Media

Heroes in "(T)error": Urgently necessary documentary turns FBI sting inside out in War on Terror exposé; similar operations now escalating in Minnesota

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I was fortunately able to catch a screening of the new documentary "(T)error" at the Boston Independent Film Festival. It exposes a whole level and mode of our political reality, the closest thing to an accurate domestic war on terror doc that has yet been done. (official website)

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As a film it has some technical shortcomings, but it covers a lot of ground including important community history of the Black Panther Party and intelligence probes of Muslims in New York City. In showing how the real machinery of domestic intelligence operations really work, it's an invaluable, quite original film and one sure to blow the minds of many viewers. At 93 minutes, its length works well with the often low-energy, weird situations, without wearing people out through excessive tangents.

For the first time (T)error brings the viewer within an active FBI sting as 15-year self-described "civilian operative" Saeed Torres moves to Pittsburgh and attempts to sting Khalifah al-Akili (below), a Muslim-American who mainly makes relatively militant Facebook posts, which draws the Feds' attention to him.

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In the bulk of the film. with massive guilt and exhaustion hanging over him like a raincloud, Saeed (below) chainsmokes blunts, exchanges lots of texts with his FBI handlers and tries to lurk his way into the local community. Social media engineering attempts and the entry of another veteran informant operative define the midst of the story.

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While Saeed is mainly narcing for the money, he also has contempt for Muslims that are messing things up, as he sees it. His regretful severe social isolation, a consequence of his actions, is not downplayed at all - and unlike some films it seems sincere, even as he performs the role of a lying sociopath for envelopes of cash from the feds.

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I won't get into the details here, though they have been well-publicized. A 45-minute Democracy Now segment brings everyone up to speed, key spoilers included: FBI Informant Exposes Sting Operation Targeting Innocent Americans in New "(T)ERROR" Documentary | Democracy Now!

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Parallels are connected between the Pittsburgh op and Saeed's earlier FBI sting campaigns since 2000. The story also covers in-depth the very similar sting and prosecution of musician Tarik Shah, whose mother Marlene presents the strong front reminiscent of so many other family members of those targeted previously.

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The work that Steve Downs does in attempting to bring transparency in the case is highly commendable and necessary - contact this man's org if you credibly think you are really getting put into a sting:

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Shahed Hussain, the informant involved in the Newburgh Four case from 2006 and another case in Albany, started working for the bureau in 2002 and makes quite a splash of fake reality spam in this film. (NY Post neutrally notes HBO doc The Newburgh Sting - 2014. Wiki page notes )

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It's impossible to watch this film without vividly recalling the wave of federal informant activity around the 2008 Republican National Convention and the antiwar movement, culminating in surprise grand jury raids in 2009. I ran into at least four people somewhat like Saeed over about two years and these are the kind of encounters burned in your memory within a whole separate category of social & political reality. For some viewers the 2009 G20 conference in Pittsburgh will echo through this story as well, although it's not discussed in the film.

Adding to this film's urgency, in recent weeks Minnesota's primarily Muslim Somali community has gotten snared in another high profile sting. Early indications are pretty clear that the informant was someone who was under pressure from compelled secret grand jury testimony that went bad, showing how these operations generate the raw power necessary to compel informants into action.

See: Feds charge six Minnesotans with trying to join ISIS | Minnesota Public Radio News (Apr 20 2015), some constitutionally dubious new charge: Man charged for sending threatening tweets in ISIS case | Minnesota Public Radio News (Apr 24 2015 - wut?!), Informant's role emerges as key in counterterror sweep | Minnesota Public Radio News (Apr 20 2015), Defense challenges use of paid informant in Minnesota ISIS case - CBS News (Apr 23 2015), Defense calls case against MN terror suspects weak; judge allows it to move forward - BringMeTheNews.com

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This whole realm is totally alien to most Americans, and I certainly hope that it gets aired as widely as possible. Ideally via another national PBS program distribution deal like Better This World (2011: Dirs Katie Galloway & Duane de la Vega), which covered the "Texas Two" molotov cocktail case and grandiose informant Brandon Darby -- who soon thereafter entered the Breitbart conservative media fold. [I contributed some help to BTW] Review here.

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Another film Informant (2012: Dir Jamie Meltzer) more or less let Darby expose himself in his own words.

