Law

Disgusting attorneys blame The Marijuana for Philando Castile's death as War on Drugs charade continues

The war on drugs continues to form a major pillar of state violence in America. I am glad Massachusetts is suspending cannabis prohibition less than two hours from now! But it is bittersweet.

I think of all the families ripped apart by sanctimonious, thuggish government agents, attorneys and judges because they believe, or at least pretend, that modes of consciousness tilted by chemicals are more of a danger than rupturing the social fabric with their program that was intended as a racist spear from the very beginning.

I think of all their coverups and lies, their sealed transcripts, their paid informants, their aircraft shell companies, hapless peripheral people socked with 20+ year sentences. The kids raised in rough streets, parents stripped by the State, school to prison pipeline, CCA prison profits.

I think of all the people addicted to heroin and crack cocaine transported by CIA-aligned networks since Dulles & OSS helped Chennault's Flying Tigers protect Chiang Kai-Shek's geopolitical interests. Heroin is still cheap as hell in this region, and banks are always able to smoothly continue money flows without netting any criminal charges.

I think of Gary Webb and the San Jose Mercury News, which protected him and then folded under "fake news" accusations from agency-friendly organs like the Washington Post, driving him ultimately to suicide, for daring to expose Iran-Contra. (In 2012 when we exposed the DRE program was drugging people in Minneapolis, of course only the "fake news" outlets would touch the story for weeks.)

And tonight I think of Philando Castile, now slandered in death by sleazy attorneys who blame what else, The Marijuanas, for somehow inciting Falcon Heights PD to kill him.

And I think of the slimy DoJ coverup specialists, who will paper over all of this for the benefit of the law enforcement and intelligence "communities" [sic], as they have for almost a century. They will never find the money, they will never hit the big guys. They are there to make sure that addiction is converted into cash, dropped into Wall Street. And not a damn thing more. They are all hiding, sniveling cowards, they cannot face real questions because they have no answers. The takedown of this bitter monster must continue.

Attorneys for officer claim Castile was high on marijuana, not responsive to commands (Star Tribune, December 14th 2016)

MN Legislature 2015: A bill for lowering fees on bankruptcy debtors in Minnesota: HF 652

Bankruptcy is a process that the modern banking establishment has made a point of hiding in plain sight these days, since it lets regular people cut loose tons of debt that would otherwise make a mess of their life. Unfortunately student loans are not dischargeable this way, because it's better to keep graduates on the hamster wheel and prop up the higher ed debt bubble.

I am cross posting this post w permission from Nathan Hansen - it covers a nasty local fee required to clear more local debts even after a federal bankruptcy has been accepted and put in motion. via Nathan M. Hansen's Blog: Rep. Mary Franson introduces HF 652: A bill that helpsa lot of consumer bankruptcy debtors in Minnesota:

One of the major parts of my law practice is consumer bankruptcy and litigation in bankruptcy court related to consumer bankruptcy. I am a member of the National Association of Consumer Bankruptcy Attorneys (NACBA) and have been for several years.

Bankruptcy is a Federal proceeding that a debtor can bring to absolve themselves of their debts. At the end of a bankruptcy proceeding, an honest debtor receives a "discharge" order signed by a United States Bankruptcy Judge. This discharge order absolves a debtor of most debts (there are exceptions to this, but such a discussion is beyond the scope of this post). For example, credit card debts are generally dischargeable in bankruptcy.

I routinely communicate with my fellow members of NACBA in Minnesota. These are excellent attorneys with varying political beliefs as diverse as the general population. For the past few years, a serious issue has been plaguing bankruptcy debtors in Minnesota, our clients. The issue is debtors having to pay exorbitant filing fees to state court administrators to remove state court money judgments entered on debts that were already discharged in bankruptcy. While Minnesota Statute 548.181 Subd. 1 states that this removal of judgments should only cost $5.00 payable to the court administrator, the Minnesota State Court Administrator has taken the position that debtors with "default judgments" against them need to pay the full filing fee for an answer to a lawsuit in addition to the $5.00. In my home County of Ramsey, this extra fee is $327.00, for a total of $332.00 per judgment to be removed. If a debtor had several judgments, they could easily be forced to pay $1,000 to $2,000 or more to remove their judgments for debts that have already been discharged by the bankruptcy court. Regardless of political beliefs, almost anyone can run into financial troubles for any number of reasons.

Representative Mary Franson (R- Alexandria) listened to the concerns of Minnesota NACBA members about this common sense issue affecting all kinds of people in Minnesota. She introduced a bill today,HF 652, to address the bipartisan concerns of NACBA members for their clients. This bill will prohibit Minnesota Court Administration from charging these exorbitant filing fees to debtors for filing their applications for discharge of judgments, and keeps the fee at the $5.00 originally set forth by the Legislature.

My fellow NACBA members are absolutely elated that a bill has been brought to fix this injustice that keeps people from getting their fresh start to which honest debtors are entitled. Bankruptcy is specifically mentioned in the Constitution, so I do mean entitled. On behalf of Minnesota NACBA members who are my friends and colleagues, our sincere thanks to Rep. Franson for taking a leadership role on this issue.

Please contact your Representative and Senator and ask them to co-sponsor and support this very important bill that will have a very positive effect on Minnesotans trying to get back on their feet. If you want to know who represents you in the Minnesota Legislature, here is a link to a tool for finding out from the Minnesota Legislature's website.
If anyone has any questions about this issue, please feel free to e-mail me at nathan.hansen@gmail.com.

Also disclosure note I did some professional work w Hansen back in the day - nice guy to work with. You can say hi to him at twitter.com/nathanmhansen .

Barrett Brown Bonus Points; Listening for the Panaudicon; "Highlands Group" Pentagon incubator network for Intelligence kickstarts Google; Four Rogue Lords & UK Snoopers Charter

Roundup post. Barrett Now on the Hook for Stratfor My Post Cyberpunk Indentured Servitude - The Daily Beast [DailyBeast dropped the "you lost some rights" headline apparently as well]. Imprisoned journalist Barrett Brown gets his Declaration of Independence Back, but the +5 snark chainmail didn't do any good: cryptome.org/2015/01/brown-105.pdf

Federal sentencing agreements add and subtract points based on mysterious, occult rules derived from RolePlayingGames deep in the sweaty basement of the Federalist Society on the Yale campus.

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As you can see, both dexterity and Photoshop skilz qualify as "deadly skull" level 63 month sentence:

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Wait maybe this is actually the real one.

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Yes "Unauthorized Access Devices" is hyperlinks.

via ( Clever: D&D Character Sheet Styled Resume | Geekologie & http://www.mmorpg-info.org/wp-content/uploads/2008/07/dd2.jpg )

Quinn Norton: We Should All Step Back from Security Journalism — The Message — Medium.

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Intelligence community incubated Google: A few pretty large chunks turned up with new work from Nafeez Ahmed via crowdfunding, focused on period around the time Google was developed at Stanford. One of the computer scientists involved disputes part of Ahmed's story (and prepended his PDF source at that URL w a new statement), but the overall scope of the Highlands Forum / Group, along with the CIA's In-Q-Tel venture capital development/incubator operations, reconfigures our understanding of intersecting tech and intelligence worlds.

SEE: HIGHLANDS GROUP - About

Highlands Group Overview The Highlands Group is an international consulting network that has been interestingly termed an "intellectual capital venture firm" with extensive experience assisting corporations, organizations, and government leaders frame issues and consider alternatives in the achievement of their objectives. The Highlands Group is a leader in helping clients to explore the edges for new ideas and approaches, create new networks, manage creativity, and succeed. The Highlands Group provides clients with a wide range of services, including: strategic planning, scenario creation and gaming for expanding global markets, and special events planning and assistance. The Highlands Group assists clients in identifying new technologies, ideas, and opportunities. Highlands draws on a network of subject matter experts and facilitates cross-disciplinary gatherings of creative thinkers, working with clients to build strategies for execution. We are a small and agile firm, supported by the strengths of a global network of experts, and provide our clients with personal involvement and dedication. The Highlands Group is headquartered in Washington, D.C. and Carmel Highlands, California, and is supported by a network of companies and independent researchers. It is truly a collaborative effort with great contributions from our sponsors; our Highlands Forum partners for the past ten years at SAIC; and the vast Highlands network of participants in the Highlands Forum, Singaporean Island Forum, the St. Michaels Forum, and the Information Engagement Forum.

Highlands Forum also has Thomas Barnett who provided crucial early post-9/11 backing for "core and gap" geopolitical dichotomy and 'rule setting' military hegemony quests within Pentagon circles. I read his book ages ago Thomas P.M. Barnett's Globlogization - The Pentagon's New Map: War & Peace in the 21st C. - it is important for understanding what framework got installed - as Ahmed digs up this was a transmission belt for Barnett and many others.

This gives earlier knowledge than the more wellknown roots of Google Earth as CIA's In-Q-Tel supported Keyhole -- they bought it partially from In-Q-Tel and turned in to Google Earth Enterprise as a platform for geospatial intelligence (GEO INT).

The powers that be have a strong interest in having one big Google (and Walmart, and foreign militant groups etc) - so it's no surprise that support among key figures - along with funding and special privileges, eventually contracts - to keep the tech scene consolidated.

INSURGE INTELLIGENCE, a new crowd-funded investigative journalism project, breaks the exclusive story of how the United States intelligence community funded, nurtured and incubated Google as part of a drive to dominate the world through control of information. Seed-funded by the NSA and CIA, Google was merely the first among a plethora of private sector start-ups co-opted by US intelligence to retain ‘information superiority.’

The origins of this ingenious strategy trace back to a secret Pentagon-sponsored group, that for the last two decades has functioned as a bridge between the US government and elites across the business, industry, finance, corporate, and media sectors. The group has allowed some of the most powerful special interests in corporate America to systematically circumvent democratic accountability and the rule of law to influence government policies, as well as public opinion in the US and around the world. The results have been catastrophic: NSA mass surveillance, a permanent state of global

PART 1: How the CIA made Google — Medium

PART 2: Why Google made the NSA — Medium

There is plenty to go over here and many links - it is a lot of material to get through, but worth your time. See Clifton - CV - Technical Reports . The Anatomy of a Search Engine.

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Ubiquity of web enabled microphones: very much worth reading. If you don't know how the zeroday market works now especially. via https://panaudicon.wordpress.com/ - Jan 23 2015

Cross posted at Cryptome.org: On the Ubiquity of Web-enabled Microphones

Bruce Schneier (computer security expert, now also with the EFF) has remarked: "It's bad civic hygiene to build technologies that could someday be used to facilitate a police state. No matter what the eavesdroppers and censors say, these systems put us all at greater risk."

There are two elements of this emerging technology that prompt me to regard this as bad civic hygiene: the omnipresence of these microphones, and the increasing lack of technological constraint allowing their compromise by state and other actors.

When I say "increasing lack of technological constraint", I am referring to several things: the descriptions of actions by agencies such as NSA, GCHQ, and the FBI who are specifically targeting smartphones (e.g. Tailored Access Operations of NSA and Remote Operations Unit of FBI), the exploding grey market for zero-day vulnerabilities dominated by state actors (especially the United States), and the emerging market for contractors who are developing exploits and software tools which enable to these vulnerabilities to be efficiently utilized. (Vupen in France, Hacking Team in Italy, Endgame Systems in U.S., FinFisher in the U.K., etc.)

Zero-day vulnerabilities are essentially unintentional backdoors that are discovered in various software applications every year by hackers. There are hundreds of these things discovered every year, and they are an unavoidable by-product of the software development cycle. They are a special kind of software bug that can permit a third-party who knows about them to take over a person's device. Sort of like skeleton keys which allow entry into anyone's device that happens to use the operating system or application in which the vulnerability is discovered, and they permit various degrees of power over a person's device. Programmers create exploits known as "zero-day exploits" to make use of these vulnerabilities. A market has emerged whereby these exploits are sold to the highest bidders, which, unsurprisingly, happen to be state actors. An exploit for the iPhone's iOS was sold for $500,000 at one point to an unknown buyer -- the NSA perhaps, but every intelligence agency on the planet is willing to pay top dollar for these things. Parties are willing to pay much more if it seems the exploit is likely to go undetected for some time and if it provides a lot of power over the device (laptop, smartphone, or tablet). However, when a vulnerability is discovered "in the wild" and reported to the software company (as should be the case), the value drops to near zero very quickly as the software company develops a "patch" and sends out security updates to consumers. In any event, the result of these activities over just the past decade is that sophisticated intelligence agencies, and certainly the FBI and NSA, now possess a revolving set of skeleton keys that allow them to reach inside virtually anyone's device on the planet. They don't need a warrant to do this, and they don't need permission from the telecoms or software companies. They don't have to notify any third parties that this is happening. This is a HUGE amount of power for any state actor to have.

Federal law enforcement agencies like the FBI have been clamoring for mandatory backdoors into all these new web-based technologies, but there are fundamental technical issues with integrating a CALEA-type system with the internet (CALEA = Communications Assistance for Law Enforcement Act of 1994). Security experts are suggesting that the feds (including domestic agencies like the FBI) develop teams of hackers to perform wiretaps in the future. They are essentially recommending that the FBI develop their own Tailored Access Operations (an NSA hacking division). Installing a CALEA-type system will fundamentally weaken the security of the internet for everyone, they claim, and it's also not very practical because new technologies develop so rapidly. It will hinder innovation. (From later note: we now know the FBI has already developed their own hacking team with the Remote Operations Unit. Chris Soghoian, principal technologist with the ACLU, discovered the Remote Operations Unit through former contractors' CVs on LinkedIn and put the pieces together.)

See this paper for background:

https://www.cs.columbia.edu/~smb/papers/GoingBright.pdf

"Going Bright: Wiretapping without Weakening Communications Infrastructure" | Steven M. Bellovin, Matt Blaze, Sandy Clark, Susan Landau | IEEE Security & Privacy 11:1, Jan/Feb 2013

My comments on the authors' analysis in this paper: OK, fine, mandatory backdoors are unacceptable. But if the feds' teams of hackers develop the power to enact wiretaps and bugs without having to ask for third-party permission, that will facilitate intelligence laundering on a wide scale. Sure, the information/evidence can't be presented in court. But they are more than happy to find other ways to use the information. Numerous examples of this have cropped up in the past year in the press (e.g. Special Operations Division -- a joint operation between DEA, FBI, and NSA -- slides were released a few months after Snowden to the press in a leak, but they were not part of the Snowden dump. Agents are specifically instructed to "recreate" the trail of an investigation to hide the original sources. They are effectively removing any poisonous taint from illegal surveillance by fabricating an independent source and never revealing the original surveillance. I believe they are generally handling narcotics cases, and the ACLU and EFF filed an Amicus brief late last year in a case in SF court as a result of the slides, because they suspected illegal surveillance might be taking place and intelligence was being laundered -- see United States of America v. Diaz-Rivera -- a very recent case, not sure what the outcome was at the suppression hearing. Google: Special Operations Division) ….

The "recreated trails" are also known as "parallel construction." Also here a good solution for analog switch on the mics for cell phones & also antenna & GPS seems a very constructive idea. Good deal. SEE DEA and NSA Team Up to Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Investigations | Electronic Frontier Foundation August 2013.

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Besides the NYC Homeland Security grant madness, there is naturally a Rainbow Family in Montana Homeland Security money story now too: Police Seek DHS Grant to Deal With "Extremist" Hippy Group Which Stresses 'Non-violence, Peace and Love' - via Paul Joseph Watson.

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Four Rogue Lords & UK Snoopers Charter: Shameless: rogue Lords sneak Snooper's Charter back in AGAIN - Boing Boing && Shameless: rogue Lords sneak Snooper's Charter back in AGAIN - Boing Boing

How a billionaire gets away with it: FULL TEXT Jeffrey Epstein's federal sex abuse non-prosecution agreement; #OpDeathEaters gets traction

epstein-mug.jpgHere's another new piece of hard evidence showing how billionaire sex abusers get their own special treatment in America. One of the most dire problems facing the United States is the double-standard justice system.

If you're a greasy billionaire like Jeffrey Epstein, federal prosecutors (who ultimately report to your chums) will eventually bend over backwards to let you get away with running an international sex abuse ring, and even protect your co-conspirators from prosecution.

Epstein pled guilty to limited charges and was forced to spend at least a few hours a day in a Florida jail for several months (he could wander during the day), and then on "house arrest" to cruise around to his various international pads. The deal specifically protects his unnamed co-conspirators from prosecution.

For apparently the first time on the open interwebs, here is the full text of Epstein's non-prosecution agreement, republished on HongPong.com with permission of alt journalist Wayne Madsen at WayneMadsenReport.com:

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An additional issue that Wayne cites in his paywalled article is that the timeline here casts shadows on both the Clinton and the Bush families, since both noxious dynasties had roles overseeing the federal prosecutors and accepting this chummy deal published above at different points in the timeline.

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Epstein wants to keep all the correspondence leading up the deal above secret, as reported by New York Daily News which has been relatively aggressive on the story:

Freaky financier Jeffrey Epstein wants to keep negotiations for his shady nonprosecution deal with the feds under wraps.

In papers filed in Florida federal court, Epstein, 61, has asked for a protective order keeping all correspondence about his controversial deal with the feds under seal.

The feds agreed not to pursue charges against Epstein and four alleged co-conspirators in dozens of cases involving under-aged girls if he pleaded guilty to a single state felony case back in 2007 — but the deal was kept hidden from the victims at Epstein’s request, court papers say.

The billionaire perv pal of Prince Andrew pleaded guilty to soliciting sex from a minor in mid-2008. Four of Epstein’s alleged victims are challenging the nonprosecution agreement in court.

In a ruling Thursday, Judge Kenneth Marra said, “Public policy favors judicial records being open to the public,” and that Epstein has to submit additional filings “setting forth the extraordinary circumstances or particularized needs necessitating a seal in this case.” Dareh Gregorian

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#OpDeathEaters & a history of political blackmail: I would like to call attention to the project spearheaded by Anonymous type cats called #OpDeathEaters (a reference to Voldemort's buddies in Harry Potter), which is a pretty quick-moving research project to expose multiple levels and nodes of what they describe as the global paedosadist network.

They are trying to get away from the term 'pedophile' which is actually preferred by child sex abusers because 'phile' means love, when in fact it's really child abuse. It started around November 2014.

An important dimension stressed by some of the articles below is that the power and depth of the pedosadist and child abuse networks has grown so deep that it has overrun the ability of honest elements of law enforcement to deal with, so to some extent Internet activists are trying to expose the networks and render difficult investigations into open-and-shut cases if possible, with the hopes of obtaining justice for victims and their families as well as preventing future abuse.

Recommend following the #opdeatheaters hashtag, Heather Marsh @georgieBC and @der_bluthund as well as @opDeathEatersUS and @opdeatheaters. ExaroNews.com has been leading the way on systematically advancing the British wing of the exposure of high level sex abuse among members of Parliament and key intelligence figures, as well as the giant coverups of decades past.

SEE recent coverage in last 2 weeks: Heard of #OpDeathEaters? Anonymous Movement Seeks End To Child Sex Trafficking; Justice For Victims Inquisitr.com Jan 24 2015

Telegraph pretty good story: Video: Anonymous hackers release video to target global paedophile menace - Telegraph

UK Mirror: Anonymous 'hacktivists' target paedophile networks with Harry Potter-inspired #OpDeathEaters campaign - Mirror Online Jan 23 2015

DailyMail: Hacking group Anonymous to target paedophiles | Daily Mail Online

VICE: Behind Anonymous’s Operation to Reveal Britain’s Elite Child-Rape Syndicate | VICE | United States Jan 15 2015

Plenty more news floating around. Give it a search and see what you find.

This systematic abuse and trafficking has gone on for decades. Homophobic closet case attorney Roy Cohn, Sen. Joe McCarthy's sidekick, was even said to have been one of the original sleazebuckets who got this tactic rolling for the CIA to get control of members of Congress, but that is a difficult case to prove of course.

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More background on the case:

Papantonio: The Plot Thickens in the Dershowitz-Epstein Story - YouTube

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What scandal involving Prince Andrew says about Britain’s elites | Al Jazeera America (Jan 17 2015)

U.S. Lawyers Seek to Interview Prince Andrew About Sex-Crime Claims | TIME (Jan 21 2015)

Exclusive: Epstein’s First Accuser Tells Her Story - The Daily Beast (Jan 25 2015). Legal docs at link

Gawker on the case, seems like Nick Bryant is doing a good job: Here Is Pedophile Billionaire Jeffrey Epstein's Little Black Book (Jan 23 2015)

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Flight Logs Put Clinton, Dershowitz on Pedophile Billionaire’s Sex Jet - Gawker (Jan 22 2015)

Dershowitz addresses appearing on Epstein flight logs - CNN Video (Jan 24 2015). Dersh is wiggin pretty hard and the new claim he kept his undies on during massages is truly the "did not have sexual relations with that woman" escape phrase of the day.

Dersh: "I kept my underwear on during the massage," he said. "I don't like massages particularly." Alan Dershowitz: 'Sex slave' accuser is serial liar, prostitute | News - Home - worth reading in full to sense the anger and panic here.

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Intelligence Rabbit Hole Begins: Additionally Epstein's close confidante for many years, Ghislaine Maxwell (L), has also been tagged as a major player in the abuse ring. Adding an intelligence twist to the matter, Ghislaine's late father Robert Maxwell ( R ) is pretty widely known to have supported the Israeli Mossad secret intelligence service. With Epstein's island home apparently stuffed with hidden cameras, this suggests he was generating sexual blackmail material which could certainly prove handy to manipulate political figures.

This leads to a bunch of speculation such as JEFFREY EPSTEIN, MOSSAD AND 9 11 etc etc, with Florida airfields that were used by Mohammed Atta perhaps intersecting with this sordid tale prior to 2001. [I am not claiming that I support such a line of inquiry as the evidence isn't really there yet, but there are some overlapping data points]

That particular rabbit hole would take a long time to sort out, but shady rich people, aviation and weird covert ops certainly are a Florida tradition. The only thing missing is yet another Gulfstream owned by CIA shell company packed with cocaine or heroin.

EXCLUSIVE: Such Critical Infrastructures: FBI feeds Anonymous IRC channels to CIA, Pentagon intel, NSA, NORTHCOM in 2012 Intel memo

An FBI "IIR" intelligence report, dated April 12 2012 entitled "Identification of Internet Relay Chat (IRC) Channels Used by Anonymous Members, as of 12 April 2012" surfaces a dicey realm between US military & intelligence and electronic activists. The full report is at scribd.com/doc/246922867/FBI-FOIA-IRC-Chat-Channels-used-by-Anonymous // (Mobile) /// UPDATE: Upvote this post on Reddit & Thanks to YAN for amplifying!

FBI FOIA IRC Chat Channels used by Anonymous by Smiley Hill

A tiny peek into a huge deal: the potential fracas between assorted would-be American military cyberwar commandoes and international (and domestic!) computer activists. This lower-level report (Unclassified//For Official Use Only) (U//FOUO) perhaps is more interesting for its "metadata" rather than thoroughly censored content. Below I also included some other domestic military operations documents below to draw a wider context than just this "cyberwar" stuff, as Ferguson has prompted Gov. Nixon in Missouri to activate the state militia, it's good to read up on what federal legal doctrine for "civil disturbances" is.

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Such recipients: In order, it says it is from "DIRECTOR FBI" to:

All FBI field offices

INFO AFOSI DET 331 Andrews AFB Maryland, Headquarters Air Force Office of Special Investigations (also cited in this case http://www.dod.mil/pubs/foi/homeland_defense/intelligence/EFF_vs_DOD_Bates_997_1096.pdf )

CDR USSTRATCOM Offutt AFB Nebraska, Strategic Command commander

CDR USTRANSCOM Scott AFB Illinois, United States Transportation Command commander

CDR1STIO Ft Belvoir Virginia, First Information Operations Command commander - https://www.1stiocmd.army.mil/ (wat? "CDR1STIO" pops in a bunch of other FOIA'd IIRs as well if you googlize it)

CIA WASHINGTON DC - always down for a good time

DEPT OF HOMELAND SECURITY WASHINGTON DC - yes, this hot info wasn't stovepiped away from rivals

DEPT OF JUSTICE WASHINGTON DC - fetching banhammer

DEPT OF STATE WASHINGTON DC

DIA WASHINGTON DC - Defense Intelligence Agency which is huge and low profile - http://www.dia.mil/

DIRNAVCRIMINVSERV - Probably HEADQUARTERS. NAVAL CRIMINAL INVESTIGATIVE SERVICE.

DNI WASHINGTON DC - Director of National Intelligence. (Clapper at the time)

HQ AFOSI Andrews AFB Maryland - Air Force Office of Special Investigations. Tip, if you have some message for them, use their unencrypted contact form to let them know about fraud or etc. What could possibly go wrong? > http://www.osi.af.mil/main/contactus.asp

HQ NORAD USNORTHCOM INTEL PETERSON AFB - US Northern Command located near Colorado Springs was created as Dept of Homeland Security's military counterpart for "Homeland Defense", an elastic concept extending Pentagon involvement with "critical infrastructure," namely the machinery of major corporations. They also revised "GARDEN PLOT" into CONPLAN 3502 Civil Disturbance Operations," relevant in a Ferguson type context under federal mobilization. (see 2010 story) They were also written into Superman's plot.

JOINT STAFF Washington DC - J2 - Director for Intelligence (J2) on the Joint Chiefs of Staff (now this guy)

JWAC DAHLGREN Virginia - Joint Warfare Analysis Center a "premier science and engineering institution" under Strategic Command (USSTRATCOM), which also hosts Cyber Command. see http://www.stratcom.mil/functional_components/

NGA HQ Bethesda Maryland. The National Geospatial Intelligence Agency, like DIA, is up to a lot of things off the radar. They have domestic satellite spying (GEO INT) responsibilities at National Special Security Events which require a special domestic military intel privacy waiver. http://www.stratcom.mil/functional_components/ . Big spenders.

NSA FT GEORGE G MEADE Maryland - National Security Agency at the oddly spelled out Ft Meade. I wonder how many land in this inbox - and how many times "George G" is stored in their databases.

US SECRET SERVICE WASHINGTON DC

USCYBERCOM FT GEORGE G MEADE Maryland - Cyber Command in ur router, sniffin ur packets

WHITE HOUSE SITUATION ROOM WASHINGTON DC.

BT . … I am fairly sure this is a closing list tag like </UL>

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Serial IIR 4 213 4003 12, "WARNING (U): This is an information report, not finally evaluated intelligence. It is being shared for informational purposes but has not been fully evaluated, integrated with other information, interpreted or analyzed. Receiving agencies are requested not to take action based on this raw reporting without prior coordination with the FBI. Unless a conviction in a criminal proceeding occurs, a presumption of innocence exists for any person being reported on in this IIR." Declassification date appears 20370607, as this hot stuff needs to lay low for a couple more decades.

