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TPP Confidential – Intellectual property rights/Intellectual property (6)
11/11/2015

Section F: Industrial Designs

Article QQ.F.1: {Industrial Designs}

1. Each Party shall ensure adequate and effective protection of industrial designs and also confirms that protection for industrial designs is available for designs:

  1. (a)  embodied in a part of an article, or alternatively;
  2. (b)  having a particular regard, where appropriate, to a part of an article in the context of the article as a whole.

2. This Article is subject to Articles 25 and 26 of the TRIPS Agreement.

Article QQ.F.2: {}

The Parties recognize the importance of improving quality and efficiency in their industrial design registration systems, as well as facilitating the process of cross border acquisition of rights thereof including giving due consideration to ratifying or acceding to Hague Agreement Concerning the International Registration of Industrial Designs (1999).

{Section G: Copyright and Related Rights} Article QQ.G.1: {Right of Reproduction}

Each Party shall provide67 that authors, performers, and producers of phonograms68 have the right69 to authorize or prohibit all reproductions of their works, performances70, and phonograms in any manner or form, including in electronic form.

Article QQ.G.2: {Right of Communication to the Public}

Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them71.

Article QQ.G.4: {Right of Distribution}

Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies72 of their works, performances, and phonograms through sale or other transfer of ownership.

Article QQ.G.5: {No Hierarchy}

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

embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the authorization of the performer or producer does not cease to exist because the authorization of the author is also required.

Article QQ.G.14: {Related Rights}

1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms to the performers and producers of phonograms who are nationals73 of another Party and to performances or phonograms first published or first fixed in the territory of another Party74. A performance or phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication75.

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

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

3. (a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting or any communication to the public of their performances or phonograms, by wire or wireless means7677, and the making available to the public of those 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.

(b) Notwithstanding subparagraph (a) and Article (QQ.G.16)(limitations and exceptions), the application of this right to analog transmissions and non- interactive, free over-the-air broadcasts, and exceptions or limitations to this right for such activities, shall be a matter of each Party’s law78.

Article QQ.G.15: {Definitions}

For purposes of this (Article QQ.G.1 and Article QQ.G.3–18 – articles to be verified on scrub), the following definitions apply with respect to performers and producers of phonograms:

  1. (a)  “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;
  2. (b)  “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;
  3. (c)  “fixation” means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
  4. (d)  “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;
  5. (e)  “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;
  6. (f)  “producer of a phonogram” means the person who, or the legal entity 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; and
  7. (g)  “publication of a performance or a 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 QQ.G.6: {Term of Protection for Copyright and Related Rights}

Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated79:

(a)

(b)

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 death80; and

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

  1. (i)  not less than 70 years from the end of the calendar year of the first

    authorized publication81 of the work, performance, or phonogram; or

  2. (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 phonogram82.

Article QQ.G.8: {Application of Berne Article 18 and Article 14.6 of the TRIPS Agreement}

Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (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 Section G.

Article QQ.G.16: {Limitations and Exceptions}

(a) With respect to Section G, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal

Article QQ.G.6: {Term of Protection for Copyright and Related Rights}

Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated79:

(a)

(b)

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 death80; and

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

  1. (i)  not less than 70 years from the end of the calendar year of the first

    authorized publication81 of the work, performance, or phonogram; or

  2. (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 phonogram82.

Article QQ.G.8: {Application of Berne Article 18 and Article 14.6 of the TRIPS Agreement}

Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (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 Section G.

Article QQ.G.16: {Limitations and Exceptions}

(a) With respect to Section G, 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.

(b) Article QQ.G.16(a) neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, the Berne Convention, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty.

Article QQ.G.17: {Appropriate Balance in Copyright and Related Rights Systems}

Each Party shall endeavor to achieve an appropriate balance in its copyright and related

rights system, inter alia by means of limitations or exceptions that are consistent with

Article QQ.G.16, including those for the digital environment, giving due consideration to

legitimate purposes such as, but not limited to: criticism; comment; news reporting;

teaching, scholarship, research, and other similar purposes; and facilitating access to

published works for persons who are blind, visually impaired, or otherwise print disabled83, 84.