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It also brings to mind the huge series of semi/fictionalized informant characters in movies - how often the Hollywood films end up getting told from the perspective of people that rolled.

Most recently, the skillful and vivid Pynchon adaptation Inherent Vice (2014: Dir Paul Thomas Anderson) features the anxious Owen Wilson as a semi-private COINTELPRO informant circa 1970. Wilson confesses he found out they "want to use us to keep the membership in line" - that is, keep the hippie revolution within boundaries. Helpfully, this film shows the psychological toll that being rolled into the game as a plant really takes, helping drive much of the plot.

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Goodfellas (1990: Dir. Martin Scorsese) is getting attention now at its 25th anniversary. Goodfellas' real-life Henry Hill, who was paid handsomely by the film production - ultimately leaving witness protection and dying peacefully in 2012:

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American Hustle (2013: Dir David O. Russell) gave a glossy, color saturated Jersey yarn of rolled con man Irving Rosenfeld.

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As studios so frequently do, it was paired off Scorsese's indulgent and somewhat saggy The Wolf of Wall Street (2013). Jordan Belfort undeservedly gets the privilege of introducing himself, played by Leonardo DiCaprio - and his sporting of the wire to expose his co-workers is quite condensed from reality in the film plot.

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But no one that I'm aware of has touched the notion in fiction or reality of an ex-black revolutionary & Muslim who is a repeat player for the Feds, rather than another smooth-talking pushy hustler folding under charges. (Although you might say The Spook Who Sat by the Door (1973: Dir. Ivan Dixon) portrays the reverse of this operation. Full film here.).

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I would be remiss in failing to note a couple new informant-related stories from WhoWhatWhy: the Boston bombing case and the late Ibragim Todashev remains locked away. As is so often the case, the American public is not privy to secret documents that could indicate earlier federal activity in the circle of acquaintances of the Tsarnaev brothers. The Unexplained Connection Between the FBI and Two Muslim Friends Killed by Law Enforcement - WhoWhatWhy. See this relatively new heavily redacted document:

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Additionally, the April 19, 1995 bombing of the Murrah federal building in Oklahoma City continues to emit interesting new informant information nodes, with "CI-183" at Elohim City a new awkward data point of interest in understanding the case better: Exclusive: Oklahoma City Bombing Breakthrough, Part 1 of 2 - WhoWhatWhy // Exclusive: Oklahoma City Bombing Breakthrough, Part 2 of 2 - WhoWhatWhy. Kudos to WhoWhatWhy for publishing well sourced new material in both the Boston and OKC cases in the last few days, April 22-25th.

After seeing (T)error it should be easier to understand the kind of shadowy context informant type operations may have intersected with these tragedies, and at least the stubs of the paper trails of those intersections.

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See another review: Sundance Doc (T)ERROR Is This Year’s Citizenfour - Vogue. As noted, the regret-bound Saeed really just wishes he could apprentice to a master baker and cook cupcakes. "(T)ERROR should be seen as ancillary viewing to Laura Poitras’s Citizenfour, both of which touch on issues of surveillance and the right to privacy versus the imperative to prevent terrorism."

Saeed pegs his map of Pittsburgh, cryptically:

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Follow the Terror documentary on Facebook here. As protests uptick across America again, the film also gains relevancy in looking back at how revolutionary movement's like Saeed's former Black Panther Party, the Nation of Islam and American Muslims got put under COINTELPRO pressure. Saeed never really seems to recant his former revolutionary beliefs, at least on camera. Aptly enough, a Le Carré novel and many other items of political and spy literature dot the scenes in Pittsburgh.

It gives us some better grasp of how the government interfaces deep into the lives of communities living in political and economic tension, making it among the most perfectly relevant things one could hope to see on the screen right now. One can't conclude anything else but that Saeed is another misguided "hero in error", to borrow Iraqi exile Ahmed Chalabi's phrase, a memorably awful defense of his own transgressions.

Military & Film, movies at cosmic war in our mind's eye: Why does the Pentagon care about 'exopolitics' & Hollywood portrayals of aliens? Blockbusters, extraterrestrials and ultraterrestrials

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Wings, in 1927, won the first Oscar for Best Picture and used more than 3,000 infantrymen, pilots and crew.
So begins our meta narrative...

I had a bit of a debate with a friend of mine about influences going into science fiction in the media, and the intersection between the Pentagon and Hollywood. The US military has had a presence for nearly a century in American filmmaking but insight into its outsized influence has gotten quite lost.