What is an IIR? It is pretty low level stuff for the FBI. For a bit of info see FBI Intelligence Information Report Handbook | Electronic Frontier Foundation. That document interestingly, at the very end includes a statutory info pipeline from Grand Jury operations to various feds. Patriot Act Section 203(a)(1)( C )(i)(V) certainly makes for an industrious star chamber circuit, but they don't want grand jury info going out in IIRs without asking the HQ attorney.

This document was obtained by Smiley Hill via FOIA. Please follow https://twitter.com/smilyus for more smileable FOIAs on a regular basis.

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The use of the military - and these contractors in the game now - to police corporate systems labeled as Critical Infrastructure is significant. After all, Missouri Gov Nixon just activated the state militia because of Ferguson.

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In the recent FBI writeup freeking out about Ferguson protesters, I took the "critical infrastructure" references to allude to authorizing military activity around corporate electronic assets that might get poked at by angry activists.

“The announcement of the grand jury’s decision … will likely be exploited by some individuals to justify threats and attacks against law enforcement and critical infrastructure,” the FBI says in an intelligence bulletin issued in recent days. “This also poses a threat to those civilians engaged in lawful or otherwise constitutionally protected activities.”

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Background on Executive Order 13636:

See NSA's cybersecurity program to protect critical infrastructure revealed - Military & Aerospace Electronics

Feb 2013: Executive Order -- Improving Critical Infrastructure Cybersecurity | The White House

CRS analysis on Executive Order: http://fas.org/sgp/crs/misc/R42984.pdf

Feb 2013: Pentagon will require security standards for critical infrastructure networks - Nextgov.com

This is actually a word? Cyberinfrastructure - Wikipedia, the free encyclopedia

Nov 2012: Cyber Order Puts DHS In Charge Of Oversight, Sets Deadlines « Breaking Defense - Defense industry news, analysis and commentary

USA TODAY: Feb 2013: Cybersecurity executive order fosters information sharing for greater good

As for the legal ramifications of domestic military operations and targeting electronic activists with tools like STRATCOM / CYBERCOM retain for battling Al Qaeda servers or whatever, most people say "But, Posse Comitatus!" In reality a vast area of domestic military operations has been expanded and operated by JAGs. See : www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2012.pdf

This Domestic Operational Law Cyber Realm has a Handbook, People!

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The domestic version of this JAG manual is extremely recommended reading for everyone. See Domestic Operational Law Handbook for Judge Advocates 2011 | Public Intelligence.

Also the newer 248 page Domestic Operational Law Handbook for Judge Advocates 2013 | Public Intelligence is available. You will definitely know moar about WTF is up with weird meshes of civilian/military authority in the US by skimming over this.

PI highlighted a bunch of good 2011 stuff, since we are talking Ferguson anyway, it's worth noting again:

G. The Department of Defense Civil Disturbance Plans

Formerly, DoD’s Civil Disturbance Operations (CDO) plan was known as “GARDEN PLOT.” Since the creation of the Department of Homeland Security and USNORTHCOM however, DoD has delegated to geographic combatant commanders responsibility for developing CDO Contingency Plans (CONPLANs). These geographic commanders’ CONPLANs provide guidance and direction for planning, coordinating, and executing military operations during domestic civil disturbances.

1. Civil Disturbance Operations Mission

Broadly stated, the CDO mission assists civil authorities in restoring law and order in the United States and its territories.58 This mission statement, while not duplicating the language in the Insurrection Act allowing for the use of federal forces to “suppress” insurrection, provides wide latitude to the President to use federal forces to assist civil law enforcement in “restoring” law and order.

The restoration of law and order must be distinguished from the preservation of law and order. CDO mission statements do not allow the joint civil disturbance task force commander to undertake preservation missions. It is generally agreed that missions to restore law and order include dispersing unauthorized assemblages, patrolling disturbed areas, maintaining essential transportation and communications systems, setting up roadblocks, and cordoning off areas. Care should be taken before a military commander accepts missions that are routine maintenance of civil order.

2. Combatant Commanders’ CONPLANs

The CONPLANs provide the basis for all preparation, deployment, employment, and redeployment of Department of Defense component forces, including National Guard forces called to active federal service, for use in domestic civil disturbance operations, in support of civil authorities as directed by the President. The concept of a civil disturbance operation is multi-phased: Phase 0, Shape; Phase I, Anticipate; Phase II, Respond (deployment can occur in either Phase I or Phase II); Phase III, Operate; Phase IV, Stabilize; and Phase V, Transition (redeployment). Prior to deployment, military forces maintain five preparedness postures, called Civil Disturbance Conditions (CIDCONS) in order to alert and react to potential civil disturbance operations. Changes in the CIDCON level are directed by the JDOMS.

3. The Standing Rules for the Use of Force for U.S. Forces

Civil disturbance operations are conducted in accordance with Appendix L of the Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces (SRUF). Guidance on how and when forces can use force in a CDO mission are detailed in that annex. Although the CJCSI is classified, Annex L is not and can be shared with our mission partners.

a. Custody and Detention

All apprehensions should be made by the civil police force unless they are not available or require assistance. Military forces have the authority to detain rioters, looters, or other civilians committing criminal offenses. Civilians taken into custody should be transferred to civilian law enforcement authorities as soon as possible.

All members of the force must remember that state and federal criminal law and procedure govern apprehension. Apprehension is justified only on the basis of probable cause to believe that an offense has been committed and that the person to be apprehended committed the offense. Soldiers should not question detainees beyond basic pedigree such as name and address. If formal questioning of an offender is necessary, civilian police should conduct the interview. If civilian police are not available, CID agents or military police may conduct interviews only if the interview is essential to the civil disturbance mission. Actions taken by Soldiers that do not conform to criminal law constitutional standards could jeopardize future prosecution and subject Soldiers and their Commanders to criminal and/or civil liability.

b. Search and Seizure

CDO CONPLANs anticipate that military forces will generally not be involved in searches unless there is “an immediate danger of violence, destruction of evidence, or escape of violent persons unless the search is conducted without delay.” In all other cases, local authorities should conduct searches. When required to perform searches, federal armed forces may conduct warrantless searches under the same constitutional parameters imposed upon law enforcement officials. Joint Civil Disturbance Task Force forces conducting a warrantless search will fully document the reasons for the search as soon as is reasonably convenient.69 Generally these searches are limited to the following incidents.

(1) Stop and Frisk

If there is a reasonable suspicion based upon articulable facts that a person has committed, is committing, or is about to commit a crime, that person may be temporarily stopped and questioned about his activities. The stop must be limited in duration to that which is reasonably necessary to investigate the suspicion. If there is a reasonable suspicion based on articulable facts that a person is armed or is carrying instruments of violence and that the individual presents an immediate risk of harm, members of the armed force may conduct a “frisk” (an external “patdown” of the clothing) for weapons. Any weapons found during a frisk may be removed from the individual and seized.

(2) Search Incident to Lawful Apprehension

A person lawfully detained may be searched for weapons or destructible evidence. A search for weapons or destructible evidence may also be conducted in the area where the detained person could reach with a sudden movement to obtain a weapon or destroy evidence.

(3) Exigent circumstances

Military forces assisting law enforcement may make a search without a warrant when they have reason to believe (probable cause) that weapons, objects related to criminal activity, or persons believed to have committed an offense, are in the place to be searched; and they have reason to believe that the delay necessary to obtain a search warrant would result in removal of the weapons or destruction of the objects related to criminal activity. For example, Joint Civil Disturbance Task Force forces may stop and search an automobile without a warrant when there is reason to believe that the automobile contains weapons or instruments of violence and/or contains an individual reasonably believed to have committed violence.

(4) Emergency

Military forces in a civil disturbance operation may make an immediate entry into a building when there is reason to believe that entry is necessary to prevent injury to persons, serious damage to property, loss of evidence, to protect public safety, or to render aid to someone who is in danger.

(5) Hot pursuit

Military forces pursuing a person who they have reason to believe has just committed a serious crime, may enter a vehicle or building believed to be entered by the suspect and search the building or vehicle for the person or any weapons that might be used to further his escape.

(6) Plain View

During the course of otherwise lawful activity, military forces may seize any unlawful weapons or objects related to criminal activity which they observe in plain view. When conducting warrantless searches that require a probable cause determination, military forces can obtain advice from a judge advocate; however, the probable cause determination must be made personally by the individual desiring to conduct the search.

If a search warrant is required, local civil authorities should obtain judicially issued search warrants. If local civilian authorities are not available, judge advocates need to be prepared to provide advice on probable cause to military authorities before they approach a local judge or magistrate for a search warrant.

When feasible, all searches conducted by military personnel will be conducted by two personnel with the actual search performed by someone of the same sex.76 A hand receipt or some similar document should be prepared when items of personal property are seized from an individual.

c. Confinement Facilities

The Joint Civil Disturbance Task Force should not operate a detention facility. Any person apprehended should be turned over to the police for detention. Military correctional facilities cannot be used to detain civilians. If available civilian detention facilities cannot accommodate the number of detained persons who are awaiting arraignment, the Joint Civil Disturbance Task Force commander must seek the approval of the SCRAG and Combatant Commander to set up a temporary detention facility.

Should the Task Force be required to operate a detention facility, the detention facility standards and operations should conform, to the maximum extent possible, to current DoD confinement facility operations and will be under the professional supervision and control of Military Police personnel. The establishment and operation of military detention facilities is a temporary expedient and is authorized only until such time as the custody of detained persons can be transferred to civil authorities.

d. Riot Control Agents

Normally, for CDO the deployment and use of riot control agents is allowed as a matter of U.S. policy. However, initial approval authority for its deployment and use may be retained at a level higher than the Joint Civil Disturbance Task Force Commander and may require a specific request.

This is not the same as a state-level activation, but it is the doctrine that is crafted at the federal level these days so I think it's pretty relevant to Ferguson.

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The federal government hasn't taken kindly to people that expose these types of relationships. Barrett Brown's sentencing just got delayed again - but at least the Barrett Brown Review of Arts and Letters and Jail is awesome. For more info FreeBarrettBrown.org.

Welcome to the Skinner Box: Corporate industrial psychology, consent-free operant conditioning of Hennepin County residents, "mystery shoppers" & mental illness

Hennepin Skinner.jpg

"Now you never know… the owner sends people to buy things here and see how you act…."

Oone-dimensional-man.jpgne pernicious pattern in our modern age is the application of Industrial & Organizational Psychology to control the masses. Arguably the I/O Psych modern trend started in the 1920s, with strategies like Ed Bernays' Propaganda approach. Gradually this converted a nation of independent & frequently militant people into pacified corporate consumers through "massification" (PDF) of egos & identity, as left-wing scholar & intelligence specialist Herbert Marcuse put it. (see One-Dimensional Man text)

Let's look at abusive industrial psychological practices in Hennepin County for a moment. Some people are trying to take action, and it appears a pervasive but latent social control conflict is spilling into the open. [Photo illustration courtesy Ulya Aviral]

Local examples of abusive psychological programs run by government and corporations abound, but they lack broader context and scrutiny. A recent one: In April-May 2012 a number of Minneapolis activists discovered a program called Drug Recognition Evaluator training (DRE) was enticing people to take drugs and possibly receive drugs from law enforcement, without any Institutional Review Board or informed consent paperwork involved. This was documented by us in 'MK Occupy Minnesota'. It continues to be unraveled in a federal lawsuit handled by my friend, attorney Nathan Hansen (more info here). [And don't forget pro sports as mass mind control & the illegally financed Vikings stadium…]

Today's case is but a small example of the total social control system, an unexpected window into how corporations manipulate individual employees. While activist circles fear & loathe government and corporate informants, everyday employees, including independent contractors and those working on sales commissions, are conditioned by trained corporate managers to fear another type of encounter: the "Mystery Shopper" or secret shopper. Mystery shoppers are people hired to pose as regular customers, and then they test the behavior of the employee or contractor without their explicit consent. This provides an opportunity for the corporate managers to punish the employees for supposedly failing on some point of behavior.

Arguably, one desired effect of the mystery shopper system is to trigger mental illness. It exists to cause anxiety & create more uncertainty: after all, if one cannot be sure if a fake persona is going to try and manipulate you at work while you are selling Comcast cable boxes or lawnmowers on commission, you will certainly become more anxious. In a higher state of anxiety, is it easier to control all the employees and keep them subjugated, as well as create new levers to demote and punish them. Weirdly, it feels like a commercialized version of the FBI's anxiety-inducing informant system.

Hennepin County will soon be releasing a new plan for handling mental health, and the conflict here is between those who want psychologically abusive corporate tactics to be regulated, vs those who do not want this issue formally acknowledged by the county.

In Hennepin County, this system is currently a free-for-all, which enables corporations to develop large programs to psychologically traumatize and control their employees through generating more stress and mental illness. Another point: whenever a mystery shopper eats up the time of an employee or contractor working on sales commissions, it prevents them from earning commissions from legitimate customers.

A few members of an obscure citizen volunteer board in Hennepin County have been looking into this, conducting extensive research on the industrial psychology of secret shoppers with an eye to compelling these organizations to be regulated, since there are certain statutes and county rules that in theory could subject the corporations to some kind accountability. [Notes below - in Nevada mystery shoppers have to be licensed under private investigators!]

The Adult Mental Health Local Advisory Council (LAC) meets on the third Thursday of each month from 1:30 to 4:00 p.m. at the Hosmer Library, 347 E. 36th St., Minneapolis. [more official info PDF] On August 21st it seems the issue will actually get addressed, though this has been in question.

Here is a message from volunteer Hennepin County Local Advisory Council Adult Mental Illness consumer member Neil Elavsky earlier today about pushing for licensure for industrial and organizational psychologists.
Below the fold...

Terrible Trans Pacific Partnership intellectual property proposed scheme leaks out yay

UPDATE: Join us Dec 11th 6PM for Trans-Pacific Partnership organizing with Occupy Minneapolis - https://www.facebook.com/events/591468507567584/

Finally got some clue into WTF is going on. They have been trying to keep this secret as hell because a planet of 6+ billion people might rebel at another horrible technocratic scheme to control everyone's brains :(

VIA https://wikileaks.org/tpp/ - way to go wikileaks.

Secret Trans-Pacific Partnership Agreement (TPP)

Today, 13 November 2013, WikiLeaks released the secret negotiated draft text for the entire TPP (Trans-Pacific Partnership) Intellectual Property Rights Chapter. The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. The WikiLeaks release of the text comes ahead of the decisive TPP Chief Negotiators summit in Salt Lake City, Utah, on 19-24 November 2013. The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.

The TPP is the forerunner to the equally secret US-EU pact TTIP (Transatlantic Trade and Investment Partnership), for which President Obama initiated US-EU negotiations in January 2013. Together, the TPP and TTIP will cover more than 60 per cent of global GDP. Read full press release here



Download the full secret TPP treaty IP chapter as a PDF here

WikiLeaks Release of Secret Trans-Pacific Partnership Agreement (TPP)

Advanced Intellectual Property Chapter for All 12 Nations with Negotiating Positions (August 30 2013 consolidated bracketed negotiating text)




This Document Contains TPP CONFIDENTIAL Information

TPP Negotiations, R18

MODIFIED HANDLING AUTHORIZED

IP Group

Intellectual Property [Rights] Chapter

30 August
2013

COVER PAGE

INTELLECTUAL PROPERTY [RIGHTS] CHAPTER

CONSOLIDATED TEXT


CHAPTER QQ1

{INTELLECTUAL PROPERTY RIGHTS / INTELLECTUAL PROPERTY}

{GENERAL PROVISIONS}

{Section A: General Provisions}

Article QQ.A.1: {Definitions}

For the purposes of this Chapter:

Intellectual property2 refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement [3].

Article QQ.A.2: {Objectives}4

[NZ/CL/PE/VN/BN/MY/SG/CA5/MX6 propose; US/JP oppose: The objectives of this Chapter are:

  1. Enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;

  2. reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems;

  3. maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property.

  4. protect the ability of Parties to identify, promote access to and preserve the public domain;

  5. Ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

  6. Promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.]

    [NZ/CA/SG/CL/MY/VN propose. g. The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

  1. Support each Party's right to protect public health, including by facilitating timely access to affordable medicines.]

[Article QQ.A.2bis: {Principles}

[NZ/CA/SG/CL/MY propose : 1. Each Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.

2. Each Party may adopt or maintain appropriate measures, provided that they are consistent with the provisions of this Chapter, to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

3. Each Party may adopt or maintain, consistently with the other provisions of this Chapter, appropriate measures to prevent or control practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market.]]

Article QQ.A.3: {General Provisions}

Each Party shall give effect to the provisions of this Chapter. A Party may, but shall not be obliged to, provide more extensive protection for, and enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection and enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.

Article QQ.A.4: {Declaration on the TRIPS Agreement and Public Health}

The Parties affirm their commitment to the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2).

Article QQ.A.5: {Understandings Regarding Certain Public Health Measures7}

The Parties have reached the following understandings regarding this Chapter:

(a) The obligations of this Chapter do not and should not prevent a Party from taking measures to protect public health by promoting access to medicines for all, in particular concerning cases such as HIV/AIDS, tuberculosis, malaria, [US oppose: chagas] and other epidemics as well as circumstances of extreme urgency or national emergency. Accordingly, while reiterating their commitment to this Chapter, the Parties affirm that this Chapter can and should be interpreted and implemented in a manner supportive of each Party's right to protect public health and, in particular, to promote access to medicines for all.8

(b) In recognition of the commitment to access to medicines that are supplied in accordance with the Decision of the General Council of 30 August 2003 on the Implementation of Paragraph Six of the Doha Declaration on the TRIPS Agreement and Public Health (WT/L/540) and the WTO General Council Chairman's statement accompanying the Decision (JOB(03)/177, WT/GC/M/82) [SG/BN/VN/PE/CL/CA/MY/NZ/US/AU9/MX/JP: , as well as the Decision on the Amendment of the TRIPS Agreement, adopted by the General Council, 6 December 2005 US/MY propose: and the WTO General Council Chairperson's statement accompanying the Decision (WT/GC/M/100)] (collectively, the "TRIPS/health solution"), this Chapter does not and should not prevent the effective utilization of the TRIPS/health solution.

(c) With respect to the aforementioned matters, if [US oppose: any waiver of any provision of the TRIPS Agreement, or any] [US propose: an] amendment of the TRIPS Agreement, enters into force with respect to the Parties, and a Party's application of a measure in conformity with that [US oppose: waiver or] amendment [US oppose: is contrary to the obligations of] [US propose: violates] this Chapter, the Parties shall immediately consult in order to adapt this Chapter as appropriate in the light of the [US oppose: waiver or] amendment.

Article QQ.A.6: {Existing Rights and Obligations / International Agreements}

1. [US: Further to Article -AA.2,] the Parties affirm their existing rights and obligations with respect to each other under the TRIPS Agreement [CL/PE: and any other multilateral agreements relating to intellectual property to which they are party] [MX propose: The TRIPS Agreement is incorporated into and made part of this Agreement, mutatis mutandis.][CA Propose: 1. Except as otherwise provided in this Chapter, nothing in this Chapter shall be construed as a limitation to the flexibilities, exceptions and limitations set out on the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party.]

[CL/NZ propose; US/AU/JP/MX oppose: 2. Nothing in this Chapter shall derogate from existing rights and obligations that Parties have to each other under the TRIPS Agreement or other multilateral agreements, such as those concluded or administered under the auspices of the World Intellectual Property Organization (WIPO), the World Health Organization (WHO) and United Nations Educational, Scientific and Cultural Organization (UNESCO).]10

[CA propose; MX/US oppose: 2. Except as otherwise provided in this Chapter, the Parties shall interpret this Chapter in such a way as to be [complementary to / compatible with] their rights and obligations under multilateral treaties concluded or administered under the auspices of the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the World Health Organization (WHO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) to which they are party, especially with regards to measures aimed at protecting public health and protecting equal access to knowledge and food.]

[CL/NZ/VN/BN/MY/PE:11 3. [Except as otherwise provided in this Chapter,] Nothing in this Chapter shall be construed as a limitation to the flexibilities, exceptions and limitations set out on the TRIPS Agreement and any other multilateral agreement relating to intellectual property to which they are party, especially with regards to measures aimed at protecting equal access to knowledge, food and public health.]]

[US/AU propose; CL/NZ/MY/PE/BN/VN/CA/JP/MX12 oppose:13 4. Each Party shall ratify or accede to the following agreements by the date of entry into force of this Agreement:

  1. Patent Cooperation Treaty (1970), as amended in 1979;

  2. Paris Convention for the Protection of Industrial Property (1967);

  3. Berne Convention for the Protection of Literary and Artistic Works (1971);

  4. Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);

  5. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);

  6. Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure(1977), as amended in 1980;

  7. International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);

  8. Singapore Treaty on the Law of Trademarks (2006);

  9. WIPO Copyright Treaty (1996); and

  10. WIPO Performances and Phonograms Treaty (1996).]

[US/AU/NZ/PE/CA/JP/SG/MX14 propose : 5. Each Party shall notify the WTO of its acceptance of the Protocol amending the TRIPS Agreement done at Geneva on December 6, 2005.]

[US/SG propose; CL/MY/NZ/PE//VN/BN/CA/JP/MX 15 oppose: 6. Each Party shall make all reasonable efforts to ratify or accede to the following agreements by the date of entry into force of the Agreement:

[SG oppose: (a) Patent Law Treaty (2000); and]

(b) Hague Agreement Concerning the International Registration of Industrial Designs (1999).]

Article QQ.A.7: {National Treatment}

116. In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals [17] of the other Party treatment no less favorable than it accords to its own nationals with regard to the protection [18] [NZ/BN/MY/CA/JP/SG/VN oppose: and enjoyment of such intellectual property rights, and any benefits derived from such rights.][NZ/VN/BN/MY/CL/PE/JP/SG19propose20; US/AU21 oppose: of intellectual property, subject to the exceptions provided in the TRIPS Agreement and in those multilateral agreements concluded under the auspices of WIPO.] [CL/AU/NZ/BN/PE22 propose: With respect to secondary uses of phonograms by means of analog communications and free over-the-air radio broadcasting, however, a Party may limit the rights of the performers and producers of the other Party to the rights its persons are accorded within the jurisdiction of the other Party.]23

[VN: Articles 3 and 5 of the TRIPS shall apply with necessary modifications to the protection of intellectual property in this Chapter.]

  1. A Party may derogate from paragraph 1 [national treatment] in relation to its judicial and administrative procedures, including requiring a national of the other Party to designate an address for service of process in its territory, or to appoint an agent in its territory, provided that such derogation is:

  1. necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and

  2. not applied in a manner that would constitute a disguised restriction on trade.

[CL:3 Paragraphs 1 and 2 do] [US: Paragraph [X national treatment/judicial and administrative procedures] does] not apply to procedures in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

Article QQ.A.8: {Most-Favoured-Nation Treatment}

[PE/CL: With regards to the protection and defence of intellectual property referred to in this chapter, any advantage, favour, privilege or immunity granted by a Party to the nationals of any other country will be accorded immediately and unconditionally to the nationals of the other Parties. The exceptions to this obligation shall be in conformity with the pertinent dispositions referred to in articles 4 and 5 of the TRIPS Agreement.]

[VN: Articles 4 and 5 of the TRIPS shall apply with necessary modifications to the protection of intellectual property in this Chapter.]

Article QQ.A.9: {Implementation of this Chapter}

[CL/NZ/VN/AU/BN/SG/PE/MY/MX/CA24 propose; US/JP oppose: 1. Nothing in this Chapter shall prevent a Party from adopting appropriate measures to prevent: (a) the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology; and (b) anticompetitive practices that may result from the abuse of intellectual property rights;, provided that such measures are consistent with this Agreement. [PE propose; CL/AU oppose: Nothing in this Chapter shall be construed to reduce the protection that the Parties agree on or have agreed on in benefit of the conservation or sustainable use of biodiversity.]]

Article QQ.A.10: {Transparency}

[NZ/AU25/US/SG26/MY/PE/VN/JP/MX propose: 1. [US: Further to Article ___ (Publication), and with the object of making the protection and enforcement of intellectual property rights transparent,] Each Party shall ensure that its laws, regulations and procedures [VN: or administrative rulings of general application] concerning the protection and enforcement of intellectual property rights [US: are in writing and are] [US oppose: shall be] published[27], or where such publication is not [US/PE oppose: practical] [US/PE: practicable], are made publicly available [US/AU/NZ: in a national language in such a manner as to enable [AU oppose: governments and right holders] [AU: interested persons and Parties] to become acquainted with them.] [US/AU/NZ oppose: in at least the national language of that Party or in the English language.]]28

[NZ/AU/SG/MY/CA29/MX/CL propose; VN/PE oppose: 2. Each Party shall endeavour to make available on the Internet [AU/NZ:

  1. its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights; and]

  2. [JP oppose: those details of patent, trademark, design, plant variety protection and geographical indication applications that are open to public inspection under national law.]]

[US/MX propose; BN oppose: 430. Nothing in this Chapter shall require a Party to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest [PE oppose: or would prejudice the legitimate commercial interests of particular enterprises, public or private].]31

Article QQ.A.11: {Application of Agreement to Existing Subject Matter and Prior Acts}

[US propose: 1. Except as it otherwise provides, including in Article QQ.G.8__ (Berne 18/TRIPS 14.6), this Chapter gives rise to obligations in respect of all subject matter existing at the date of entry into force of this Agreement that is protected on that date in the territory of the Party where protection is claimed, or that meets or comes subsequently to meet the criteria for protection under this Chapter.32]

2. 33 [CL/NZ/PE/MY/BN/VN/CA/MX oppose: Except as otherwise provided in this Chapter, including Article QQ.G.8____ (Berne 18/TRIPS 14.6),] a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory.

3. This Chapter does not give rise to obligations in respect of acts that occurred before the date of entry into force of this Agreement.

Article QQ.A.12: {International Exhaustion of Rights}

[CL/MY/NZ/VN/SG/BN/PE propose; US/AU/JP/MX oppose: The Parties are encouraged to establish international exhaustion of rights.]

Article QQ.A.13 {Public Domain}

[CL/VN/PE propose: Each Party shall endeavour to provide relevant information to disseminate public domain, including appropriate tools that help to identify the [CL: extension] [VN: expiration] of the terms of protection of intellectual property rights.]

[CL/VN propose: 1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.

2. For purposes of paragraph 1, each Party shall endeavor to:

  1. identify subject matter that has fallen into the public domain within their respective jurisdictions;

  2. promote access to the public domain; and

  3. preserve the public domain.

3. Actions to achieve the purposes referred to in paragraph 2, may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.

4. Each Party shall make its best efforts to promote cooperation among the Parties to identify and facilitate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]

[CL/VN Alternative Proposal:

1. The Parties recognize the importance of a rich and accessible public domain for their societies and the need that public domain material shall be free for its use by all persons.

2. For this purpose, Parties may include the development of publicly accessible data bases of registered rights, guidelines and other tools to enhance access to material in the public domain.

3. Each Party shall make its best efforts to promote cooperation among the Parties to identify and faciliate access to subject matter that has fallen into the public domain and share updated information related to right holders and terms of protection.]

COOPERATION

Note: We have not introduced braces into this section because party attributions are not clear based on the text.

