CONSOLIDATED TEXT US-JAPAN PROPOSAL AND ALL COMMENTS/EDITS RECEIVED This Document Contains Foreign Goverament Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED* CONFIDENTIAL REFLEC] Consolidated Text * This document must be protected from unauthorized disclosure, but may be mailed or transmitted over unclassified e-mail or fax, discussed over unsecured phone lines, and stored on unclassified computer systems. It must be stored in a locked or secured building, room, or cabinet. CONSOLIDATED TEXT REFLECTS US-JAPAN PROPOSAL AND ALL COMMENTS/EDITS RECEIVED ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-inRed Cuarter Oxe INITIAL Provisions AND DEFINITIONS Section A: Initial Provisions [TO BE COMPLETED] Section B: General Definitions wroposed in thi [Can: Canada reserses ts postiton on ail elements discussion of thera in negotiations} Agric 1.X: Dsrnmions For purposes of this Agreement, unless otherwise specified: days means calendar days; (MX: fix tre “clays” definition itis establistiedt thas it would ndtuedkelays, However, in Arnole 2.13 there is a footnote which stipules thatsdays, refer to working dey: Therefore, it is suggested to make clear the initial defitition'or delete such definition and establish with foomotes if it refers to natural ov watkin ¢ thegys, where appropriate.) Sections 1 through 7 of Part IT of the A Property Rights. _ since words nee 4s “ineelloctual property tight” cead “eer cand relased rights a trademarks” are used in all the text. Therefore, itis in Article } and use the same wording in all the Count means:the ACTA Oversight Council established under Chapter Five; ‘imeasare Raedes any law, regulation, procedure, requirement, or practice; personmeans either a natural person or a juridical person; right holder includes a federation or an association having the legal standing and authority to assert rights in intellectual property, and also includes a person that exclusively has any one or more of the intellectual property rights encompassed in a given intellectual property; territory means customs territory of a Party and all free trade zones of that Party, ‘TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property 2 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED"CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red Rights, contained in Annex 1C to the WTO Agreement;! WTO means the World Trade Organization; and WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994. Cnarrer Two ‘Lecat Framework For Enroncemenr or INTELLECTUAL PROPERTY RIGHTS Section 1: Civil Enforcement ‘judicial authorities” and “competon niincbt the provision toking ing” dered Leb of Capris cuthorize IMX: the use of wordings such as be precisely review andin accordance with the content consideration that the Industrial Property Lavy and the 2MPI and INDAUTOR 10 conry out activ provisional measures to, the rafemgentert of inteliectnal propersy nights and, moreover, to impose administrative sanctions. The legal nature of said Institutions is axhninisorative, not jdiciea.] % shall Arriete 2. Exroncesest] [US/:Avamapmrry or Civ, 1. Each Party shall make available t6 right olders [US/J: civil judicial] [Mex/NZ: es administrative] procedures concerning the enforcement of any [US/J: intellectual property right] [Sing/Can/NZ: copyrightand related rights and trademarks] [Kor. as provided for in the following indivi s Inthe Section], R. Those’ peasutes, procedures and remedies shall also be effec proportionate and deterent.},, Orrios.1: In ciyil judicial proceedings concerning the enforcement of [Can/NZ: copyright or related vights atid trademarks] [US/J: intellectual property rights], each Party shall provide that its [US/Jo judicial authorities] [NZ: competent authorities) shall have the authority to issue an order to a party to desist from an infringement, including an order to prevent infringing goods from entering into the channels of commerce [US/Aus/Kor/Mor/NZ: and to prevent their exportation), ? For greaicr certainty, “TRIPS Agreement” includes any waiver in force between the Parties of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement, *{Kor. A Pary may comply with its obligation relating to exportation of infringing goods through its provisions concerning distribution or transfer. } 3 JAPAN - US. JOINT PROPOSAL ‘This Document Contains Foreign Government Inforiation to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in Red Orriox 2: [EU: Each Party shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the inftinger an injunction aimed at prohibiting the continuation of the infringement. The Parties shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to inftinge an intellectual property right] INZ: Does not support the inclasion of this provision.JUS Comment - which provision? Option 1 or Option 22] ICAN: Necel to address statutory Hntitations] Arricr 2.2: Damaces L Each Party shall provide that: (a) in civil judicial proceedings, [US/S: its judicial auithorities) [Mex/NZ: or competent authorities} [BU/NZ: on application ,of the{RU: injareé party} {NZiright holder) shall heve the authority to order.the infringer [EU/NZ: who iged.in infringing activity] of ademarks] [US/J: intellectual [Can/Sing/NZ: copyright property rights] to pay the right holder (@ damages adequate to compensate, for the [EU: actual] injury the right holder has suffered as 2 result ofthe infringement?, or [EU: ¢r] (ii) [US/Mor/Aus/Kor/s rights inftingement and feast in the case of copyright or related nnterfeiting,|[IMX: in the case of IPR infringements] ‘tl of the infringer that are attributable to the infringemerit, which’may be presumed to be the amount of damages referred to in clause (i)[Aus/Sing/NZ/EU: damages-reforrediio-in-clause-G)]; and [EU: Delete Gi) fas originally’ proposed?} and wove (8 iato paragraph 2.2. 1(8}—Please clarify] san/NZ: For greater cesteinty, a Party may fi ertdin special cases.] nit or exclude damages Soin determining the amount of damages for [Can/Sing/NZ:: copyright or related ights infiingerent][MX: IPR] initingement [US/J: of intellectual property rights] [Can/Sing: and trademark counterfeiting), its [US/J:judicial][NZ: competent] authorities [US/J: shall][Aus/Can/NZ:may] consider, inter alia, [Can/NZ: any legitimate measure of value that may be submitted by the right holder, including] [EU/Can/NZ:: the lost profits], the value of the infringed good or service, measured by the market price, [Can: or] the suggested retail price [NZ: suggested retail price], or other legitimate measure of value submitted by the right holder [Can/NZ: of-other-legitimate-measuro-of-value 2{ US/Mor: In the case of patent infringement, damages adequate to compensate for the infringement shall not be les than a reasonable royalty.] /Sing/Aus/EU/Can/NZ: Delete USMOR footnote] 4 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information (o be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red submitted-by-the-right-holder], [EU: the profits of the infringer that are attributable to the infringement), [MX: Please specify the way in which the amount of the damage, particularly the scope of the “legitimate measure" (Editorial comment: Please clarify this statement} 2. At least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, in civil judicial proceedings, [EU/ Can: As, an alternative to paragraph 1,] each Party [US/J: ‘shall][ FU/Can/NZ:. yay] establish or maintain a system that provides [Sing/NZ: for] (2) pre-established damages; or (Sing: a system that provides for] (8) presumptions for determining the amount of damagestsufficient [USICan: t constitute a deterent to future inftingements and] to’compensate [US: fully] the right holder for the harm caused by the infringement’, (Sing: Such ages shail be an amount sufficient to constitute a deterent to fisure ments and to & tight holder: for tle-arm caused by the ingement.] [AusiMewNZ: Delete parugraph 2] 3. Each Party shall provide that the right holders shall have the right to choose the system in paragraph 2 as an alternative to the dattiages in paragraph 1 [US: will propose editorial changes ab upcoming toulkt-io clarify the langaage] [AusiMex/NZ: Detewe paragraph 3] id, not knowingly, or with reasonable grounds knows, down that the judicial authorities may order ich may de pre-established.] BB. EU: Where the infringet! engage in inftinging activity, each Pasty may ihe recovery of profits or the payment of damages, w! 4. Each Party shall®provide that its judicial [NZ: competent] authorities, except in exceptional circumstances, [BU: unless equity does not allow this], shall have the authority to order, at the conclusion of civil judicial proceedings [US/J : concerning copyright or related Patent infringement {Can/NZ: pateat—inftingement}, or trademark infringement] [BU: consesing-sopytight-or relates ights infringement,-patent infringemont, fedeinarke-isfvingement], that the prevailing party [US/J: shall][Can: shalt] be ewarded payment “by_,the losing party of [NZ: appropriate ] court [{EU: reasonakle and srtloate} EU/CANYNZ: lega!] costs or fees. Each Party [US/J:shall] [Mor: may] also provide that its [US/J: judicial] [NZ: competent] authorities, [US/Cam/Mor/MXINZ: except * Such measures { J: shall][ US/Sing/Can/EUINZ: may] include the presumption that the amount of damages is @ thequantity of the goods infiinging the right holder's intellectual property right and actually assigned to third persons, multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not been the act of infringement or (i) a reasonable royalty (EU: or (ii) a lump sum oa the basis of ‘elements such as at least the amount of royalties or fees which would have been due if the infinger had requested authorization o use the intellectual property right in question). *[US/Mor: No Party is required to apply paragraph 2 to actions for infringement against aParty or a third party acting with the authorization or consent of the Party.) 5 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red in exceptional circumstances] [EU: unless equity does not allow this], [US/Can/Aus/Mor: {US/Aus/Mor: at least }in proceedings concerning copyright or related rights infringement or willful trademark counterfeiting,] shall have the authority to order, [J/Can/Aus/NZ: in appropriate cases][MKX: in-appropriate-cases], that the prevailing party be awarded payment by the losing party of [US/F: reasonable] [NZ: appropriate] attomey’s fees’. [US/Aus/Mor: Further, each Party shall provide that its judicial authorities, at least in exceptional circumstances, shall have the authority to order, at the conclusion of civil judicial proceedings concerning patent infringement, that the prevailing party shall be awarded payment by the losing party of reasonable attorneys fees J[Mor: fees should be feft Party- -shall-provide-that- “te Jedioia|-euthories,-ot least in-exoepHonal-ciroumstan sesh bave-the-authority-t0-order-at-the-eonelusion of ov judicial-proceedings-conceming-patent hall-be-awarded: Saree ees. ARTICLE 2.3: OTHER REMEDIES 1. (US: At least] (Can: [US/Aus/Can/Sing/Kor/N: property right], each Party shall provide that in civil judicial’ request, [J/Aus/EU/Can/MX/Kor/NZ: its ju ies shall have the authority to order that] such goods shall be [NZ: ight holder] [US/J: destroyed], [BU/Can/NZ; recalled or definitively émoved from the channel of commerce,] except in exceptional circumstances, [Can: fire tyr eneetione seoemeanee, without compensation of any sort ings, at the right holder’s 2, Each Party shall further provid thatits:judicial authorities shall have the authority to order that materials and implements [J/Can/EU: the predomin: ¢ of which has been] [US/AUsINZ:: that bave been u sa-have-boor-ased] i in the manufacture or faatiog of [JMX/EU: infri INZ: infeinging copy ight hol z [Aus: ie-exseptional-citaymstances:] disposed of outside the ‘channels of commerce in such “Tnisegard to counterfeit trademarked goods, the simple removel of the trademark unlavefully affixed shall not be sufficient [J/Aus/Can/MX:, other than in exceptional cases; to permit the release of goods into the channels of commerce. INZ: Delete paragraph 3.] [4. EU: The {INZ: Each Party shall further provide that its} [EU/NZ:: judicial authorities shall {NZ: have the authority to}EU/NZ: order that those measures be carried out at the *[Kor. For greater certainty, the term “reasonable altorncy’s fees” is not iatended to require a higher amount than the amount of “appropriate attorney's fees” under the TRIPS Article 45.2.] JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in Red expense of the infringer, unless particular reasons are invoked for not doing so.] [5 (EU/Can : In ordering those measures, the judicial authorities) (NZ: Each Party shall further provide that its judicial authority in ordering these measures) EU/Can/NZ; shall take into acount the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interest of third parties. ] ARTICLEZ.4: INFORMATION RELATED TO INFRINGEMENT [EU: Without prejudice to other statutory provisions wl: patticular, gover the protection of confidentiality of information sources or the processing of persoval-data,] Bach Party shall provide that in civil judicial proceedings conceming the enforcemenbof [US imellectual property rights][Can: copyright or related rights and trademarks}, its"judicial authorities shall have the authority upon a justified request of the, right holder, to order the infringer to provide, [US/J: for the purpose of collecting evidence] [EU; fr-the-purpose-of collecting evidense][Mor: within the framework of measures of inquiry or investigation], any [Can: relevant] information [EU: information on the origin and disttitution network of the infringing goods or scivices on a commorcial scale) [J: in the Form as presenibed in its applicable -ontrols;. [J/Can/EU/MX: where appropriate,] to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution, channel of such goods or services, induding the identification of third persons inyolved it'the production and distribution of the infringing goods or services or in their channels of distribution. (Can: For greater clarity, this provision does not apply to the extent Ut iC mould conflict with common lay or statutory ivi fe Privileges}: laws and regulations] that the infringer possesses or [AusINZ: Supports deletion of tis Artiéle,). TMK: it should be consideted to have: Sess in Article 199 bis 2] iy concerning administrative remedies, as stipulated Arricie 2.5: rong Measures Ix. that its judicial authorities shall have the authority, at the requett, of the Gites, to issue an interloautory injunction intended to prevent any imminent inftingemert of an intellectual property sight. An interiocutory injunction may also be,ismied, undet the same conditions, against an intermediary witose services are being used by a third party to infringe an intellectual property right, Bach Party shal! also provi provisional measures may be issued, oven Before the c merits, to preserve relevant evidence in respect of the alieged infringement, Such measures may include inter alia the detailed description, the taking of sempies or the physical seizure of documents or of the infringing goods.] mmencement of proceedings on the Option! [1. US/EU/Sing: Each Party shall provide that its judicial authorities shall act expeditiously on requests for provisional messures inaudtia alter parte] [Sing: and-shall a ional-cases-.] [US/EU: , and shall endeavor to make a decision on such requests (US: within ten days) {EU: without delay} {MX: within twenty days}, except in exceptional cases] JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Goverament Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red Ornow2 [1. J: Each Party shall ensure that, where proceedings for provisional measures are conducted inaudita altera parte, the {J: judicial}{MX: competent} authorities shall expeditiously make a decision on the request for provisional mezsures.] Orrion 3 {1. Can/Aus/Kor/NZ: Each Party's authorities shall act on requests for {Can/Aus: relief} {Kor/NZ; provisional measures) inaudita altera parte {Can: without undue delay} (Kor/Aus/NZ: expeditiously} in accordance with the Party’ s judicial rules.] 