Even more oddly, the government has always been keen to get involved in any films about extraterrestrials -- including the CIA. The Pentagon has certainly firmed its grasp around alien-related movies in recent years.

This post jets in a few far out-directions. Rather than split it into more narrowly focused narratives, I wanted to linkdump a breadth of material so I can send it out there when these topics come up, as they all seem rather enmeshed anyhow.

If nothing else, Michael Bay should become Secretary of Defense. He has gained hugely from this system, and could shoot cheap fake wars to entertain Fox viewers while sparing the rest of us the expense of patrolling the world and the cosmos. Synthetic Wag the Dog type video should be the whole system, not just a prop for strategy.

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SciFi military influence works in relation to The Day the Earth Stood Still (1951), which signaled a threatening concept for Pentagon leadership: the film's conception of military thinking as too limited for managing our social reality in the universe -- an alien turns up to critique nuclear weapons and earthbound militarism. (And weird UFO incidents continued at nuclear sites in decades following!)

The bland remake had Pentagon help, and didn't do well with critics or the box office. Journalist Linda Moulton Howe said that government sources told her 1951 the film was "inspired by the CIA" and "one of the first major government tests of public reaction to such an event."

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Fast forward sixty years later: fare like Stargate SG-1, Man of Steel and Transformers are marketed to appeal mainly to young male demographics and the military as a whole is usually presented as a cosmologically viable, if weak, buffer force against a fairly nihilistic universe, and if misguided still gets brought around.

Bad eggs, rather than systematic failures of the military as an institution, usually form the narrative boundary.

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On the other end of the cosmic spectrum, Sony's Captain Phillips and the little-remembered Jurassic Park III were other projects where the military cleans everything up at the end. Despite different plot trappings, the subsidized state Pentagon presence is quite similar in all of these.

Phillips "used a U.S. military guided missile destroyer, an amphibious assault ship, several helicopters, and members of SEAL Team Six, who play themselves but are not on active duty — all courtesy of the U.S. Navy, who were able to work the shoot into their training…. For "Man of Steel," using military efforts cost less than $1 million on a movie with a production budget of $225 million. Another perk of having Strub sign off on a Hollywood project is it often means production is able to avoid Screen Actors Guild (SAG) daily minimum rates ($153 for eight hours, plus overtime) for unionized actors. Then they save again by not having to pay residuals, notes Fortune."

All of these were produced with a great deal of Pentagon assistance and this is always done in exchange for certain specific, defined features, usually script points in the storyline. Characters get reconfigured and sometimes dropped so that a producer can get access to a free carrier to film on or whatever. Minders on-set ensure the final product is right to spec.

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Enter the Alien Stage Left: In all of this comes a defined emphasis on spacefaring aliens -- they got an extraterrestrial type firmly defined in the popular mind by the 1950s through media productions. Looking at so much of this sponsored work, there is almost a toolkit that has been diligently set in stone about what all the weirdness really means, and how it works.

Part of what writer Chris Knowles at Secret Sun blog has gunned away at for years is not just the complex of recycled ideas and flows of script control. It's a long exploration along the interfaces of popular culture and sophisticated groups planting, in retrospect, quite traceable ideas. For example, old Outer Limits, Star Trek, the Esalen Institute and Rockefellers form one compellingly weird Gordian knot.

Stargates and Solar temples is a real cosmic trip as well, linking a California-centered trend of contacting invisible alien spirits called the Nine with the Prophets (alien wormhole dwellers worshipped by Bajorans) in Deep Space Nine. Spoiler alert: Pleasure planet Risa also has numerous cues connecting it to Esalen as well. All this stuff is wild.

Knowles also stresses that powerful ideas like hidden folk ('elves', spirits, elementals), walk-ins (like possession & speaking in tongues), or other ultraterrestrials have been with humanity apparently since the beginning but are totally obfuscated by factors like the Pentagon's reorganization of the Other through the media (if I can summarize a very long and branching line of inquiry). They call our attention to Grays to draw it away from the Wee Folk.