Section B: Cooperation

Article QQ.B.1: {Contact Points}

Each Party shall designate at least one contact point for the purpose of cooperation under this section.

Article QQ.B.2: [NZ/CL/SG/VN/MY/BN/MX propose: Cooperation in the implementation of international agreements

[NZ/CL/SG/BN/AU/MY/PE/VN/MX propose: 1. [AU/US oppose: Where a Party is a member of any of the following agreements, that Party shall, where appropriate and upon request by another Party, support that Party in implementing any of the following agreements] [AU/CA/JP/SG: A Party may seek to cooperate with other Parties to support its accession to, and implementation of, the agreements X-X ]:

(a) Patent Cooperation Treaty;

[PE/CA oppose: (b) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks;

(c) Singapore Treaty on the Law of Trademarks;] and

(d) Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.]

[JP/SG/PE propose: (e) International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention)]

[AU: 2. Each Party shall endeavor to provide such cooperation as appropriate and upon request.]

Article QQ.B.3 {Cooperation Activities}

[AU/CL/NZ/PE/SG/BN/MX/VN/MY/US/CA propose: The Parties shall endeavour to cooperate on the subject matter covered by this Chapter through appropriate cooordination, training and exchange of information between the intellectual property offices, [or other relevant institutions]34, of the Parties. Cooperation may cover such areas as:

  1. developments in domestic and international intellectual property policy

  2. intellectual property administration and registration systems

  1. education and awareness relating to intellectual property

  2. intellectual property issues relevant to:

    1. small and medium-sized enterprises

    2. science, technology & innovation activities[PE propose: , which may include generation, transfer and dissemination of technology.]

  3. policies involving the use of intellectual property for research, innovation and economic growth

  4. such other areas as may be agreed among [AU/NZ oppose: the] Parties.]

Article QQ.B.4: {Patent Cooperation}

[[AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: In order to improve quality and efficiency in the Parties' patent systems,] The Parties shall endeavour to [US/SG propose: cooperate] [US oppose: establish a framework for cooperation] among their respective patent offices to facilitate the [AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP oppose: exploitation] [AU/CL/MY/NZ/SG/PE/VN/CA/MX/BN/JP propose: sharing and use] of search and examination work of other Parties. This may include:

  1. making search and examination results available to the patent offices of other Parties, and

  2. exchanges of information on quality assurance systems and quality standards relating to patent searching and examination;

[JP propose; CL/PE oppose: (c) implementing and promoting the Patent Prosecution Highway;]

[CL/AU/MY/NZ/SG/PE/VN/CA/MX/BN oppose: which may, among other things, facilitate work sharing.]35]36

[JP proposal: 2. In the course of the cooperation referred to Paragraph 1, the Parties are encouraged not to require the applicants to submit search and examination results, including cited documents, made available by the patent offices of other Parties, with a view to reducing the procedural costs of the applicants.]

Article QQ.B.5:

Cooperation activities and initiatives undertaken under this Chapter shall be subject to the availability of resources, and on request and on terms and conditions mutually agreed upon between the Parties involved.[VN propose: , including the technical assistance for developing countries.]

{TRADEMARKS}

{Section C: Trademarks}

Article QQ.C.1: {Types of Signs Registrable as Trademarks}

[NZ/US/AU/CL/PE/SG/CA/JP/MY37 propose: 1. [VN/BN/MX oppose: No] Party may require, as a condition of registration, that a sign be visually perceptible, [VN/BN/MX oppose: nor may a Party] [VN/BN/MX propose: and] deny registration of a trademark solely on the ground that the sign of which it is composed is a sound [CL/CA/JP/MY oppose: or a scent] [CL/CA/MX/MY propose: Each Party may provide trademark protection for scents].] A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trademark.

Article QQ.C.2: {Collective and Certification Marks}

1. Each Party shall provide that trademarks shall include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its domestic law, provided that such marks are protected.

Each Party [JP/MX propose: may][ JP oppose: shall] also provide that signs that may serve as geographical indications are eligible for protection under its trademark system [38]39[PE/NZ/MX/CL/BN/AU/US/JP/SG oppose; VN propose40: A Party may provide that Signs descriptive of geographical origin of goods or services, including geographical indication as defined in Article 22 of the TRIPS Agreement, may not be protected as trademarks other than collective and certification marks, unless they have acquired distinctiveness through use.]

[US/PE/MX41/SG propose; AU/NZ/ VN/BN/MY/CL/CA oppose: 2. Pursuant to Article 20 of the TRIPS Agreement, each Party shall ensure that its measures mandating the use of the term customary in common language as the common name for a good or service ("common name") including, inter alia, requirements concerning the relative size, placement or style of use of the trademark in relation to the common name, do not impair the use or effectiveness of trademarks used in relation to such good or service. [42]]43[44]

Article QQ.C.3: {Use of Identical or Similar Signs}

Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent third parties not having the owner's consent from using in the course of trade identical or similar signs, [PE/MY/VN/CA/MX oppose45: including subsequent geographical indications,] for goods or services that are related to those goods or services in respect of which the owner's trademark is registered, where such use would result in a likelihood of confusion.

In the case of the use of an identical sign, [PE/MY/SG/CL/CA/MX/VN oppose46: including a geographical indication,] for identical goods or services, a likelihood of confusion shall be presumed.

Article QQ.C.4:

Each Party may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interest of the owner of the trademark and of third parties.

[VN propose; AU/US/NZ/SG/MY/CL/PE/CA/JP/BN oppose: The owner of a registered trademark shall not have the right to prevent third parties from using geographical indications or other signs descriptive of goods and services even though they are identical or similar to the trademark unless such use would result in confusion.]47

Article QQ.C.5: {Well Known Trademarks}

1. No Party may require as a condition for determining that a trademark is well-known that the trademark has been registered in the Party or in another jurisdiction, included on a list of well-known trademarks, or given prior recognition as a well-known trademark.

2. Article 6bis of the Paris Convention for the Protection of Industrial Property (1967) shall apply, mutatis mutandis, to goods or services that are not identical or similar to those identified by a well-known trademark,[48] [BN oppose: whether registered or not49,] provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the trademark, and provided that the interests of the owner of the trademark are likely to be damaged by such use.

3. Each Party recognizes the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999) as adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO.

[US/BN/CL/PE/MX/CA/JP/NZ/SG/VN propose; AU/MY oppose: 450. Each Party shall [PE/BN/MX/CA51 propose: according to domestic laws] provide for appropriate measures to refuse or cancel the registration and prohibit the use of a trademark that is identical or similar to a well-known trademark, [SG/VN propose: as being already well-known before the registration or use of the first-mentioned trademark,] for related goods or services, if the use of that trademark is likely to cause confusion [CA/SG/VN oppose:52 or to deceive or risk associating the trademark with the owner of the well-known trademark, or constitutes unfair exploitation of the reputation of the well-known trademark.]]

Article QQ.C.6: {Examination, Opposition and Cancellation / Procedural Aspects}

Each Party shall provide a system for the examination and registration of trademarks which shall include, inter alia:

  1. providing to the applicant a communication in writing, which may be electronic, of the reasons for any refusal to register a trademark;

  2. providing the opportunity for the applicant to respond to communications from the competent authorities, to contest an initial refusal, and to appeal judicially any final refusal to register a trademark;

  3. providing an opportunity to oppose the registration of a trademark or to seek cancellation53 of a trademark; and

  1. requiring that administrative decisions in oppositions and cancellation proceedings be reasoned and in writing. Written decisions may be provided electronically.

Article QQ.C.7: {Electronic Trademarks System}

Each Party shall provide:

  1. a system for the electronic application for, and maintenance of, trademarks; and

  2. a publicly available electronic information system, including an online database, of trademark applications and of registered trademarks.

Article QQ.C.8: {Classification of Goods and Services}

Each Party shall adopt or maintain a trademark classification system that is consistent with the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Nice Classification) of [June 15, 1957], as revised and amended. Each Party shall provide that:

[CA oppose: (a) registrations and the publications of applications indicate the goods and services by their names, grouped according to the classes established by the Nice Classification 54; and]

  1. goods or services may not be considered as being similar to each other on the ground that, in any registration or publication, they are classfied in the same class of the Nice Classification. Conversely, each Party shall provide that goods or services may not be considered as being dissimilar from each other on the ground that, in any registration or publication, they are classified in different classes of the Nice Classification.

Article QQ.C.9: {Term of Protection for Trademarks}

Each Party shall provide that initial registration and each renewal of registration of a trademark shall be for a term of no less than 10 years.

Article QQ.C.1055:

No Party may require recordal of trademark licenses:

a. to establish the validity of the license;

[US/CA/NZ/SG/JP/AU propose; VN/MX/BN/PE/CL/MY oppose: b. as a condition for the right of a licensee to join infringement proceedings initiated by the holder, or to obtain by way of such proceedings damages resulting from an infringement of the trademark which is subject to the license; or

c. as a condition for use of a trademark by a licensee, to be deemed to constitute use by the holder in proceedings relating to the acquisition, maintenance and enforcement of trademarks.]

Article QQ.C.11: {International Exhaustion of Rights}

[CL/NZ/SG/VN/PE/MY/BN/AU/CA/MX propose; US/JP oppose: The Parties are encouraged to establish international exhaustion of trademark rights. For this purpose, the registration of a trademark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in any country under that trademark by the proprietor or with his consent.]

Article QQ.C.12: {Domain Names on the Internet}

1.56 In order to address the problem of trademark [VN/MX propose: geographical indication and trade name] cyber-piracy, each Party shall adopt or maintain a system for the management of its country-code top-level domain (ccTLD) that provides:

(a) an appropriate procedure for the settlement of disputes, based on, or modelled along the same lines as, the principles established in the Uniform Domain-Name Dispute-Resolution Policy, or that is: (i) designed to resolve disputes expeditiously and at low cost, (ii) fair and equitable, (iii) not overly burdensome, and (iv) does not preclude resort to court litigation;

(b) online public access to a reliable and accurate database of contact information concerning domain-name registrants57;

in accordance with each Party's laws regarding protection of privacy58 and personal data. 59

2. [PE/SG/CL/AU/NZ/MY/BN/CA oppose; US/VN/JP/MX propose: Each party shall provide [VN: oppose adequate and effective] [VN propose: appropriate] remedies against the registration trafficking60, or use in any ccTLD, with a bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark [VN/MX propose: , geographical indication or trade name].]

{GEOGRAPHICAL INDICATIONS}

{Section D: Geographical Indications}

Article QQ.D.1: {Recognition of Geographical Indications}

The Parties recognize that [US propose; CL/PE/CA/MX/SG/MY/BN/VN/JP oppose: , subject to Article QQ.C.2(1),61 (Gls eligible for protection as trademarks)] geographical indications may be protected through a trademark or sui generis system or other legal means.

Article QQ.D.2:

Where a Party provides administrative procedures for the protection or recognition of geographical indications, through a system of trademarks or a sui generis system, the Party shall with respect to applications for such protection or petitions for such recognition:

  1. accept those applications or petitions without requiring intercession by a Party on behalf of its nationals62;

  2. process those applications or petitions without imposition of overly burdensome formalities;

  3. ensure that its regulations governing the filing of those applications or petitions are readily available to the public and clearly set out the procedures for these actions;

  4. make available information sufficient to allow the general public to obtain guidance concerning the procedures for filing applications or petitions and the processing of those applications or petitions in general; and allow applicants, petitioners, or their representatives to ascertain the status of specific applications and petitions;

  5. ensure that those applications or petitions are published for opposition and provide procedures for opposing geographical indications that are the subject of applications or petitions; and

  6. provide for cancellation, annulment, or revocation of the protection or recognition afforded to a geographical indication63

Article QQ.D.3:

Each Party shall, whether protection or recognition is provided to a geographical indication through [SG/CA/MY oppose: its domestic measures] [SG/CA/MY propose: the system referred to in article QQ.D.2] [CL/PE/MY/SG/VN/BN/CA/MX oppose64: or pursuant to an agreement with another government or government entity], provide a process that allows interested persons to object to the protection or recognition of a geographical indication, [CA oppose: and for protection or recognition to be65 refused annulled66 or, [AU propose: where appropriate,] cancelled] [MY/VN/SG/MX oppose67: , at least on the following grounds:

  1. the geographical indication is likely to cause confusion with a trademark or geographical indication that is the subject of a pre-existing good faith pending application or registration in the territory of such Party[68];

  2. [BN oppose: the geographical indication is likely to cause confusion with a pre-existing trademark or geographical indication, the rights to which have been acquired in accordance with the Party's law[69];] and

  3. the geographical indication is a term customary in common language as the common name for such goods or services in that Party's territory.]]

Article QQ.D.4:

[US propose;70 CL/PE/NZ/AU/SG/MY/MX/CA/BN/VN oppose: No Party shall, whether pursuant to an agreement with a government or a governmental entity or otherwise:

(a) in the case of geographical indications for goods other than wines or spirits, prohibit third parties from using or registering translated versions of the geographical indication;[71] or

(b) prohibit third parties from using a term that is evoked by the geographical indication.]

Article QQ.D.5:

[NZ/AU/BN/US propose;72 VN/PE/SG/CL/MY/CA/MX oppose: A Party may provide the means to protect a geographical indication against use in translation by third parties only if such use would, with respect to a geographical indication for goods other than wines and spirits:

(a) give rise to a likelihood of confusion with a prior trademark or geographical indication in the territory of that Party;

(b) mislead the public as to the geographical origin of the good; or

(c) constitute an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

Article QQ.D.6:

[US/NZ/AU/CL/SG propose;73 MX/VN/PE/MY oppose: If a Party grants protection or recognition to a geographical indication through the systems described in Article QQ.D.2 or through an agreement with another government or government entity, such protection or recognition shall commence no earlier than [CL oppose: (i) the filing date in the Party[74],] (ii) the date on which such agreement enters into force, or (iii) if a Party implements such protection or recognition on a date after entry into force of the agreement, on that later date75.]

Article QQ.D.7:

[NZ/AU/US propose;76 PE/CL/VN/SG/MY/BN/CA/MX oppose: No Party shall preclude the possibility that a term that it recognized as a trademark or geographical indication may become a term customary in the common language as the common name for the associated goods or services.]

Article QQ.D.8:

[CL/PE/AU/US/NZ/MX/CA/VN/JP propose 77 ; BN oppose: In determining whether a term is the term customary in the common language as the common name for the relevant goods or services in a Party's territory, a Party's authorities shall have the authority to take into account how consumers understand the term in that Party's territory. Factors relevant to such consumer understanding may include [SG/CL/PE/MX/VN propose: if appropriate]:

  1. whether the term is used to refer to the type of product in question, as indicated by competent sources such as dictionaries, newspapers, and relevant websites;

  2. how the product referenced by the term is marketed and used in trade in the territory of that Party; and

  3. [CL/PE/MX/CA oppose78: whether the term is used in relevant international standards to refer to a class or type of product].]

Article QQ.D.9:

[NZ/AU/US/VN/BN/CL propose79; PE/MY/MX oppose: An individual component of a multi-component term that is protected as a geographical indication in a Party shall remain available for the public to use in that Party if the individual component is a term customary in the common language as the common name for the associated goods.]

[SG propose80: For greater certainty, nothing in this section shall require a Party to apply its provisions in respect of any individual component contained in a GI for which that individual component is identical with the term customary in common language as the common name of such goods in the territory of that Party.]

Article QQ.D.10:

[US propose;81 AU/CL/SG/PE/MY/NZ/BN/VN/MX/CA oppose: The existence of a geographical indication shall not be a ground upon which a Party may:

  1. refuse a trademark owner's otherwise permissible request to renew the registration of its trademark; or

  2. refuse a trademark owner's request to register an otherwise permissible modification of its registered trademark.]

Article QQ.D.11: [CL/SG/BN/VN/MX propose82; AU/PE/US/NZ/CA/JP oppose: List of Geographical Indications

The terms listed in Annex […] are recognized as geographical indications of the respective Party, within the meaning of paragraph 1 of Article 22 of the TRIPS Agreement. Subject to domestic laws [83], in a manner that is consistent with the TRIPS Agreement, such terms will be protected as geographical indications in the territories of the other Parties.]

Article QQ.D.12: {Homonymous Geographical Indications}

[NZ/CL/VN/MY/BN/SG/MX propose84; PE/US/AU oppose: 1. Each Party may provide protection to homonymous geographical indications. Where a Party provides protection to homonymous geographical indications, that Party may, where necessary, lay down the practical conditions of use to make a distinction between the homonymous geographical indications, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.]

[CL propose; AU/US/PE/NZ/VN/SG/MY/BN/MX/CA/JP oppose: 2. The Parties recognize the geographical indication Pisco for the exclusive use for products from Chile and Peru.]

[CL/SG/BN/MX propose; AU/PE/US/NZ/CA/JP oppose: Annex […] Lists of Geographical Indications]

Article QQ.D.13: {Country Names}

[CL/AU/NZ/SG/BN/VN/MY/PE/CA/MX/JP propose85 : The Parties shall provide the legal means for interested parties to prevent commercial use of country names of the Parties in relation to goods in a manner which misleads consumers as to the origin of such goods.]

Article QQ.D.14:

[US propose86; CL/PE/VN/MY/CA oppose: Each Party shall permit the use, and as appropriate, allow the registration, of signs orindications that identify goods other than wines or spirits, and that reference a geographical area that is not the place of origin of the goods, unless such use is misleading, would constitute an act of unfair competition, or would cause a likelihood of confusion with a prior trademark or geographical indication that identifies the same or similar goods. The foregoing shall not be understood to prevent a Party from denying registration of such a sign or indication on other grounds, provided such denial does not derogate from the provisions of the Paris Convention and the TRIPS Agreement.]

{PATENTS/ UNDISCLOSED TEST OR OTHER DATA/ TRADITIONAL KNOWLEDGE}

{Section E: Patents / Undisclosed Test or Other Data / Traditional Knowledge}

Article QQ.E.1: {Patents / Patentable Subject matter}

1. Subject to the provisions of paragraph 2 and 3, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. 87 [US/AU propose; 88 CL/MY/PE/SG/VN/BN/NZ/CA/MX oppose: The Parties confirm that:

  1. patents shall be available for any new uses or methods of using a known product],

[US/JP propose; CL/MY/PE/SG/VN/BN/AU/NZ/CA/MX oppose: (b) a Party may not deny a patent solely on the basis that the product did not result in enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.]

2. Each Party may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to nature or the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

3. [US: Consistent with paragraph 1] each Party [US propose; AU/NZ/VN/BN/CL/PE/MY/SG/CA/MX oppose: shall make patents available for inventions for the following] [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: may also exclude from patentability]:

(a) plants and animals, [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: other than microorganisms];

[JP oppose: (b)diagnostic, therapeutic, and surgical methods for the treatment of humans or animals [US propose; AU/SG/MY/NZ/CL/PE/VN/BN/CA/MX oppose: if they cover a method of using a machine, manufacture, or composition of matter]; [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose:] and

(c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production.]

[MX propose: (d) and the diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods as such; software as such; methods to present information as such; and aesthetic creations and artistic or literary works.]

[NZ/CA/SG/CL/MY propose: ALT 3. Each Party may also exclude from patentability:

  1. diagnostic, therapeutic and surgical methods for the treatment of humans or animals; and

  2. plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.]

Article QQ.E.2: {Patentable Subject Matter}

Each Party shall89 disregard at least information contained in public disclosures used to determine if an invention is novel or has an inventive step if the public disclosure[90 [91]92:

  1. was made by the patent applicant or by a person who obtained the information directly or indirectly from the patent applicant,

and

  1. occurred within 12 months prior to the date of filing of the application in the territory of the Party.

Article QQ.E.3:

[US: Without prejudice to Article 5A(3) of the Paris Convention,] Each Party shall provide that a patent may be cancelled, revoked or nullified only on grounds that would have justified a refusal to grant the patent. A Party may also provide that fraud, misrepresentation, or inequitable conduct may be the basis for cancelling, revoking, or nullifying a patent or holding a patent unenforceable. [AU/CL/MY/NZ/BN/CA/MX/VN propose93; US/JP oppose: A Party may also provide that a patent may be cancelled, revoked or nullified on the basis that the patent is used in a manner determined to be anti-competitive in a judicial [VZ/CA/MX propose: or administrative] proceeding] [AU/CL/CA/MX propose: US oppose; consistent with Article 5A(3) of the Paris Convention.]

Article QQ.E.4: 94

Article QQ.E.4: {Opposition to Grant of Patent}

[NZ/CA/SG/CL/MY propose: Each Party shall provide a procedure for third persons to oppose the grant of a patent, either before or after the grant of a patent, or both.]

Article QQ.E.5: {Exceptions}

Each Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking into account the legitimate interests of third parties.

Article QQ.E.5bis: {Regulatory Review Exception}

[NZ/CA/SG/CL/MY propose: Consistent with [Article QQ.E.5 (Exceptions)], each Party may provide that a third person may do an act that would otherwise infringe a patent if the act is done for purposes connected with the collection and submission of data in order to comply with the regulatory requirements of that Party or another country, including for purposes connected with marketing or sanitary approval.]

Article QQ.E.5ter: {Experimental Use of a Patent}

[NZ/CA/SG/CL/MY propose: 1. Consistent with [Article QQ.E.5 (Exceptions)], each Party may provide that a third person may do an act that would otherwise infringe a patent if the act is done for experimental purposes relating to the subject matter of a patented invention.

2. For the purposes of this Article, experimental purposes may include, but need not be limited to, determining how the invention works, determining the scope of the invention, determining the validity of the claims, or seeking an improvement of the invention (for example, determining new properties, or new uses, of the invention).]

Article QQ.E.5quater: {Other Use Without Authorisation of the Right Holder}

[NZ/CA/SG/CL/MY propose: Nothing in this Chapter shall limit a Party's rights and obligations under Article 31 of the TRIPS Agreement or any amendment thereto.]

Article QQ.E.6: {Patent filing}

1 Each Party shall provide that where an invention is made independently by more than one inventor, and separate applications claiming that invention are filed with or for the relevant authority of the Party, any patent granted for the claimed invention shall be granted on the application [US/VN/MX propose; AU/NZ/CL/MY/CA/PE oppose: which has been found to be patentable and] which has the earliest filing or, if applicable, priority date [AU/NZ/PE/BN/CL/CA95 propose;96 US/VN/MY/MX/SG oppose: and which is published].[US: 97]

Article QQ.E.7:

Each Party shall provide patent applicants with at least one opportunity to make amendments, corrections, and observations in connection with their applications98.

Article QQ.E.8:

[US/AU/PE/VN propose;99 CL/MY/BN/NZ/CA/SG/MX100 oppose: Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.]

Article QQ.E.9:

[US/PE/AU propose; 101 CL/VN/MY/BN/NZ/CA/SG/MX oppose: Each Party shall provide that a claimed invention [AU oppose: is] [AU propose: shall be] sufficiently supported by its disclosure [AU oppose: if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention] as of the filing date.]

Article QQ.E.10:

[US/AU/MX propose;102 SG/CL/MY/VN/PE/BN/NZ/CA oppose: Each Party shall provide that a claimed invention is [US/AU propose: useful] [MX propose: industrially applicable] if it has a specific [MX propose: and], substantial, [MX oppose: and credible] utility.]

Article QQ.E.11: {Publication of Patent Applications}

[AU/PE/NZ/MY/CL/VN/US/CA/MX/JP: 1. Each Party shall publish [US/MX oppose: or make available for public inspection] any patent application promptly after the expiry of 18 months from its filing date or, if priority is claimed, from its priority date, unless the application has been published earlier or has been withdrawn, abandoned or refused [CA propose: , without leaving any rights outstanding].]103

[AU/PE/NZ/CL/VN/CA/MX propose; MY oppose: 2. Each Party shall provide that an applicant may request the early publication of an application prior to the expiry of the period mentioned above.]

Article QQ.E.12:

[US/AU104/CA/SG/PE/CL/NZ/JP propose; MY/BN/VN/MX oppose: For published105 patent applications and issued patents, each Party shall make available to the public [US/PE/CA propose: at least] the following information : submitted [US/SG/PE propose: to that Party's competent authorities] in accordance with [US/SG/PE propose: their] requirements [US/SG/PE oppose: of the Party's competent authorities] [AU/CA/CL propose: in their possession] [US/SG/PE propose: and] in connection with the prosecution of such patent applications and patents:

(a) search and examination results, [JP oppose: including any relevant prior art search histories];

(b) [SG/PE/CL/US/NZ/AU/JP propose: non confidential]106 communications from applicants; and

(c) patent and non-patent related literature citations submitted by applicants, and relevant third parties.]

Article QQ.E.X: {Exhaustion of Rights}

[CL propose: The Parties are encouraged to establish international exhaustion of patent rights. For this purpose, the registration of a patent shall not entitle its holder to prevent third parties from making, using, offering for sale, selling or importing a product protected by that patent, which has been put in the market in any country by the patent holder or with his consent.]

Article QQ.E.XX

[US propose; CA/NZ/JP oppose: Each Party, at the request of the patent owner, shall adjust the term of a patent to compensate for unreasonable delays that occur in the granting of the patent. For purposes of this subparagraph, an unreasonable delay at least shall include a delay in the issuance of the patent of more than four years from the date of filing of the application in the territory of the Party, or two years after a request for examination of the application has been made, whichever is later. Periods attributable to actions of the patent applicant need not be included in the determination of such delays. Any patent term adjustment under this article shall confer all of the exclusive rights of a patent subject to the same limitations and exceptions that would otherwise apply to the patent absent any adjustment of the patent term.]

Article QQ.E.13107 108: {Exceptions / Regulatory Review Exception}

[US/NZ/PE/CA/MX/JP propose: Consistent with paragraph [QQ.E.5] (patent exceptions and limitations), each Party shall permit] [CL/SG/MY/AU/VN/BN propose: Where a Party permits] a third person to use the subject matter of a subsisting patent to [US/NZ/PE/AU/MX/VN/BN/JP] propose: generate information necessary to] support an application for [AU/CA/MX/VN/BN propose: regulatory or] marketing approval [CL/NZ/PE/SG/MY/AU/CA/MX/VN/BN propose: or sanitary permit] of a [AU/CA/VN/BN oppose: pharmaceutical] product [PE propose: or agricultural chemical product], [US/NZ/PE/SG/MY/MX/JP propose: and shall further] [CL/AU/CA/VN/BN propose: that Party may also] provide that any product produced under such authority [CL/AU/CA/VN/BN propose: may be] [US/NZ/PE/SG/MY/MX/JP propose: shall not be] made, [CA propose: constructed,] [CL/PE/VN/BN propose: offered for sale], [PE/VN/BN propose: imported,] used, or sold in its territory [US/NZ/PE/SG/MY/MX/JP propose: other than] for purposes related to [US/NZ/PE/AU/MX/VN/BN/JP propose: generating such information to support an application for] meeting [AU/CA/MX/VN/BN propose: regulatory or] marketing approval [CL/NZ/PE/SG/MY/AU/CA/MX/VN/BN propose: or sanitary permit] requirements of that Party [NZ/SG/MY/AU/CA/MX/CL/VN/BN propose: or another country].