2. [US/J/NZ/MX: In civil (US: judicial} {NZ: or administrative} proceedings (MX: ‘or administrative remedies} concerning copyright or related rights infringement and: trademark counterfeiting(NZ: infringement} [CU: In-civiljuisal-preceedings-copcersing | each ‘Party shell provide that its judicial authorities shall have the authority to order (Can/NZ:, “inappropriate 2se3] the seizure or other taking into custody of suspected infinging goods, materials, and implements relevant to the act of inftingement [US/Aus/Can/N: “and, af Joust for uademark counterfeiting, documentary evidence relevant to the infringement Used to accomplish the prohibited activity ] [MX: Clarify that “custody” ir provision is intended to ore isinftingorent and preserve evidence. J 3. Bach Party shall provide that its [US/J;judiial (MIX: competent] authorities have the authority to require the plaintiff, with respect to» provisional measures, to provide any reasonably available evidence in order t6” satisly, themselves with a sufficient degree of certainty that the plaintiff's right is being ‘infringed or that such infringement is imminent, and to order the plaintiff to provide a reasonable s security or equivalent assurance set at a level sufficient to protect the defendaiits,[EU/Can:,ensuring compensation for any prejudice suffered when the measures revoked of lapses due to any reason, Jand to prevent abuse, [US/ J: and so as not to unreasonably detér recourse to such procedures] [Can: ard-so-ae-not-io unreasonably-deter recourse to such procedures]. INZ: Belete this paragraph Py : [4 EU/Can: act; Party shail ensure that the provisional measures referred to in paragraphs 1)2 and 3 are revoked or otherwise cease t0 have effect, upon request of the defefidea, if thapplicant does not institute, (EU: within a reasonable period to be determined py the j authority i the law of a Party so peat or within & period not “ cxtedding. 20 working days or 31 calendar days, proceedings leading to a dacision on the merits ofthe case before the competent judicia! auchority,} {Cam: proceedings leading to = decisio’ on the merits of the case before the competent judicial authority, either within a reasonable period to be determined by the judicial authority if the laws of a Party so permit or within a period not exceeding 20 working days or31 calendar days.}] INZ: Delete this paragraph.] JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated 2s U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red Section 2: Border Measures Border Measures’[Japan: §] [Aus/NZ: Option 1 [Anmicte 2.x: EU: Score or 1s Borner Measures 1 ‘This section sets out the conditions for ac wehen goods are suspected of inftinging intellectual property ‘nent, Whea they are imported, exported, or in-transit. e competent aathorit within the meaning 6 his ies., 2. For the purposes right” means goods infringing ary of the intellectual property rights covered hy PR the exception of the protection of undisclosed information and fa ns (lopographics) of integrated circuits.] 3. Wher a traveler's personal baggage contains goods of a'neti-commercial nature within the limits of the duty-free allowance and there aré'no material indications to suggest the goods are part of commercial traffic, each Party’may.cnsider to leave such goods, or part of such goods, outside the scope of tis section, |. Ornion 2[[Anticuz 2.x: Aus/Can/NZ/Sing, [Aus/Can/Sing: 1. Where a traveler's pers copyright materials of i sige contains trademark goods or s of the duty-free allowance {Aus: or where copyright mail consignments} and there are no material indicationsite sugaestithe goods are part of commercial traifie, Parties inay conisider such goods to be outsieSthe scope of this Agreement] ofa (JP: 1. Whe: quantities of goods of a.nos ensare thatthe ‘Each Party shall implement the obligations in respect of importation and exportation set out inthis Section 0 as tobe applied to shipments of goods consigned to {a local party/a party in the territory} but destined for outside the territory of the Party) ( Aus/NZ/Sing: No Party shall be obliged to apply this section to any goods that do not infringe an intellectual roperty ght held within the territory of that Party). * [EU: The provisions of this section shall also apply to confusingly similar trademark goods, which means any goods, including packaging, bearing without authorization a sign thatis similar to the tademaik validly registered in respect of such or similar goods where it exists a likelihood of confusion on the part of the public between the sign and the trademark] JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red Orrion 3 [Can/NZ/US: Where a traveler’s personal baggage contains goods of a non- commercial nature in quantities reasonably attributable to the personal use of the traveler and there are no material indications to suggest the goods are part of commercial traffic, each Party may consider that such goods are outside the scope of this section.) Artic 2.6: Apeuicaion By Riou HOLDER 1. Bach Party shall provide (USI: procedures][Mor: reasurex] for import, fAus/Can/Sing/NZ: anc nay provide procedares for} export [US/NZ/Mor: and in-tran [Mor/Sing/Kor: ia-iransit] ipped‘] [") shipments [EU: ent authorities to suspend release " [CH: ai least i cazes] of suspected counterfeit trademark goods” or confusingly similar trademark goods [Can/Aus/Kor/Mor/Sing: ¢ similar-tredemasi-geeds], and suspected pirated copyright goods! [BU/MX:. goods suspected of infinging 2n intelectual property right/-4Sing-¢ “suspected infringing goed) into free circulation. orized entities for copyrights or wick 148 and 149 of dhe Customs [MX: In Mexico, Customs acts by request of the auth industrial property Hghts infiingements as established in Law ] XX. [Mor: Each Party may alse provide the saz #5 for intra * (AusiCaniNZ/0S: {CANINZ/OS: hs eee, stent goods means soos "For the purpose of this Sétiton, where the competent authorities suspend the release of suspected counterfeit [J: or confusingly similar] traiestark or pirated copyright goods, the authorities shall not permit the goods to be released into fee cizetlation, exported, or subjent to other customs procedures, except in exceptional circumstances] yg yee foosnene 14 on retease of goods] For uposes| of this Section, counterfeit trademark goods means any gocds, including packaging, bearing without authorization a trademark that is identical to the trademavk validly registered in respect of such goods, or that cannet be distinguished in its essential aspects from such a trademars, and that thereby infringes the rights ofthe owner of the tradcmark in question under the law of the country in which the procedures set out in tis Section are invoked. [Can: Itis to be understood that there stall be no obligation ta apply such procedures ‘o imports of goods pur on the market in another country by or with the consent ofthe right holder } ' For purposes of this Section, pirated copyright goods means any goods that are copies made without the consent ofthe right holder or person duly authorized by the right holder in the country of production and thet are made directly or indirectly from anarticle where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country in which the procedures set cut in this Section are invoked, 10 JAPAN ~ U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletions-in-Red INZ comment: Referral to suspending the release of goods “into free circulation” would not make sense if the provision was to provide an option to cover in-transit shipments (or exports).] 2. The competent authorities shall require [US/J: a right holder ][MX: an applicant] requesting [US/J:the] [MX: the] procedures described in paragraph 1 to provide adequate (MX: « lent] evidence to satisfy themselves that, under the laws of [US/J: that country"*][Can;-that-countzy] [Aus, Can, NZ, Sing: there is prima facie an infringement of the right holders intellectual property right and t6. supply sufficient information that may reasonably be expected to be within the right holder. knowledge to make the suspected infringing goods reasonably recognizable by the “¢ [Sing/MX: competent] [US/J: customs authorities. [US/J/AUS/CAN: The requirement provide sufficient information shall not {Aus/Can: bl to the procedures described in paragraph 1.] [Sing/Mo: sufficient-information -shall-not f-Aus-&-Cant-be-used top ui procedures-described-in-paragraph-1-] 3. Bach Party shall provide [US/J that the application to, shall {JP: unless cihe fi ht holdes to and exit from} {Me [Aus/CanINZ; tor applicati: protected by copyright or the relevant’ trademarks registration is valid under the laws of the [USIS: country taking][Aus/Can/NZi Sing: fap) providing] border measures provided for ations {0 sus ods that r the date o! the relevant [Can/NZ: Parties may provide that an application may de administratively suspended or voided for cause, particularly where it is established that an applicant has accumulated substantial unpaid storage or destruction costs owing for a significant period of time, or where the applicant has abused the process by, for example, knowingly provided false or - misleading information in the application or in connection with the enforcement of border measures. ] Definition of ‘country’ oT JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red [Sing: Each Party shall provide for either one of the following: (i) applications to suspend the release of suspected infringing goods that apply to all customs offices in its territory and remain applicable to multiple shipments for a period of not less than one year from the date of application, or the period that the relevant aiticle is protected by copyright or the relevant trademark registration is valid under the laws of the party providing border measures under this Section, whichever is shorter: ; or (ii) applications to suspend the release of particular specified shipments of suspected infringing goods that remain applicable for a period of not less than 60 days from the date of application, or the period that the relevant aticle is protected by copyright or the:televant trademark registration is valid under the laws of the party providing border measurés under this Section, whichever is shorter.) * PMX: is suggested to ackd words “procedures/measures" to be reels, measnres”. Replace “points of entry to and exit f Mexico needs a resolution not ont fo “customs ports”. : an application to suspered therelease.ef goods.) [Aus/NZ/Can/Sing/BU: 3. Each Party shail permit right folters'to supply the competent authorities information to assist them in taking border meastites provided for under this Section. Each Party may authorize the competent authorities to request right holders to supply any suck information] Po Yew [Aus/CanINZ: In this article cand othors in this teetiby of Chapter 2, Austratia, Camedke amd New Zealand have indicted the iia reek peesnent. For le 2.6.3, oF reasonable period. whether they have accepted the application. Where the competent authorities have accepted the application, [US/J: they shall also make known to the applicant the period of yalidityiof the application] [Sing: they-shal-also-meke-known-to-the-applicant |. the petied oF Validity of the application! [US/J: The competent authorities shall also make the’ application public, while protecting any information in the application thet is confidential} [Cano Phe coxip Disole segs mestion, al property right as been infringed ander national law and in decordande,with national provisions on the protection of personal sid cas professions) and administrative confidentiality, wing goods, shall intores the right holder of the :, importer, exporter, or eonsiynes, and provide to the kenown, the country wit [Sing Please blarify how this article 18 to be read with Arti 5 2,10:DETERWINATION AS TO INFRINGEMENT Each Party shall provide a procedure by which competent authorities [Aus/Sing/NZ: may] [US/J:will] determine, whether upon request or on their own initiative within a reasonable period of time after the initiation of the procedures described under Article 2.6 or 21, road the suspected infringing goods infringe an intellectual property right. [AUS/NZ/ Can. ® [Aus/NZ/Can: It is understood that this chapter does not create any obligation to put in place a judicial stem forthe enforcement of intellectual property rights distinct from that for the enforcement of law in ‘general, nor does it affect the capacity of Parties to enforce their law in general, Nothing in this chapter creates ‘any obligation with respect to the distribution of resources as between enforcement of intellectual property 4 JAPAN - U.S, JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletions-in-Red [Aus/Can: Clarification is required from Japan & the US to ensure determination is not mandatory, i.e. “whether” cannot compel a decision in Australia’s or Canada's Judictal system] [Kor: Include “competent authorities” in the definitions section to clarify that competent authorities includes judicial authorities. ] IMX: Cusioms is net the competent authority on IPR infringements. However, Customs, son combating pirauy 1m coordination with Aiorney’s General Offi Axncis 2.11: REMEDIES 1 Each Party shall [Aus/Can/Sing/NZ: have in place procedurodiyyiit competent authorities :nay] provide that goods [Aus/Sing/Can: in Ue. custos’ that have been [USIS: forfeited {NZ: to the state} as infringing] (Can: fori inSeinging] [Aus/Sing/Can: found to inttinge copyright or trademerk] follo determination under Article 2.10 shall be destroyed, except in exceptional circumstances, 2. Each Party shall authorize its competent authorities, to,impose penalties [Aus/Can/Sing, NZ: or provide semadies] in connection with the importation [US/J: and exportation] [Can/Sing/NZ: and-expextation] of goods following a determination under agcli Party may provide its competent vision of this Article in respect of the (Can: cans rimined remecties, negotiators shouid for mpor's.] br deleting 2.11.1, especially: peti [MX: Exen though Customs igor the authority for unposing copyrights or industrial property infringements rules on foreign commerce 2003, considers asa cause for suspending the rel ‘ily of the patierns, in the case of piraey as per Article 59, subparagraph IV oftiie On the ole hand, Custenns is not the competent authority to seize and destroy infringing gous since iS task 1s to control the entry and exit of goods of the national territory as well asOfthe means in which they are wansported] »[US/T: No] [Aus/Sing/Can: Subject to other customs procedures, no] Party may authorize the competent authorities to permit forfeited [US/J: infringing] [Can: is Singing] goods [Aus/Sing/Can: in the ousiody of the state that have been found to inftinge copyright or trademark following a determination under Article 2. 10] to be released into [Aus: channels of commerce] [US/J: free circulation], [Aus/Sing/Can: or] exported, [UIS/J: or subject to other customs procedures] [Can: o-subject-to other customs-prosedures] except in rights and the enforcement of law in general.) " Negotiator’s Note: Subject to negotiation of general provision on deterent penalties. 15 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as, U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red exceptional circumstances, In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, [Aus/Can/EU/Kor/NZ/Sing/JP: other than in exceptional {Aus/Sing/Can/MX/Mor: circumstances} {EU/NZ/JP/Kor: cases)] to permit the release of the goods into the channels of commerce, Antict 2.12: Fees [(Can/Aus: peters Tis Arrictt.] 