It seems like the Pentagon likes to push away the idea that some connection would be made to somewhat unreal or alternate dimension intelligences, who might bear some positive wisdom if only we were more open to it. [Knowles attributes some of this hostility to a shadowy Collins Elite, hardliners kind of like cosmic Birchers, opponents of the Rockefeller Disclosure squad like Dr Steve Greer. He sees echoes of the Collins Elite in the 10:13 produced X-Files spinoff Millennium. ]

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Another common theme is that the military is not a systematically wrong approach to the cosmic universe. Star Trek and Stargate SG-1 are the strongest examples, which always resonated better with Americans than elsewhere. The complete notion or the ontology of a military agency facing outwards into the void as the political surface membrane of human bacterial cell in the galactic body, through the US Air Force Space Command, is beyond doubt.

Even when members of the military make bad decisions like in WarGames or SG-1 episodes, it gets reconciled and the structure is redeemed. In these boundaries there are not Strangelove-like transgressions. Even after apotheosis and enlightenment, still the military structure stands. It just needs course corrections, it never goes down like the Titanic. [Plenty of script tweak examples listed below]

Independence Day was not produced with military help (they certainly didn't want Area 51 in the mix, apparently) but everything still lands in a martial framework.

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Mission accomplished

(source http://poisonparadise.com/wp-content/uploads/2014/07/tumblr_lnul0brwkZ1qa9vqgo1_500.gif)

The notion of utopian existence without state militaries withers away, reversing the Earth Stood Still, getting it all spinning once again.

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(source http://fakeclenews.com/images/independence-day-area-51.jpg )

Much as it seems easier to imagine the apocalypse nowadays than living outside of capitalism, so too it is harder to imagine exploring both the outer and inner universe outside of a martial foundation.

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British angle: I'm less familiar with overseas version of America's media-military complex, but it seems the British used James Bond films to put certain ideas out there, at least. The BBC looms large over Brit sci-fi. Torchwood, Britain's answer to Men in Black, seemed kind of like NCIS for space. I didn't see much of it but it seemed like a reframing of high weirdness phenomena into manageably concrete martial terms.

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While poking around this stuff I came across Gordon White's website Rune Soup including this fun passage in The Other Place of Dead Roads:

The trickster unifies major, but seemingly unrelated, themes surrounding the paranormal. For instance, the paranormal is frequently connected with deception, and deceit is second nature to the trickster. Psychic phenomena gain prominence in times of disruption and transition. Tricksters are found in conditions of transition. The paranormal has a peculiar relationship with religion; the trickster was part of many early religions, and he was viewed ambivalently. The statuses of paranormal phenomena are typically uncertain or marginal in a variety of ways. Tricksters’ statuses are similar. [The Trickster and the Paranormal.]

Also interesting: Under Familiar Skies. To this intersection of shamanism and management of Otherworldly perceptions check out: Risk a Little More Bite if your interests lie anywhere between Terrence McKenna and John Podesta's improbable recent tweet about UFO files.

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Narrative and the New Nihilism: Along with all of this is a "new nihilism" linked to what Knowles derisively calls Nü Atheism (aka the adolescent-minded Dawkins/ Maher/Harris scene). This piece touches on it: "They kept saying they believe in nothing" | Red Dirt Report. Nihilism is a perfect worldview to match the perspective that nothing tangible positive is reachable in the interior of the psyche or the cosmos. (See also The Secret Sun: Pop (Culture) Has Eaten Itself)

There is certainly some gender dynamic in scifi that saw Star Trek: Voyager as the high water mark for non-alpha male storytelling ( Now, "Voyager": in praise of the Trekkiest "Trek" of all). Now everything seems to have drifted back towards typical gender roles, as the story notes. Even the idea of a black James Bond is controversial - Roger Moore facepalm...

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Circling back to the general issue of the Pentagon in non-scifi moviemaking: This is hardly a small affair or just a few producers and G-Men scooting some cameras onto the odd aircraft carrier deck. It's a major system and important to the whole way that America perceives itself in the world - and indeed the universe.

Here are some links to hit, plenty more where that came from:

25 years later, how ‘Top Gun’ made America love war - David Sirota - WaPo OpEd August 2011: "In June, the Army negotiated a first-of-its-kind sponsorship deal with the producers of “X-Men: First Class,” backing it up with ads telling potential recruits that they could live out superhero fantasies on real-life battlefields. … [In Top Gun] Time magazine reported that Goose’s death was changed from a midair collision to an ejection scene, because “the Navy complained that too many pilots were crashing."