[US/SG/MY/PE/MX/CL propose;109 NZ/AU/CA/VN/BN oppose: If the Party permits exportation of such a product, the Party shall provide that the product shall only]] [NZ/CA/BN propose: Each Party shall permit a product to] [AU/VN propose: Each Party may permit such a product to] be exported outside its territory [US/NZ/PE/AU/MX/VN/BN propose: for purposes of generating information] to support an application for meeting [AU/CA/MX/VN/BN propose: regulatory or] marketing approval [CL/NZ/SG/MY/PE/AU/CA/MX/VN/BN propose: or sanitary approval] requirements of that Party [CL/NZ/SG/MY/AU/CA/MX/VN/BN propose: or another country].

Article QQ.E.14:

[US propose;110 AU/NZ/CL/PE/MY/SG/BN/VN/CA/MX oppose: 6.

(a) Each Party shall make best efforts to process patent applications and marketing approval applications expeditiously with a view to avoiding unreasonable or unnecessary delays.

(c) Each Party, at the request of the patent owner, shall make available an adjustment of the patent term of a patent which covers a new pharmaceutical product111 or a patent that covers a method of making or using a pharmaceutical product, to compensate the patent owner of unreasonable curtailment of the effective patent term as a result of the marketing approval process.

(d) In implementing subparagraph 6(c), a Party may:

  1. limit the applicability of subparagraph 6(c) to a single patent term adjustment for each new pharmaceutical product that is being reviewed for marketing approval;

  2. require the basis for the adjustment to be the first marketing approval granted to the pharmaceutical product in that Party;

    and

  3. limit the period of the adjustment to no more than 5 years.

(e) In implementing subparagraph 6(c), and as a condition for providing the adjustment set forth in subparagraph 6(c) for a new pharmaceutical product approved consistent with Article 9.2(b) or Article 9.2(d), a Party may require an applicant that has submitted an application for marketing approval consistent with Article 9.2(b) or Article 9.2(d) to commence the process of obtaining marketing approval for that new pharmaceutical product in the Party within [X] years of the date of the first marketing approval of the same pharmaceutical product in another Party.112

(f) Any adjustment under subparagraph 6(c) shall confer all of the exclusive rights, subject to the same limitations and exceptions, of the patent claims of the product, its method of use, or its method of manufacture in the originally issued patent as applicable to the product and the approved method of use of the product. ]] ]

Article QQ.E.16: 113 [US: Pharmaceutical Products

Submission of Information or Evidence Concerning the Safety or Efficacy of a New Pharmaceutical Product

[US propose; AU/PE/VN/NZ/CL/MY/SG/BN oppose: 1. (a) If a Party requires or permits, as a condition for granting marketing approval for a new pharmaceutical product, the submission of information concerning the safety or efficacy of the product, the origination of which involves a considerable effort, the Party shall not, without the consent of a person previously submitting such safety or efficacy information to obtain marketing approval in the territory of the Party, authorize a third person to market a same or a similar product based on:

  1. the safety or efficacy information previously submitted in support of the marketing approval; or

  2. evidence of the existence of the marketing approval,

  1. for at least five years from the date of marketing approval of the new pharmaceutical product in the territory of the Party.

  2. If a Party requires or permits, in connection with granting marketing approval for a new pharmaceutical product, the submission of evidence concerning the safety or efficacy of a product that was previously approved in another territory, such as evidence of prior marketing approval in the other territory, the Party shall not, without the consent of a person previously submitting the safety or efficacy information to obtain marketing approval in the other territory, authorize a third person to market a same or a similar product based on:

  1. the safety or efficacy information submitted in support of a prior marketing approval in the other territory; or

  2. evidence of the existence of a prior marketing approval in the other territory,

for at least five years from the date of marketing approval of the new pharmaceutical product in the territory of the Party.

Submission of New Clinical Information or Evidence relating to a Pharmaceutical Product that Includes a Chemical Entity that has been Previously Approved for Marketing in Another Pharmaceutical Product

  1. If a Party requires or permits, as a condition of granting marketing approval for a pharmaceutical product that includes a chemical entity that has been previously approved for marketing in another pharmaceutical product, the submission of new clinical information that is essential to the approval of the pharmaceutical product containing the previously approved chemical entity, other than information related to bioequivalency, the Party shall not, without the consent of a person previously submitting such new clinical information to obtain marketing approval in the territory of the Party, authorize a third person to market a same or a similar product based on:

  1. the new clinical information previously submitted in support of the marketing approval; or

  2. evidence of the existence of the marketing approval that was based on the new clinical information,

for at least three years from the date of marketing approval based on the new clinical information in the territory of the Party.

  1. If a Party requires or permits, in connection with granting marketing approval for a pharmaceutical product of the type specified in subparagraph (c), the submission of evidence concerning new clinical information for a product that was previously approved based on that new clinical information in another territory, other than evidence of information related to bioequivalency, such as evidence of prior marketing approval based on new clinical information, the Party shall not, without the consent of a person previously submitting such new clinical information to obtain marketing approval in the other territory, authorize a third person to market a same or a similar product based on:

  1. the new clinical information submitted in support of a prior marketing approval in the other territory; or

  2. evidence of the existence of a prior marketing approval that was based on the new clinical information in the other territory,

for at least three years from the date of marketing approval based on the new clinical information in the territory of the Party.]

[US: Additional Provisions relating to Pharmaceutical Products

  1. Notwithstanding paragraph 2 above, a Party may take measures to protect public health in accordance with:

  1. the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) (the "Declaration");

  2. any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Declaration and in force between the Parties; and

  3. any amendment of the TRIPS Agreement to implement the Declaration that enters into force with respect to the Parties.

  1. A Party that requires or permits an applicant to obtain approval for marketing a new pharmaceutical product in its territory by relying, in whole or in part, on the prior approval of the pharmaceutical product by the regulatory authority in another territory may, as a condition for providing the period of data protection specified in subparagraph 2(b) or 2(d), require an applicant that has submitted an application for marketing approval consistent with said subparagraphs to commence the process of obtaining marketing approval for that pharmaceutical product within [X] years of the date of first marketing approval of the same pharmaceutical product in another Party.

Article QQ.E.17:

1. Where a Party requires or permits, as a condition of approving the marketing of a pharmaceutical product, persons, other than the person originally submitting safety or efficacy information, to rely on that information or on evidence concerning safety or efficacy information for a product that was previously approved, such as evidence of prior marketing approval in another territory, each Party shall:114

(a) provide a transparent and effective system to:

  1. identify a patent or patents covering an approved pharmaceutical product or its approved method of use; and

  2. provide notice to a patent holder of the identity of another person who intends to market, during the term of the identified patent or patents, a product that is the same as, or similar to, the approved pharmaceutical product referenced in subparagraph 5(a)(i).

(b) unless such other person agrees to defer the marketing of the product until after the expiration of an identified patent, ensure that a patent holder may seek, prior to granting of marketing approval to an allegedly infringing product, available remedies by providing:

  1. an automatic delay of the grant of marketing approval that remains in place for a period of time designed to ensure sufficient opportunity to adjudicate115 disputes concerning the validity or infringement of allegedly infringed patents; and

  2. judicial or administrative procedures, including effective

    provisional measures, to allow for the timely adjudication of disputes concerning the validity or infringement of an allegedly infringed patent.

(c) If such other person's product has been found to infringe a valid patent identified pursuant to subparagraph (a), provide measures that operate to prohibit the unauthorized marketing of that product prior to the expiration of the patent.

(d) when a Party delays the grant of marketing approval consistent with subparagraph 5(b)(i), provide an effective reward, consistent with the provisions of this Agreement, for the successful challenge of the validity or applicability of the patent.116

  1. In implementing subparagraph 5(b)(i), and as a condition for providing the automatic delay of the grant of marketing approval specified in subparagraph 5(b)(i) for a new pharmaceutical product approved consistent with subparagraph 2(b) or 2(d), a Party may require that an applicant that has submitted an application for marketing approval consistent with subparagraph 2(b) or 2(d) to commence the process of obtaining marketing approval for that new pharmaceutical in the Party within [X] years of the date of first marketing approval of the pharmaceutical product in another Party.

Article QQ.E.18:

Where a Party provides for a period of data protection for a pharmaceutical product of more than [5+Y] years pursuant to subparagraph 2(a) or 2(b) of this Article, that Party is not required to implement for that pharmaceutical product subparagraphs 2(c), 2(d) (3-year data protection in connection with submission of new clinical information), 5(b)(i) (automatic delay of marketing approval) or 5(d) of this Article (reward for the successful challenge of the validity or applicability of a patent).

Article QQ.E.19:

Where a Party chooses to apply subparagraph 6(e) of Article 8 and paragraphs 4 and 6 of this Article, the following provisions shall apply:

  1. a Party shall permit an applicant to commence the process of obtaining marketing approval by providing the regulatory authority of the Party information supporting approval of the new pharmaceutical product in the Party that is available to the person at the time the request is made, such as evidence of the prior approval of the product in another Party. It is understood that, while a Party may impose reasonable additional requirements or deadlines as a condition of authorizing the person to market the pharmaceutical product in its territory, satisfaction of those additional requirements or deadlines or the granting of approval shall be recognized by the Party as necessarily occurring after the commencement of the marketing approval process within the meaning of subparagraph 6(e) of Article 8 and paragraphs 4 and 6 of this Article; and

  2. a Party may not refuse to grant approval of a new pharmaceutical product on the basis of a failure of an applicant for marketing approval to satisfy the requirements of subparagraph 6(e) of Article 8 or paragraphs 4 and 6 of this Article.

Article QQ.E.20: [Placeholder for specific provision applying to biologics].]

[US: General Provisions relating to Pharmaceutical Products and Agricultural Chemical Products

Article QQ.E.21:

For purposes of this Article, a new pharmaceutical product means a product that does not contain a chemical entity that has been previously approved in the territory of the Party for use in a pharmaceutical product [JP propose: for human use].117

Article QQ.E.22:

Subject to paragraph 3 (protection of public health), when a product is subject to a system of marketing approval in the territory of a Party pursuant to paragaph 1 or 2 and is also covered by a patent in the territory of that Party, the Party shall not alter the term of protection that it provides pursuant to paragraph 1 or 2 in the event that the patent protection terminates on a date earlier than the end of the term of protection specified in paragraph 1 or 2.]]

Article QQ.E.XX.1: {Measures to Encourage Timely Entry of Pharmaceutical Products}

[NZ/CA/SG/CL/MY/VN propose: Each Party may adopt or maintain measures to encourage the timely entry of pharmaceutical products to its market.]

Article QQ.E.XX.2: {Patent Quality and Efficiency}

[NZ/CA/SG/CL/MY/VN propose: 1. Each Party shall endeavour to improve quality and efficiency in its patent system.

2. Each Party shall endeavour to enhance its patent registration system by maintaining examination procedures, cancellation procedures and, where provided, opposition procedures that consistently provide high quality rights for granted patents, and endeavour to simplify and streamline its administration system for the benefit of all users of the system and the public as a whole.]

Article QQ.E.XX.3: {Processing Efficiency}

[NZ/CA/SG/CL/MY/VN propose: 1. Each Party shall endeavour to process applications for patents, and applications for marketing, regulatory or sanitary approval of pharmaceutical products, in an efficient and timely manner.

2. Each Party may provide a procedure for patent applicants to apply to expedite the examination of their patent application.

3. If there are unreasonable delays in a Party's processing of applications for patents, or processing of applications for marketing, regulatory or sanitary approval of pharmaceutical products, the Party shall endeavour to address those delays.]

Article QQ.E.XX.4: {Protection of Undisclosed Data}

[NZ/CA/SG/CL/MY/VN propose: 1. Where a Party requires, as a condition of marketing, regulatory or sanitary approval for pharmaceutical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, that Party shall protect such data against unfair commercial use. In addition, each Party shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data is protected against unfair commercial use.

  1. Each Party may provide that the protection of data under paragraph 1, inter alia:

    1. is limited to undisclosed test or other data, the origination of which involves a considerable effort;

    2. is limited to pharmaceutical products that do not contain a new chemical entity that has been previously approved for marketing in the Party;

    3. is limited to pharmaceutical products which utilize a new chemical entity;

    4. is available only once per pharmaceutical product;

    5. is not available for new uses or indications, new dosage forms or methods of making a pharmaceutical product;

    6. is limited to a period of time as determined by the Party; or

    7. may be waived to facilitate the marketing, regulatory or sanitary approval of a pharmaceutical product that is the subject of a voluntary or compulsory license, or a licence otherwise issued pursuant to the TRIPS Agreement.

  1. Each Party may take measures to protect public health in accordance with:

    1. the Declaration on the TRIPS Agreement and Public Health (WT/MIN(01)/DEC/2) (the "Declaration");

  1. any waiver of any provision of the TRIPS Agreement granted by WTO Members in accordance with the WTO Agreement to implement the Declaration and in force between the Parties; and

  2. any amendment of the TRIPS Agreement to implement the Declaration that enters into force with respect to the Parties.]

Article QQ.E.XX.5: {Publication of Regulatory Approval}

[NZ/CA/SG/CL/MY/VN propose: Each Party shall endeavour to promptly make public the granting of marketing, regulatory or sanitary approval of pharmaceutical products.]

Article QQ.E.XXX {Agricultural Chemical Products}

[US/SG/PE/MX/JP propose118 ; NZ/VN oppose: 1.

(a) If a Party requires [AU/CL/MX oppose: or permits], as a condition of granting marketing approval [CL/MX propose: or sanitary permit] for a new agricultural chemical product [CL/MX propose; JP oppose: which utilize new chemical entity], the submission of [CL/MX propose: undisclosed][AU oppose: information] [AU propose; JP oppose: undisclosed test or other data] concerning safety or efficacy of the [CL/MX oppose: product][CL/MX propose; JP oppose: new chemical entity], the Party shall not, without the consent of [AU oppose: a person that previously submitted such] [AU propose: the person who provided the] [CL/MX oppose: safety or efficacy] information [AU oppose: to obtain marketing approval in the Party, authorize another] [AU propose: , permit third persons] to [CL/MX oppose: market] a [CL/MX oppose: same or a similar] product based on:

[SG oppose: (i) [CL/MX propose; JP oppose: undisclosed information concerning][AU oppose: the safety or efficacy information submitted in support of the marketing approval] [CL/MX propose: or sanitary permit][AU propose; JP oppose: that undisclosed test or other data]; or]

[CL/MX oppose: (ii) [AU oppose: evidence of the existence of] the marketing approval,]

[MX oppose: for [AU oppose: at least] ten years from the date of marketing approval [AU oppose: in the territory of] [AU propose: by] the Party .] [MX propose: Where origination of such data involve considerable efforts,119 ] [CL/MX propose; JP oppose: Each Party shall protect such information against disclosure except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use]

[CL/MX oppose: (b) If a Party [AU oppose: requires or permits, in connection with] [AU propose: permits, as a condition of ] granting marketing approval for a new agricultural chemical product, the submission of evidence concerning the safety or efficacy of a product that was previously approved in another territory, such as evidence of prior marketing approval [AU oppose: in the other terrritory]; the Party shall not, without the consent of [AU oppose: a person that] [AU propose: the person who] previously submitted [AU oppose: the safety or efficacy] information [AU propose: concerning safety or efficacy] to obtain marketing approval in another territory, [AU oppose: authorize another] [AU propose: permit third persons] to market a same or a similar product based on:

[SG oppose: (i) [AU oppose: the safety or efficacy] information [AU propose: concerning safety or efficacy] submitted [AU oppose: in support of] [AU propose: to obtain] the prior marketing approval in the other territory; or]

(ii) evidence of [AU oppose: the existence of a] prior marketing approval in the other territory,

for [AU oppose: at least] ten years from the date of marketing approval [AU oppose: of the new product in the territory of the Party].]

[PE propose120: In order to receive protection under subparagraph (b), a Party may require that the person providing the information in the other territory seek approval in the territory of the Party within five years after obtaining marketing approval in the other territory.]

[MX propose121: Where a Party relies on a marketing approval granted by another Party, the reasonable period of exclusive use of the data submitted in connection with obtaining the approval relied on shall begin with the date of the first marketing approval relied on.]

[CL/MX oppose: 2. For purposes of this Article, a new agricultural chemical product is one that [AU oppose: contains] [AU propose: does not contain] a chemical entity that has [AU oppose: not] been previously approved [AU propose: for marketing] in the [AU oppose: territory of the] Party [AU oppose: for use in an agricultural chemical product].]]

[NOTE: ARTICLES ORIGINALLY LABELED AS QQ.E.23-24 HAVE BEEN MOVED TO QQ.A.4-5]

Article QQ.E.23 122 : [PE/NZ/MX/SG: Proposed joint text for the Intellectual Property Chapter on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources

[PE/NZ/VN/BN/MX/SG/CL/MY propose: 1. The Parties recognise the importance and contribution of traditional knowledge, traditional cultural expressions, and biological diversity to cultural, economic and social development. ]

[PE/MY/MX/BN propose; NZ/AU/SG/CL oppose: 2. Each Party exercises sovereignty over their biological [MY/BN oppose: diversity] [MY/BN propose: resources] and shall determine the access conditions to their genetic resources and their derivatives in accordance to their domestic legislation.]

[PE/NZ/BN/MY/MX/VN propose; AU/SG/CL oppose: 3. Where national legislation [MY/BN propose: or policies] establishes such requirements, the Parties recognise that users of genetic resources [NZ/CA oppose: and their derivatives] [ 123 ] or traditional knowledge associated with genetic resources [NZ/CA oppose: and their derivatives] [NZ propose: may] [PE/MY propose: shall]:

(a) obtain prior informed consent to access genetic resources [NZ/CA oppose: and their derivatives];

(b) access traditional knowledge associated with genetic resources [NZ/CA oppose: and their derivatives] with the prior informed consent or approval and involvement of the indigenous or local community holding such knowledge; and

  1. [BN/MY propose: fairly and] equitably share the benefits arising from the use of genetic resources [NZ/CA oppose: and its derivatives] and traditional knowledge associated with genetic resources [NZ/CA oppose: and their derivatives] on mutually agreed terms.]

[PE/NZ/MX/CL/VN propose; SG oppose: 4. The parties recognize that:

(a) information about genetic resources [NZ/CL/AU/CA oppose: and their derivatives] and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] can be useful in assessing patent applications against existing eligibility criteria; and

(b) the intellectual property system is one possible means to protect the traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] and traditional cultural expressions of indigenous and local communities.]

[PE/NZ/MX/CL propose; SG oppose: 5. The Parties affirm that they will promote quality patent examination of applications concerning genetic resources and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] to ensure that the eligibility criteria for patentability are satisfied. This may include:

(a) in determining prior art, ensuring that readily available documented information related to genetic resources [NZ/CL/AU/CA oppose: and their derivatives] or traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]] is taken into account;

(b) an opportunity to cite, in writing, to the appropriate examining authority prior art that may have a bearing on patentability;

(c) where applicable and appropriate, the use of databases or digital libraries containing traditional knowledge [CL oppose: associated genetic resources [NZ/AU/CA oppose: and their derivatives]]; and

(d) cooperation in the training of patent examiners in the examination of patent applications related to genetic resources [NZ/CL/AU/CA oppose: and their derivatives] and traditional knowledge [CL oppose: associated with genetic resources [NZ/AU/CA oppose: and their derivatives]].]

[PE/NZ/AU/MX/MY/BN/VN/CL propose; SG oppose: 6. Subject to each Party's international obligations [AU/MY/BN/VN/CL oppose: the Parties affirm that they will endeavour to][AU/MY/BN/VN/CL propose: each Party may] establish appropriate measures to protect traditional knowledge and [MY oppose: traditional cultural expressions].]

[PE/MX propose; NZ/AU/SG/CL oppose: 7. Each Party will take appropriate, effective and proportionate measures to address situations of non-compliance with provisions established in paragraph 3.]

[PE/NZ/MX/SG/MY/BN/VN propose: 8. The Parties shall, through their respective agencies responsible for intellectual property, cooperate to enhance understanding of how the intellectual property system can deal with issues associated with traditional knowledge, traditional cultural expressions and genetic resources. [This text is a place holder, to be reconsidered depending on the outcome of the cooperation section of the IP chapter]]]

[JP propose: {INDUSTRIAL DESIGNS}

{Section F: Industrial Designs}

Article QQ.F.1: {Partial Design}

Each Party shall ensure that adequate and effective protection is provided to industrial designs, including to designs of a part of an article, regardless of whether or not the part can be separated from the article.]

{COPYRIGHT AND RELATED RIGHTS}

{Section G: Copyright and Related Rights [124]}

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

  1. Each Party shall provide125 that authors, [NZ oppose: performers], and producers of phonograms126 have the right127 to authorize or prohibit all reproductions of their works, [NZ oppose: performances], and phonograms, [128] in any manner or form,[129] [VN/CA/NZ oppose: permanent or temporary (including temporary storage in electronic form)] [130] [131] [VN propose: it shall be a matter for national legislation to determine exceptions and limitations under which the right may be exercised].

Article QQ.G.2: {Copyright}

Without prejudice to Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii), and 14bis(1) of the Berne Convention, each Party shall provide to authors the exclusive right to authorize or prohibit the communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.132

Article QQ.G.3: {Copyright and Related Rights}

[US/AU/PE/NZ/SG/CL/MX propose; VN/MY/BN/JP oppose: Each Party shall provide to authors, [NZ/MX oppose: performers,] and producers of phonograms the right to authorize or prohibit the importation[133] into that Party's territory of copies134 of the work [PE oppose: [NZ/MX: oppose: performance,] or phonogram] made without authorization, [PE/AU/NZ/CA/SG/CL/MX/JP oppose: or made outside that Party's territory with the authorization of the author, performer, or producer of the phonogram.[135] ]] [136]

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

Each Party shall provide to authors, [NZ/MX oppose: performers,] and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies137 of their works, [NZ/MX oppose: performances,] and phonograms through sale or other transfer of ownership.[138]

Article QQ.G.5:

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

Article QQ.G.6:

[US/AU/PE/SG/CL/MX propose; VN/BN/NZ/MY/CA/JP oppose: Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:

  1. on the basis of the life of a natural person, the term shall be not less than the life of the author and [MX propose: 100] [MX oppose: 70] years after the author's death; and

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

  1. not less than [US propose; CL oppose: 95] [AU/PE/SG/CL propose: 70] [MX propose: 75] years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or

  2. failing such authorized publication within [US propose; CL oppose: 25] [SG/PE/AU/CL propose: 50] years from the creation of the work, performance, or phonogram, not less than [US propose; CL oppose: 120] [AU/PE/SG/CL propose: 70] years from the end of the calendar year of the creation of the work, performance, or phonogram.]

Article QQ.G.7: {Term of Protection for Copyright and Related Rights}

[NZ/BN/MY/VN/CA/JP propose; US/AU/SG/MX oppose: The term of protection of a work, performance or phonogram shall be determined according to each Party's domestic law and the international agreements to which each Party is a party.]

Article QQ.G.8:

Each Party shall apply Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) (Berne Convention) and [PE/SG/NZ/BN/US/VN/CL/MY/MX139: the corresponding provision in] Article 14.6 of the TRIPS Agreement, mutatis mutandis, to [CA oppose: the subject matter, rights, and obligations] [CA propose; US oppose: rights of authors, performers and producers of phonograms] in [Section G].

QQ.G.8

[CA/JP/SG/BN/NZ/PE/CL/VN/AU140 propose: Each Party shall apply, mutatis mutandis, Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (1971) to the rights of authors, performers and producers of phonograms in [Section G]. A Party may provide for conditions, limitations, exceptions and reservations to the extent permitted in Article 14.6 of the TRIPS Agreement. ]

Article QQ.G.9:

Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right141in a work, [SG/BN/NZ/MY/VN/CL oppose: performance,] or phonogram:

  1. may freely and separately transfer that right by contract; and

  1. by virtue of a contract, including contracts of employment underlying the creation of works, [BN/SG/MY/VN/NZ/CL oppose: performances,] and phonograms, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right.

[CL: (c) Each Party may establish:

(i) which specific contracts underlying the creation of works or phonograms shall, in the absence of a written agreement, result in a transfer of economic rights by operation of law; and

(ii) reasonable limits to the provisions in [paragraph 2(a)] [cross reference to QQ.G.9(a)-(b)] to protect the interests of the original right holders, taking into account the legitimate interests of the transferees.]

Article QQ.G.X

No Party may subject the enjoyment and exercise of the rights of authors, performers and producers of phonograms provided for in this Chapter to any formality.

Article QQ.G.10: {Copyright and Related Rights / Technological Protection Measures}142

[US/AU/SG/PE/MX143 144 145 propose; MY/VN/BN/JP oppose146: (a) In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that authors, performers, and producers of phonograms use in connection with the exercise of their rights147 and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide that any person who:

  1. knowingly, [CL oppose: or having reasonable grounds to know]148, circumvents without [CL oppose: authority] [CL propose: authorization] any effective technological measure that controls access to a protected work, performance, phonogram, [PE/CA/CL oppose: or other subject matter]; or

  2. manufactures, imports, distributes, [CL oppose: offers [CA/CL propose: for sale or rental] to the public, provides, or otherwise traffics149 in] devices, products, or components, [CL oppose: or offers to the public] or provides services, that:

    1. are promoted, advertised150, or marketed by that person, [PE/SG/CL oppose: or by another person acting in concert with that person and with that person's knowledge,] for the purpose of circumvention of any effective technological measure,

    2. have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or

    3. are primarily designed, produced, or performed for the purpose of [CA oppose: enabling or facilitating] the circumvention of any151 effective technological measure,

    shall be liable and subject to the remedies set out in Article [12.12]152 153. [CL propose: If the conduct is carried out in good faith without knowledge that the conduct in prohibited, a Party may exempt acts prohibited under this subparagraph that are carried out in connection with a nonprofit library, archive or educational institution]. Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit 154 library, [CA/CL propose: museum,] archive, educational institution, or [CA/CL oppose: public noncommercial broadcasting entity,] [CA propose: any other nonprofit entity as determined by a Party's law] is found to have engaged [CA oppose: willfully and for purposes of commercial advantage [CL oppose: or private financial gain]] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [SG/AU/PE/CL155 oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b), and (f) of Article [15.5]156 as applicable to infringements, mutatis mutandis. [157] ][CL propose: No Party is required to impose civil or criminal liability for a person who circumvents any effective
    technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, but does not control access to such work].

  1. In implementing subparagraph (a), no Party shall be obligated to require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as the product does not otherwise violate any measures implementing subparagraph (a).

[CL oppose: (c) Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party's law on copyright and related rights.]