1. Each Party shall provide that any [US/J: application fee] [EU: application-fes), [US/ J: merchandise] (Can: merchandise] storage fee, or destruction fee to be assessed [Aus/Caiy, Sing/NZ: by competent authorities] in connection with procedures described in this Section shall not be [Aus/Can/Sing/NZ: used! 10] [USMJ: allocated in a manner or set at an-amount that unreasonably burdens right holders, or ][Can: alleeated-in-a-manner-orselgtanainouat that-unseasonably-busdens-right-holders-or] unreasonably deter recourse to these procédures [MX: Ht should he assessed on acost recovery basis. The Tax Adininissration (SA) grants cone establishents located within and ent rorage and scfekoeping of the goods deposit in such cfore, the payment of such fees is through contracts befiween indlividaats. Customs hes not enuthority te waive the payment of: are deposited in the fiscal arect.} 2. Each Party shall provide that if the compe under Article 2.10 that the suspected infringing go0% right][Aus, Can/Sing/NZ-copyright & i available s0 enable] the right holder [US/J:| ent ati .d8 infringe [US/. s/Can/NZISing io right hi fons should be available cost of destruction? jew the scope andl objective of for 8 os”, i is suggested yegard to the right holder obligations for paying @ fee. i Axticue 2,13: Disctosurr oF Isronmarion Where the competent authorities have [Sing: made a determination under Article 2.19 that the suspected infringing goods infringe an intellectual property right, the Party shall grant its competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee and of the quantity of the goods in question] [US/J: confiscated][MX: seized] [Aus/NZ/Can: detained or scized] infringing goods, [Aus/ NZ/Can/Mor: and in accordance with their domestic laws pertaining to] [Can/NZ/Mor: the privacy of information,] [Aus: the protection of personal information, ] the competent authority shall have the authority to inform the right holder [MX: and his licensee] within 30 16 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as ‘U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red [Mex: 45] days!” of [US/J: confiscation][Aus/NZ/Can: such detention or seizure], or at zn earlier time, the names and addresses of the consignor, importer, exporter, or consignee, and provide to the right holder a description of the goods, [Sing: and] the quantity of the goods [Sing: in accordance with its domestic laws pertaining to the privacy or confidentiality or information. The competent authority may, in addition, provide the name and addresses of exporter] and if known, the country of origin and name and addresses of producers of the goods. (EU: Move this crticte after the tatdreses of prec ies ‘oe goods. "} MX: It is suggested to review the scope of Article 2.13 in conformaiice with biexico’s Federal Law on Transparency dard Access to Governmental Public Inforqedtion since trough this provision, information would he 3 ould include personal data. 1 informeation within the Tax Administration (SAT) is re devel Code] R ‘The scopic of ae vel vi Tiina an int 101 be liable towards the persons involved in the situations refed 134 2.6 for damages srffered by them as a result of the provided for by the law of the Panty in which the damaye is ineurred.} he competes, gutnorities shalt ratte géods to be inported, the party Fae request the customs authori arity of th exporting a 16 take proper measures to the exporters of the goods concerned. The requesting px shall provide information necessary for the identification of the goods concerned by the castoms authority of the requested party.] y [IP: Including “in accordance with national legislations and relevant international aagreements/arrangements”) © For purposes of this Article, “days” shall mean “business days.” 17 JAPAN - U.S. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as U.S, CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red (US: This article may be more appropriate in the International Cooperation Section or Enforcement Practices Section] (MX: This provision is more suitable in International Cooperation.] Section 3: Criminal Enforcement [Can: Reserves the right to provide substantive comments on Option EU proposed for this chapter when the text is next discussed] Agric 2.14: Criminat OFFENSES 1, Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting J/NZ: , {NZ: and} trademark int ingerndnt catlsed by confusingly similar trademark goods] or copyright or related rights piracy.om'a, commercial scale." Willful copyright or related rights piracy on a commercial scale includes:} a [EU: Article}, OFEENCES/CRIMINAL INFRINGEMENTS |». Ta. TRADEMARK COUNTERFEITING, COPYRIGHT AND'RELATED RIGHTS PIRACY ON A COMMERCIAL SCALE @ pendlties to be applied at least in cases ii, rights piracy(J) on a commercial isadefined by each Party in Bach Party shall provide for crimine] procedures an of wilful trademark counterfeiting and copyright of tel seale. (1) Negotictor's note: The term “related ight accordance with its international obligations P% ~ [AUS, MX, CAN: Rejeraice to “confusinitly sitnileg trademark gaces” throughout tis Secsion should be deleted. ] > a (CH: As & genere into the fe 2 le. foctncred ined al text (ie., 1, 4 and 3) should be incorporated J de Definition of “relaced tights” sh ys. ce’ = Reserves the rightio fier 24d. inchuding on (0) (b), froin “Willful copyright cia gain”, and cand relaied rights n a commercial scale inctudes. ." 10" privete "Bach Party shall treat willfal {importation or exportation of counterfeit trademark goods [J:, confusingly similar trad nek goods} of [USVJ: pirated copyright goods] [Aus: pratod-copsrigs]{ Fn accordance with ts Tasvs ang reguladieas } as unlawful activities subject to criminal penalties undorthis Article. A Party may oly with its obligation relating to exportation of pirated copyright goods through its measures concerning, shoul be elored.) ld nos Be Hite fast 0 piraved copprigh “wwaccantonice yuh ts bars and regs ‘application of the last sentence of footnote ls = Inert phrase “ana commercial sale" afer “Each Party shal! treat wilfid importation * Delete “or exportation” = Dele Oprion US sentence besiming wit: "A Party may comply.."] ING: Delete “exportation” ‘Negotiator’s Note: Definitions of “counterfeit trademark goods” and “pirated copyright goods” provided for in footnotes 12 and 13 of Section 2 (Border Measures) should be used 2s context for this Section. 18 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red entire footnote 2] (MX: Delete “confusingly similar trademark goods"; define “commercial scale” within the text] (@) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and (MX: The concept “financial gain” should include ‘financial loss”, i.., money which right holders od of as a resuls of le (©) willful copyright or related rights infringements for purposes of coms Riad advantage or[ US/5: private] [Aus/NZ: privste] financial gain:” = 2 \ Orrioy 1 é [J/MIX: Each Party shall provide for criminal procedures ardpetialties to be applied in cases of willful importation and domestic (J: trafficking} {EU/CAN: use in the coarse of trade} conducted oa a commercial scale of labels, to which a matk, whicll is identical to or ot be distinguished in its essential aspects from a trademagk Pegistered ina Pasty in respect of certain goods or services, {J: or which is confusiagly similar to such a trademark} (MX; or-whielic-confusingly-similar-to auch 2 tradeinatic), hasbeen applied, and which are intended to be used on either the goods or services or goods or services confusingly similar to such services- confusingly similarte- suslrgoede-or services) ]” (MOR: users the former the territories of a Part reflect “prokarging’” 3 (KOR: “A Party lg comply withthe obligation reg ops quad dstabution the jot hfs prov further aN Ty 9 proposed to inchicle imports.) gi lan leh the deletion of“ confhsingly sina to sch ated “or gogds or Yepvices Bohan sinter to such gots or nervices.”] INE: Aaopt Option LJ [MX 1 iF eggested to tnobude ves suchas “tanspori Sled 10 consider the inckusion of sable irs sproduction of copynght piracy. Giiigrlg Into consideration “willfiulnes suggested 10 define terms stich as willfulness...”. "no direct or indirect motivation of financial gain”. “private financial gain”, among others.] ” tra basic requisite tn order to unpose sanctions for contmercial seale”, “financtal gas ‘commercial advantage”, Orrion 2 For purposes of this [Agreement], financial gain includes the receipt or expectation of receipt of anything of value, 19 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red [EU: 1b. TRAFFICKING/IMPORTATION AND DOMESTIC USE IN THE COURSE OF TRADE OF/ IN COUNTERFEIT/ ILLICIT LABELS Each Party shall provide for criminal procedures and penalties to be applied in cases of wilful importation and domestic use in the course of trade on a commercial scale of labels, (@)_ towhich @ mark has been applied (CAN: without consent of the right holder}, which is identical to or cannot be distinguished from a trademark registered in its territory, and (ii) wich are intended to be used on either the goods or ( {services} for which the trademark is registered. J ores and pe Ga phorogrem, (a copy of a computer program. ¢ Gi) a copy of a motion picturgar of &) 185 a Gupacksding for iteis of the type des as , oF designed to be affixed aph (2).1 ing, ox aceampan items of the type a esoribed in subparagr fa the measures relate 10 “connterfets expressed in reference to copsright pirecy oF treidemea cluded cou (so) the scope of “trafficking” 1s note le imports ond exports.] : Action’ that do niefrelate to an infringement, such as the pure traf Rebels 1 US] {CANS Peles Option U 3, ‘Bach Party shall provide for criminal procedures and penalties to be applied [J: in accordance with its laws and regulations,] against any person who, without authorization of the holder of copyright or related rights in a motion picture or other audiovisual work, 3 For purposes ofthis Section, the term licit label shall mean a genuine certificate, licensing document, registtion card, or similar labeling component that is used by the right holder to verify that an item described in subparagraph (a) is not counterfeit or infringing of any copyright, and that is, without the authorization of the copyrht ewner, distributed or intended for distribution nt in connection with the copy, phonorecord, er work fof visual art to vhich such labeling component was intended to be affixed by the respective right holder. 20 JAPAN-U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red knowingly [US: uses an audiovisual recording device to transmit or make] [J: makes] @ copy of [J:, or transmits to the public] the motion picture or other audiovisual work, or any part thereof, from a performance of the motion picture or other audiovisual work in a motion picture exhibition facility open to the public. [AUS, CH, NZ: This Article should be deleted ] [MK: The term “knowingly” should be deleted, and the term “transmit” should be clarified. = Its suffictent 10 sanction the fact that a person copies a motion picture or ary other ‘audiovisual work without authorization of the holder with financial gain nowwithstanding spesife circumstances such as the way or place (motion picture exhibtion facitisy open 30 public) snggeste fo delete the wor hout authorization of the holder and freer ig “knowingly” stice any copy or reproductions of gat ial gain HAS TORR Ay Delete US, “uses cm aucoviszal recording device io troxisiit or wthe, + Delete J “ironsmits to the public = Replace “motion picture or other cauitovisual work, bow Reflect the cauth > Delete “or rei sah of Brecatre maneager nts] fie waacler exasninetion.] Apricte 2.15; CRIMINAL LIABILITY AND PENALTIES Further to Article 2.14.1, each Party shall provide penalties (Can: available] that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterent to future acts of infringement, consistent with @policy of removing the monetary incentive of the inftinger.™ aoures as miey be necessary, consistent with its legal ry of legal persons for the offences referred to in Articlel. witiciples of the Party, the liability of legal persons may be criminal Gi) Subje or non of the natural persons PENCTEING, AIDING AND ABETTING cred toin Article 1 206 (Option US: Negotiator’s Note: Consistent with Article 2,15 , a provision will be included in the Enforcement Practices Section of this Agreement providing that each Party stall encourage its competent authorities to impose penaltics at levels sufficient to provide a deterent to future infringements, including imposition of actual terms of imprisonment. {4US, CAN: This Negotiator’s Note should be deleted] 21 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Goverment Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red 2c. PENALTIES AND SANCTIONS (i) For the offences referred to in Article 1, each Party shall provide for effective, proportionate and dissuasive penalties. The available penalties shall include imprisonment and monetary fines. (1) (1) Negotiator's note: This does not imply an obligation for a Party to provide for the courts a possibility to impose both penalties in parallel. {i) For legal persons held fiable under Article 2a, each Party shall provide for effective, , proportionate and dissuasive sanctions, including monetary sanctions. ] . Orrion 1 [US/S: Axnicte 2.16: Serzure, Forrerrure, anp DesTRUCTION Further to Article 2.14.1, each Party shall provide: », & Pe (a) that its [US/J: judicial authorities][MX: competent authorities] shall haye the authority to order the seizure of suspected counterfeit trademark goods |. INZ:, confusingly similar trademark goods] or pirated copyright goods, any related:materials-and implements used in the commission of the alleged offense, any documentary -evidence relevant to the alleged offense, and [AUS: at feast for serious offenses} any [J thier] assets derived from or obtained, directly or indirectly, through the infringiitg activity’...Bach Party shall provide that such orders need not individually identify the items that are subject to seizure, so long as they fall within specified categories in the relevant ordef.%, IMX: Hovw com the euthorities demonstrate that i from egal aciivites. 1 dis suggested to change “Jachoahuatleiptias” Resioompetent autherit cuttoritcs are the cvves who ordotegiciite of goods and the final destiatie iitlaied criminal investigaiions arb ahedealt with the judicial axthority + tthe case of Mexico concerti pirated pt counter ite ots can not be subject of an auction, therefore, the destractions Shall proceed. - Delete “confusingly Sidiilar radebygek goods "] ee should relat “leach Party shall prow wh orders med not de ieney thea are subjeéct to sezuig in sibre detail than necesscry to allows drei wrambtguous identificoion for the poporiias BE seine] (MK: 2.16.1 fa} ared 26.0) 7214.2) ard (o} Jshautd include “competent authorities” ‘ceqyaSiugh similar wademark goods" J ify thea this paragraph appites to te investigation stage for purposes of sagets Pees cache: asirative ermine the (6), [AUS/CAN: at least for serious o'¥ences) that ts judicial authorities shall have the authority to order the forfeiture [NZ: to the State] of the assets derived from or obtained, directly or indirectly, through the infringing activity’, and S Bach Party may provide that its judicial anthorities have the authority to order (CAN: fines or] the seizure of assets the value of which corresponds to that of such assets derived from or obtained, directly or indirectly, through the infringing activity. © Each Party may provide that its judicial authorities have the authority to order the forfeiture of assets the vale of which corresponds to that of such assets derived from or obiained, directly or indirectly, through the infringing activity. 22, JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in-Red (©) thatits judicial or other competent authorities shall [J/AUS/NZ/CHICAN: have the authority to] [US: , except in exceptional cases,] order: (@ the forfeirure [NZ: to the right holder] and [NZ: and or] destruction of all counterfeit trademark goods [J/NZ-, confusingly similar trademark ‘200ds] or pirated copyright goods [US:, and any articles consisting of a counterfeit mark]; and (MEX: deiete (ii) the forfeiture [NZ: to the right holder or] [JIAUS: and] [US/KOR/CH/CAN: o*] destruction of materials and iny have been [CAN: predominantly] used in the creati trademark goods [J/NZ:, confusingly simailar pirated copyright goods. (Can: In consideriag, su for proportionality between the seriousness of the remedias ordered as well as the interests ofthe thigd par taken into acount] 2.16 para. (oj does 19h rademark goods, {J: confust shave been forfeited under oh, be di [J/CHL: Bach Past goods} (CAN, NZ, KOR: Delete 0 je that [NZi: any] forfeiture [USIJ: and] (NZ: or] destruction Each Party shall further pro ‘without compensation of any kind to the defendant.] under this paragraph shall SIZURE, FORFEITURE/CONFISCATION AND in Article 1, each Party shail provide thatits compeient i a the seizure of suspected it trademark d copyright goods, any rela sid implements ased in Fence, documentary evidence relevant to the alleged offence and ed directly or indirectly through the infringing activity (i) Each Party shall, ifa prerequisite for such an order, according to its national law, is the identification of the items, ensure that the order need not determine the items that are subject to scimure in more detail than necessary to allow their identification for the purpose of the seizure. 2B JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL, Comments in Green; Additions in Blue; Deletions-in-Red 3b, FORFEITURE/CONFISCATION and 3c. DESTRUCTION (i) For the offences referred to in Article 1, each Party shall provide that its competent authorities shall have the authority to order confiscation/forfeiture and/or destruction of all counterfeit trademark goods or pirated copyright goods, of materials and implements (predominantly) (J) used in the creation of counterfeit trademark goods or pirated copyright goods, of the assets derived from, or obtained directly or indirectly, through the infringing activity (1) The position of the Member States of EU on the inclusion/deletion in the text of this word is stiff wieder examination. f ensure that the counterfeit trademark goods and pirated have been confiscated/ forfeited under this subparagraph shall, if not ‘sposed of oviside the channels of commerce, under the condition that Uhe goods at health and security of persons. ’ confiseation/forfeiture anil dey ni of any kind of th [W/CH/MX/NZ: competent] authorities may act upon on} [AUS/MX/NZ: investigation tion][ (MX: tn Artic the ex ig "portant to bear in go nes are indéerted by req RTICLE 5. RIGHTS OF THE DEFENDANT AND THIRD PARTIES Ham shall engure thatthe rights of the defendants and third parties shati be duly protedted and guaranteed. ] Section 4: Special Measures Related to Technological Enforcement Means and the Internet [USVAUS : Axricte [2.17] (MX: 2.18}: Exrorcemeyr Procepures in rae Diora, ENvonwenr [CAN: Expressed concem with disparity between section title and scope of content of 24 JAPAN ~ U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as, U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL, itions in Blue; Deletions-in-Red Comments in Green; Adi section] [J: The title should be decided after the completion of the substantive discussion.] 1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil ‘and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of [US: trademark (AUS: infiingement}, copyright or related rights][{J/EU: intellectual property rights} infringement which takes place [US: by, means of the Internet][EU: in the digital environment] , including [US: expeditious remedies] [MX: measures] to prevent [US/EU: infringement and remedies which constitute a detgrent |” (EU:"}to further inftingement][MX: or deter such infringements. [EU: Those tr procedures and remedies shafi also de fair and proportionate.) [CHL Switzerland understands that in Para. | the terme “expeditious fanguage used in Article 41 of the TRIPS Agreement ané that, accord measures (preliminazy/interlocutory injunctions) avail “oxpeditios remedies” unler this provision.) fevisional are considered ification of the scope of “related rights” (# Criminal aad Civil Enforcement Chapters). Tais holds fora this section.] 4 Pt However, it be noted that teademark, copyright or related rights ement which takes place by means of id copyright or [J: Japan supposts overall concept of Paragrap! infringement of intelice sty rights offer on the Iniemet is also obieig:. Thus, inf 2 Internet should not be Limited to thablof ttadémar [RU: ses identical Section 1 °C Section 3 *Crinsinal Enforcement”. Agaggestion is to move these provi setion A witich applies todh@yhole Agreement, Direct reference to TRIPS mi clarify the scope of tition: 2. Without prejudice to the rights, limitations, exceptions, or defenses to [{J: patent, industrial design, trademark and}{US. copyright or related rights}][EU: intellectuat property ghis] infringement available under its law, including with respect to the issue of exhaustion of rights, each Party [US: confirms that] [CH shell provide for] [US/J: civil remedies (J:"}] AMX: admitiistfative, civil or penal actions], as well as limitations, exceptions, or defenses swith respect to the application of such [US: remedies][MX: actions], are available in its legal systentviti cases of third party liability” for [{J: patent, industrial design, trademark and} {US 2 [EU: For the purpose of this section, the term deterent isto be understood in accordance with Parties legal system 22 (3: Forthe purposes ofthis peragraph, “civ remedies” shall mean both damages and injunctions or either one of thess] » For greater certainty, the Parties understand that third party liability [{US: means}{ AUS/NZ: may include} liability for any person who authorizes for adirect financial benefit, (US: induces through or by conduct directed to promoting} {CH induces an} infringement, or knowingly and materially aids any act of {US: 25 JAPAN - U.S, JOINT PROPOSAL, This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in Rect copyright or related sights}][EU: intellectual property rights] infringement a [Jz Japan basically supports Paragraph 2 but would like to confirm or propose the matters, below: a orevil remedics....are available” will be implemented if 2 Party at least makes available cither damages of injunctions. In other words, a Party is not obliged to make both damages and injunctions available. Infringement of rights to patent, industrial design and trademark by third partes s also a serious problem, so Japan proposes a reference to these rights. = Tfdhis paragraph is to be moved to the Civit Enforcer , the questic this provision should be located in the Civil Enforeement Section sho considered since the original US proposal refers :0 copyright or xalated rightgy1 ite ‘Civil Enforcement Soction basically doas not fimit its scope. ] 8 on § ae 3 [US: Each Party recognize that some persons™ use the services of third parties, including online service providers,® for engaging in copyright or re ted. rights infringement. Fach Party also recognizes that legal uncertainty with respect to appl ication of (US: Copyright or related rights} (J: copyeightoreelnted rights} infringement by‘anotber] [EU: refer tothe concept fof holding other persons cher than the achat infringe Hable for ‘their inGélverttet in the infringement.) [US: Further, the Parties also understand that ‘the application of third party bility may include consideration of ‘exceptions of limitations fo exclusive rights tat are confined’ ceftdin special cases that do not conflict with a normal exploitation of the {EU: service o¢ of the procuct o “pase copyright af the} work, performance ‘or phonogram, and do not unreasonably prejudice the legit ntereats ofthe right holder, {US: including fair use, fair dealing, or their equivalents. } (EU: ineluding fete _faudealing.-o-theieequivatents)} }[J: Buethor- the Parties alse-vandorstand thatthe: application of shire parts-Habitiiy ney include coasiderador-eFoweptionser limsitationste-exolusive rights that are confined 10 eotiinapecial iiai-donctconfistwith-e-rome! oxpleitetion-of dhe- wert performance o phonogreme and donot ‘gnveasonably-prejadice the legitimate intorests ofthe-right holder iackiding fairuse, fairdedt ig,ortheitequivalents. } indihe practical difference berween dhe two cases of induvement, appreciated o cases of indaceraeat sarification i requested re ge throagtvor by condnet™? Case examples would zag raileciéd save} to delete this part and to ref apstance intext, Canada vecks clarification of the cecond part, Sentero spent 10 substance a text) [J: The GrotSeptence of ors to 'threestop test” ar Japan understands this vale is important, however, the clase “hre-s.ep test applies to cnpytieht, white the soope of Paragraps 2 should che rights, in addition, aking reference to a specific legisaton of a epocific 1 2 Negoistor’s Note: This provision is intended tobe moved and locate in the civil enforcement seth (aus: ease position on this negotiators nae and the placement ofthe current 2.17.1 uni the civil and digital ‘enforcement sections of Chapter Two are nearing completion] The oy seater {1U: supports Footnote 23 to move and locate paragraph? inthe civil enforcement secon] % For purposes of this Article, person means @ natural person or (US: an enterprise](CH/J/EU: a legal person], [MK Person is already defined in Article 1 asa “natural person or juridical person” so this definition is not necessary here} 26 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in-Red intellectual property rights} (AUS: copyright and related rights}, limitations, exceptions, and defenses in the digital environment may present barriers to the economic growth of, and opportunities in, electronic commerce. Accordingly, in order to facilitate the continued development of an industry engaged in providing information services online while also ensuring that measures to take adequate and effective action against copyright or related rights infringement are available and reasonable, (MX: in its legal remedies }] [EU: (a) In this respect] each Party [US: shall [EU:")[CH: may]: (CH: Switzerland considers thet cramendory Provision (stall) eeetig for limitations of Hability for ISP ca national le proposed alternative wo di obliging them to do 80] INZ: The second and third seniences of Article 2.17.3 use preamb bbe more appropriate in the agreement’ s initial provisions. In the third sentence of Article 2.17.3 the words “ia order to jacifidje the continued developmen of an industry engaging in providing informationpservidesonline® provide ax imespretive gloss on Article 2.17.3 which appears to go beyoad:the general aim of ACTA to provide a teamowork for the enforcement of intellectual property. ri esing moving 1* and 2% sentencéof Paragraph 3 to the preamble ofthe [J: ft is worth con: lanation te be m oie has ACTA) Agreement or a political (a) provide limitations”*‘¢n.the [US: scope of civil remedies available against an][EU: 0 = Scop on thi ice provider[EU:s] for infringing activities that occur by For purposes of this Article, online service provider and provider mean a provider of online services or network access, or the operators of facilities therefore, and includes an entity offering the transmission, routing, or providing of connestions for digital cnline communications, between or among points specified by a user, of mates ofthe users ¢hoosing, without modification to te content ofthe material as sent o ecived (CAN: Sraniiiyg scopt bt enitientoo") f Yonliné service provider” inchudes a person whts hosts matenal on systems that can be accessed by & user] (Bit is Wacteas hale te defini vivebsites or other Siecstonic re dha eds to consider further whethior this footots fs acoertable] (EU: The activities covered in paragraph 3(aXi) cover the mere conduit andthe activities covered in paragraph 3(a)(i) cover respectively caching and hosting in accordance with parties legal systems.] For greater certainty, the Parties understand that the failure of an online service provider's conduct to qualify {for a limitation of liability under its measures implemeating this provision shall not bear adversely upon the consideration of a defense by the [US: service provider][J: provider] that the (US: service][J: service] provider's conduct is not infringing or any other defense. 2 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as, ‘US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletions-in Red (@ automatic technical processes, (US: and][EU: of] [MX: Define automatic technical processes] (i) the actions of the provider’ s users that are [US: not directed or] [EU: not-directed] initiated [EU: nor modified] by that provider and when the provider does not select the material, [US: and][EU: or] (ii) (US: the provider referring or linking users to an online location, ] [EU: the storage of information provided by the recipient of the service orat the request of the recipient of the service,] when, in cases of subparagraphs (ii) and (ii), the provider does not havéactu knowledge of the infringement and is not aware of facts or circumstance which infringing activity is apparent; and [EU: when exarcising the activities as stipulated in. pat (i) the online service providers act expeditiously. in secordance with apalicable fea r inging material or infringing activity upon obtaining actual knowledge ofthe infingement ofthe fact thatthe information athe itil Source has been removed or disabled} mation location tools 0 of information ioeation tools § provision of such tools, nation on the seed to Brovide such ¢ safe harbour.) such as search en brea PY We would welco 5, It is not clear how: the prov ot why third party liability st onie fisrther exp! Ornox | (US: (b) condition the application of following requiremeits:,. () _ aw ohline servige provider adopting and reasonably implementing a policy”-to address the unguthorized storage or transmission of materials protected by copyright or related rights [US: except that no Party may condition the limitations in subparagraph (a) on the online srvice provider’s monitoring its services or affirmatively seeking, facts-indicating-thatinfriaging-activity-is occurring], and ion, New Zealand can, ribioe ramet el "preventing a party 10 ACT. conditon ag ee harbours on an online service provider Saniloing vis services oF affirmatively seeking facts indicating that infringing activity is occurring”) ® An example of such a policy is providing for the termination in appropriste circumstances of subscriptions {US: aud][AUS:or] accounts on the service provider's system or network of repeat infringers. J: The present legislation of Japan does not require an ISP to acopt and implement a “policy,” so Japan is now ‘examining how to adjust Footnote (6) to Japanese legislation or vice versa. | 28 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as ‘US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ions in Blue; Deletions in-Red Comments in Green; Addi (i) an online service provider expeditiously removing or disabling access to material or (US: activity][MX: alleged infringement], upon receipt [US: of legally sufficient notice of alleged infringement, ][MX: of an order from a competent authority] and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of mistake or misidentification, except that the provisions of (ii) shall notbe applied to the extent that the. online service provider is acting solely as a conduit for transmissions throu; its system or network.] nd 2.178 GSR. nfprigersent party abi ture prestised¢ [CAN: Relationship is unclear between 2.17.2 ¢ Emvkation on liability), Seek clarification if paragmph 3 of ISPs] Orniox 2: [EU Paragraph 3(2) shall not affect the possibility for a judicial Gradministrative authority, in accordance with the Parties legal system, requirifiy. thewservice provider to terminate or prevent an infiingement, nor does i affect the possibility ne parties establishi procedures governing the removal or disabling of When providers are acting accor general monitoring requirement] 4 iy? Ornion 3 [J: 0) if a Party ‘dogs nor adopt the measures under sabparagraphs (a) and (b), such Party shall gusure that civil remedies to compensate for damages are available against oliline service provider whe does not take appropriate measures such as‘vevtoving or disabling access to material or activity to prevent copyright.onrelated rights infringement initiated by its users only when: (@y it is technically possible to take measures for preventing the infringement, and ‘\. (i)__ the provider knows or there is a reasonable ground to know j that the infringement is occurring. is, “Wich Party shall not impose general obligation on online service providers to eaularly monitor its service or affirmatively seek facts indicating infringing acti basis in order io claim the application of the provision oa limit patagraph 3(a) or (b). 