The Pentagon’s Man in Hollywood: I’m a Eunuch | The New Republic - Dec 2012

CIA and Pentagon have long-running influence over Hollywood’s representation of military - RawStory Jan 2013

'Act Of Valor' And The Military's Long Hollywood Mission - HuffPo Feb 2012

Hollywood and The Pentagon: A Dangerous Liaison - Top Documentary Films (37 mins, free) [also here]

Hollywood and the Pentagon: A relationship of mutual exploitation | Al Jazeera America - July 2014

On the CBS hit show “NCIS” (Naval Criminal Investigative Service): “If you watch the episodes, it’s always a dead Marine or a dead sailor and reverse autopsy to see if they were the victim or the perpetrator,” Coons said. “In many cases you’ll see we hold ourselves accountable when the investigation reveals we’ve done something wrong, and we take that person through the proper steps to punish them or make them whole if they were the victim, and it’s demonstrated for the public to see.”

I am baffled people find such bland step-throughs watchable but apparently they're as addictive as crack once you get into them.

Operation Hollywood | Mother Jones - Sept 2004: "They never -- at least that I’ve seen -- help movies with aliens. Usually in those movies, the military is shown to be ineffective in combating the aliens, and it’s always some tricky, enterprising person who figures out how to defeat them. " Notice this has since been reversed with Transformers and Man of Steel. "….when the world’s most powerful medium colludes with the world’s most powerful military to put propaganda in mainstream films and television shows, that has to have an effect on the American psyche."

The Pentagon and Hollywood - quick note from Stanford, date unknown.

Since 1989, this guy: Phil Strub Controls Hollywood's Military Access - Business Insider - March 2014. This guy is Director of the Marine Corps liason office now > Curtis Hill | LinkedIn

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Hollywood Is Becoming the Pentagon's Mouthpiece for Propaganda | Alternet - May 2008, looks at Iron Man

Propaganda and Censorship: The Hollywood Industrial Complex by Sean A. McElwee -- Antiwar.com - April 2013. Covers Iron Man 2. "In the original GoldenEye script a Navy Admiral sells state secrets, the final version, it’s now a Frenchman." Handy index:

090518_f_6680c_108_127.jpg2012 Battleship

2012 Act of Valor

2011 Transformers: Dark of the Moon

2011 Battle Los Angeles

2010 Iron Man 2

2009 Transformers: Revenge of the Fallen

2009 Bones (TV series)

– The Hero in the Hold (2009) (this episode could not have been made without the support and generosity of – Phil Strub)

2008 The Day the Earth Stood Still

2008 Eagle Eye

2008 Iron Man

2007 I Am Legend

2007 Transformers

2006 Flags of Our Fathers

2006 Al Franken: God Spoke

2006 United 93

2005 The Great Raid

2005 Stealth

2005 War of the Worlds

2003 American Valor

2003 Rain

2003 The Core

Pentagon rules target Hollywood leaks | TheHill - Sept 2014. Can't have anyone telling stories outside of school! [Look back on Secret Sun for clues about old Outer Limits possibly publishing leaked material wrapped in scifi]

US Marine Corps list of TV and Film requests for involvement

A Credit to the Corps - latimes - on Josh Rushing & Al Jazeera, August 2004. He got reassigned to the Marine Corps' Hollywood office after a spokester media tour early in the Iraq war.

MARINE PAYING PRICE FOR ROLE IN DOCUMENTARY CAPT. JOSH RUSHING HAS BEEN REASSIGNED AND HAS BEEN ORDERED NOT TO GIVE INTERVIEWS ABOUT HIS ROLE IN 'CONTROL ROOM,' A DOCUMENTARY BY AL JAZEERA. - News-Record.com: Home

Ex-Marine Josh Rushing on His Journey from Military Mouthpiece to Al Jazeera Correspondent | Democracy Now! - June 2007

Pentagon Liaisons to Hollywood Have Some Great Stories - Roll Call July 2014

When the CIA infiltrated Hollywood - Salon.com by Tom Hayden - Feb 2013, covers Argo and earlier projects.

USATODAY.com - Homeland Security guides the stars - March 2005 Homeland Security and once again Tom Hanks in The Terminal. Along with USATODAY.com - Hollywood, Pentagon share rich past

The Case for Hollywood History by Francine Prose | NYRblog | The New York Review of Books - Feb 2015

Pentagon weighs in on some Hollywood movie scripts - AP 1996 - Yes they hit Forrest Gump and demanded his co-soldiers appear smarter.