  1. 158 Each Party shall confine exceptions and limitations to measures implementing subparagraph (a) [CL oppose: to the following activities,] [CL propose: certain special cases that do not impair the adequacy of legal protection of the effectiveness of legal remedies against the circumvention of effective technological measures] [CL oppose: which shall be applied to relevant measures in accordance with subparagraph (e)]:

    1. [CA oppose: noninfringing reverse engineering activities with regard to a lawfully obtained copy of a computer program, carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities 159, for the sole purpose of achieving interoperability of an independently created computer program with other programs160] [CA propose: reverse engineering activities with regard to a lawfully obtained copy of a computer program, for the sole purpose of achieving interoperability of the program or any other program];

    2. [CA oppose: noninfringing good faith activities, carried out by an appropriately qualified researcher who has lawfully obtained a copy, [CL oppose: unfixed] performance, or display of a work, performance, or phonogram and who has made a good faith effort to obtain authorization for such activities, to the extent necessary for the sole purpose of research consisting of identifying and analyzing flaws and vulnerabilities of [CL propose: encryption] technologies161 [CL oppose: for scrambling and descrambling of information]] [CA propose: activities with regard to a lawfully obtained copy of a work, performance, or phonogram for the sole purpose of encryption research] ;

    3. the inclusion of a component or part for the sole purpose of preventing the access of minors to inappropriate online content in a technology, product, service, or device that itself is not prohibited under the measures implementing subparagraph (a)(ii)162;

    4. [CA oppose: noninfringing good faith activities that are authorized by the owner of a computer, computer system, or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or computer network] [CA propose: security testing activities that are authorized by the owner or administrator of a computer, computer system or computer network for the sole purpose of testing, investigating, or correcting the security of that computer, computer system or computer network];

    5. [CA oppose: noninfringing activities for the sole purpose of identifying and disabling a capability to carry out undisclosed collection or dissemination of personally identifying information reflecting the online activities of a natural person in a way that has no other effect on the ability of any person to gain access to any work] [CA propose: activities for the sole purpose of identifying or disabling a capacity to carry out collection or dissemination of personally identifying information];

    6. lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes163;

    7. access by a nonprofit library, [CA propose: museum,] archive, or educational institution to a work, performance, or phonogram not otherwise available to it, for the sole purpose of making acquisition decisions; and

[CA propose: (viii) activities for the sole purpose of making a work, performance or phonogram perceptible to a person with a perceptual disability.

  1. activities for the sole purpose of making an ephemeral reproduction of a work, performance or phonogram,

  2. circumvention of a technological measure on a radio apparatus for the sole purpose of gaining or facilitating access to a telecommunication service by means of the radio apparatus]

  1. [CA oppose: noninfringing uses [SG oppose: of a work, performance, or phonogram] in a particular class of works, [SG oppose: performances, or phonograms] when an actual or likely adverse impact on those noninfringing uses [CL propose: or exceptionsor limitations to copyright or related rights with respect to users] is [PE oppose: credibly demonstrated] [PE propose: found] [CL propose: demonstrated or recognized] in a legislative or administrative review or proceeding [SG oppose: by substantial evidence]; provided that [AU/PE oppose: any limitation or exception adopted in reliance upon this clause shall have effect for a renewable period of not more than three [SG propose: four] years] [AU/PE propose: any such review or proceeding is conducted at least once every four years] from the date of conclusion of such review or proceeding.]

    [CA propose: (xi) Each Party may provide further exceptions and limitations to measures implementing subparagraph (a) in relation to non infringing uses as determined through a legislative, regulatory, judicial, or administrative process in accordance with the Party's law, following due consideration of the actual or potential adverse impact on those non infringing uses.]

  1. 164 The exceptions and limitations to measures implementing subparagraph (a) for the activities set forth in subparagraph [4.9(d)] may [CL oppose: only] be applied as follows[CL oppose: , and only to the extent that they do not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of effective technological measures]:

    1. Measures implementing subparagraph (a)(i) may be subject to exceptions and limitations with respect to each [CL propose: situations and] activity set forth in subparagraph (d).

    2. Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that control access to a work, performance, or phonogram, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d)(i), (ii), (iii), (iv), and (vi).

  1. Measures implementing subparagraph (a)(ii), as they apply to effective technological measures that protect any copyright or any rights related to copyright, may be subject to exceptions and limitations with respect to activities set forth in subparagraph (d)(i) and (vi).

  1. 165 Effective technological measure means any [CA propose: effective] technology, device, or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, [PE/CL/CA oppose: or other protected subject matter,] or protects [CA oppose: any copyright or any rights related to copyright] [CA propose: rights related to a work, performance or phonogram].][CL propose: and cannot, in a usual case be circumvented accidentally.]

Article QQ.G.11:

[SG/CL propose166: Nothing in this agreement shall require any Party to restrict the importation or domestic sale of a device that does not render effective a technological measure the sole purpose of which is to control market segmentation for legitimate copies of cinematographic film or computer program, and is not otherwise a violation of law.]

Article QQ.G.12167: {Technological Protection Measures}

[CL/NZ/PE/VN/MY/BN/JP propose; AU/US oppose:

1. [PE/SG oppose: Each Party [VN propose: may] [VN oppose: shall] provide legal protections and remedies against the circumvention of effective technological protection measures in their domestic copyright laws where circumvention is for purposes of infringing the exclusive rights of copyright [NZ oppose: or related rights] owners.]

2. Each Party may provide that such protections and remedies shall not hinder or prevent uses of copyright or related rights protected material that are permitted under exceptions or limitations to the exclusive rights of copyright [NZ oppose: and related rights] owners, or the use of materials that are in the public domain.

[PE/SG: It is understood that nothing in this Article prevents a Party from adopting effective and necessary measures to ensure that a beneficiary may enjoy limitations and exceptions provided in that Party's national law, in accordance with Article QQG16, where technological measures have been applied to a work, performance or phonogram, and the beneficiary has legal access to that work, performance or phonogram particularly in circumstances such as where appropriate and effective measures have not been taken by rights holders in relation to that work, performance or phonogram to enable the beneficiary to enjoy the limitations and exceptions under that Party's national law.168]

3. Subject to each Party's international obligations, the Parties affirm that they may establish provisions to facilitate the exercise of permitted acts where technological measures have been applied.]

Article QQ.G.13: {Copyright and Related Rights / Rights Management Information}

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

  1. each Party [VN oppose: shall] [VN: may] provide [VN oppose: that] [VN: legal remedies against] any person who without authority, and knowing, or, with respect to civil remedies, having reasonable grounds to know, that it would induce, enable, facilitate, or conceal an infringement of [CA oppose: any] [CA propose: the] copyright or related right [VN oppose: ,] [VN: :]

  1. knowingly removes or alters any [CA/JP propose: electronic] rights management information;

  2. [MY/BN/VN/CA/JP oppose: distributes or imports for distribution rights management information knowing that the rights management information has been altered without authority; or]

  3. [CA propose: knowingly] distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, [CL/NZ/MY/SG/VN oppose: performances,] or phonograms, knowing that [CA/JP propose: electronic] rights management information has been removed or altered without authority [VN oppose: ,] [VN: .]

[VN oppose: shall be liable and subject to the remedies set out in Article [QQ.H.4(15) 169 ]. 170 Each Party [CA/MX/JP propose: may] [CA/MX oppose: shall] provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, [CA propose: museum,] [MY: or] educational institution [MY/CA oppose: , or [CL oppose: public noncommercial] broadcasting entity] [CA propose: any other nonprofit entity as determined by a Party's law.] [CL: established without a profit-making purpose], is found to have engaged [CA oppose: willfully and for purposes of commercial advantage or private financial gain] [CA propose: knowingly and for commercial purposes] in any of the foregoing activities. [MY/CA propose: Each Party may provide that these criminal procedures and penalties do not apply to any other nonprofit entity as determined by a Party's law.] [AU/SG/PE/CL/MY/NZ/BN/CA/MX/JP oppose: Such criminal procedures and penalties shall include the application to such activities of the remedies and authorities listed in subparagraphs (a), (b) and (f) of Article [15.5] as applicable to infringements, mutatis mutandis.]]

[SG/NZ/CL/MY/BN/VN/CA/JP oppose: (b) each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to lawfully authorized activities carried out by [MX propose: the] government [MX oppose: employees, agents, or contractors] for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes.]

(c) Rights management information means:

  1. [AU/MY/CA/JP propose: electronic] information that identifies a work, [NZ/MY oppose: performance,] or phonogram, the author of the work, [NZ/MY oppose: the performer of the performance,] or the producer of the phonogram; or the owner of any right in the work, [NZ/MY oppose: performance,] or phonogram;

  2. [AU/MY/CA/JP: electronic] information about the terms and conditions of the use of the work, [NZ/MY oppose:performance,] or phonogram ; or

  3. any [AU/MY/CA/JP: electronic] numbers or codes that represent such information,

when any of these items [CA propose: of information] is attached to a copy of the work, [NZ/MY oppose: performance,] or phonogram or appears in connection with the communication or making available of a work, [NZ/MY oppose: performance] or phonogram, to the public.

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

Article QQ.G.14: {Related Rights}

1. Each Party shall accord the rights provided for in this Chapter with respect to [NZ/BN/MY oppose: performers and] producers of phonograms to the [NZ/BN/MY oppose: performers and] producers of phonograms who are nationals171 of another Party and to [NZ/BN/MY oppose: performances or] phonograms first published or first fixed in the territory of another Party172. A [NZ/BN/MY oppose: performance or] phonogram shall be considered first published in the territory of a Party in which it is published within 30 days of its original publication.[173][174]

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

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

  2. fixation of their unfixed performances.

3. [US/AU/PE/NZ/MY/BN/VN/CL/MX/SG propose ; CA oppose:

(a) Each Party shall provide to [NZ oppose: performers and] producers of phonograms the right to authorize or prohibit [BN oppose: the broadcasting or] any communication to the public of their [NZ oppose: performances or] phonograms, by wire or wireless means, including the making available to the public of those [NZ oppose: performances and] phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.]

[US/CL/PE/MX/SG/MY/NZ/AU/VN/BN propose: (b) Notwithstanding subparagraph (a) and Article [QQ.G.16.1] [exceptions and limitations - 3 step test], the application of this right to analog transmissions and [SG/VN/BN oppose: non-interactive], free over-the-air [CL/PE/MX oppose: analog and digital] broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party's law.]

[US/AU/SG/CL/PE/VN/MY propose: (c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article [QQ.G.16.1] [exceptions and limitations - 3 step test], provided that the limitations do not [CL/PE oppose: unreasonably] prejudice the right of the performer or producer of phonograms to obtain equitable remuneration].

[CA propose: Each Party shall provide to performers and producers of phonograms the rights to authorize or prohibit:

(c) the broadcasting or any communication to the public of their performances or phonograms; and

(d) the making available to the public, by wire or wireless means, of their performances and phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them.

Where, upon the data of signature of this Agreement, the right in subparagraph (a) has not been implemented by a Party, the requirement may be satisfied by providing a right to a single equitable remuneration for the direct or indirect use of phonograms published175 for commercial purposes for broadcasting or for any communication to the public.176]

Article QQ.G.15:

For purposes of this [Article QQ.G.1 and Article QQ.G.3 - 18 ], the following definitions apply with respect to performers and producers of phonograms:

  1. broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent177;

  2. communication to the public of a performance or a phonogram means the transmission to the public by any medium, other than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of paragraph [3], "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public;

  1. fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;

  2. performers means actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

  3. phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

  4. producer of a phonogram means the person who, or the legal entity which, takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds; and

  5. [CA propose:178]publication of a performance or a phonogram means the offering of copies of the performance or the phonogram to the public, with the consent of the rightholder, and provided that copies are offered to the public in reasonable quantity.

Article QQ.G.16 {Limitations and Exceptions}179

Article QQ.G.X

  1. With respect to Section G, each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.

  2. Article QQ.G.X.1 neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the TRIPS Agreement, Berne Convention [VN propose: Rome Convention,] the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. 180


Article QQ.G.Y

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.X, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to, criticism, comment, news reporting, teaching, scholarship, research [CL/MY propose181: ,education, ] [CL propose: and persons with disabilities] [US/MY/SG/CA/PE/BN/MX/VN propose: , as well as facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled]182 183.

Article QQ.G.Z

[CL/NZ/MY propose184: It is consistent with this Agreement to provide exceptions and limitations for temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work; and which have no independent economic significance.]

Article QQ.G.17: {International Exhaustion of Rights}

[CL/NZ/SG/MY/BN/VN/PE/MX185 propose; AU/US oppose: The Parties are encouraged to establish international exhaustion of rights.]

[CA propose: Nothing in this Chapter shall affect the freedom of the Parties to determine whether and under what conditions the exhaustion of copyright and related rights applies.]

Article QQ.G.18: {Collective Management}

The Parties recognize the important role of collective management societies for copyright and related rights in collecting and distributing royalties186 based on practices that are fair, efficient, transparent and accountable, and which may include appropriate record keeping and reporting mechanisms.

{ENFORCEMENT}

{Section H: Enforcement}

Article QQ.H.1: {General Enforcement / General Obligations Relating to the Enforcement of Law [187] of Intellectual Property Rights}

1. Each Party shall ensure that enforcement procedures as specified in this section, are available under its law [CL/SG/CA/BN/PE/MX/VN propose: and its legal system] so as to permit effective action against any act of infringement of intellectual property rights covered by this Chapter, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to future infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

2. Each Party shall ensure that its procedures concerning the enforcement of intellectual property rights shall be fair and equitable. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

[CL/VN/PE/AU/MY/BN/NZ/SG/MX/CA propose: 3. This Section does not create any obligation:

(a) to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of each Party to enforce their law in general, or

(b) with respect to the distribution of resources as between the enforcement of intellectual property rights and the enforcement of law in general.]

[US/SG propose188; BN/VN/PE/MY/NZ/MX/CA oppose: 4. The Parties understand that the distribution of enforcement resources shall not excuse that Party from complying with this Section189.]

Article QQ.H.2: {Presumptions}

1. In civil, criminal, and if applicable, administrative proceedings involving copyright or related rights, each Party shall provide:

  1. for a presumption [US/CA propose: 190] that, in the absence of proof to the contrary, the person whose name is indicated in the usual manner [CL/VN/BN/AU/MX/CA/SG/PE/NZ propose: 191 ] as the author, performer, producer [CA oppose: , or publisher] of the work, performance, or phonogram [CA propose: , or as applicable, the publisher] is the designated right holder in such work, performance, or phonogram; and

  2. for a presumption that, in the absence of proof to the contrary, the copyright or related right subsists in such subject matter.

[US/BN/MY/NZ/SG/CA propose; 2 AU/PE/CL/VN/MX oppose192: In civil, [BN/MY oppose: administrative,] and criminal proceedings involving trademarks, each Party shall provide for a rebuttable presumption that a registered trademark is valid.

[BN/SG/MY oppose193: In civil or administrative patent enforcement proceedings, each Party shall provide for a rebuttable presumption that each claim in a patent substantively examined and granted by the competent authority satisfies the applicable criteria of patentability in the territory of the Party 194].]

Article QQ.H.3: {Enforcement Practices With Respect to Intellectual Property Rights}

1. Each Party shall provide that final judicial decisions and administrative rulings of general application pertaining to the enforcement of intellectual property rights shall [SG/BN/MY/CA propose: preferably] be in writing and [MY oppose: shall] [MY/CA propose: may] state [VN/SG/BN/MY/CA oppose: any relevant findings of fact and] the reasoning or the legal basis on which the decisions and rulings are based. Each Party shall also provide that such decisions and rulings shall be published [195] or, where publication is not practicable, otherwise made available to the public, in a national language in such a manner as to enable interested persons and Parties to become acquainted with them.

2. Each Party recognizes the importance of collecting and analyzing statistical data and other relevant information concerning intellectual property rights infringements as well as collecting information on best practices to prevent and combat infringements.

3. Each Party [US/AU/PE/NZ/CL/MX/CA/JP/SG/BN/VN propose: shall] [MY propose: may] publish or otherwise make available to the public information on its efforts to provide effective enforcement of intellectual property rights in its civil, administrative and criminal systems, such as statistical information that the Party may collect for such purposes.

Article QQ.H.4: {Civil Procedures and Remedies / Civil and Administrative Procedures and Remedies}

1. Each Party shall make available to right holders 196 civil judicial procedures concerning the enforcement of any intellectual property right 197 covered in this Chapter.

2 Each Party shall provide [198] that in civil judicial proceedings its judicial authorities have the authority at least to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered [PE oppose: because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.] [SG/PE/AU/NZ/MY/CL/CA/MX/BN/VN oppose: 199]

2bis. At least in cases of copyright or related rights infringement and trademark counterfeiting, each Party shall provide that, in civil judicial proceedings, its judicial authorities have the authority to order the infringer to pay the right holder the infringer's profits that are attributable to the infringement.[200]

2ter. In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia,any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

[US/CA/BN/AU/JP/MX/NZ/PE/VN propose: 3.201 Each Party shall provide that its judicial authorities have the authority to order injunctive relief that conforms to the provisions of Article 44 of the TRIPS Agreement, inter alia, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce [VN propose: in that Party's Jurisdiction].]202

[CL/PE/BN//VN propose;203 US/NZ oppose: 4. Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse.]204

Article QQ.H.4.X

(1) In civil judicial proceedings, with respect to infringement of copyright or related rights protecting works, phonograms, and performances, each Party shall establish or maintain a system that provides for one or more of the following:

  1. pre-established damages, which shall be available upon the election of the right holder; or

  2. additional damages205.

(2)206 In civil judicial proceedings, with respect to trademark counterfeiting, each Party [US propose: shall] [NZ/MY/BN/JP propose: may] also establish or maintain a system that provides for one or more of the following:

  1. pre-established damages, which shall be available upon the election of the right holder; or

  2. additional damages.

(3) Pre-established damages shall be set out in an amount that would be sufficient to compensate the right holder for the harm caused by the infingement [VN oppose: , and with a view to deterring future infringements].

(4) In awarding additional damages, judicial authorities shall have the authority to award such additional damages as they consider appropriate, having regard to all relevant matters, including the [seriousness / extent / blatancy of the infringing conduct]207 and the need to deter similar infringements in the future.

ARTICLE QQ.H.4.Y

[US propose; SG/PE/VN/CA/CL/NZ/MY/BN/AU/MX/JP oppose: 6. In civil judicial proceedings concerning patent infringement, each Party shall provide that its judicial authorities shall have the authority to increase damages to an amount that is up to three times the amount of the injury found or assessed.208 ]

7. Each Party shall provide that its judicial authorities, [PE oppose: where appropriate,] [CA propose:209] [PE propose: except in exceptional circumstances] have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, [CA/MX/US propose: patents and] [CA/MX/US oppose: or] trademarks, that the prevailing party be awarded payment by the losing party of court costs or fees and appropriate attorney's fees, or any other expenses as provided for under that Party's law.

9210. In civil judicial proceedings concerning copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority [VN propose: , at the right holder's request,] to order [VN propose: as provisional measures] the seizure or other taking into custody of suspected infringing goods, materials and implements relevant to the infringement, and, at least for trademark counterfeiting, documentary evidence relevant to the infringement.

21110. Each Party shall provide that in civil judicial proceedings :

  1. At least with respect to pirated copyright goods and counterfeit trademark goods, each Party shall provide that, in civil judicial proceedings, at the right holder's request, its judicial authorities have the authority to order that such infringing goods be [VN propose: disposed of outside the channel of commerce or] destroyed, except in exceptional circumstances, without compensation of any sort.

  2. Each Party shall further provide that its judicial authorities have the authority to order that materials and implements that have been used in the manufacture or creation of such infringing goods, be, without undue delay and without compensation of any sort, destroyed or disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements.

  3. in regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional circumstances, to permit the release of goods into the channels of commerce.

11212. Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request [VN: propose213] of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.

12. Each Party shall provide that in relation to a civil judicial proceeding concerning the enforcement of intellectual property rights, its judicial or other authorities have the authority to impose sanctions on a party, counsel, experts, or other persons subject to the court's jurisdiction, for violation of judicial orders concerning the protection of confidential information produced or exchanged in connection with such a proceeding. 214

13. To the extent that any civil remedy [VN propose; MX oppose:215 ]can be ordered as a result of administrative procedures on the merits of a case, each Party shall provide that such procedures conform to principles equivalent in substance to those set out in this Article (civil and administrative proceedings)

14. In the event that a Party's judicial or other authorities appoint technical or other experts in civil proceedings concerning the enforcement of intellectual property rights and require that the parties to the litigation bear the costs of such experts, that Party should seek to ensure that such costs are reasonable and related appropriately, inter alia, to the quantity and nature of work to be performedand do not unreasonably deter recourse to such proceedings.

[US/AU/SG propose; BN/VN/MX/JP oppose216: 15. In civil judicial proceedings concerning the acts described in Article 4.[9] (TPMs) and Article 4.[10] (RMI), each Party shall provide that its judicial authorities shall, at the least, have the authoriy to:

  1. impose provisional measures, including seizure or other taking into custody of devices and products suspected of being involved in the prohibited activity;

  2. [US/SG propose; NZ/AU/MY oppose: provide an opportunity for the right holder to elect between actual damages it suffered (plus any profits attributable to the prohibited activity not taken into account in computing those damages) or pre-established damages;] [AU/NZ/PE propose: order damages of the type available for the infringement of copyright]

  3. order [NZ propose: , where appropriate,] payment to the prevailing party at the conclusion of civil judicial proceedings of court costs and fees, and appropriate attorney's fees, by the party engaged in the prohibited conduct; and

  4. order the destruction of devices and products found to be involved in the prohibited activity.

[US/AU/SG/NZ/MY/CL/CA propose [US propose: No Party shall make damages available under this paragraph] [AU/SG/NZ/MY/CL/CA propose: A Party may provide that damages shall not be available] against a [MY oppose: nonprofit] library, archives, educational institution, [CA propose: museum, or any other nonprofit entity as determined by a Party's law] [CA oppose: or public noncommercial broadcasting entity] [MY oppose: that sustains the burden of proving that such entity was not aware and had no reason to believe that its acts constituted a prohibited activity]. ]]217

[NZ/CA/SG/CL/MY propose: 16. Each Party may adopt or maintain measures to discourage vexatious or unreasonable proceedings, including those involving pharmaceutical products that are subject to marketing, regulatory or sanitary approval.]

Article QQ.H.5: {Provisional Measures}

1. Each Party's authorities shall act on requests for relief inaudita altera parte expeditiously in accordance with the Party's judicial rules.

2. Each Party shall provide that its judicial authorities have the authority to require the applicant, with respect to provisional measures, to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant's right is being infringed or that such infringement is imminent, [VN//PE: and that any delay in the issuance of such measures is likely to cause irreparable harm to the right holders, or there is a demonstrable risk of evidence being destroyed,] and to order the applicant to provide a security or equivalent assurance set at a level sufficient to protect the defendant and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedures.

Article QQ.H.6: {Special Requirements Related to Border Enforcement218 / Special Requirements related to Border Measures} [219]

1. Each Party shall provide that any right holder initiating procedures for its competent authorities to suspend release of suspected counterfeit [SG/BN/MY/VN/CA oppose: or confusingly similar] trademark goods, or pirated copyright goods220 into free circulation is required to provide adequate evidence to satisfy the competent authorities that, under the law{s} of the [CA/NZ/MX/US/PE/AU oppose: country of importation] [CA/NZ/MX/US/PE/AU221 propose: Party providing the procedures], there is prima facie an infringement of the right holder's intellectual property right and to supply sufficient information that may reasonably be expected to be within the right holder's knowledge to make the suspected goods 222reasonably recognizable by its competent authorities. The requirement to provide such information shall not unreasonably deter recourse to these procedures.

1bis. Each Party shall provide for applications to suspend the release of, or to detain, any suspect goods 223 [SG/VN oppose: under customs control 224 in its territory.][SG/VN propose: that are imported into the territory of the Party225] A Party may provide that, at the request of the right holder, an application to suspend the release of, or to detain, suspect goods may apply to selected points of entry [US/CA/JP/MX226 propose; CL/SG/VN oppose: and exit] under customs control.]227 228 [US/AU/CA/JP/NZ propose; MX /PE/CL/MY/SG/VN/BN oppose: Each Party shall provide that applications [NZ oppose: shall] remain in force [NZ propose: for the period requested by the right holder but not exceeding five years, or] for a period of not less than one year from the date of application, or the period that the good is protected by copyright or the relevant trademark registration is valid, whichever is shorter.[NZ propose: A Party may provide that its competent authorities have the authority to suspend or invalidate an application when there is due cause.]

2. Each Party shall provide that its competent authorities have the authority to require a right holder initiating procedures to suspend the release of suspected counterfeit [BN/SG/MY/VN/CA oppose: or confusingly similar] trademark goods, or pirated copyright goods, to provide a reasonable security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Each Party shall provide that such security or equivalent assurance shall not unreasonably deter recourse to these procedures. A Party may provide that such security may be in the form of a bond conditioned to hold the defendant harmless from any loss or damage resulting from any suspension of the release of goods in the event the competent authorities determine that the article is not an infringing good.


3. Without prejudice to a Party's laws pertaining to privacy or the confidentiality of information, where its competent authorities have detained or suspended the release of goods that are suspected of being counterfeit or pirated, a Party may provide that its competent authorities have the authority to inform the right holder [CA/VN propose: who has filed a request for assistance] [MY/CA/BN/PE/VN oppose: promptly] [MY/CA/PE
229 /BN/SG/VN propose: within a reasonable period] of the names and addresses of the consignor, exporter, consignee or importer, a description of the merchandise, quantity of the merchandise, and, if known, the country of origin of the merchandise.: Where a Party does not provide such authority to its competent authorities when suspect goods are detained or suspended from release, it shall provide [US/VN propose: , at least in cases of imported goods,] its competent authorities with the authority to provide the foregoing information to the right holder [SG/VN oppose: within 30 days230] [SG/VN propose: within a reasonable period] of the seizure or determination that the goods are counterfeit or pirated, whichever is earlier.

[US/PE/AU/SG/MY/CL/CA/BN/JP propose; NZ/VN/MX oppose: 4. Each Party shall provide that its competent authorities may initiate border measures ex officio231 with respect to [AU propose: merchandise that is] imported, [MY/CL/AU/PE/BN oppose: exported,] [CL/AU/PE propose; SG oppose: destined for export,] [AU/MY/SG/CA/BN/CL oppose: or in-transit merchandise,[PE oppose: 232 ]] [PE/SG/MY/CL/CA/BN oppose: or [AU oppose: merchandise] [US propose: entering into or exiting from] [US oppose: in] free trade zones], that is suspected of being counterfeit [SG/PE/MY/CA/BN oppose: or confusingly similar] trademark goods, or pirated copyright goods.]

5. Each Party shall adopt or maintain a procedure by which its competent authorities may determine, within a reasonable period oftime after the initiation of the procedures described under Article QQ.H.6(1)233 whether the suspect goods infringe an intellectual property right. Where a Party provides administrative procedures for the determination of an infringement, it [VN234 propose: may] [VN oppose: shall] also provide its authorities with the authority to impose administrative penalties, which may include monetary penalties or the seizure of the infringing goods, following a determination that the goods are infringing.