Article QQ.G.9: {Contractual Transfers}

Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right85 in a work, performance, or phonogram:

  1. (a)  may freely and separately transfer that right by contract; and
  2. (b)  by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person’s own name and enjoy fully the benefits derived from that right86.

Article QQ.G.10: {Technological Protection Measures}87

(a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

  1. (i)  knowingly, or having reasonable grounds to know 88 , circumvents without authority any effective technological measure that controls access to a protected work89, performance, or phonogram90; or
  2. (ii)  manufactures, imports, distributes91, offers for sale or rental to the public, or otherwise provides devices, products, or components, or offers to the public or provides services, that:
    1. (A)  are promoted, advertised, or otherwise marketed by that person92 for the purpose of circumventing any effective technological measure;
    2. (B)  have only a limited commercially significant purpose or use other than to circumvent any effective technological measure93; or
    3. (C)  are primarily designed, produced, or performed for the purpose of circumventing any effective technological measure,

      shall be liable and subject to the remedies set out in Article QQ.H.4.17(Civil Judicial Proceedings relating to TPMs and RMIs).

      Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged wilfully94 and for the purposes of commercial advantage or financial gain95 in any of the above activities96.

      Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity. A Party may also provide that the remedies set out in Article QQ.H.4.17 (Civil Judicial Proceedings relating to TPMs and RMIs) do not apply to those same entities provided that the above activities are carried out in good faith without knowledge that the conduct is prohibited.

      1. (b)  In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing subparagraph (a).
      2. (c)  Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights97.
      3. (d)  (i) Each Party may provide certain exceptions and limitations to the measures implementing subparagraphs (a)(i); and

        (ii) in order to enable non-infringing uses where there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the

        beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party’s law98.

        1. (e)  Any exceptions and limitations to the measures implementing subparagraph (a)(ii) shall be permitted solely to enable the legitimate use of an exception or limitation permissible under Article QQ.G.10 (TPMs) by its intended beneficiaries99 and shall not authorize the making available of devices, products, components, or services beyond such intended beneficiaries100.
        2. (f)  By providing exceptions and limitations under paragraph d(i) and (ii) a Party shall not undermine the adequacy of that Party’s legal system for the protection of effective technological measures, or the effectiveness of legal remedies against the circumvention of such measures, that authors, performers, or producers of phonograms use in connection with the exercise of their rights, or that restrict unauthorized acts in respect of their works, performances or phonograms, as provided for in this Chapter.
        3. (g)  “Effective technological measure” means any effective101 technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, or phonogram, or protects copyright or related rights related to a work, performance or phonogram.

        Article QQ.G.13: {Rights Management Information}

        In order to provide adequate and effective legal remedies to protect rights management information102:

        (a) each Party shall provide that any person who 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:

        1. (i)  knowingly103 removes or alters any rights management information;
        2. (ii)  knowingly distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority104; or
        3. (iii)  knowingly distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority,

        shall be liable and subject to the remedies set out in (Article QQ.H.4(17) (TPMs/RMI civil remedies).)

        Each Party shall provide for criminal procedures and penalties to be applied where any person is found to have engaged willfully and for purposes of commercial advantage or financial gain in any of the above activities.

        Each Party may provide that such criminal procedures and penalties do not apply to a non-profit library, museum, archive, educational institution, or public non-commercial broadcasting entity105.

        1. (b)  For greater certainty, nothing prevents a Party from excluding lawfully authorized activities carried out for the purpose of law enforcement, essential security interests, or other related governmental purposes, such as performance of statutory functions, from measures implementing subparagraph (a).
        2. (c)  “Rights management information” means:
          1. (i)  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;
          2. (ii)  information about the terms and conditions of the use of the work, performance, or phonogram; or
          3. (iii)  any numbers or codes that represent such information,

            when any of these items of information 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.

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

            Article QQ.G.18: {Collective Management}

            The Parties recognize the important role of collective management societies for copyright and related rights in collecting and distributing royalties106 based on practices that are fair, efficient, transparent and accountable, and which may include appropriate record keeping and reporting mechanisms.

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