The Pentagon Goes Hollywood | | The Escapist Feb 2013. Wow even Birth of a Nation had artillery loaned from West Point.

War is a racket: The Pentagon-Hollywood Connection - Brass Check TV

Military interference in American film production - World Socialist Web Site - March 2005

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DivPA Los Angeles Public Affairs -

Mission

The Marine Corps Motion Picture & TV Liaison Office, also known as LA Public Affairs, provides assistance to directors, producers and writers in the entertainment industry by providing DoD support for major motion pictures, television shows, video games and documentaries to inform and educate the public about the roles and missions, history, operations, and training of the United States Marine Corps.

What we provide

Since 1917, we have helped producers, writers and directors of non-Government, entertainment and non-entertainment-based media productions with the following:

  • Coordination for the use of personnel, aircraft, and equipment.
  • Access to Marine Corps installations, both within the United States and forward combat zones.
  • Assistance in obtaining broadcast-quality Marine Corps stock footage and "B" roll footage.
  • Accurate Script and story development
  • Access to highly-qualified subject matter experts (i.e. pilots, engineers, infantrymen, etc)

Note: All productions must be approved by the Department of Defense and meet specific criteria for support. Click on our FAQs link for more information.

What production companies should do

You may contact these people to try and borrow an aircraft carrier for your drug filled pacifist film capers at:

U.S. Military Assistance in Producing Motion Pictures, Television Shows, Music Videos


Department of Defense

Special Assistant for Entertainment Media

Department of Defense

The Pentagon, Room 2E592

Washington, DC 20301-1400

(703) 695-2936 / FAX (703) 695-1149

For information regarding U.S. military assistance in producing feature motion pictures, television shows, documentaries, music videos, commercial advertisements, CD-ROM games, and other audiovisual programs, please contact the Military Service being portrayed or being asked to provide assistance:



Army

Chief, Office of Army Chief of Public Affairs

Los Angeles Branch

10880 Wilshire Boulevard, Suite 1250

Los Angeles, CA 90024

(310) 235-7621 / FAX (310) 235-6075



Navy

Director, Navy Office of Information West

10880 Wilshire Boulevard, Suite 1220

Los Angeles, CA 90024

(310) 235-7481 / FAX (310) 235-7856



Air Force

Director, Secretary of the Air Force

Office of Public Affairs

Office of Public Affairs-Entertainment Liaison

10880 Wilshire Blvd, Suite 1240

Los Angeles, CA 90024

(310) 235-7511 / FAX (310) 235-7500



Marine Corps

Director, Marine Corps Public Affairs

Motion Picture and Television Liaison

10880 Wilshire Boulevard, Suite 1230

Los Angeles, CA 90024

(310) 235-7272 / FAX (310) 235-7274

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Anyway I hope that gives some avenues to go check out and a better understanding of where all these bland military-involved plot points come from - movie execs that acquiesce to rather unconstitutional pressure from the offices named above here, due to budget pressure.

The remapping of outer space by this system is almost as strange as a UFO sighting - it rather pre-conditions us to certain conclusions, or frames of reference. whenever a truly weird incident happens.

Let's try to support weird cinema in 2015, cinema that opens our imaginations. Not this dull mixture of the same old military character injected into young male blockbusters and all-too-conventional scifi over and over.

Credit to Roger Ebert for inspiring me to throw some notes out there - just watched "Life, Itself" and it was quite awesome.

VIDEO: Vermin Supreme & Jimmy McMillan QA 3-17-2015: 2016 presidential operations?!

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Will Vermin and Jimmy attempt to ontologically defeat the corrupt and bloated US political sphere again? High rent and oral hygiene will be back on the agenda in 2016, they hint in a QA.

Vermin Supreme and Jimmy McMillan answer questions after a free screening of "Who is Vermin Supreme? An Outsider Odyssey" at the Paramount in downtown Boston. Director Steve Onderick answers questions, followed by Vermin and Jimmy over skype.

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http://whoisverminsupreme.com - here's the trailer: https://www.youtube.com/watch?v=gbf3rXJJLt8&feature=youtu.be .

The film has been continuously improved since previous versions I've seen, thanks to New Alliance in Cambridge for an all-new sound remastering, it's really got a polished, unusual audio experience.