6. Each Party shall provide that its competent authorities have the authority to order the destruction [VN propose: , or disposal outside the channel of commerce,] of goods following a determination that the goods are infringing. In cases where such goods are not destroyed, each Party shall ensure that, except in exceptional circumstances, such goods are disposed of outside the channels of commerce in such a manner as to avoid any harm to the right holder. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit the release of the goods into the channels of commerce.

7. Where a Party establishes or assesses, in connection with the procedures described in this section [article], an application fee, storage fee, or destruction fee, such fee shall not be set at an amount that unreasonably deters recourse to these procedures

8. Each Party shall include in the application of this Article goods of a commercial nature sent in small consignments. A Party may exclude from the application of this Article small quantities of goods of a non-commercial nature contained in travellers' personal luggage.235

Article QQ.H.7: {Criminal Procedures and Remedies / Criminal Enforcement}

1. Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.

2. [US/AU/SG/PE propose; CL/VN/MY/NZ/CA/BN/MX oppose: Willful copyright or related rights piracy on a commercial scale includes:

  1. significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and

  2. willful infringements for purposes of commercial advantage or [AU/SG/PE/JP oppose: private] financial gain.[AU/SG/PE/CA/JP oppose: 236]]

Each Party shall treat willful importation [SG/MX/BN/MY/VN oppose: or exportation] of counterfeit trademark goods [VN oppose: or pirated copyright goods] on a commercial scale as unlawful activities subject to criminal penalties.237

[US propose; AU/BN/MY/NZ/SG/CL/VN/PE/CA/MX/JP oppose: 3. Each Party shall also provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of knowing trafficking in:

  1. labels or packaging, of any type or nature, to which a counterfeit trademark 238 has been applied, the use of which is likely to cause confusion, to cause mistake, or to deceive; and

  1. counterfeit or illicit labels239 affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:

    1. a phonogram,

    2. a copy of a computer program or a literary work,

    3. a copy of a motion picture or other audiovisual work,

    4. documentation or packaging for such items; and

  2. counterfeit documentation or packaging for items of the type described in subparagraph (b).]

[NZ/AU/BN/MY/US/CA/SG/MX/JP propose; PE/CL/VN oppose: 4. Each Party shall provide for criminal procedures and penalties to be applied in cases of willful importation240 and domestic use, in the course of trade and on a commercial scale, of labels or packaging241:

  1. to which a mark has been applied without authorization which is identical to, or cannot be distinguished from, a trademark registered in its territory; and

  2. which are intended to be used in the course of trade on goods or in relation to services which are identical to goods or services for which such trademark is registered.]

[US propose; CA/JP oppose: Each Party shall further ensure that criminal penalties and procedures are applied in cases of knowing trafficking in illicit labels242 affixed, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany phonograms, copies of computer programs, literary works, motion pictures, or other audiovisual works.]

5. [AU/NZ/SG/MY/ CA/US propose; PE/VN/BN/MX/CL oppose: [US/CA propose: Each] [US/CA oppose: A] Party [SG/NZ/CL oppose: shall] [SG/NZ/CL/JP: may] provide criminal procedures and penalties [US/CA oppose: , in appropriate cases,] for the [US/CA propose: knowing and] unauthorized copying [MY: or recording] [US propose; CA/JP oppose: or transmittal] of [US/CA propose: a [JP propose: first-run] cinematographic work, or any part thereof,] [US/CA oppose: cinematographic works] from a performance in a [CA oppose: motion picture exhibition facility generally open to the public] [CA/JP propose: movie theater].]

6. With respect to the offenses for which this Article requires the Parties to provide for criminal procedures and penalties, Parties shall ensure that criminal liability for aiding and abetting is available under its law.

7. With respect to the offences described in Article QQ.H.7[1]-[4] above, each Party shall provide:

  1. penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity; 243

  1. 244that its judicial authorities shall have the authority, when determining penalties, to account for the seriousness of the circumstances, which may include those that involve threats to, or effects on, health or safety;245

  2. that its judicial [VN propose: or other]authorities shall have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offense, documentary evidence relevant to the alleged offense [MY oppose: , and assets 246 derived from, or obtained directly [VNoppose: or indirectly] through the alleged infringing activity].

    Where a Party requires the identification of items subject to seizure as a prerequisite for issuing any such judicial order, that Party shall not require the items to be described in greater detail than necessary to identify them for the purpose of seizure;

  3. that its judicial authorities shall have the authority to order the forfeiture, at least for serious offenses, of any assets derived from, or obtained directly [VN oppose: or indirectly] through the infringing activity;

  4. that its judicial authorities shall have the authority to order the forfeiture or destruction of:

    1. all counterfeit trademark goods or pirated copyright goods; and

    2. materials and implements [CA/VN/MX propose: predominantly][CA/VN/MX oppose: that have been] used in the creation of pirated copyright goods or counterfeit trademark goods; and

    [CL/PE/VN/BN/SG/AU/CA/MX/JP oppose: (iii) any other articles consisting of a counterfeit trademark].

In cases where counterfeit trademark goods and pirated copyright goods are not destroyed, the [MY oppose: judicial][MY/SG/CL/AU/PE/MX/VN/JP: competent247] authorities shall ensure that , except in exceptional circumstances, such goods shall be disposed of outside the channels of commerce in such a manner as to avoid causing any harm to the right holder. Each Party shall further provide that forfeiture or destruction under this subparagraph and subparagraph (c) 248 shall occur without compensation of any kind to the defendant;

[US/NZ propose; BN/SG/MY/CL/PE/AU/VN/CA/MX/JP oppose: (f)
that its judicial authorities have the authority to order the seizure or forfeiture of assets the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity];

  1. that its judicial or other competent authorites shall have the authority to release or, in the alternative, provide access to, goods, material, implements, and other evidence held by the authority to a right holder for civil249 infringement proceedings.

[US/NZ/PE/SG/BN/CL/AU/MY/CA/MX propose: VN/JP oppose: (h) that its competent authorities may act upon their own initiative to initiate a legal action without the need for a formal complaint by a private party or right holder].

Article QQ.H.8 {Trade Secrets}

1.250[CL propose: In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention] Parties shall ensure that natural and legal persons have the legal means to prevent trade secrets lawfully in their control from being disclosed to, acquired by, or used by others (including state commercial enterprises) 251 without their consent in a manner contrary to honest commercial practices.[ 252 ] As used in this Chapter, trade secrets encompass, at a minimum, undisclosed information as provided for in Article 39.2 of the TRIPS Agreement.

[US/MX/CA/NZ/JP253 propose; SG/MY/PE/VN/CL/AU254/BN oppose: 2. Each Party shall provide for criminal procedures and penalties at least in cases in which a trade secret relating to a product in national or international commerce is misappropriated, or disclosed, willfully and without authority for purposes of commercial advantage or financial gain, and with the intent to injure the owner of such trade secret.]

Article QQ.H.9: {Protection of Encrypted Program-Carrying Satellite Signals/Protection of Encrypted Program-Carrying Satellite and Cable Signals}

  1. Each Party shall make it a [CL/MX propose: civil or,] [VN propose: administrative or] criminal offense to:

  1. manufacture, assemble, modify, import, export, sell, lease, or otherwise distribute a tangible or intangible device or system, knowing[CL 255] [CL/JP oppose: or having reason to know] that the device or [CL oppose: system is primarily of assistance] [CL propose: system's principal function is solely to assist] in decoding an encrypted program-carrying satellite [CL/VN/SG/PE/CA/MX oppose: or cable] signal without the authorization of the lawful distributor of such signal256; and

[US/AU/NZ/PE/MY/SG/MX/VN/CA/CL propose, BN/JP oppose: (b) [VN oppose: [CA propose: except in circumstances where the lawful distributor has not made the signal available to persons in the area where the decoding occurs,] willfully receive257 [CL oppose: and make use of,][258] or] willfully further distribute a program-carrying signal that originated as an encrypted satellite [PE/SG/MX/VN/CL/CA oppose: or cable] signal knowing that it has been decoded without the authorization of the lawful dstributor of the signal, [PE/SG/MX/VN/CL/CA oppose: or if the signal has been decoded with the authorization of the lawful distributor of the signal, willfully to further distribute the signal for purposes of commercial advantage knowing that the signal originated as an encrypted program-carrying signal and that such further distribution is without the authorization of the lawful signal distributor.] ]

[US/AU/PE/NZ/MX/CL259 propose260, MY/BN/VN/CA oppose: 2. Each Party shall provide for civil remedies, [CL/MX oppose: including compensatory damages,] for any person injured by any activity described in paragraph [1], including any person that holds an interest in the encrypted programming signal or its content.]

Article QQ.H.10: {Special Measures Relating to Enforcement in the Digital Environment}

[US/AU/CA/SG/NZ/PE propose, VN/ oppose:1. Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Chapter, are available under its law so as to permit effective action against an act of trademark, copyright or related rights infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.]261

Article QQ.H.11: {Government Use of Software / Government Use of Software and Other Materials Protected by Copyright or Related Rights}

Each Party262 shall adopt or maintain appropriate laws, regulations, policies, orders, government-issued guidelines, or administrative or executive decrees providing that its [US/AU/CA/MY/VN/MX propose: central 263 ] government agencies use only non-infringing264computer software [US/AU/CA/MX propose:; SG/CL/PE/NZ/MY/BN/VN oppose: and other materials protected by copyright or related rights] in a manner authorized by law and by the relevant license. These measures shall apply to the acquisition and [PE/CA oppose: management] [PE/CA propose: use] of such software [PE/CL/BN/SG/NZ/MY/VN oppose: and other materials] for government use.

Article QQ.H.12265:

[US propose: Notwithstanding Article QQ.G.16 [limitations and exceptions] and Article QQ.G.14.3(b) [over the air broadcasting reference], no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.266]

{SECTION I: INTERNET SERVICE PROVIDERS}

Article QQ.I.1:267 {Internet Service Provider Liability}

[CL/BN/NZ/MY/VN/CA/SG/MX propose; AU/US oppose: 1.268 Each Party shall limit the liability of, or the availability of remedies against, internet service providers269 [when acting as intermediaries270], for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.]

[CA propose: 2. Limitations referred to in the previous paragraph shall cover at least the following functions:

  1. mere conduit, which consist of the provision of the means to transmit information provided by a user, or the means of access to a communication network;

  2. hosting of information at the request of a user of the hosting services;

  3. caching carried out through an automated process, when the internet service provider:

    1. does not modify information other than for technical reasons;

    2. ensures that any directions related to the caching of information that are specified in a manner widely recognized and used by industry are complied with; and

    3. does not interfere with the use of technology that is lawful and widely recognized and used by the industry in order to obtain data on the use of information;

  4. providing an information location tool, by making reproductions of copyright material in an automated manner, and communicating the reproductions.]

[CA propose: 3. Qualification by an internet service provider for the limitations as to each function in the previous paragraph shall be considered separately from qualification for the limitations as to each other function. Eligibility for the limitations in the previous paragraph may not be conditioned on the internet service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.]

[CL/BN/NZ/VN/MX propose; AU/US/SG/MY oppose: 2. 271 272 The framework in Paragraph 1 [CA oppose: will only apply if an internet service provider meets conditions, including] [CA/CL/VN propose; NZ/MX oppose: shall be accompanied in a Party's law by]:

(a) [CA/NZ/CL/VN/MX propose: procedures for notifications of claimed infringement and for] removing or disabling access to infringing material [CA/CL/MX oppose: upon notification from the right holder through a procedure established by each Party]; and]

[CA/NZ/CL/VN273 propose: (b) legal incentives for internet service providers to comply with these procedures, or remedies against internet service providers who fail to comply.]]

[CA propose: 4. Each Party shall provide legal incentives for internet service providers to comply, or remedies against internet service providers who fail to comply, with any procedures established in each party's law for:

(a) effective notifications of claimed infringement; or

(b) removing or disabling access to infringing material residing on its networks.]

[CA/CL/VN274] propose: [CA oppose: 3.] [CA propose: 5.] The framework in Paragraph 1 will not apply to the extent that an internet service provider provides a service primarily for the purpose of enabling acts of copyright or related right infringement.]

[CA propose: 6. This Article is without prejudice to the availability in a Party's law of other defences, limitations and exceptions to the infringement of copyright or related rights. This Article shall not affect the possibility of a court or administrative authority, in accordance wth Parties' legal systems, or requiring the internet service provider to terminate or prevent an infringement.]

[US/AU/SG/NZ/PE propose; BN/VN/CA/MX oppose: 1. [SG/MY oppose275: For the purpose of providing enforcement procedures that permit effective action against any act of copyright276 infringement covered by this Chapter, including expeditious remedies to prevent infringements and criminal and civil remedies] each Party shall provide, consistent with the framework set out in this Article:

  1. [MY/VN oppose: legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; and]

  2. limitations in its law [MY/NZ/SG propose: on the liability of, or on the remedies] [NZ/MY/VN oppose: regarding the scope of remedies 277 ] available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this subparagraph (b).278[PE propose: 279]

    1. [MY/VN oppose: These limitations shall preclude monetary relief and provide reasonable restrictions on court-ordered relief to compel or restrain certain actions for the following functions, [NZ oppose: and shall be confined to those functions]][280]:

      1. transmitting, routing, or providing connections for material without modification of its content[CL propose:281], or the [MY oppose: intermediate and] transient storage of such material in the course thereof;

      2. caching carried out through an automatic process;

      3. storage, at the direction of a user, of material residing on a system or network controlled or operated by or for the service provider282; and

      4. referring or linking users to an online location by using information location tools, including hyperlinks and directories.

    2. These limitations shall apply only where the service provider does not initiate the transmission of the material, and does not select the material or its recipients (except to the extent that a function described in clause (i)(D) in itself entails some form of selection).

    3. Qualification by a service provider for the limitations as to each function in clauses (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function[CL oppose: , in accordance with the conditions for qualification set forth in clauses (iv) through (vii)]

    4. With respect to functions referred to in clause (i)(B), the limitations shall be conditioned on the service provider:

[CL/MY oppose: (A) permitting access to cached material in significant part only to users of its system or network who have met conditions [NZ propose: imposed by the originator of the material] on user access to that material;]

  1. 283complying with rules concerning the refreshing, reloading, or other updating of the cached material when specified by the [CL oppose: person making the material available online] [CL propose: supplier of the material] in accordance with a relevant industry standard data communications protocol for the system or network through which that person makes the material available that is generally accepted in the Party's territory;

  2. 284not interfering with technology used 285at the originating site consistent with industry standards generally accepted in the Party's territory to obtain information about the use of the material, and not modifying its content in transmission to subsequent users; and

  3. [MY oppose: expeditiously] removing or disabling access, on receipt of an effective notification of claimed infringement, to cached material that has been removed or access to which has been disabled at the originating site.

  1. With respect to functions referred to in clauses (i)(C) and (D), the limitations shall be conditioned on the service provider:

(A) not receiving a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity;

(B) [MY oppose: expeditiously] removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement was apparent, such as through effective notifications of claimed infringement in accordance with clause (ix); [NZ oppose: and

(C ) publicly designating a representative to receive such notifications.]

[MY/NZ oppose: (vi) Eligibility for the limitations in this subparagraph shall be conditioned on the service provider:

(A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers; and

(B) accommodating and not interfering with standard technical measures accepted in the Party's territory286 that protect and identify copyrighted material, that are developed through an open, voluntary process by a broad consensus of interested parties287, that are available on reasonable and nondiscriminatory terms, and that do not impose substantial costs on service providers or substantial burdens on their systems or networks.]

  1. Eligibility for the limitations in this subparagraph may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity [NZ/MY oppose: , except to the extent consistent with such technical measures.]

[NZ oppose: (viii) If the service provider qualifies for the limitations with respect to the function referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location.[MY oppose: If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary, provided that such other remedies are the least burdensome to the service provider [CL propose: and users or subscribers] among comparably effective forms of relief. Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the service provider [CL propose: ,to users or subscribers] and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider's communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the judicial authority.]]

[NZ oppose: (ix) For purposes of the notice and take down process for the functions referred to in clauses (i) [CL propose: (B)] (C) and (D), each Party shall establish appropriate procedures in its law or in regulations for effective notifications of claimed infringement, and effective counter-notifications by those whose material is removed or disabled through mistake or misidentification. Each Party shall also provide for monetary remedies against any person who makes a knowing material misrepresentation in a notification or counter-notification that causes injury to any interested party as a result of a service provider relying on the misrepresentation.]

[NZ oppose: (x) If the service provider removes or disables access to material in good faith based on claimed or apparent infringement, each Party shall provide that the service provider shall be exempted from liability for any resulting claims, provided that, in the case of material residing on its system or network, it takes reasonable steps promptly to notify the [CL oppose: person making the material available on its system or network] [CL propose: supplier of the material] that it has done so and, if such person makes an effective counter-notification and is subject to jurisdiction in an infringement suit, to restore the material online unless the person giving the original effective notification seeks judicial relief within a reasonable time.]

  1. Each Party shall establish an administrative or judicial procedure enabling copyright owners [NZ oppose: who have given effective notification of claimed infringement] to obtain expeditiously from a service provider information in its possession identifying the alleged infringer.

  1. For purposes of the function referred to in clause (i)(A), service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user's choosing, [NZ oppose: and for purposes of the functions referred to in clauses (i)(B) through (D)service provider means a provider or operator of facilities for online services or network access288.]]

[US/AU/SG propose; CL/MY/NZ/VN/BN/CA/MX/PE oppose: Annex to Article QQ.I.1.3(b)(ix)

In meeting the obligations of Article QQ.I.1.3(b)(ix), each Party shall adopt or maintain requirements for: (a) effective written notice to service providers with respect to materials that are claimed to be infringing, and (b) effective written counter-notification by those whose material is removed or disabled and who claim that it was disabled through mistake or misidentification, as set forth in this letter. Effective written notice means notice that substantially complies with the elements listed in section (a) of this letter, and effective written counter-notification means counter-notification that substantially complies with the elements listed in section (b) of this letter.

(a) Effective Written Notice, by a Copyright289 Owner or Person Authorized to Act

on Behalf of an Owner of an Exclusive Right, to a Service Provider's Publicly Designated Representative290

In order for a notice to a service provider to comply with the relevant requirements set out in Article QQ.I.1.3(b)(ix), that notice must be a written communication, which may be provided electronically, that includes substantially the following:

  1. the identity, address, telephone number, and electronic mail address of the complaining party (or its authorized agent);

  1. information reasonably sufficient to enable the service provider to identify the copyrighted work(s)291 claimed to have been infringed;

3. information reasonably sufficient to permit the service provider to identify and locate the material residing on a system or network controlled or operated by it or for it that is claimed to be infringing, or to be the subject of infringing activity, and that is to be removed, or access to which is to be disabled;292

  1. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

  1. a statement that the information in the notice is accurate;

  1. a statement with sufficient indicia of reliability [SG propose:293] (such as a statement under penalty of perjury or equivalent legal sanctions) that the complaining party is the [SG/AU oppose: holder] [SG/AU propose: owner] of an exclusive right that is allegedly infringed, or is authorized to act on the owner's behalf; and

  2. the signature of the person giving notice.294

(b) Effective Written Counter-Notification by a Subscriber295 Whose Material Was Removed or Disabled as a Result of Mistake or Misidentification of Material

In order for a counter-notification to a service provider to comply with the relevant requirements set out in Article QQ.I.1.3.(b)(ix), that counter-notification must be a written communication, which may be provided electronically, that includes substantially the following:

  1. the identity, address, [SG/AU propose: electronic mail address] and telephone number of the subscriber;

  2. the identity of the material that has been removed or to which access has been disabled;

  1. the location at which the material appeared before it was removed or access to it was disabled;

  1. a statement with sufficient indicia of reliability (such as a statement under penalty of perjury or equivalent legal sanctions) that the subscriber [SG/AU propose: is the supplier of the material and] has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;

  1. a statement that the subscriber agrees to be subject to orders of any court that has jurisdiction over the place where the subscriber's address is located, or, if that address is located outside the Party's territory, any other court with jurisdiction over any place in the Party's territory where the service provider may be found, and in which a copyright infringement suit could be brought with respect to the alleged infringement;

  1. a statement that the subscriber will accept service of process in any such suit; and

  1. the signature of the subscriber.296

]]

[CL propose: Annex […]

List of Geographical Indications from Chile

WINES Name of Indication

Valle de Aconcagua

Alhué

Valle del Bío Bío

Buin

Valle del Cachapoalf

Valle de Casablanca

Cauquenes

Chillán

Chimbarongo

Valle del Choapa

Coelemu

Valle de Colchagua

Valle de Copiapó

Valle de Curicó

Region de Aconcagua

Region de Atacama

Region de Coquimbo

Valle del Claro

Region del Sur

Region del Valle Central

Valle del Elqui

Valle del Huasco

Illapel

Isla de Maipo

Valle del Itata

Valle de Leyda

Valle de Limarí

Linares

Valle del Loncomilla

Valle del Lontué

Lolol

Valle del Maipo

Maria Pinto

Valle del Marga-Marga

Valle del Maule

Marchigue

Valle del Malleco

Melipilla

Molina

Monte Patria

Mulchén

Nancagua

Ovalle

Paiguano

Pajarete

Palmilla

Panquehue

Parral

Pencahue

Peralillo

Peumo

Pirque

Portezuelo

Puente Alto

Punitaqui

Quillón

Rancagua

Valle del Rapel

Rauco

Rengo

Requínoa

Río Hurtado

Romeral

Sagrada Familia

Valle de San Antonio

San Juan

Salamanca

San Clemente

San Fernando

San Javier

San Rafael

Santa Cruz

Santiago

Talagante

Talca

Valle del Teno

Valle delTutuvén

Traiguén

Vicuña

Villa Alegre

Vino Asoleado

Yumbel

SPIRITS Name of Indication Country

Pisco Chile

AGRICULTURAL Name of Indication Country

Limón de Pica Chile]

1Section and Article titles and headings appear in this text on a without prejudice basis. Parties have agreed to defer consideration of the need for, and drafting of, Section and Article titles and headings. Such titles or headings that appear in braces (i.e., "{ }") are included for general reference and information purposes only.

2Negotiators' Note: NZ/SG supports a definition for Intellectual Property which mirrors TRIPS Article 1.2 subject to confirmation of treatment of plant varieties rights.

3[AU/PE: For the purpose of this Chapter "intellectual property" also includes rights in plant varieties.]

4Negotiators' Note: AU supports including objectives but is still considering the drafting and scope of this article.

5Negotiators' Note: CA supports this provision in principle, but is reviewing the proposal.

6Negotiators' Note: MX will reflect further on the additional subparagraphs (g) and (h).

7Negotiators' Note: JP is reflecting further on this paragraph.

8Negotiators' Note: AU is still considering the drafting and scope of this paragraph.

9Negotiators' Note: AU is considering the drafting of the language.

10Negotiators' Note: Parties to discuss paragraphs 1, 2 and 3 with legal group to consider possible redundancy with General Provisions and receive advice on resolution.

11Negotiators' Note: Delegations are considering the relationship between this proposal and the general non-derogation provision in Article [ ]. Proponent delegations other than VN are prepared to consider addition of the opening clause shown in brackets if it aids in forming a consensus.

12Negotiators' Note: MX is flexible if the obligation is on a best endeavor basis.

13Negotiators' Note: SG has no substantive objection to this paragraph and will follow consensus.

14Negotiators' Note: MY/BN do not object in principle subject to further domestic internal consultations or procedures and greater clarity regarding views of other Parties. SG/CL has no substantive objection to this paragraph and will follow consensus. VN are continuing domestic procedures for consideration of the Protocol.

15Negotiators' Note: AU considering drafting of this provision.

16Negotiators' Note: JP reserves its position pending the outcome of Article QQ.A.1.

17[US/AU/SG/PE: For purposes of Articles [QQ.A.7.1-2___(NT & Judicial/Admin Procedures)_QQ.D.2.a__(GIs/Nationals), and (QQ.G.14.1 Performers/Phonograms/Related Rights,] a national of a Party shall [US propose: include] [US oppose: also mean], in respect of the relevant right, an entity of that Party that would meet the criteria for eligibility for protection provided for in the agreements listed in [Article QQ.A.6.4] and the TRIPS Agreement.]

18[US/AU/SG/PE/MY/VN/BN/NZ/MX/CLpropose: For purposes of paragraphs 1 and 2 "protection" shall include matters affecting the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered by this Chapter. Further, for purposes of paragraph 1[and 2], "protection" also includes the prohibition on circumvention of effective technological measures set out in Article QQ.G.10 and the rights and obligations concerning rights management information set out in Article QQ.G.13]
Negotiators' Note: [CL/SG/PE/MY/VN/BN/NZ/MX: reserves its position with regards to the second sentence, depending on the outcome of the technological protection measure/rights management information][Parties to determine whether this footnote shall refer to paragraph 1, or paragraphs 1 and 2.]

19Negotiators' Note: SG/CL is flexible on either approach to National Treatment.

20Negotiators' Note: NZ notes its proposed text may not be necessary depending on outcome of following two paragraphs. CA supports in principle and is considering further the drafting of this provision.

21Negotiators' Note: AU can be flexible on either approach to National Treatment.

22Negotiators' Note: MY/SG/PE support in principle. CP/JP is considering further.

23Negotiators' Note: MX is considering its position in relation to the whole paragraph.

24Negotiators' Note: CA can support consensus on the first sentence.

25Negotiators' Note: AU/NZ/CL/SG/BN/MY/JP is reviewing this provision in light of discussion in Legal and Institution Group. CA understands that a similar provision has already been agreed upon in the Transparency chapter.

26[SG/MY: Negotiators Note: Subject to the acceptance of provision concerning the disclosure of confidential information that will impede law enforcement.]

27[US: A Party may satisfy requirement for publication by making the law, regulation, or procedure available to the public on the Internet.]

28Text from Legal and Institution Group inserted for comparison purposes: Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application with respect to any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and Parties to become acquainted with them.

29Negotiators' Note: CA supports in principle pending clarification of what is meant by "open to public inspection" in sub-paragraph (b).

30Negotiators note: AU/MY/CA/JP/MX: support inclusion of a provision regarding disclosure of confidential information but would prefer to see such a provision located in a chapter dealing with general provisions and exceptions.

31Text from LII Group inserted for comparison purposes: [LII Group: Article CCC.6: Disclosure of Information. Nothing in this Agreement shall be construed as requiring a Party to furnish or allow access to confidential information the disclosure of which would impede law enforcement, otherwise be contrary to the public interest, or prejudice the legitimate commercial interests of particular enterprises, public or private. FN: AU/NZ/MY: For the purposes of this paragraph, the public interest includes, for example, compliance with legislative or constitutional provisions regarding privacy.]

32Negotiators' Note: AU/NZ/CL/SG/PE/MY/BN/VN/JP/MX/CA/US reserve positions pending final outcome of Chapter. All Parties agree to revisit this provision at the conclusion of this chapter.

33Negotiators' Note: JP will follow consensus on this paragraph.

34Negotiators' Note: CA is reflecting on the notion of the meaning of relevant authorities.

