to file, observing the right of priority stipulated in Article 4 of the Paris Convention (1967).] |
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