Review earlier from DigBoston: WHO IS VERMIN SUPREME? AN OUTSIDER ODYSSEY

A nice review from the evening: Who Is Vermin Supreme? An Outsider Odyssey (2014) | Film Static: Criticism and Essay by Jarrod White

https://twitter.com/verminsupreme

To contact Jimmy McMillan, please email him at damnrentparty@gmail.com

[Yes I helped Steve distribute his film to kickstart supporters]

Original event URL.

CREATIVE COMMONS - REMIX WITH ATTRIBUTION

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Barney Miller on Trilateralists in 1981 & war machine in 1978: Fictional arrested protester dialogue censored by ABC for linking Dow & DuPont to Vietnam War

I wasn't familiar at all with late 1970s series Barney Miller, but it's a striking contrast to today's much creepier police shows.

First, a funny clip just posted from Arrested Development's Jeffrey Tambor explains the Trilateral Commission, name checking David Rockefeller and George HW Bush, broadcast in 1981 (via VigilantCitizen naturally):


A few seasons earlier, the episode about arresting a Yippie style antiwar radical activated the network censors hours before broadcast. Here's a news clip explaining the ABC lawyers thought that referencing Dow & DuPont was potentially libelous:


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Here's the full episode S5E11 "The Radical". References to Abbie Hoffman and Bill Ayers, while some of the cops debate when they'd been protesting the Vietnam War, and what on earth the war really meant:

The contrast between sheer mellowness of this show versus the aggression and blunt pacing of today's modern cop shows is so striking. Do you really think a fictional cop character would claim to have opposed a war years earlier than everyone else now?! A lot of comments on its wiki page and elsewhere that Barney Miller was seen by police officers as the most accurate cop show on TV for many years.

On kind of a throwback kick today, watching "Brotherhood of the Bell" (1970) as well. Sort of a pseudo Freemasonry California business leisure suit story. You expect Jim Rockford to pop out….

In case people haven't seen it, someone just put up Rockford Files Season 4 Episode 21 & 22 The House On Willis Avenue which covers something like a privatized NSA conspiracy.

Here's a wonderful excerpt wherein Rockford vents about the dangers of creeping privatized FBI agents and 'control file' style dirt digging:


Back in October 2013 I used the Rockford Episode to talk about the Harris Kingfish cell phone interceptor: Local cell phone spying KingFish stonewall: Minnesota law enforcement at BCA & Hennepin County refuse to disclose SIGINT cell phone snooping capabilities from NSA contractor Harris.

A clue in Fellini's La Dolce Vita about that old Mithraic esotericism: To live outside of time, detached...

This is a random thing but it caught my attention. At almost the exact middle of Fellini's La Dolce Vita there is a somber discussion as Marcello, the tabloid journalist protagonist, tells Steiner the intellectual he wishes he had such a nice & accomplished life.

But Steiner looks out the window and fears for the life his children will face. He says he wishes he could "live outside of time, detached" in English subtitles, anyway. He's one of the more distinctly anti-fascist characters in the film & he seems to also be lamenting what appear to be persistent spotlights of the spectacle outside his windows.

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Sometimes at night this darkness, this silence, weighs on me. Peace frightens me. I'm afraid of peace more than anything else. To me it seems that it's only an outer shell and that hell is hiding behind it. I think of what my children will see tomorrow. "The world will be wonderful," they say. From what point of view? When a phone call can announce the end of the world. One should live outside of passions, beyond emotions, in that harmony you find in completed artworks in that enchanted order. We should learn to love each other so much, to live outside of time, detached. Detached.

Thus ends the middle segment of the film divided into seven days and nights.

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Only a couple days earlier, thanks to @daviDNAlexander I ran into a funny essay, "The Entheogen Theory of Religion and Ego Death" by Michael Hoffman which dives into the idea that ancient mystery religions sought a very similar sort of avenue to enlightenment.

Tauroctony.jpg

The idea is explored by associating the various snakes and orphic egg iconography with the sort of wiggly path that a person's life takes, as if it were seen from a five-dimensional or timeless perspective, a "frozen universe". Likewise the notions of fixed fates & destinies were always so big in ancient western mythology. Connections are made to the ancient Mithra cult, an important underlying source of symbolism for Roman Catholicism. No surprise, then, that the idea would have wiggled its way into a film so closely linked to Italy & Catholicism as Vita.