35Negotiators' Note: US consulting experts on wording of provision.

36Negotiators' Note: US and JP can go along with the consensus.

37Negotiators' Note: MY supports this article subject to further domestic implementation.

38[JP propose: For clarity a Party may require that a sign has acquired distinctiveness through use, where the sign consists only of names of place.]

39For purposes of this Chapter, geographical indication means indications that identify a good as originating in the territory of a party, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin. Consistent with this definition, any sign or combination of signs shall be eligible for protection under one or more of the legal means for protecting GIs, or a combination of such means.

40Negotiators' Note: CA/MY is flexible on this proposal.

41Negotiators' Notes: PE/MX/SG will go with consensus on this paragraph.

42[PE/US propose: For greater certainty, the existence of such measures does not per se, amount to impairment.]

43Negotiators' Note: MX is still reflecting on this provision. JP is considering this provision.

44[SG propose: this provision is not intended to affect the use of common names of pharmaceutical products in prescribing medicine.]

45Negotiators' Note: JP is considering this provision.

46Negotiators' Note: JP is considering this provision.

47Negotiators' Note: MX will go with consensus with this paragraph.

48[US/CA/CL/MX/SG/NZ/VN/BN/AU/MY propose: Where a Party determines whether a mark is well-known in the Party, the Party need not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services.]

49Negotiators' Note: MY support subject to domestic implementation.

50Negotiators' Note: Parties reviewing the scope of this paragraph intersessionally.

51Negotiators' Note: CA is flexible on this language, subject to its final attribution of this paragraph.

52Negotiators' Note: JP is considering this provision.

53For greater certainty, cancellation for purposes of this Section may be implemented through nullity or revocation proceedings.

54Parties that rely on translations of the Nice Classification are required to follow updated versions of the Nice Classification to the extent that official translations have been issued and published.

55Negotiators' Note: AU supports this article ad referendum.

56Negotiators' Note: AU supports this paragraph ad referendum.

57Negotiators' Note: Brunei can accept this provision pending completion of its database.

58Negotiators' Note: US seeks further clarification on the scope of application of privacy data.

59Negotiators' Note: AU/CL/MY/NZ/US/SG/JP support contingent on understanding that TPP will include a general provision related to privacy/disclosure of information; issues.

60Negotiators' Note: JP seeks clarification as to whether "registration" is deemed to be synonymous with "acquiring the right to use" and reserves its position pending clarification of the term "trafficking".

61Negotiators' Note: [JP is still considering this issue depending on the outcome of discussions on Article QQ.C.2][AU/NZ: will go with consensus.]

62Subparagraph (a) shall also apply to judicial procedures that protect or recognize a geographical indication.

63Negotiators' Note: Parties are considering the different terms used in this provision along with similar issues that have cropped up in C6 and D3.

64Negotiators' Note: JP is considering this language.

65Negotiators' Note: JP is considering this provision depending on the meaning of this Article.

66Negotiators' Note: subject to legal clarification on consistency of the term cancellation etc.

67Negotiators' Note: JP is considering this provision including Note to (i) and (ii).

68[US/NZ/BN propose; CL/PE/SG/MX/MY oppose: For greater certainty, the Parties acknowledge that a geographical indication that is likely to cause confusion with a pre-existing trademark or with another geographical indication should be refused protection, even if that geographical indication is a translation or modification of a geographical indication that the Party already protects.] [US alternative propose; PE/MX/ SG/MY/CL oppose: For greater certainty, the Parties acknowledge that, where a translation or a modification of a geographical indication is likely to cause confusion with a pre-existing trademark or geographical indication, it should be refused protection.]

69[US/AU propose: For greater certainty, the Parties acknowledge that the prior trademarks referred to in Article QQ.D.3 include well-known trademarks.]

70Negotiators' Note: JP is considering this provision.

71[US: For greater certainty, nothing in this Agreement shall prohibit a Party from barring third parties from using or registering translations of geographical indications if: (1) such uses give rise to a likelihood of confusion[JP oppose: , and (2) the geographical indications became protected through means other than an agreement between a Party and a government or governmental entity].] Negotiators' Note: JP proposes to move this footnote before subparagraph (a), so that it covers subparagraph (b) as well.

72Negotiators' Note: JP is considering this provision.

73Negotiators' Note: JP is considering this provision.

74[NZ propose: for greater certainty the filing date reference in Article QQ.D.6 includes the priority filing date under the Paris Convention, where applicable.]

75Negotiators' Note: CA to consider; BN can go along with consensus: VN/BN maintains opposition to reference to agreement with another government, etc.

76Negotiators' Note: JP is considering this provision.

77Negotiators' Note: CA reserves its right to revisit this article once the Geographical Indication provisions have been agreed upon. MY/SG still considering this provision.

78Negotiators' Note: JP is considering this provision.

79Negotiators' Note: CA is reflecting on both proposals. JP is considering this provision.

80Negotiators' Note: MY/PE supports SG proposal in principle but is reflecting on language.

81Negotiators' Note: JP is considering this provision.

82Negotiators' Note: VN supports subject to this list of GIs in the Annex.

83[CL/BN/SG propose: For greater certainty, the Parties acknowledge that geographical indications will be recognized and protected in the Parties only to the extent permitted by and according to the terms and conditions set out in their respective domestic laws.]

84Negotiators' Note: CA is continuing to reflect on this provision but notes concerns regarding scope and operation. JP is considering this provision.

85Negotiators' Note: US supports the principle reflected in this Article, but has concerns about limiting the Article just to names of countries.

86Negotiators' Note: AU/ NZ/ SG/ BN reflecting on reformulated proposal. JP is considering this provision.

87For purposes of this [Section] Article, a Party may deem the terms "inventive step" and "capable of industrial application" to be synonymous with the terms "non-obvious" and "useful", respectively. In determinations regarding inventive step (or non-obviousness), each Party shall consider whether the claimed invention would have been obvious to a person skilled or having ordinary skill in the art having regard to the prior art.

88Negotiators' Note: JP is considering this provision.

89Negotiator's Note: NZ/VN accept ad referendum pending confirmation on scope of publication and duration of grace period.

90[CA/SG/JP propose: A Party shall not be required to disregard information contained in [gazettes related to intellectual properties or] patent applications made available to the public by a patent office unless erroneously published or unless the application was filed without the consent of the inventor or their successor in title by a third party who obtained the information directly or indirectly from the inventor.]

91For greater certainty, a Party may limit application of this provision to disclosures made by or obtained directly or indirectly from the inventor or joint inventor. [PE/US/MY/SG/AU propose: For greater certainty, a Party may provide that, for purposes of this article information obtained directly or indirectly from the patent applicant may be information contained in the public disclosure that was authorized by, or derived from, the patent applicant.]

92Negotiators' Note: Parties will continue to work to resolve the drafting of footnotes 61 & 62 (2nd sentence) intersessionally.

93Negotiator's Note: PE and SG are flexible with both options.

94US withdraw Article QQ.E.4 ad referendum pending confirmation from capital.

95Negotiator's note: CA reserves its position on Articles QQ.E.6,QQ.E.11 and QQ.E.12 pending clarification of the definition of publish/published.

96Negotiators' Note: JP is considering this provision.

97[US: A Party may limit application of this provision to patent applications in which there is at least one claim to new subject matter filed after the entry into force of this Agreement.] Negotiators' Note: JP is considering this provision.

98Each Party may provide that such amendments do not go beyond the scope of the disclosure of the invention as of the filing date.

99Negotiators' Note: JP is considering this provision.

100Negotiator's Note: MX/SG are willing to accept the article provided that the sentence "without undue experimentation" is deleted.

101Negotiators' Note: JP is considering this provision.

102Negotiators' Note: JP is considering this provision.

103Negotiator's note: SG/BN/US/MY is not fundamentally opposed, but considering how their concerns over exceptions will be addressed. US support for this provision is contingent upon resolution of exceptions under U.S. law. JP is considering the issue of exceptions.

104Negotiator's Note: AU is considering the issue of "in the possession of the competent authority".

105Negotiator's Note CA: Publish includes making available for public inspection.

106Negotiator's Note: AU is still considering whether this would include personal information.

107Negotiator's Note: CA/MX/AU is still considering the options in this provision.

108[MX propose: For greater clarity, the duration of the regulatory review exception will be subject to each Party's national legislation.]

109Negotiators' Note: JP is considering this provision.

110Negotiators' Note: JP is considering this provision.

111[US: For greater certainty, new pharmaceutical product in subparagraphs 6 (c)-(e) means a product that at least contains a new chemical entity that has not been previously approved as a pharmaceutical product [JP propose: for human use] in the territory of the Party.]

112[US: Negotiator's Note: For purposes of paragraph 6(e) of Article 8 and paragraphs 4 and 6 of Article 9, the length of the [X]-year period should: enhance certainty regarding access to innovative and generic pharmaceutical products for all; provide incentives for innovation; provide incentives for the diffusion of pharmaceutical products within the TPP region; respect commercial considerations; and account for special challenges in developing and commercializing such products throughout the region (e.g., challenges faced by smaller or less experienced applicants, or the time that an applicant may need to assess additional safety or efficacy implications of marketing a product, such as to assess such implications in jurisdictions where risks may differ from those faced in markets where the product has previously been approved).]

113Negotiators' Note: CA reserves its position and seeks to develop its understanding of these provisions further to the discussion in Singapore. JP is still considering its position on Article QQ.E.16. to E.22.

114For greater certainty, the Parties recognize that this paragraph does not imply that the marketing approval authority should make patent validity or infringement determinations.

115[Negotiator's Note: As used in Article 9.5(b)(i), "adjudicate" does not mean final adjudication.]

116A Party may comply with paragraph 5(d) by providing a period of marketing exclusivity in appropriate circumstances to the first such other person or persons to challenge a patent.

117For greater certainty, the Parties understand that the term "pharmaceutical product" as used in this Chapter includes biologic products.

118Negotiators' Note: AU/CA/MY/CL/BN can support the inclusion of provisions on agriculture chemical but still considering the scope and drafting of the protection. CA is also considering the duration of the protection.

119Negotiator's Note: MX: Placeholder for definition for "considerable efforts".

120Negotiators' Note: JP is considering this provision.

121Negotiators' Note: JP is considering this provision.

122Negotiators' Note: CA/US position is that QQ.E.23 provisions should be addressed in the Environment Chapter. The US/JP opposes the inclusion of this proposal in this Chapter.

123[MX propose; CL oppose: For greater certainty "derivative" means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, without human manipulation, even if does not contain functional units of heredity.]

124Negotiator's Note: MX is still reflecting the coverage of related rights in this chapter.

125The Parties reaffirm that it is a matter for each Party's law to prescribe that works in general or any specified categories of works, performances and phonograms shall not be protected by copyright or related rights unless they have been fixed in some material form.

126References to "authors, performers, and producers of phonograms" refer also to any successors in interest.

127With respect to copyrights and related rights in this Chapter, the "right to authorize or prohibit" and the "right to authorize" refer to exclusive rights.

128[US/AU/PE/CA/CL/MX/SG/MY/NZ/VN propose: With respect to [PE/CL/MX oppose: copyright and] related rights in this Chapter, a "performance" means a performance fixed in a phonogram unless otherwise specified.]

129[VN/BN/CA propose: The reproduction right, as set out in Article 9 of the Berne Convention [CA propose: and articles 7 and 11 of the WPPT], and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works [CA propose: , performances and phonograms] in digital form. It is understood that the storage of a protected work [CA propose: , performance or phonogram] in digital form in an electronic medium constitutes a reproduction within the meaning of [CA propose: the articles referenced in this footnote] [CA oppose: Article 9 of the Berne Convention].]

130[CL/NZ/MY/BN/JP propose: It is consistent with this Agreement to provide exceptions and limitations for temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work; and which have no independent economic significance.] [Negotiators Note: Discussions indicated no substantive objection to the concept, however, Parties continue to consider whether the footnote is required, where it might best be placed, and how it should be drafted.]

131[CA/JP propose: It is a matter for each Party's law to determine when a given act constitutes a temporary reproduction for the purposes of copyright and related rights.]

132It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Chapter or the Berne Convention. It is further understood that nothing in this Article precludes a Party from applying Article 11bis(2) of the Berne Convention.

133[NZ propose: For the purpose of this paragraph importation may exclude importation for private or domestic use.]

134[PE/NZ propose: The expressions "copies" in this paragraph refers exclusively to fixed copies that can be put into circulation as tangible copies]. [Negotiators' Note: US can support the concept subject to final drafting.] [JP propose: A Party may comply with its obligations under this paragraph by legislating in the Party's law that such importation, for the purpose of distribution, is deemed to be infringement.] Negotiator's Note: With this footnote, Japan can withdraw its opposition in the first line of QQ.G.3.

135[US: With respect to copies of works and phonograms that have been placed on the market by the relevant right holder, the obligations described in Article [QQ.G.3] apply only to books, journals, sheet music, sound recordings, computer programs, and audio and visual works (i.e., categories of products in which the value of the copyrighted material represents substantially all of the value of the product). Notwithstanding the foregoing, each Party may provide the protection described in Article [QQ.G.3] to a broader range of goods.]

136[Negotiator's Note: The US is considering the relationship between this provision and other proposals regarding the exhaustion of IP rights, as well as other TPP countries' legal regimes.]

137The expressions "copies" and "original and copies" subject to the right of distribution in this paragraph refer exclusively to fixed copies that can be put into circulation as tangible objects [US/CA/SG oppose: , i.e., for this purpose, "copies" means physical copies.]

138[AU/VN/PE/NZ/BN/MY/SG/CA/CL/MX/JP propose: Nothing in this Agreement shall affect a Party's right to determine the conditions, if any, under which the exhaustion of this right applies after the first sale or other transfer of ownership of the original or a copy of their works, performances, or phonograms with the authorization of [CA/SG propose: the author, performer or producer] [CA/SG oppose: the right holder].] (Negotiator's Note: VN prefers this to be in the text as opposed to a footnote).

139[Negotiators' Note: AU/CA agree in principle but will reflect further on the language.]

140Negotiators' Note: AU supports this article ad referendum.

141For greater certainty, this provision does not affect the exercise of moral rights.

142Negotiators' Note: Article QQ.H.4.15 should be discussed after discussions on this issue.

143Negotiator's Note: MX supports this provision in principle.

144Negotiator's Note: CA supports this provision in principle pending outcome of discussions on exceptions.

145Negotiator's Note: CL is considering pending the outcome of the language of this proposal.

146Negotiator's Note: NZ reserves its position on article QQ.G.10 pending the outcome of exceptions and limitations on TPMs protection. JP is considering a possibility of producing its proposal on Technological Protection Measures.

147Negotiator's Note: CA reserves its position pending the clarification of the meaning of "rights".

148Negotiator's Note: CA pending clarification of criminal remedies.

149Negotiator's Note: CA reserves its position pending clarification of "traffics".

150Negotiator's Note: CA reserves its position pending clarification of the terms "promoted" and "advertised."

151Negotiator's Note: CA reserves its position pending clarification of "any".

152Negotiator's Note: CA seeks clarification as to whether article "12.12" is meant to refer to article QQ.H.4(15).

153Negotiator's Note: CA reserves its position pending outcome of discussion of provision QQ.H.4(15).

154Negotiator's Note: CA seeks clarification if nonprofit applies to all institutions.

155Negotiator's Note: CA seeks clarification of the intention of this sentence.

156Negotiator's Note: CA seeks clarification as to whether article "15.15" is meant to refer to article QQ.H.7(7). CA reserves position pending clarification of QQ.H.7(7).

157[US/AU: For purposes of greater certainty, no Party is required to impose liability under Articles [9 and 10] for actions taken by that Party or a third party acting with the authorization or consent of that Party.] [Negotiator's Note: CA seeks clarification of this footnote.]

158Negotiator's Note: CA is considering these limitations.

159[CL propose: For greater certainty, elements of a computer program are not readily available to a person seeking to engage in non-infringing reverse engineering when they cannot be obtained from literature on the subject, from the copyright holder, or from sources in the public domain.]

160[CL propose: Such activity occurring in the course of research and development is not excluded in this exception.]

161[CL propose: Such activity occurring in the course of research and development is not excluded from this exception.]

162Negotiator's Note: CA reserves its position.

163Negotiator's Note: CA needs to reflect further on this paragraph.

164Negotiator's Note: CA is considering paragraph (e) pending the outcome on discussions on limitations and exceptions.

165Negotiator's Note: CA is considering paragraph (f).

166Negotiators' Note: NZ/PE/CA/AU/MX/MY/BN/VN support in principle pending drafting consultations.

167Negotiator's note: SG/CA/MX is willing to consider a more flexible approach to TPM provisions.

168Negotiator's Note: MY/VN/CL does not object in principle but needs to reflect further on the language.

169Negotiator's Note: CL/MY/NZ/BN/JP positions pending outcome of this provision.

170Negotiator's Note: NZ/JP is considering the scope of obligations under this paragraph.

171Negotiator's Note: CA reserves its position pending the outcome of FN10 (Art. QQ.A.7).

172For greater certainty, in this paragraph with respect to performances or phonograms first published or first fixed in the territory of a Party, a Party may apply the criterion of publication, or alternatively, the criterion of fixation, or both.

173For purposes of this Article, fixation means the finalization of the master tape or its equivalent.

174[JP propose: A Party may comply with its obligations under this paragraph by legislating that performers and producers of phonograms are protected to the extent provided for in Article 3 of WPPT and/or Paragraph 3 of Article 1 of the TRIPS Agreement.

175The term "published" in this paragraph includes phonograms that are made available in accordance with Article 15(4) of the WPPT.

176Where a Party has availed itself of the option contained in Article 15(3) of the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT), the obligation contained in [QQ.A.X - national treatment] does not apply to the extent that a Party makes use of a reservation taken under that Article.]"

177[US/SG propose ; CA/MX/CL/MY/VN/BN/CL oppose: For greater certainty, "broadcasting" does not include transmissions over computer networks or any transmissions where the time and place of reception may be individually chosen by members of the public.]

178Negotiator's Note; CA is considering the need for a deeming provision similar to article 15 (4) of WPPT.

179Negotiators' Note: CA supports a provision on limitations and exceptions and is reflecting further.

180Negotiators' Note: Delegations are considering the relationship between Article QQ.G.X.2 and new multilateral agreements concluded under the auspicies of WIPO and the agreements listed in Article QQ.G.X.2. Delegations will work to resolve this issue in Article QQ.A.6 (General Provisions - relationship to other agreements) or elsewhere.

181Negotiator's Note: SG/CA/PE/BN/NZ/AU is flexible on the inclusion of the word 'education' as the notion is already significantly covered by teaching, sholarship and research. US/MX believe the word 'education' is covered by teaching, scholarship and research, but is considering further.

182FN: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under Article QQ.G.Y.

183Negotiator's Note: NZ/AU is flexible on either options referring to persons with disabilities.

184Negotiator's Note: Delegations are considering the appropriate placement of this issue under right of reproduction or L & E. There continue to be discussions regarding this issue and delegations have diverging views.

185Negotiators' Note: CA reserves its position pending the outcome of discussions elsewhere in this Chapter.

186For greater certainty, royalties may include equitable remuneration.

187[CL propose: For greater certainty, law may include enforcement procedures established under Parties legal systems.]

188Negotiators' Note: AU/CL can support if there is emerging consensus on this issue.

189Negotiators' Note: The reference to Section is intended to include enforcement-related provisions throughout the Chapter.

190[US/CA/MY propose: For greater certainty, a Party may implement this Article on the basis of sworn statements or documents having evidentiary value, such as statutory declarations. A Party may also provide that such presumptions are rebuttable presumptions that may be rebutted by evidence to the contrary.]

191Each Party may establish the means by which it shall determine what constitutes the "usual manner" for a particular physical support.

192Negotiators' Note: JP is considering this provision.

193Negotiators' Note: JP is considering this provision.

194Negotiators' Note: AU/MX/US/PE will consider options to address concerns intersessionally and will involve the wider group.

195[US: A Party may satisfy the requirement for publication by making the decision or ruling available to the public on the Internet.]

196For the purposes of this Article, the term "right holder" shall include those authorized licensees, federations and associations that have the legal standing and authority to assert such rights. The term "authorized licensee" shall include the exclusive licensee of any one or more of the exclusive intellectual property rights encompassed in a given intellectual property.

197Negotiators' Note: AU/US/JP would like to consider this proposal in tandem with the definition of intellectual property rights in this Chapter.

198[AU/NZ/MY/CA/JP/SG propose: A Party may also provide that the right holder may not be entitled to either of the remedies set out in 2 and 2bis in the case of a finding of non-use of a trademark] [JP/AU/SG/CA/MY propose: it is understood that there is no obligation for a Party to provide for the possibility of the remedies in 2 and 2bisto be ordered in parallel.]

199[US propose: In the case of patent infringement, damages adequate to compensate for the infringement shall not be less than a reasonable royalty.] [Negotiators' note: JP can go along with consensus.]

200[CA propose: A Party may exclude from the application of this Article cases of Copyright or related rights infringement where an infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity or where an infringer is a non-profit entity.][JP propose: A Party may presume those profits to be the amount of damages referred to in the preceding paragraph.]

201Negotiators' Note: AU supports this paragraph ad referendum.

202Negotiators' Note: CL/MY/SG will revert back intersessionally.

203Negotiators' Note: JP is considering this provision.

204Negotiators' Note: MY support the principle but are still considering the need for this proposal in the context of Article 48 of TRIPS. SG/MX/VN/AU/CA can go along with the consensus.

205For greater certainty, additional damages may include exemplary or punitive damages.

206Negotiator's Note: AU is still considering this paragaph.

207Negotiators' Note: Parties are considering the drafting choice of the word that represent the concept of seriousness.

208No Party shall be required to apply this paragraph to actions for infringement against a Party or a third party acting with the authorization or consent of a Party.

209[CA propose: For the purposes of this Article, where appropriate shall not be limited to exceptional cases.]

210Negotiators note: NZ share view of the article but would rather see it placed some other place; MX is considering this issue in light of Article QQ.H.4.13; JP proposes to move paragraph. 9 to Article QQ.H.5. Otherwise, JP will support VN proposal.

211Negotiator's Note: MX supports this in principle but needs to reflect on this pending discussions on paragraph QQ.H.4.13.

212Negotiator's Note: MX is still considering this proposal.

213VN propose: A request for an order under this paragraph may be considered as unjustified in case such order would be out of proportion to the seriousness of the infringement.

214Negotiators' Note: PE/MX are considering the need for this proposal.

215[For greater certainty, civil remedies do not include administrative measures, decisions or any other actions taken by administrative authorities.]

216Negotiators Note: PE/MY/NZ/CL/CA reserve their positions pending resolution of related provisions regarding TPM and RMI.

217Negotiator's Note: This will be discussed in relation to provisions regarding TPM and RMI.

218Negotiators Note: The scope of border measures in this section will be confined to counterfeit trademark goods, pirated copyright goods. The US proposal for inclusion of, confusingly similar trademark goods is still under negotiation and Parties have different views on this proposal.

219[CA propose: It is understood that there shall be no obligation to apply the procedures set forth in this Article to goods put on the market in another country by or with the consent of the right holder.]

220For purposes of Article 14:

(a) counterfeit trademark goods means any goods, including packaging, bearing without authorization a trademark that is identical to the trademark validly registered in respect of such goods, or that cannot be distinguished in its essential aspects from such a trademark, and that thereby infringes the rights of the owner of the trademark in quesiton under the law of the country of importation; and

(b) pirated copyright goods means any goods that are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and that are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.

221Negotiators' Note: AU supports this ad referendum.

222Negotiators' Note: Need to clean up terminology in H.6 relating to 'goods' and 'merchandise'.

223Negotiators' Note: MY/CA/SG/AU/VN/BN: suspect goods need to be defined and revert back.

224Negotiators' Note: CA/MY/AU: Customs controls need to be defined and revert back.

225[SG propose: the requirement to provide for such application is applicable to the obligation to provide procedures referred to in Article QQ.H.6.1.]

226Negotiators' Note: AU/PE can support consensus.

227Negotiators' Note: MY/SG/VN/BN are considering this first clause.

228Negotiators' Note: Parties are considering the need for a footnote to deal with the scope of this clause.

229Negotiators' Note: CA would need to include minor amendments on disclosure.

230For purposes of this Article, "days" shall mean "business days".

231For greater certainty, the parties understand that ex officio action does not require a formal complaint from a private party or right holder [MY/BN propose: , provided that they have acquired prima facie evidence that intellectual property rights are being infringed].

232For purposes of this Article, in-transit merchandise means goods under "Customs transit" and goods "transhipped," as defined in the International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto Convention).

233Negotiators' Note: US to revisit after the decision on scope of application ex officio.

234Negotiators' Note: VN can accept "shall" option if the scope of Border control is confined to trademarks counterfeit and copyright pirated goods.

235For greater certainty, a Party may also exclude from the application of this Article small quantities of goods of a non-commercial nature sent in small consignments.

236[US propose; AU/SG/PE/CA/JP oppose: For greater certainty, "financial gain" for purposes of this Article includes the receipt or expectation of anything of value.]

237[US/CA propose; JP oppose: A Party may comply with this obligation in relation to [JP: importation and] exportation of pirated [JP: copyright] goods through its measures concerning distribution.] [JP alternatively propose: A Party may comply with its obligation relating to importation and exportation of counterfeit trademark goods or pirated copyright goods by providing for distribution, sale or offer for sale of such goods on a commercial scale as unlawful activities subject to criminal penalties.]

238US: Negotiator's Note: For greater certainty, the definition of "counterfeit trademark goods" in footnote [12] shall be used as context for this Article.

239US: For purposes of this Article, "illicit label" means a genuine certificate, licensing document, registration card, or similar labeling component:

(A) that is used by the copyright owner to verify that a phonogram, a copy of a computer program or literary work, a copy of a motion picture or other audiovisual work, or documentation or packaging for such phonogram or copies is not counterfeit or infringing of any copyright; and

(B) that is, without the authorization of the copyright owner-

(i) distributed or intended for distribution not in connection with the phonogram or copies to which such labeling component was intended to be affixed by the respective copyright owner;

or

(ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner's distribution channel and not for the purpose of verifying that a copy or phonogram is noninfringing.

240A Party may comply with its obligation relating to importation of labels or packaging through its measures concerning distribution.

241A Party may comply with its obligations under this paragraph by providing for criminal procedures and penalties to be applied to attempts to commit a trademark offence.

242US: For purposes of this Article, "illicit label" means a genuine certificate, licensing document, registration card, or similar labeling component:

(A) that is used by the copyright owner to verify that a phonogram, a copy of a computer program or literary work, a copy of a motion picture or other audiovisual work, or documentation or packaging for such phonogram or copies is not counterfeit or infringing of any copyright; and
(B) that is, without the authorization of the copyright owner-

(i) distributed or intended for distribution not in connection with the phonogram or copies to which such labeling component was intended to be affixed by the respective copyright owner;
or

(ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner's distribution channel and not for the purpose of verifying that a copy or phonogram is noninfringing.