3 ‘er. Each Party shall enable right holders, who have given effective notification to an online service provider of materials that they claim with valid reasons to be infringing their copyright or related rights, to expeditiously obtain from that provider information on the identity of the relevant subscriber. 3 quater. Each Party shall promote the development of mutually supportive relationships 29 JAPAN - U.S, JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in- Red between online service providers and right holders to deal effectively with patent, industrial design, trademark and copyright or related rights infringement which takes place by means of the Internet, including the encouragement of establishing guidelines for the actions which should be taken. ]] [J: The current paragraph 3 proposed by the US is not consistent with Japanese legislation. Provisional texts shown here are still under examination. Further, the ISP Act of Japan provides the limitation oa the scope of the ISPs’ ligbifity under certain circumstances but the Act limits tho scope of civil damages on ISP Act mentions nothing about avaitabi decide whether the injunction order should be issued on case by ease basis The ISP Act of Japan does not catege into “conduit, others, In addition, the Act denies civil liabilities for ISP: (2) itis tecksically impossible for ax ISP to wk information, or ()) an ISP does not know and does not have a reasonable grout activity is occurring, cating the conditions described in subparagraphs (Gand BEN oF US proposal are not ied under the ISP Act of Japan. However, adoptingend rgsonably implementing a y orremoving material upon reveipt of notice madtbe nsideration when condition (a) or (b) above iatiet, Therefore, there isa difference en the structure of the present ACTA draft P Act of Japan ‘Thus, Japan indicates a revision to paragraph,’ ‘The Hie sentences are added or modified by Japan to show clearly the difference vetwer ‘preseitt ACTA draft and the ISP Act of Japan. 's decide whe Japan would like to clarify“eeher ha ISP in the Party's national law, compared ithe cose text, will be regarded as a Rigger implementation of th ions eels in the present ACTA is paragraph or not} Orrion 1 4, [US:In implenening ‘Article 11 of the WIPO Copyright Treaty and Article 18 of the WIPO Performances ard Ponograms Treaty regarding] [CAN/JIE: Iinplementing Avice Performencesetid Phonogranis-Preaty tending] [AUS: In order to provide][ EU: Each Party shall provide] adequate legal protection [US: and effective legal remedies [EU: and-oftective-legat rortedies) ageinst the circumvention of effective technological measures that are used by authots, petforiners or producers of phonograms (CH: or any other copyright owner or owner of af exclisive license) in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, [US: each Perty shall provide for civil remedies, as well as criminal penalties} [EU: each for-eivil-remedies--as-well-as-criminel-penalties] in appropriate cases of willful conduct [EU:”}, that apply to: {[EU: For the purpose of this Article, willful conduct means actual knowledge or reasonable grounds to know that he or she is pursuing the objective of circumventing any effective technological measure. 30 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in-Red (@) the unauthorized circumvention of an effective technological measure” (US: that controls access to a protected work, performance, or phonogram] [EU: thet controls-access-to-a protected-work, performance-er-phonegram]; and (0) the manufacture, importation, or circulation ofa technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure. (EU: 4.2 Each Party may provide for measures which would safeguard the benefit of @értain exceptions and limitations 10 copyright and related rights, in accordance with itdegistation.] reflects a desir Opriox 2 [3 4, Each Party shall provide for civil remedies that apply to: (a) the importation, assignment, delivery of () device (including 2 machine incorporating such dévice}ar: (ii) data storage media or a machine on which a program having sole function of circumventing an effective technological measiite is'stored; or (®) the provision through an electric felecommunication line, of a program having sole function of circumventing an effective technological meagure! |” [J: Japan understands that the WIPO treaties do not require the Parties to iniplement the restriction on.cizcumyentivmnot acceds,comrol. Ths, making reference to the WIPO treaties is inappropriate ° The Copyright Act and, nie’Competition Prevention Act of Japan restrict ciroumvention of eflfeelivetectiiioiogical measures under ceriain conditions (The Co; Act does not restrichcitGurvention of access control). However, these Laws dg NOT provide: - a ipstridtion of ation of access contro strictidy, on manufacture, importation and circulation of « technology for “eixcuinyention of access control, %, 2 fastnciiet on importation or circulation of services for circumvention of access control, .festrfction on manufacture of devices for circumvention of access control, and iininal penaities for cireamvention of access contzol or any related acts, such 25 3 For the purposes of this Article, effective technological measure means any technology, device, or component that, in the normal course of its operation, [US: controls access to protosted work, performance, phonogram, or protects any copyright or any rights related to copyrights. ][EU: is controlled by the right holders through application of an 2ccess control or protection process such as encryption, scrambling, or other transformation of their works, performances or phonograms, ora copy control mechanism, which achieves the protection objective.] |W: Japan needs to consider further whether footnote [31] is acceptable.) 31 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information (0 be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletionsin-Red manufacturing of or trafficking in devices for circumvention of access control ‘Therefore, Japan is now examining how to fix the difference between its legislation and present ACTA draft, with due regard to maintaining a balance between the rights of authors and the larger public interest, e.g. education, research, and cannot provide definitive comments on Paragraph 4 at this time. Japan reserves the right to make further comments on Paragraph 4. circumvention legislation, That is, a simvention of access conic, how effect he fegal remedy against the circumvention of access control was (e.g, shrinkage of hari tnumber of litigation cases, what Kind of major actions were ceasod in. terms of gop sat protection perspective). ] yp & Ph [5. Each Party shall provide (US: that a ] [EU: ectiotbagainst 2 J violation of a measure implementing paragraph (4) [US: is a separate civil’or criminal offense,] [EU: is-a-separate-civil-or eriminal-offense,] independent of any infringement of copyright or related rights.”* Further, [US: each Party may adopt, exceptions and limitations raph 1} so long as they do not significantly impair the adequacy of legal protection of those measures or the effectiveness of legal remedies for violations of those measures. |[EU! each Party may provide for measures sould safeguard the benefit of cenain éeplionSand limitations to copyright and related rights, in accordance ¥ Sasl0t require any pany to ACTA toes ince thase measures are uased by ‘of their copyrights”, Switzerland provides only for ide an exemption from any liability arising nd understands ther Paras one set of exceptions ax from criminal prosecution 9 such ures] ity inconsistent the objective of ACTA t0 establish standards for the enforcement of inteflectual (US: The] [EI Jn accordance with (he applicable natioral legislation, thelobligations in paragraphs (4) and Oy [US: 2 ‘are][EU: igay be] without prejudice to the rights, limitations, exceptions, or defenses to copyright or rebited righs infringement. Further, (US: in implementing paragraph (4), no Party may][U: parogopt (1) does nok imply aAy obligation to require that the design of, or the design and sclection of parts and components fot, consumer elecironics, telecommunications, or computing product provide fora response to any particular technological measure so long as the product does not otherwise violate any measures implementing paregraph o [CAN: clarification of relationship of exceptions to access control measures.) {J Japan reserves its position on Footnote (8) because the acceptability of this Footnote depends on the scope of Paragraph 4, The cusreat legislation of Japan does not mandate devices to respond to any particular technological measure. | ® Negotiator’s Note: This provision is subject to broader government action/severeign immunity provision ‘elsewhere in the Agreement, 32 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red property rights and the ACTA discussion paper. In particular, we note that the discussion paper only refers to parties providing “remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices.” New Zealand does not support protection being mandated against circumvention of TEMS where the underlying work is not protected by copyright. In particular, we do not support protection against circumvention of access control TPMs because access control is not an exclusive right given to copyright owners ] UJ: Japan accepts the concept of the first sextence of liability for the inftingement of c or related rights and the eircurvento ‘other, Japan seserves its, po 1 as” since we vould like to examine those phras protection in paregraph 4 and new paragraph 42] criminal penal oitEU adequate egal ‘prétection to protect electron s management information] in appropriate cases of willful [EU:*] conduct, that apply to any person performing any of the folléwing actsknowing [J: or with respect to civil remedies having reasonable grounds to know] that it will induce, enable, facilitate, or conceal an infringement of any copyright or related tight [F: covered by the treaties above: (a) to remove oF 1sSFany [AUS/J/EU: electionic] right management information” 6) tod rite import for distribution, broadcast, communicate, or make available to the public [J: widhout authority}, copies of works, performances, or phonograms, * peu: Of this Article, wilfel oonduct means knowingly performing widiootavthoriy any of she Telowi ed under sebparagmph 6 (a} 0 (}, sf ench porsoa knows or has reasonable grounds 10 asby so doing he is inducing, cmabling,facliating, or concealing an infringement of any copyright or evright] Re pp know the a For purposes of this Article, [J: electronic] rights management information meaas: (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: (0) information about the terms and conditions of the use of the work, performance, or phonogram:; or (© any aumbers oc codes that represent such information, ‘when any of these items is attached to a copy of the work, performance, or phonogram or appears in connection ‘with the communicator or making available of a work, performance, or phonogram to the public 33 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S, CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Cominents in Green; Additions in Blue; Deletions in-Red knowing that [AUS/J/BU; electronic]rights management information has been removed or altered without authority. BU: 6.2 Each Party may adopt appropriate exceptions to the requirements of subparagraphs (a) and.(b)] [J The word “electronic” should be inserted before “rights management information” in paragraph 6 because WIPO treaties explicitly confine the Contracting party's obligations concerning RMI to prov! inst removing or altering electronic RMI, and other acts with the know (7 subparagraphs (a) and (b) of paragraph (6) (J: so log as adequacy of legal protection or effectiveness of leg: the requirements of ignificently impai in the performance, the perford rhe prodacer of a phe ‘ to confirm that exceptions to she req ermissible but they should not impair the adequacy of ph 6.) Aragraph 6, io the sanse line as we did for paragraphs 4 and 5.) Cuarrer THREE Inrernattovat. Coopers tion en proposals ceded the ise the kind of fbr the submission shes information exchange and in one of the is stipulated for "s odjectives it would not be ofit] Article 3.1: International Enforcement Cooperation 1. Each Party recognizes that international [J:enforcement]. [CAN: enforcement] cooperation [US/N/Can: is vital {US/J-to realize {J: fully} {US: Selly} effective protection of intellectual property rights) (CAN: in order to deal with the increasingly global problem of 34 JAPAN — U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-inRed the trade in counterfeit and pirated goods}] [Sing: plays an important role in the protection of copyright and trademark rights]and should be [J: undertaken] [US: encouraged] regardless of the origin of the infringing goods or the location [US: or nationality] of the right holder [J: of the intellectual property rights][CAN: ef the intellectual property-sights]. 2, In order to combat [J: intellectual property right infringement, in particular, ] [Sing: intellectual property-right infringement, in-particular, ] trademark counterfeiting and copyright piracy, [EU: in-particulas-tradensarie sounterfelting-and-cepyright piracy] each Party shall promote (Sing: shall-promote may, as it deems appropriate, ] cooperation [CAN; measures, wh propriate,] among the [NZ: relevant] competent authorities of the Paftié: [J; concerned with] [AUS/CH/US/MOR: responsible for] enforcement of intellectual” “ property rights [Sing: « i ss (US: prosecution [J concerning] [CAN: [J: border measures] [CAN: cooporation at the border], [J: which may.be, erally) [US: which-may-be- conducted bilaterally-or- multilaterally], [EU: of IPR infringing ‘gods detriment: 3. Bach Party [J: shall][US: may], consistent with the, |[AUS/CH/US/MOR: existing] [US: domestic law and policy and the] [Ji i jonal agreements and arrangements to which such Party is a party] (EU; cSasistent-sith-the-existing intemational agreements-and-rtangements-to-which-sveh-Pasty-is-¢ party], [J: conduct][CAN: undertake] enforcement cooperation [EU: foreseen] [U! ivities as provided] [AUS: international tion: as sot out Jin this Chapter [EU:,in liné‘with the international agreements may also conduct enforcement other intemational agreements. ic law and poli cooperation or provide assistan arrangements, and practices, and in, acéord ire any Party to dis ions, policies, legal practices and ig investigative regul ments and arrangements, including laws prot I apie: ‘or confidential information for law enforcement, or otherwise be } interests of ary to public int + would prejudice the leg: iar enterprises public or private] lerstand that obligations under this C 2 enforcement priorities of eack Article 3.2: Information Sharing, 1, [J:In order to ensure effective enforcement of the provisions of this Agreement,} [US/CAN: 3a ure effective enforcement of the provis his Agreement; each Party [{J: shall} (US: may} promote sharing or exchanging] [Sing: may, as it deems appropriate, share or exchange ] with other Parties [J:of the following information J[Sing: of the following-information][EU: as appropriate and mutually agreed): 35 JAPAN - USS. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as ‘US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletionsin-Red (a) information collected by the Party under provisions of Chapter 4, including statistical data and information on best practices including those relating to[J: risk analysis] [US: risk management]; and (b) information on {CAN: the} development [MOR: and implementation] of legislative and regulatory measures [J: of the] [CAN: by the] Party (US: related to the protection and enforcement of intellectual property rights] id For this purpose, the Parties shall endeavour to establish appropriate modalities including holding of periodical meetings. <3 [Sing: Delete subperagraph [Mor: Parties shall endeavor to establish an observatory as a tool for collec: [AUS/NZ/US: shis semtentce.] INEZ: Itis pre ticle ta be developed into a seperat nild apply “horizor bligetions peppered thro rovision wit ag transparency 2, Bach Party shall ensure, as appropriate and mutually agréed, [J: within the limits of {Sing ts} national legislation][US: consistent with its déttestit Jaws] , policies, [J: legal] [US: Jeget] practices, and applicable [J: existing][A US/U! :ing] international agreements and arrangements, [EU: within-the-limits-of.aatignabtegislation, policies,lepat practices, sd -applieable- exiting internat - : vents] that its competent authorities have the [J ability] [US: atthority} to provide the competent authorities of any other [J: Parties][US: Party], either on request or on its own initiative, with information [{J: necessary to ensure}{ NZ, to facilitate’ EU: to allow} a proper application of laws] [US: necessary to-enaure-propetapplication-of laws] conceming [CAN: application-oflaws egneersing]enforcement of initellectual property rights and to prevent, investigate, [J: and repress acts of intellectual propetty right infringements|[ US: or prosecute infringement of Intellectual property:siglits J {AUS: related to the enforcement of inteltectuat property rights] Articlé3°3: Capacity Building and Technicel Assistance 1. [EU: In order to facilitate the implementation of this Agreement or the accession thereto,] [J; Developed country] [AUS: Develeped-cowatey] Parties shall [AUS/CAN/CH/NZ/US: endeavour to] provide, on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance[J: in improving enforcement of intellectual property rights,] [CAN: focased on initiatives to combat the trade in counterfeit and pirated g00¢3} in favour of developing country Parties to this Agreement and (US: , where appropriate] (J: for third countries J[NZ: and-forthird-countries}: [US: for-third-countries- for 36 JAPAN - U.S. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red countries not a Party to this Agreement. ][EU: Parties shall make all reasonable efforts to ensure that such capacity building and technical assistance are compatible and do not overlap with similar activities provided by international orgenizations active in the field of intellectual property.] [Sing: The provision of assistance under this Article and Articles 3.3.2 and 3.3.3 is subject to the availability of resources on the part of the donor Party.] 2. For the purpose of paragraph 1, [J: developed country][AUS: developed-country Parties shall (Sing: , at the request of developing country Pasties and on mutually agreed terms and sis, ] work closely with [J: developing country] [AUS: other Parties [US: and, appropriate, countries not a Party to this Agreement or separate customs terrkories, enact] [EU: implement and to ] or strengthen their (J: domestic] [US: nati as appropriate, and [CAN: . domvest i and Jassist them in improving their nati through sharing best practices concerning intellectual property law enfore providing relevant technical training for enforcement officials. Ul the nature/sco cits postsion on this Article td 3. [J Developed country} { AUS/EU: Beveloped-country }{MX: Developed and feveloping country} Parties] [US: Each Party] mayix the obligations under this Article in conjunction with relevant private sector or al organizations, [Mor: 4. Parties shall put in place a special allocation Fund to finance ACTA initiatives on capacity building and technical assistance]. [Mon: Parties shall, in the intplementatién:and administration of this Agreement, take into account developing countries n “the field of financing and technical assistance. In this respect, States Parties to reement agree: (a) To support, developing counties efforts, for the implementation of the Agreement and the integration of anti-counterfeititig and anti-hacking actions in national development strategies. This assistance shall bé-designed to help developing countries to harmonize their laws, to carry out their obligations ‘and to exercise their rights as Members. sure predictable and sustainable financing. -(e) Tépromioté coordination of technical assistance activities with the bilateral donors, WTO iat, WIPO as well as with other relevant international intergoveramental institutions (d) States Parties shall review annually the implementation of this Article]. [Mon: 5, State parties shall endeavour to provide technical assistance in the following areas: (@) Promoting the culture of intellectual property. 37 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Goverament Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red (b) Training professionals in charge of the protection of the rightholders involved in the protection of intellectual Property (© Capacity building and experience sharing among institutions in charge of fighting counterfeiting and piracy. (@ Tools for measuring the economic impect of counterfeiting on the market and evaluating the anti counterfeiting and anti-hacking actions. (©) Conduicting joint operations at the regional and international levels. (0 Enforcement of laws regarding fighting counterfeiting and piracy trough the Internet. Technical assistance shall be extended to all other types of actions’, implementation and the epplicability of the ACTA Agreement]. Cuarter Four Enrorcesent Practices Article 4,1: Enforcement Expertise, Information and Doms at stual. property rights] [Sing/NZ: ie] [Sing: promote] effective specialize ecning the fifringement of intellectual property rights.] [AUS: Reserve its positionohethis article.] 2. Bach Party shall a lection and analysis of] [Sing: endeavor to collect] statistical deta and.other{J: rélevant] [Sing: relevant] information (Sing: , which such Party determings.is ‘elevant,] [J: concerning infringement of intellectual property rights {Sing: within its tersitory}, especially] [CAN/NZ: infringeraent-of intellectual property right: espesiiily] trade in counterfeit trademark goods and pirated copyright goods [EU: -espacially- sa counterfei-vader s-and-pirated-copysight goods]. Each Party shall [J further] [US»further ] promote collection of information on best practices to prevent and coinbat [J; intellectual property right infringement] [CAN: trademark counterfeiting and copyright piracy]. (Sing: -especialiy-te cademark-goods-and-pirated copytightgoods-Eash Party-shall-fusthor promote collection-of-information on o-pre 2 ellectua ie gement] 3. Bach Party shall (Sing: , as it deems appropriate] [US: , as appropriatc,] [J: endeavour to enhance] [US: promote] internal coordination among, [J: and facilitate joint actions by] [US/ CAN, and-facilitate joint-actions by], [Sing: such Party's] [US: the] competent authorities [J: concerned with |[US: responsible for] enforcement of intellectual property rights [J: through an appropriate coordinating (J: body} (EU: bodies) or other relevant mechanisms] [Sing: 38 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as US, CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red through-an-apprepriate coordinating. body-or other-relevant- mechanisms ]. 4. [J:In order to promote effective enforcement of intellectual property rights,] [US/CAN: In order to promote effective enforcement of intellectual property-rights, jeach Party shall [Sing: , as it deems appropriate] [J: endeavour to encourage|[EU: eadeavour-to-encourage | [US: promote] [US/EU: the] establishment and maintenance of formal or informal mechanisms, [US: as appropriate,] such as public and/or private advisory groups, whereby competent authorities may hear [US: the views of] right holders and other relevant stakeholders [J: where appropriate] [US/LU: wwhereapproprite)[Sing: encourage lish 4 1, s public ise ree eae rear meg Sears soe relevant stakeholders where-appropiate-foster dialogue and information excha : shareholders in its territory] . INZ: Reserve its position on this paragraph] Article 4.2: Management of Risk at Border Each Party shall adopt and maintain appropriate measures that Hie activities of custom g00d8 or pirated copyright goods] [EU: go. activities may include,[J: subject to paragraph 2 of Article 3.2] [EU: Clause in article 3.4 is applicable} @) contact with relevant stakeholders and, risks; ‘ (b) exchanging available data with custom authorities of other Parties regarding significant seizures of [J: counterfeit“and, pirated] EU: inftinging] goods by customs, wherever possible; and (©) sharing information with custom authorities of other Parties on approaches that are developed to provide greater effectiveness in targeting shipments that could contain [J: counterfeit and pir infringing] goods. 1gvant authorities to identify and address (US: 1. To better identify, and target shipments for inspection that are suspected to contain counterfeit trademark goods or pirated copyright goods, each Pany may: responsible for Lioils.to mitigate those risks; (b) tihen propriate, exchange data with border authorities of other Pa (©) share ation with border authorities of ot developed to provide greater e'Fectiveness in the border enforcement of intel property rights, including approaches for targeting shipments that could contain counterfeit and pirated goods. al 2. Each Party shall provide that its competent authorities may conduct audits of an importer’s business records, including methods of payment and purchase contracts, as, ‘well as its internal controls to track illicit financial gains and expose business practices related to trademark counterfeiting and copyright piracy.] 39 JAPAN - U.S. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in Red [KOR: Article 4.2 should be reviewed in relation to other proposal on Chapter 2 regarding Information Exchange between Customs Authorities. Article XX: Information Exchange between Cusioms Authorities If the customs authority of an importing party seizes counterfeit trademark goods or pirated goods to be imported, the party may request the customs authority of the exporting party to take proper measures to the exporters of the goods concerned. The requesting party shall provide information necessary for the identification of the goods concerned by the customs auuthority of the requested party.| proposal] on] Article 4.3: Transparency/Publication of Enforcement Procedures and Practici [CAN: Rese TMK : Move thi 163 position on US propos s paragraph to Boarder Mensur. Ornion 1 [J: 1. For the purpose of [J: further] [US: Seer] promoting trans administration of [US: the] intellectual property tight enforcement systém;-each Party shall take appropriate measures [US: pursuant to domestic laws [J: available] [US/CAN: evailable] to publish or make available to the Pal information [CAN: within a reasonable period of time] on: (@ procedures [EU: available] regarding the enfor including competent authorities for enforcement points for assistance to right holders, (b) relevant laws, regulations, [J: final judicial decisions J[EU: final judicial-decisions] and administrative rulings of general applicetion pertaining to enforcement of intellectual property rights; (Sing: ciclere sup vtagr ple} (©) applications [EU '8]for-the, suspension by the competent authorities of the release of goods | pe infringing intellectual property right] [US/CAN/CH: suspected counterfeit and of'intellectual property rights “intellectual property rights and contact Had may limit the possibility 1o publish applications g release of gob.) tiye][¥: intellecnial property protection system] [Sing intellectual property J including any [US: any] statistical data that the Party may collect.] in the administration of ita intellectual shall: strative rulings of general applicability pertaining to the enforcement of intellectual property rights shall be in writing and shall state any relevant findings of fact and the reasoning or the legal basis upon which the decisions are based. Each Party shall also provide that such decisions or rulings shall be published*** or otherwise made publicly available, in a national language in such a manner °S*(US : For greater certainty, a Party may satisfy the requirement in [Article 5.3] to publish a measure by ‘making it available to the public on the Internet. ] 40 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in-Red as to enable governments and interested persons to become acquainted with them. (©) identify in a manner readily available to the public, the competent authorities for intellectual property enforcement and contact points where right holders may seek assistance; (© [publish applications for the suspension by the competent authorities of the release of suspected counterfeit and pirated goods as @ border measure;] and (@)___ publicize information on its efforts to ensure effective enforcement of intellectual property rights in its domestic intellectual property rights system, includitit statistical information that the Party may collect for sach purposes. * ] ye Ornow 1 (JUS: 2. Nothing in this {J: Chapter and Chapter 3} {US: Agree Party to disclose {J: confidential} {US: eonSdential} information which would impede the enforcement of its laws and regulations, including laws protecting investigative techniques, right of privacy or confidential information for law enforcement, or otherwise be contrary to {US: its domestic Jaws xy, oF} the public interest, o vould i commercial interests of particular enterprises, publio.o . [BU: Move this paragragh to Cha [AUS: 2, Nothing in paragrap! information, or configendal information particular enterpsses, public orpryate) (NZ: itis N2's preference for this Ghtcfe to be developed into a separate general “Transparency” provision siti ACTA dai would apply “horizontally” across the Agreemen, raiher them having Dnsparency obligations peppered throughout individeal cheapters.] ne ngement of an intellectual property right, the judioial authorities may order, at the request of the applicant and at the expense of the inffinger, appropriate measures for the dissemination of the information concerning the includivg displaying the sata and publishing it in full or in part. Part yrovision fo otfier judicial and administrative procoedings.] (EU: 2. Incivil légal Anticla 44: Public Awareness Each Party shall [take {J:necessary} {CAN: necessary}{[Sing: such} {AUS: appropriate}] [US: promote the adoption of appropriate] measures [Sing: as it deems appropriate] to enhance] [NZ: will promote] [US/MKX: including educational projects, designed to raise] » (US: For greeter certainty, nothing in [this sub-paragraph] is intended to prescribe the type, format, and method of publication ofthe information a Party must publicize. 