243It is understood that there is no obligation for a Party to provide for the possibility of imprisonment and monetary fines to be imposed in parallel.

244Negotiator's Note: CL/PE/MX/CA is still considering pending consultation with capital.

245A Party may also account for such circumstances through a separate criminal offense.

246Negotiators' Note: CA/BN/VN are reflecting on the definition of "assets".

247Negotiators Note: The use of the term "competent/judicial" in this subparagraph will be revisited.

248Negotiators' Note: The cross reference to subparagraph (c) will be revisited during legal scrubbing.

249A Party may also provide such authority in connection with administrative infringement proceedings.

250Negotiators' Note: AU supports this paragraph ad referendum.

251Negotiators' Note: BN seeks further clarification on "state commercial enterprise".

252[US: For greater certainty, a Party may treat disclosure of a trade secret to that Party's authorities in connection with providing evidence of an alleged violation of that Party's law as not contrary to honest commercial practices.][AU propose: for the purposes of this paragraph "a manner contrary to honest commercial practices" shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.]

253Negotiators' Note: CA/MX/NZ/JP supports in principle subject to final drafting.

254Negotiators' Note: AU opposes this paragraph ad referendum.

255[CL propose: For purposes of paragraph 1, knowledge may be demonstrated through reasonable evidence, taking into account the facts and circumstances surrounding the alleged illegal act.]

256[CA/AU/SG propose: The obligation regarding export may be met by making it a criminal offence to possess and distribute such a device or system.]

257[CA propose: willfully receiving may mean operating a radio apparatus so as to receive an encrypted signal].

258[US propose; CL/AU oppose: For greater certainty, "make use of" includes viewing of the signal, whether private or commercial].

259Negotiators' Note: CL position will depend on the outcome of paragraph 1(a).

260Negotiators' Note: SG agrees in principle but will reflect further on the language.

261Negotiator's Note: MX/MY/CL/BN are still considering this provision.

262Negotiators' Note: CA confirming with government procurement people.

263Negotiators' Note: CA support for central depends on how it is defined throughout the agreement.

264Negotiators' Note: SG/CL/MY/BN/VN subject to consideration of parallel importation issues.

265Negotiators' Note: delegations are still considering this proposal, and are also reflecting on the placement of this proposal in the Chapter.

266[US: For purposes of this Article and for greater certainty, retransmission within a Party's territory over a closed, defined, subscriber network that is not accessible from outside the Party's territory does not constitute retransmission on the Internet.]

267Negotiators' Note: JP is still considering its positions on this Section.

268Negotiator's Note: PE is still considering its position on paragraphs 1, 2 and the new paragraph 3 presented by CA.

269Each Party may determine, within its domestic law, what constitutes an internet service provider.

270Negotiator's Note; NZ is still considering this phrase.

271Negotiators' Note: VN to consider this provision further.

272Negotiator's Note: BN is considering its reactions to the proposals presented by CA on paragraphs 2 and 3.

273Negotiator's Note: MX is considering its reactions to paragraph 2b and 3.

274Negotiator's Note: NZ is considering its reactions to paragraph 3.

275Negotiator's Note: NZ proposes to look at the placement of this paragraph vis a vis its placement elsewhere in the text.

276For purposes of this paragraph, "copyright" includes related rights. Negotiators' Note: The placement of the footnote will depend on the outcome of the chapeau of this paragraph.

277[NZ propose: For the avoidance of doubt, limitations regarding the scope of remedies available can be implemented through limitations on the liability of internet service providers.]

278This subparagraph is without prejudice to the availability of defenses to copyright infringement that are of general applicability.

279[PE propose: For greater clarity, the failure of an ISP to qualify for the limitations in subparagraph (b) does not itself result in liability.]

280[US/PE/SG/AU propose; CL/NZ/VN oppose: A Party may request consultations with the other Parties to consider how to address under this paragraph functions of a similar nature that a Party identifies after the entry into force of this Agreement.]

281[CL/MY/SG/NZ/AU/PE/US propose: Such modification does not include modifications made as part of a technical process.]

282[CL/MY/SG/NZ/AU/US propose: For greater certainty, such storage of material may include e-mails and their attachments stored in the provider's server and web pages residing on the provider's server.]

283Negotiator's Note: MY needs to reflect further on this provision.

284Negotiator's Note: MY will reflect further on this provision.

285CL/SG/NZ/AU/US/PE propose: A Party may require that such technology shall be used in a lawful manner.]

286[CL/SG/NZ/AU/PE/US propose: A Party may require that such standard technical measures shall be used in a lawful manner, and that such measures are subject to approval by relevant authorities.]

287[CL/SG/NZ/AU/PE/US propose: A Party may provide that interested parties include copyright owners, service providers or other interested parties, [CL/SG/NZ/AU/US propose: as may be approved by relevant authorities,] as applicable.]

288[CL/MY/SG/NZ/AU/US/PE propose: As used in subparagraph (xii), a Party may provide that network access includes cases in which network access is provided by another provider.]

289All references to copyright in this letter are understood to include related rights, and all references to works are understood to include the subject matter of related rights.

290The Parties understand that a representative is publicly designated to receive notification on behalf of a service provider if the representative's name, physical and electronic address, and telephone number are posted on a publicly accessible portion of the service provider's website, and also in a register accessible to the public through the Internet, or designated in another form or manner appropriate for [insert Party name].

291If multiple copyrighted works at, or linked to from, a single online site on a system or network controlled or operated by or for the service provider are covered by a single notification, a representative list of such works at, or linked to from, that site may be provided.

292In the case of notices regarding an information location tool pursuant to paragraph (b)(i)(D) of Article 16.3, the information provided must be reasonably sufficient to permit the service provider to locate the reference or link residing on a system or network controlled or operated by or for it, except that in the case of a notice regarding a substantial number of references or links at a single online site residing on a system or network controlled or operated by or for the service provider, a representative list of such references or links at the site may be provided, if accompanied by information sufficient to permit the service provider to locate the references or links.

293[SG propose: To satisfy this requirement, the process to be established shall not be costly or cumbersome. An appropriate electronic mechanism may be used or incorporated in this process.]

294A signature transmitted as part of an electronic communication satisfies this requirement.

295All referenced to "subscriber" in this letter refer to the person whose material has been removed or disabled by a service provider as a result of an effective notice described in part (a) of this letter.

296A signature transmitted as part of an electronic communication satisfies this requirement.

VIDEO: Minneapolis Rally #Justice4Trayvon #Justice4Terrance

Here is live video from #justice4trayvon #justice4terrance rally Sat night ~12:30AM in Downtown Minneapolis >> http://www.youtube.com/watch?v=8RyjuazWlik&feature=youtu.be (creative commons - interview w Mel Reeves!) - several FB events for Monday >> https://www.facebook.com/events/205300609626208/

https://www.facebook.com/events/610769695620223/

https://www.facebook.com/events/300046336807336/

Minneapolis residents hit the streets after Zimmerman acquitted in Florida murder trial. On Friday there was another march for late Terrance Franklin, killed by Minneapolis Police Department May 10th with five bullets to back of head according to a family member.

Video has several interviews including with Mel Reeves @ 17:20who has called for a rally on Monday at Hennepin Co. Government Center (Peoples Plaza). NOTE I heard earlier it was on SUNDAY but there is NOT a rally at Plaza on Sunday according to Mel.
http://justiceforterrancefranklin.wor...

Upcoming events - several posted: :/
https://www.facebook.com/events/20530...
https://www.facebook.com/events/61076...
https://www.facebook.com/events/30004...

Filmed shortly after midnight Sunday July 14th
CREATIVE COMMONS WITH ATTRIBUTION

Original via here: http://bambuser.com/channel/Hongpong
http://bambuser.com/v/3739301 - please subscribe for more videos.

Cubic NUWAIX: Spoiler Alert! Uncompetitive Bidding for Cubic Apocalyptic Scenarios: NUWAIX 2013 Minot nuclear exercise & dramatic theft of explosives in Montana

HOW TO CUBIC YR APOCALYPTIC SKRILLO FLOW? uncompetitive bidding :)

dtra-contract.png

source- CBRNE Exercise / CMAP Support Services - Federal Business Opportunities: Opportunities J&A6.302-1_-_J3PBCS5990.pdf - Dec 7 2012

Quick post about how much money you can make simulating the apocalypse for the new Homeland Security & domestic military ops structure. Cubic NUWAIX - you has it! Spoiler Alert for Exercise Scenario: Open Ended Profits!

How to sign off on something sketchy - even the attorney is laying low:


dtra-sekrit.png

A somewhat interesting event is happening in a few sites around the midwest - ARDENT SENTRY 2013 is a major annual domestic military exercise - with a whole series of simulated events run in different places. Interestingly NUWAIX 2013 involves a simulated nuclear incident in Minot North Dakota, a place known for both nuclear technology and odd incidents.

Additionally there was a major theft of explosives round about those parts recently as well, no doubt by SAIC minions. cryptogon.com » Montana: 559 Pounds of High Explosives Stolen from U.S. Forrest Service Bunker - source KPAX:

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Forest Service, and the Carbon County Sheriff’s Office are asking for help from the public in gathering information about the theft of approximately 559 pounds of high explosives from a USFS explosives bunker located near Red Lodge.

A press release from the ATF says that in April 2013, someone used forced entry to get into an explosives storage facility owned and operated by the U. S. Forest Service, which is located about two miles south of Red Lodge.

Officials say that various emulsion-type explosives, explosive cast boosters and detonating cord were taken from the facility.

Hence one could speculate an event involving nukes, dynamite, ideally, cigar twirling ubervillains with headquarters on trains.

More interestingly - or concretely anyway - we find that the mysterious Cubic Corporation has an apparently open-ended contract doing these nuclear exercises & such. "Indefinite Delivery Indefinite Quantity" IDIQ contract with Cubic Defense Applications Inc (CAI) "without using full and open competition".

Military & domestic exercises have a certain level of interest from alternative researchers and people that annoy Obama on the Internet because they have been known to relate to 'real world events' in different ways - like for example, if you have an exercise it's a good day to launch wars because the planes are already flying around etc. Recently this happened with a European bombing campaign of Libya actually - "Southern Mistral" was the exercise.

This is about DSCA - Defense Support of Civil Authorities! As discussed earlier at the NORTHCOM level this is CONPLAN 3501. dsca.army.mil: DSCA Training

dsca.png

Also: Defense Support of Civil authorities - Wikipedia, the free encyclopedia

NORAD and USNORTHCOM Conduct ARDENT SENTRY 2012 - http://www.northcom.mil/News/2012/042412.html

April 24, 2012

PETERSON AIR FORCE BASE, Colo. - The North American Aerospace Defense Command and U.S. Northern Command will conduct a major exercise, ARDENT SENTRY 2012, focused on Defense Support of Civil Authorities, May 2 – 9, 2012.

The exercise will be primarily a Command Post Exercise, but there will be field training events within the exercise. Those events will take place in North Dakota, Oregon, Texas, Alaska, Connecticut and Nova Scotia and involve United States and Canadian military units.

- North Dakota, the Air Force Global Strike Command will respond to a simulated Nuclear Weapons Incident (NUWAIX) on Minot Air Force Base.

- Oregon, the Oregon National Guard will work with state and local officials to respond to numerous weather-related and security events.

- Texas, US Army North will deploy a task force to work through the process of leading a military response to a major hurricane.

- Alaska, Joint Task Force-Alaska will conduct a coordinated response to a major aircraft crash in a remote area.

- Nova Scotia, Canadian and US Naval forces will work together to handle a security related event.

ARDENT SENTRY 12 will validate existing plans, policies, and procedures, including the Federal Inter-agency Response Plan, as well as state and regional plans.

For more information, contact USNORTHCOM Public Affairs at 719-554-6889 or 719-304-6097.

/////

We have to keep a special eye on Minot because of the mysterious 2007 Minot Nuclear Incident. Google that term - wiki here. People died, it was very strange. The wiki version is buttoned down pretty tightly - 2007 United States Air Force nuclear weapons incident - Wikipedia as a lot of odd things happened including possibly a fragmentary attempt to escalate the nuclear posture outside the authentic US chain of command (aka Cheney faction starts playing around).

Hence when there is another NORTHCOM exercise at Minot for NUWAIX, Minot's weird recent history is certainly related - "Don't forget where these things are, right you guyz?"

minot-nuclear-incident.png

/////

Related Linx - NUWAIX ALERTZ & so forth: Nevada internal planning for these exercises & moar. http://www.nv.doe.gov/nationalsecurity/homelandsecurity/frmac/pdfs/Events_Calendar.pdf

The President may be trolling GrumpyCats on the interwebs nowadays. Yet a few radars always go up over nuclear exercises.

Nuclear incident drills to start Monday across Montana | WHAT REALLY HAPPENED

ALERT... Hundreds of Pounds of Explosives 'Stolen' From Montana Bunker!... NUCLEAR Drill in Montana on May 6th! | KnowTheLies.com - The Truth is Hidden in Plain View...

ALERT!... NUWAIX 2013... NUCLEAR Drill in Montana on May 6th! | KnowTheLies.com - The Truth is Hidden in Plain View...

Nuclear incident drills to start Monday across Montana | Great Falls Tribune | greatfallstribune.com - PAYWALLD

Great name for a site eh?? NESARA- REPUBLIC RESTORED - Galactic News: Nuclear Incident drills in Montana starting Monday

More seriously though, This whole thing sounded nicely insane. DTRA Increases Cubic CBRNE Support Contract | Global Biodefense

DTRA Increases Cubic CBRNE Support Contract

Posted on November 28, 2012

The Defense Threat Reduction Agency (DTRA) has announced intentions to increase the funding ceiling on an existing Chemical, Biological, Radiological, Nuclear, High-Yield Explosives (CBRNE) Exercise Support Services contract with Cubic Applications, Inc. (CAI).

As a result of unanticipated increases in the quantity of Foreign Consequence Management (FCM), Nuclear Weapons Accident / Incident Exercise (NUWAIX) and Consequence Management Assistance Program (CMAP) events in FY13-14, the government requires an increase in the ceiling of the contract to ensure immediate and continued support of current and scheduled efforts in Fiscal Year 2013-14. The increase results in no change to the ordering period of the contract which continues through July of 2014.

“As CAI has over eight years’ experience in the planning, development, and execution of FCM/NUWAIX and CMAP efforts, only CAI possesses the in-depth knowledge and expertise required to plan, develop, and execute the current and scheduled FCM/NUWAIX and CMAP requirements,” states the DTRA announcement. “Further, as the current performer and executor of these highly specialized/niche counter CBRNE Exercise Support services, CAI is the only source capable of fulfilling the Government’s requirements.”

The current effort with CAI is managed under HDTRA1-04-D-0020. Due to current and anticipated growth in these areas, the agency expressed intentions to re-compete the program contract prior to expiration in January 2014.

CAI and parent company Cubic Corporation of San Diego, CA are engaged in the design, development, manufacture, integration, and sustainment of high technology systems, products, and services for government and commercial customers. Cubic employs nearly 7,800 people worldwide.

//////

Contract to spec: Google term HDTRA1-04-D-0020 gives more on the exercise contract. CUBIC snags $3.7 million here DTRA.mil 2010-07 BC Contract Awards Over 100K.xls

JustificationsApprovals - DTRA other loopholes / adjustments filed for contracts, listed here.

CBRNE Exercise / CMAP Support Services - Federal Business Opportunities: Opportunities

CBRNE Exercise / CMAP Support Services

Solicitation Number: J3PBCS5990

Agency: Other Defense Agencies
Office: Defense Threat Reduction Agency
Location: Defense Threat Reduction Agency (Headquarters)

/////

Ah yes Cubic Corporation was rumored to be associated with the Trapwire global surveillance grip project. They denied it. It's sort of indirect, but it's funny that Cubic has its fingers in deez pies and near other interesting pies as well.

VioletBlue Examining the ties between TrapWire, Abraxas and Anonymizer | ZDNet

Technically, Cubic has nothing to do with Abraxas Applications, which is behind TrapWire. But there are some historical vestiges as well as current shareholder arrangements that make the connections between Cubic, Abraxas Applications and Abraxas Corp. far more muddled than initially portrayed.

People are saying that TrapWire is linked to Anonymizer -- popular among activists and at-risk populations -- because Abraxas Corporation acquired Anonymizer in 2008.

Abraxas Corporation's parent company Cubic Corporation issued a statement saying that Cubic -- and its Abraxas Corporation -- have no affiliation with TrapWire, which they say is the product of a separate company, Abraxas Applications.

Cubic Corporation acquired Abraxas Corporation in November 2010 for $124 million. Cubic has three units focused on defense systems, mission services and transportation for military operations. Trapwire's software is designed to thwart terrorist threats and criminal attacks. In other words, Cubic and the two Abraxas companies live in opposite ends of the same neighborhood.

It's also true that Abraxas Applications was spun off -- out of Abraxas Corporation -- into its own software business in 2007, before the Anonymizer acquisition.

Abraxas Corporation developed TrapWire beginning in 2004 (PDF link to report of work shared between Abraxas Corporation and Abraxas Applications).

When TrapWire became ready to sell as a commercial product, Abraxas Applications was launched to do so in 2007.

The intent for Abraxas Applications at the outset was to have both Abraxas projects play together under the direction of both companies' former CEO, Hollis Helm, former chief of the CIA's National Resources Division.

The Barrett Brown research project is currently still hosting a pile of info on Cubic:Cubic Corporation - Project PM. Good point "Free Barrett Brown | Support the defense of Barrett Brown: imprisoned American journalist and activist, founder of Project PM. Since he was in fact supporting a research project calling attention to Cubic.

Cubic Corporation Has No Affiliation with Trapwire, Inc. > Cubic Corporation

This is worth documenting. It takes a special bureaucracy to really shape such technical realities, bringing them forth into our world. Cubic Corporation: more evidence of TrapWire link; their darker side exposed | Darker Net

1. Recently DARPA (part of the Pentagon) awarded Cubic Corporation $6 million to develop a “laser-emitting targeting computer” for American military snipers. It’s called ‘One Shot XG’ (see photo above) “that will allow the sniper to make kill shots “under crosswind conditions, at the maximum effective range of current and future weapons.”
2. In 2004, Cubic Corporation were granted a $6.5 million subcontract from General Dynamics Amphibious Systems to develop and produce a Driver Simulator and a Turret Simulator for the Marine Corps new Expeditionary Fighting Vehicle (EFV).
3. Cubic Corporation were also awarded another $6 million contract from Raytheon/Lockheed Martin Javelin Joint Venture to produce tactical trainers for RLM’s shoulder launched, “fire-and-forget” anti-tank missile.
4. Cubic are also building the Surveillance Target Attack Radar System (STARS), an air/ground data link system for the US military.
5. Two days ago Cubic Corporation put out a press release denying any link with TrapWire, which we now know is questionable (if we go by their directors listings). Well here’s another Cubic Corp press release (from May 2010):

ORLANDO, Florida – May 17, 2010 – Cubic’s Simulation Systems Division, a defense systems unit of Cubic Corporation (NYSE: CUB), has been awarded a contract valued at approximately $4.8 million to supply 27 of its COMBATREDI systems to the Florida Army National Guard, along with four 180-degree Warrior Skills Trainers (WST), a vehicle trainer that works with COMBATREDI. The award represents Cubic’s first sale of the new COMBATREDI system, which immerses users in a highly realistic 360-degree “virtual reality” environment. COMBATREDI is a new approach for Cubic, its first completely tetherless, user-worn virtual training system. It features a high-definition helmet-mounted OLED video display that delivers game-quality graphics with a 60-by-45-degree field of view, and an integrated 3D stereo headset for sound effects. Trainees are able to move through a 360-degree virtual environment, including entering buildings, as if it were real. The user carries a realistic wireless “surrogate” rifle that performs like a real one, requiring things like magazine changes and selecting the correct firing mode to operate correctly. Cubic introduced the new system to potential military users late last year. “Cubic is pleased that it hasn’t taken long for the groundbreaking characteristics of COMBATREDI to be recognized by the user community,” said Tony Padgett, Immersive Product Line Manager for Cubic Simulation Systems in Orlando. “COMBATREDI fully immerses trainees into the virtual environment. This is a whole new way to train the dismounted soldier.” Padgett said COMBATREDI allows individual soldiers to be trained almost anywhere, incorporating virtually limitless scenarios without the need for dedicated facilities. The WST system also being delivered to the Florida Army National Guard projects realistic high-fidelity scenes on large screens using the Virtual Battle Space 2 (VBS2) engine. This system is in use in multiple U.S. Army locations.

////////

Anyway also here is an EPA exercise schedule & workshop list: Planning and Exercise Schedule | Region 8 | US EPA

epa-exercise-workshop.png

Mainly I would say that training exercises should be kept to the absolute minimum necessary, and indeed they should not be an opportunity for shadowy corporations like Cubic to profit from open-ended contracts.

The Art of Failing Gracefully: DEA & DOJ need to cover up Sinaloa cartel informant Vicente Zambada, the quid-pro-quo system, "Fast & Furious" arms distribution for Great Justice!!!

Hundreds of billions of dollars, between cash flows and valuations, depend upon the ability of American law enforcement structures avidly maintaining their illusionary belief system about laundered drug money, informants, and banking systems. All of this is normal, they say, it's normal to throw the book at tons of little fish while mysteriously failing to find any really substantial laundered drug money or criminal prosecution for lawyers and bankers involved. The name of the game is to fail gracefully at detecting and punishing drug money in the banking system, to create a PSYOP of coherency on top of countless total ironies, structured protection & utter failures.

By the same token, the US government really always tends to nudge all markets into being dominated by a few big actors, whether "legal" or "gray" or "shadow" - be they milk producers or drug traffickers. They want to minimize the number of PayPals on the market, and the number of major drug players.

At some point it apparently came to pass that formal informant deals with favored cartels would also be inked -- the Sinaloa cartel even officially promoted as the proper dominator of certain "plazas" in public relations items. Because no one really cares about war on drugs policy -- it's not like this horrible policy affects the level of gun violence in North America -- nothing ever gets done about this at the federal level.

It's beginning to finally dawn on people that the secretive Federal Reserve System wire transfer networks - casually known as Fedline & Fedwire -- must somehow be involved [noted in Oct 2010], and I have never seen a single person even bother to claim to the contrary. The banking wire transfer systems are inextricably part of the "protected" drug money laundering system which is "protected" in the same formal way as at least some of these Sinaloa crucial informant thugs. Let's see if state police can pry into the Fed. LOL!!

So anyway, we have hard proof of it in court that Jesus Vicente Zambada-Niebla's attorney was in fact an informant operated expressly to pull intel from Sinaloa into the US government.

The questions: how much the "kingpin" deserves cover from that, especially since he was moving along Fast & Furious guns to waste other cartels & assorted innocent people? How many documents showing underlying protected illegal relationships will the judge force into the public record? How much 'controlled demolition' will the public tolerate in this relatively obscure case?

This gets a nice update from Abby Martin & Andrew Kennis: Next Big DEA Scandal | Interview with Andrew Kennis - YouTube

PREVIOUSLY (about halfway down many details): ECHELON GCSB military surveillance vs New Zealand & Kim Dotcom; IRC logs on Anonymous false flag attacks viewed anew; Barrett Brown setup via #OpCartel | HongPong.com [Oct 22 2012]

All of this insane crap is directly related to the formal FBI informant illegal operations system which gets exposed in tiny nibbles, for a little more documentation on illegal ops see recently The New 21st Century COINTELPRO Mobius Strip: Undisclosed Participation, "OTHERWISE ILLEGAL ACTIVITY," Federal & State Informants, drug ops auditing in MN [Jan 31 2012]. Unfortunately the DEA's habit of giving traffickers informant status means that more nasty drugs easily find their way into Minnesota from handled/protected figures in Chicago. Thanks so much, Federal Government!

LINX: Cartel Member Says Fast And Furious Aimed To Supply Guns To Sinaloa Cartel - Business Insider (Aug 10 2012)

Mexican Official Accuses CIA Of 'Managing' Not 'Fighting' The Drug Trade - Business Insider (July 24 2012)

One batch of Zambada Court files: http://narcosphere.narconews.com/userfiles/70/Pleadings.Sinaloa.Zambada.pdf

More recent Narcosphere items - not a bad place to start: Big Media Discovers US Special Ops are Targeting Mexican Crime Organizations | the narcosphere [January 21 2013]

Fast and Furious Blurs the Line Between Cops and Crooks | the narcosphere [Bill Conroy Jan 6 2013]

Banks Are "Where the Money Is" In The Drug War | the narcosphere [Bill Conroy Dec 1 2012]

Background from Narcosphere: US Government Informant Helped Sinaloa Narcos Stay Out of Jail | the narcosphere [Bill Conroy Aug 7 2011]

US Prosecutors Fear Jailbreak Plot by Sinaloa “Cartel” Leader Zambada Niebla | the narcosphere [Bill Conroy Sept 17 2011]

US Government Accused of Seeking to Conceal Deal Cut With Sinaloa “Cartel” | the narcosphere [Bill Conroy Oct 1 2011]

Zambada Niebla Case Exposes US Drug War Quid Pro Quo | the narcosphere [Bill Conroy Dec 10 2011]

/////////////

Further background: 'El Chapo' Guzmán, Mexico's Most Powerful Drug Lord - Newsweek and The Daily Beast

Lolzy fake letter of love: Mexican Drug Cartels Thank Obama for Gun Control Push - BlackListedNews.com

Why Americans Must End America’s Self-Generating Wars | Global Research [Peter Dale Scott - Aug 30 2012]

America’s Secret Deal with the Mexican Drug Cartels | Global Research [Tom Burghardt Sept 3 2012] - MORE: Antifascist Calling...

Top enforcement agencies don't track crimes by informants [USA TODAY Oct 7 2012]

Narco News: US, Mexican Officials Brokering Deals with Drug “Cartels,” WikiLeaks Documents Show

Narco News: Funcionarios mexicanos y de EEUU negocian con "cárteles" de droga, según documentos de WikiLeaks

Mexican Special Forces Employed as Death Squads in Drug War, Email Records Released by WikiLeaks Reveal | the narcosphere

SIGNALING SYSTEM USG <-> CARTELS: http://wikileaks.org/gifiles/docs/1747720_re-fwd-re-fw-from-mx1-2-.html - FAKEDRUGWARSIGINT is the lulziest form of SIGINT, who can deny??

The whole thing is such a spectacular sham it really calls into question whether federal prosecutors, informants, drug laws and the rest of the charade should even exist in the first place. It is truly a massive stage of fakeness, and frankly none of these people deserve to have any influence over the level of drugs available in society.

Not that drugs are harmless, clearly they all have some negative qualities, but clearly this entire schema is hosed well beyond the point of no return, and can only produce more violence and chemical dependency as it drags us all into hell. There are of course countless rabbit holes involving drug trafficking links with 'deep events' like the CIA, Iran-Contra, 9/11, the Taliban & al-Qaeda etc and I'm not going to get into that much here, though plenty of Iran-Contra related background fills the history of links above. Also as linked here what is the role of NORTHCOM anyway?

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