41 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreiz Government Information to be treated as US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red public awareness of the importance of [J: the protection of ][US: protecting] intellectual property rights and the detrimental effects of intellectual property right infringement, including educational [J: and dissemination] (CAN: and-dissemination] projects. [US/CAN/ MX: Such measures may include joint initiatives with the private sector. ] [EU: Article 4.5: Destruction of infringing goods In cases where confiscated goods found to be infringing intellectual property rights are to be destroyed, Parties shall endeavour to take environmental concerns into account when deciding on the destruction method. ] a (Cuarren Five INSTITUTIONAL, ARRANGEMENTS Ke BU The EU considers thes definitive decisions on tthe institusional, dire Of ACTA clearly should only be taken ence the substantive chapters of the agrger cht to defined. For this reason, the comments below are not final and the nuke additional proposals at a later stage of the negotiativn. U7 submits ther the fons with am existing ions of depository «ned ona the ene tes Asa general remark on the future institutional, adbvinisiration of the egreonent coxld be carr taternationsd organisation that ceald, at least pi secroiariol. Depending on whether or ot this object free of ACTA, the ELF will prowide alternative langage: v1 institutional issues Shonit reflect the outcome of discussion on mice of the ACTA, Theveford..te\ deiailof te conten should he discussed at ipletion of te discussion Of ths omments on this pesper are preliminary and we reserve Seexieht iynake r comanents dnd to request farther ner JAPAN - The content Kor effective implomentetigsPef the ACTA, the Parties shoukd weil discuss and agree what and how much firciions, shalt BE entrusted to «an institution, if cay, tauder the ACTA. The legal states and stractire’eg DH ins del Best fit such functions to be agreed by the Parties. cvoid teéessive burden of fineice on iaumon resources of the Parties, the ure of the ACTA should be as simple as possible. The provisions nol stractiore should be lemtext to such ay may be wily needed. bn oboe astidtignal 3 cosleemiig institut 5.3: Tis [CaN: oveastoutr] [MEX: Stexniso] [NZ: Comarres][AUS: Ovensior] 1. The [NZ: Contracting] Parties [Can: hereby establish][ [NZ: shall have a] the [Can Oversight][CH: ACTA] [MEX: Steering][AUS: oversight] Committee, comprising [{Can: representatives of} {SING/AUS: each of} the Parties] [NZ: one delegate from each Party who may be assisted by alternative delegates, advisors and exports.] SING ~ The proposed refinement seeks to clarify that each Party should be represented in the Oversight Committee. 42 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red AUS ~ Australia proposes that the Oversight Committee be comprised of representatives of ‘ll Parties, rather than being made up of representatives from a select set of Parties. NZ -New Zealand recommends deleting the term “oversight” from the name of the Committee to avoid any confusion as to the function or purpose of the Committee. ‘New Zealand also recommends that the provision clearly state the composition of each Party's delegation on the “Committee”. JAPAN -dopn can generally seppori the tlece to establish om institution for the ACTA “wltich consists of die representatives from the Parties. Japan can support the opinion de, “ommitiee” shod] comprise of represemoatives jrom all of the Parties buufaser’ Lis right to make further commonss on this Article tnchaling whether the institation shade nasied “the Oversight Copanittee”. te te KOREA ~ Xoree suppents Commitice i Peav ty 8 “the Committive”, The cesmposition of ch park's decision, Therefore. a specifie deseeiy atogguting fore Higa pratiby cach Hes On ee Ld be represented in the Committee is nut needed. MOR ' ~ Clarify the mocte of clesigrestion of Commitee ond its neeniboista = Movocea is in freer ofa Comnatice composed oftali Stale Rarbes ta the agreement. ~ Freiency of regutur sessions: Once ayear “ Convene spectad sessions if necessary re prgoeitted it the Comunittec. it woult be wihor dels concerning CH Buch Party 10 the Agreement shot cient to have this principle set onbin he Agredhent pariicipetion are not necessary. 2. The Committee shall: (@) supervise the ithplementation of this Agreement; [EU; including a periodic mutual eyeliation rocess of the implementation of the Agreement by the parties accorditig to the principles of equal treatment and a fair hearing.] (&) [Cam;oversee (Can: its} (CH: the} {US: the Agreement’s} further “elaboration [MEX: or development?] [CH: of this Agreement], [NZ: deal with ‘\._ mattets'conceming the amendment and development of this Agreement] while “ensuring that such{Can: elaboration)[NZ. development]does not duplicate s,_ other international efforts regarding the enforcement of intellectual property ds, "tights, “© (NZ: Delete sub-paragraph][Can: resolve] [AUS: facilitate the avoidance of] . disputes that may arise regarding [Can: its][CHL:the] interpretation or . application[EU:"”] (CH: of this Agreement], and (@ consider any other matter that may affect the operation of this Agreement AUS ~ [Australia proposes to replace all references in this Chapter to the ‘Committee "with the ‘Oversight Committee, ‘to avoid any confusion with committees established under Article 37 The application of this provision shall not conflict with the rules and implementation of the Dispue Settlement Understanding of the World Trade Organisation. 43 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletions-in-Red 5.1.3(@)?? [Australia’s written comment of 12/21/09 indicates that it does not support the use of the term “oversight”; however previous comment favors “oversight”. Need clarification. Australia also proposes that the Oversight Committee facilitate the avoidance of disputes, rather than attempt to resolve disputes by consensus. MEX —On (0): who will resoive disputes? Clarify scope. NZ-In order to clarify function (b) New Zealand recommends replacing the reference to “aversee its farther ekaborotion” with “deal with maners concerning the development an amendeent of the Agreement”. Purihurnore, we prefor that function (o} te deleted as Weg not see the Commnitice playing a rote in resolving disguues between Parties. ; As to the fenction of tke Conani on on the follosing pois: tails of wheat will bo expected sragraph (2); (2) what “elabvration” means xnker subparagraph (b}; stable “other mnustter” urader subparagraph. aie 6.4, paragrayh 1, how the Cononitiee wilt.be involved in amendments (2) invegard 10 Ark to the ACTA n iécossiem (Article 6.1: Becondng Party to 8 vaghe functions of the Coannittee. CH ~ Swi the Agreement) my also! 3, The Committee may: (a) [Can/US/CH/NZ/EU/MX: establish, [Can/US/NZ/MX: and delegate [NZ/ MX: tasks] lasks/fésponsibilities] to, ad hoc or standing committees [NZ: o¢ sanding esas) ‘working groups or [US: Government] experts groups;] [CHtto assist the Committee in accomplishing its tasks;][EU: a Tesk-Force to 2 undertake the monitoring and the evaluation of the Agreement, namely by \., reviewing the implementation of Parties' obligations, as defined in Article 5.1.2.2) and assisting candidate countries to join the Agreement. This Task- Force should consist of experts appointed by the Parties and agreed upon by ‘the Oversight Committee;] seek the advice of non-governmental persons or groups [MOR: from the State Parties]; [AUS: (Delete sub-paragraph) make recommendations regarding the implementation of the Agreement [EU: including endorsing best practice ‘guidelines for implementing the Agreement, identifying and monitoring techniques of piracy and counterfeiting and their evolution)];, @ assist non-Party governments in assessing the benefits of accession to the ‘Agreement [EU: and share information and best practices on reducing IPR infringements]; (© [NZ: Delete sub-paragraph) support international organizations in the 44 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as ‘US. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red enforcement of intellectual property rights;] and (8) take such other action in the exercise of its functions as the Parties may decide. AUS - Australia supports autonomous implementation of ACTA, and regards article 5.1.2(d) as providing the committee with adequate powers to review issues including implementation. NZ—New Zealand agrees with the Committee being able to be delegate tasks (o working or experi groups comprising elegates irom Parties to the Agreemen, The Comnsites should, fuoweven, rosin responsibilty for ensuring is ftion are carried ott . To avotd confusion bi caonmitiees”, the reference to “siemding committees” should perhaps be delete - New Zealand notes that white function th) condd alernadvely be prow the Committee ‘srules and procedures, our preference is for this provision to} its prosett fore: to highlight the Coninittea’s comenitrront to transpven ‘ + iri8 unciver whaai fanction (c} would cman and, therefore, the f be farther elaborated or perhaps sionply deleted. ci ven the role af “empert sroup dea Spader aph (a ced dhe role o jon-gewrernenent persons or groups” in subparaseaph Bp: (2) the meaning of “recormendations’ (3) the details of expected from “assistance” to be provi Cooperation Chepter (Articte 3 A an (4) what kind of “support” iceipoatthg Mia fons” under subparagraph (). Regarding she EU bracket in will be distinguished ternational yy new, and any changes te ‘he included in the information to be shared “tasks”. oni ri members of the Committee shall constitute 2 quorum.] cme Nokes a earentan 1 opely whet oRtates on ere Covmn laa 4, ‘The Conimittee shall [Can: establish its rules and procedures][CH: at its frst meeting Pits rulés"of procedures] [NZ: including rules for the convocation of extraordinary sessions]. All decisions of the Committee shall be taken by consensus, [CAN: except as the Committee may otherwise decide {SING: by consensus}] [MOR: except.as-the Committee sney-othervise-deeide.], [CH/J/US: The working language of the Committee shall be English] SING - The proposed refinement seeks to clarify that any decision to not take decisions by + consensus must itself be taken by consensus. NZ - Whether the Agreement ultimately requires the Committee to meet regularly on an annual or biennial basis, provision should be made for the Committee to be able to meet in 45 JAPAN - U.S, JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL, Comments in Green; Additions in Blue; Deletions-in-Red between times. Provision for extraordinary meetings to be held and under what conditions could be provided for under the Committee's rules and procedures. JAPAN - Regarding the principle of decision-making provided in paragraph 4, Japan can in principle support consensus system. However, the principle of decision-making should be «decided so as to match the functions of the Committee: “a majority of the votes cast” system may be better for decision-making of minor issues. Japan reserves its position. 5. The Committee shall convene (Can/EU/MEX at least [once a year}] [NZ: once‘evéry two years] [Can: in regular session][CH: ia-reguiar-session-Regular-sessiens}.[T]he™ Committee shall be chaired [AUS/NZ/MEX: fand hosted}][BU: fand-sosted3] [Can successively by each Party][AUS: by a volunteering Party] [in English alphabetically] [NZ/MEX: fin English alphabetical order}][AUS: fin Exglish-alpkabetieal- deel). [CH/Us: assisted by a Vice-Chair ftom the Party due to chair and host the subsequeitt meeting, ] [EU: A Special session may be called for by one Party and convened if the majority.of the Parties does not oppose such request. The Special session shall be chaired by the Party chairing the Regular session of that year. The Committee shall preferably meet in Geneva] CH Ifpwe use the term “regular session” 96 has exiraordinary sessions. Serizerland 1s flexible os 8th jmectongs, The advantage of Geer: weed be thas the tence of delegates a qusek internationed meetings in goncerning, the frequency of the Lance the functions of the by New Zealand to iro meetings, we cacti alia pie cn have been ogreesl Basically, we share nicetings pita Biewiil Lesaswith the possi bee regular meetings Dotings, we profer thet the provision stipulate a years (as opposed io once a year} as this ist the Frequency ta suit its needs, AUS ~ Australia ty fi ssion at least oyceg dey oe or beo years. dasiratia, ee the Bagh faired avd hasted by a volunteering I Sinregdar i138 portant to convene once «year since 2 years is too tong. Its suggested dating ties armigilly session, the Commttice reports on jollow-ups such as international Aegpisitiotr oid enforcement practices. Likewise, include information such os parties va the ugreoment, among other things New Zecca’ supperts the Commrites meeting on a bienrted bass with provision for the Committee to meet in extraordinary sessions in between, if the circumstances warrant additional meetings. + From an administrative perspective it appears sensible to at least link together the responsibilities for being the host and for providing the Chair. JAPAN - Frequency of meetings should be decided so as to match the nature and volume of the functions to be entrusted to the Committee. 46 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red Regarding chairmanship of meetings, Japan can basically support a rotation basis. Regarding the location of meetings, Japan prefers a rotation basis in light of reducing and equalizing the financial burden of the Parties. KOREA: To promote operations of small working groups and sub-committees, outreach activities, etc. both a regular and a special session should be held in the Geneva-base. [US:6. The Committee’s sole as set forth in Article 5,1 shall not include any oversight o.. supervision relating to domestic or international criminal investigations or enforcementtof > specific intellectual property cases.] Ys 2 Agric 5.2: Tae SecreTaniat 1 The Party that is the Chair of the Committee shall provide the Secretatiat to the Committee for [the calendar year|[the two calendar years beginning with the calendar year immediately prior to that] [EU/MEX: ginaingovith inamediately-prior to-thetJ] [SING: [the two calendar years beginning with the calendar year iesmediately prior-to-that]] [NZ: fthe-calendaryear} fthe two calendar years beginning with the calendar year immediately prior to that}] in which theCommittee shall be convened with that Party as Chair. 4 jétale term of the Secretariat 1 hutee, rather than hee them staggered SING We think is woutet be administratively 2 coincide with the term of Chairmanship of tie, Co by one year. % V AUS ~ Ok with either option, NZ-New tern of the Sevretariet with the hosting and Chatiring, responstbifit JAPAN - The answerste the gilBstion on whether standing crud independent secretariat should be established oPhether administration of tie ACTA shuld be entrusted to.aa existing inerncuiéng] Opganization like UPOY to the WIPO or the FATF to the OBCD dheponcis ont the Uiscidssion on substance ofthe ACTA. inailition, since the question relates to findigad burden of the Parties, careful consiteration shoal be given, The term of the Chitir shold be decided s0 as to match the Committee. Jupan reserves its position. ROREA ca profers 10 linke the Seeretariat to an existing imernatic prefetaply the WTO, permanently based in Geneva. ual organication MOR - Morocco is in favor of a Permanent Secretariat to ensure continuity at the level of the management and implementation of the agreement; = Morocco is for the idea of a Secretariat attached to an existing International Organization (WIPO for instance) -Need to discuss structure of the Secretariat. 2 The functions of the Secretariat shall be: 47 JAPAN - U.S. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in-Red (2) toprovide assistance to the Committee [NZ: as required, and]; (b) _ [MEX: to provide administrative support to the Chair] [NZ: to perform the administrative tasks concerning this Agreement. ] (© (MEX: to elaborate all documents resulted fom ordinary or extraordinary sessions] (® [MEX to submit documents derived from ordinary or extraordinary sessions toall parties] SING ~ We reserve our comopents on this provision, fate of the Secrekstiat. NZ - New Zealand cousides the Seevetariat. poaittee JAPAN » The fonction of which should he, subject to discussion on substance of the A Aaricce 5.3: Contact Ponts 1. [Can/AUS/US/J: Each Party shall desighate,a [AUS: current] contact point to facilitate communications [Can/AUS/J/US; between the][US: with other] Parties on any maiter covered by this Agreement.] [Can/J; The][AUS: Each Party shall transmit the] [Can/ AUS. name and address] [J: name, ad addréss;‘telephone number and e-mail address] [US: ‘The name, ead physical address'and email address] of that contact point [Can/US/J: shall be transmitted] [AUS: shall-be tres: !] to the Depositary [CH: prior to the entry into force of the Agreement for thet Party], who shall circulate the information to the Parties. “current ites the first sent that the s AUS « Austratie propo: pois are kept ap to clearly, another Party] shall identify [Can: the] [SING: according to the matter concerned, an approptiate] office or official [Can: responsible for the matter concerned][SING: respensible for-the-matter-concemed] and assist, as necessary, in facilitating communication between the [US: responsible] office or official concerned with the requesting Party. SING ~ The proposed refinement gives greater flexibility for a Party to decide which office or official is best placed to address the requesting Party's concern. 48 JAPAN - US. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as US, CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletions-in Red MEX - Please provide further explanation. [Anmicte 5.4; Transparency CH This Article should form part of the Final provisions and not part of the Institutional arrangements. NZ.- New Zealand notes that the issue of transparency and provisions governing it now veeur in several craft Chapters of the propesed Agreement. To avoid unnecessary repetition af these provisions, we recommend that diese provisions be consolidated bite a singh ho. provisions with application across the entire Agreement in the “Fini Provisions” 5 JAPAN ~ Aritcto 5.4 should be reviewed in relation to the provisions con transpesehey the Internaiional Cooperation and Enforcement Practices Chapters: Namely AF ele 34, paragraph i seems to overlap Article 4.3 (Transparency), pacagy lel oh ppardgasiph 3 seems 10 2 information 2 seenis 10 3, paragraph Basically, “Transpare i é (the # tem), Asa proviston in the lustitational ArrangeméngChajer. Article 54 _foous on institutional aspects of transparency and Tiformaation seriug among Parties, ich as possible modalities of information sharing. Please see Articls 3.2, parugroph Japan would like Canada to clarify how the provisions Agreement” provided in paragraph 2 interacew revision uf Article 5. Fondenws and regulations provide for in Obligation to nesify aad supply infor: say Dawid 3 of paragraphs 2 and 3 seems to overlap Article 63 of the TRIPS Agreesnans, Dike consideration should be givert cessive burden. a iidiole 3.4 be reviewad in relation 10 Art KOREA » Korea prepoges thet 3 of the tues Articles appear similiar. (Transparency), sincgitee tyit Option 1 i [CAN: 1. “s, Each Party shall ensure that its laws, regulations,[Can: procedures] [CH: final judicial decisidns], and administrative rulings of general application respecting any matter ‘covered by this Agreement are promptly [MOR: in an appropriate time] published or ‘otherwise madé publicly available [CH: in a national language,] in such a manner as to enatle governments and interested persons to become acquainted with them.] Ornion 2 [US: 1. Each Party shall ensure that final judicial decisions or administrative rulings of general applicability pertaining to the enforcement of intellectual property rights shall be in writing and shall statc any rclevant findings of fact and the reasoning or the legal basis upon which the decisions are based. Each Party shall also ensure that such decisions or rulings 49 JAPAN - U.S, JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red shall be published”, or otherwise made publicly available, in a national language in such a ‘manner as to enable governments and interested persons to become acquainted with them] EU Delete paragraph This is already foreseen in Article 4.3 of Chapter 4: Enforcement Practices. [2. Each Party shall notify the laws and regulations referred to in [Can: paragraph (1)] [EU: Asticle 4.3] to the Oversight Committee in order to assist that Committee in its review of the operation of this Agreement.] I sation wncier 63.2 TRIPS. ideal wedua. fo enddi [CHISING: Deie CH... This is a f evita ekesterbease. acagr on bh wave an mt here does OS ~ US Shares CH concern and reserves i SING ~ We propese to omit this Articte given thaa informationt’Gn the lows oid regaiations ferred ty in paragraph (1) isa meade cvgilatile at WIO antapelated ty Member part of thelr WIO commitments. 5 itten request from another Party, {OR} procedures]{CH: final judicial plication (Can: respecting][MOR: with 3. Each Party shall supply, in response to a information regarding its laws, regulations, [Cai decisions] and administrative rulings of general respect to] any matter covered by this Agréement, 4, Nothing in paragraphs [Can:1, 2 afid3][CH/EU; | and 2] shall require a Party 10 disclose [confidential] information which would impede law enforcement or otherwise be contrary to [US: domestic laws and policies, or] the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private. What ave hanisms of such consultation and what is the role of the over inthis respect? Each Party shall [Can: accord sympathetic consideration to, and shall] [SING: accord sympathetic-coasideration-to,and-shall] afford adequate opportunity for consultation regarding, such representations as may be made (US: to it] by another Party with respect to any matter affecting the operation of this Agreement. 3i[ US: For greater certainty, a Party may satisfy the requirement in (Article 5.3] to publish a measure by making it available to the public on a publically accessible the Internet site.] 50 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL ‘Comments in Green; Additions in Blue; Deletions-in-Red SING ~ The suggested deletion if for greater clarity MEX~ What is meant by “affecting”? [EU: ARTICLE 5.6: Onsenvers Countries candidate to become a Party to the Agreement may be invited [MOR/ AUS: by the Committee] to attend sessions or parts thereof of the Oversight Committee as observers. An invitation under the same status may be extended [MOR/AUS: by the *. Committee] to international organizations active in the field of intellectual property arid to non-governmental groups of intellectual property stake-holders [AUS: and-t-nen - of intellos ] Hie terms soft heir Pe is observers wont hey Commitee. 4 if a Phas could provide vmecats of tnchetile Geb pep WES os ACTA forums 0 help coordinate the eufercenan efforts of AGTA Rartjes with non Party states and pubbe itderte: rel Or gemticacions, — He atites zo allow 0 shuns wih Glee pPovicle on opportenily for the involvement of cgrecter membéh of Sages ip ACTS, even where those stctes ave withing to become an ACTA Pen Gi, gi) ROL OBL include orgemizatiens such as tre World oy Orgemization Public international orgdit@atio Chastoans Orgcatization, dnterpel od World lnteliectuad Prop shuld be subject so agreements by Granting observer sugisfo ties® greaps cul state: ACTA partis. y Cuarrer Sx Fina Provisions 0 tactede aspects such as: depos pect, verlifwate copies end languages fn which the NZ: Aifnoue X : Trassranesey NZ-Asnoted above, the numerous transparency provisions occurring throughout the Agreement should be consolidated into a single provision in this Chapter of the proposed Agreement. 1. Eaoh Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly sl JAPAN - US. JOINT PROPOSAL ‘This Document Contains Foreign Goverament Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in-Red published or otherwise made publicly available in such a manner as to enable governments and interested persons to become acquainted with them 2. Each Party shall notify the laws and regulations referred to in paragraph (1) to the Oversight Committee in ordor to assist that Committee in its review of the operation of this Agreement. NZ—While we have replicated the original wording used for Article 5.4, we note that the pupsage “in ity review of the operation of this Agreement” may need to be reviewed aid. conoriicd to bo consistent with functions of the Committee specified uncer Article $.1. 4, Nothing in paragraphs 1, 2 and 3 shall require a Party to alenhet information which would impede law enforcement or otherwise be contrary tothe public public or private.) Axricts 6,1; Become Parry To tae AGREEMENT 1 (EU: Any-State member of ited - sep} Any [AUS: Stete} member of the [Can/AUS: World Intellectual Property Organisation) [NZ: World Trade Organization] [AUS: or the World Trade Organization (WTO)] (Can: [or of the United Nations] [AUS/MEX/NZ: for-ofhe-United Nations] may become party to this Agreement {EU Decisions on accession shall be taken by the Oversight Committee. The Oversight Committee shall approve the agreement on the ters ofdccession by (unanimity) [a two-thirds majority of the Parties}. " here a parpuse to this precendition? ifit EU Comvone on proposed Qeletion: Is pp worl imake more sense. necessany to have pre-condit gptien WLO members Onter < , wed on HIPO or WFO menuberstipto tink ATA men ship toatcoptanee of other international IP stander. ie cso allows thts chapter to refer fo all non state HLO mamiors the sose vith comments made by others at tre 4° rored o TPO? ACTA pretends to be a TRIPS plus, so what bent WTO? Ni - Wide the aim of the proposed Agreement being to bald upon existing exferceraem provisions in the TRIPS Agreemem, it would therefore be appropriate to lint member: existing members of World Trade Organization. JAPAN - As itis essontial 1a decide the principle of accessions for fature member. requirement for aocession should bo considered carefully. Reference to the existing internationed orgesnzatons such as WIPO and UN (and probably WTO) shenld carefidh 52 JAPAN ~ US. JOINT PROPOSAL This Document Contains Foreign Government Information to be treated as, ‘U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL, Comments in Green; Additions in Blue; Deletions-in-Red MOR - Morocco supports Option 1 of this paragraph, i.e. WIPO 2 Any Intergovernmental Organization which [UIS: the Committee decides] meets the requirements of paragraph 5 may become party to this Agreement. The Organization shall inform the Depositary of its competence [US: in respect of matters governed by this Agreement], and any subsequent changes in its competence, with respect to the matters governed by this Agreement. The Organization and its member States may, without, however, any derogation from the obligations under this Agreement, decide on their respective responsibilities for the performance of their obligations under this Agreement [US: without, however, any derogation from the obligations under this Agreement} ticle be removed Delete paragraph Australie propeses thai Japan reserves its pasition. 3. __A[Can: State or Intergovernmental Organization][AUS: memiber c identified in paragraph 1] may become party to this Agreement by: approval, or (b) the deposit of an instrument of accessi 4 5. In this Article, “Intergovérnmental Organization” means an organization constituted by, and composed of, States of any-region of the world, which has competence in respect of matters governed by this Agreement, has its own legislation providing for intellectual property protection and binding;on all its member States, and has been duly authorized, in accordance with its internal lures, to sign, ratify, accept, approve or accede to this Agreement. AUS - De ‘Australia proposes that this article be removed following the proposed for articd Axicue 6:2; Enrky Into Force oF THE AGREEMENT This Agreement shall enter into force, with respect to each of the [Can: first five States or Intergovernmental Organizations] [AUS: [five] members of either organization identified in Article 6.1.1] which have deposited their instruments of ratification, acceptance, approval or accession, [Can: three months] [AUS/US: 90 days] after the date on which the [AUS: [fifth]] instrument of ratification, acceptance, approval or accession has been deposited AUS - Australia reserves its position on the threshold of five parties, but supports the remainder of this Article, subject to drafting amendments. 53 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as. U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions in-Reé “Australia proposes to remove the reference to intergovernmental organisations, and replace it with a reference to members of either organization identified in Article 6.1.1. Australia supports the principle of a broad ACTA membership, and does not want ACTA to appear to be an exclusive agreement. — Australia proposes that the threshold number of Parties be set at a majority of parties participating in negotiations. — Accordingly, Australia supports a larger number if EU member states will be jon 0 the BC. and 6.4.3, JAPAN ~ Japan rose 2, With respect to any (Can: State or Intergovernmental Organization][AUS: member of either organization identified in Article 6.1.1] not covered by patagraph (1), this Agreement shall enter into force Can: three months][AUS: 90 days] after:the date on which that [Can: feither organization identified in AUS~ da reploce it 28 to renin the. of Austi f Agreement by means of a written notification to the hall take effect [Can: one year][US/CH: six months] after the 6 months after notification, (0 1. [J Any Party may initiate a proposal to amend the provisions of this Agreement by submitting such proposal [to the Oversight Committee]]. This Agreement may be amended by the Parties on the basis of a [MEX. previous] text adopted by the [Can: Oversight][CH: ACTAJ[MEX: Steering] Committee. (CH: Each Party may propose amendmeats to the ‘Agreement to the Committee. The Committee shall decide upon the proposed amendments by consensus. ] 34 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-in Red JAPAN - Provisions concerning eligibility for making proposals for amendment (e.g. Any ‘party may propose an amendment to this Agreement.) and details of the decision making process regarding the proposed amendment is necessary. Please clarify the meaning of “on the basis of a text adopted by the Oversight Committee.” Are any further discussions and ‘modifications by the Parties on the text adopied by the Committee expected, or will this Agreement be amendment as written in the text? KOREA -Korea proposes that Article 6.4 be articulated in terms of the mechanism for amendment procedures. 2. The Parties shall deposit their respective instruments of ratification, acceptanigé or) approval of any such amendment with the Depositary. a 3. Such amendment shall enter into force on the (Can: first day-6f the third: month following] [AUS: 90 days after the date of] [US: three months after the. date of] the deposit of the last of the instruments of ratification, acceptance or approval of all the Parties. AgricLe 6.5: Texts OF THE AGREEMENT [Can/US/EU/J/KOR/MEX/MORINZ: This Agreement is established in [Can/US/J/ KOR/MEX/MOR: a single original in the][Can/US/4/KOR/MEX/MORINZ: English][US/ EU/J/KOR : language][Can:, French], [MEX; Spanish} [MOR: Arabic] [Can/MEX/ MOR: languages, all texts being equally authentic.) [CH: In case of any inconsistency between the texts, the English version shall guages 12 be pd wontld prefer hat were mere ing negotiated in English, New Zectand considers that version for the text. Ifthe text is to be axihernivated in s process be completed before signature of the ntic leniguage shunted be one language (namely ffiion Agric 6.6: Derostrary [Name of [Can: State][EU: entity] shall be the Depositary of this Agreement. AUS - Australia is unable to nominate itself as the depositary. MEX - On what basis are Parties going to decide on the Depositary? . 55 JAPAN - US. JOINT PROPOSAL, ‘This Document Contains Foreign Government Information to be treated as ‘U.S, CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*CONFIDENTIAL Comments in Green; Additions in Blue; Deletions-ia-Red JAPAN ~ The Depositary of this Agreement should be decided after further discussions. Agricie 6.7: SiNATURE, This Agreement shall be open for signature between [date] and [date] with the [Can: Government of] [EU: Goversment of] ......... [the (Can: country][EU: entity] that exercises the functions of Depositary]. frat the ACTA be open to signcture fer a tony perioct of th bers which are not participating in negotiations ign years would be appropri 56 JAPAN - U.S. JOINT PROPOSAL ‘This Document Contains Foreign Government Information to be treated as U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*