Side note: The floppy red Phrygian cap worn by Mithra turns up later in a lot of revolutionary and Freemasonry-friendly artwork in the time of the French Revolution, as well as within the Romanesque iconography of America's "civic religion". I posted a whole bunch of related art including the symbolic caps, see images posted previously: June 2011: Dashing Wartime Philosopher Bernard Henri Lévy ties Libyan rebels & Netanyahu, lolz at teh Bilderberg conspiracy - and your French Revolution Freemason delirium too! | HongPong.com

And of course, Hoffman writes about the notion that entheogenic drugs allow the 'ego death' so that one can finally see a glimpse of that weird little fixed place in the cosmos, before you shake it off and resume weaving forward on your linear life path…

I'm sure there are other interesting symbols stuffed into Dolce Vita that I've only barely begun to find, but I definitely dig how this particular moment is right at the very middle of the film.

#Pointergate Pieces: Hodges merged out politically powerful police pensions; KSTP Quadruples Down; Minneapolis gang intel plugs away

On Nov. 13th another KSTP reporter tried to extend the segment which grabbed national attention by blithely erasing a young Northside guy's life context, framing him as so many before, simply "felon". KSTP turns its attention to his Instagram, and no snarky quips from Minneapolis Police Federation's Delmonico this time. They're turning away from Hodges and only cited a few bullet points from her most recent #Pointergate statement, a nicely hard hitting item when most politicians would stay boring.

TL;DR? Have some material here w links to show depth Hodges-vs-MPD pension fund tussle, gang investigator angle, lastly some info to earlier gang database public process info, 2010 BCA video. Previously on Hongpong.com: Jan 2013: MPD Tracking OccupyMN Facebook BBQs: Minneapolis "secret" Strategic Information Center / Emergency Operations and Training Facility 25 37th Ave NE in Fridley. Data releases indicate gang members & activists are tracked here on social media routinely. [Also site for Obama photo-op against gun violence]

The Thurs KSTP clip is mirrored here: https://www.youtube.com/watch?v=LI5lvu08XFw


Bruce Ferrell, president of the Midwest Gang Investigators Association talks at length about how scary finger pointing is. They never come up with any evidence associating the young man w any specific gangs. Nor did he ever deny having trouble staying on the right side of the law in his life, but KSTP triples down on it anyway.

Anyway a couple angles were flagged to me by a hawkeyed friend. Ferrell's organization has a familiar figure as it's Minnesota lead member, Mike Martin. Inquiring souls might want to ask Martin where he fits in this scheme.

The other angle here is the "political economy" depth of the grudge match between Mayor Hodges and MPD elites because Hodges spearheaded a successful effort to take away perhaps the greatest police goodie jar of all, the Minneapolis police pension fund. She was chair of the City Council’s Ways and Means/Budget Committee the four years prior to becoming mayor.

In my days poking through campaign finance records at Politics in Minnesota I was always a little surprised by the generously minded pension funds, pouring money into local and legislative races. These taxpayer-supported funds also let managers walk out with fat percentages. Hodges led the effort to roll these into the more efficient state fund, which neatly took away a huge political carrot, the Minneapolis Police Relief Association, for the Delmonico ... gang. I mean affinity group like a local brass SuperPAC.

The police fund had been closed to new officers for 30 years but still gave profusely to politicians. How dare she take the cookie jar!

MPR candidate bio:

In 2010, she helped cut Rybak’s proposed budget by $6 million. She also spent several years working on pension reform, and she helped engineer a plan to merge the city’s pension system for retired police officers with a state fund.

“It is not sexy to talk about fighting for six years for pension reform. It is not sexy, until I tell you that in 2012, fighting hard for pension reform saved you a $20 million tax levy bill,” she told supporters when she launched her campaign in April.

Minnpost QA:

On the other hand, you need to know how to take on a tough fight and win. I’ve done that, too.
I worked on pensions for six years. [The merger of the Minneapolis Employee Retirement Fund with the state Public Employee Retirement Association]. I was told it would never happen. I was told I was ruining my career, but I knew it was the right thing to do and I kept fighting and I won.
We saved the taxpayers of Minneapolis a $20 million bill in 2012. It was a fight worth taking on, and it was a fight I’m glad we won.

Star Tribune: Minneapolis' pension tension May 2011:

Rybak said his fight isn't with pensioners but with fund leaders, "the middlemen who have wrongly taken money from taxpayers." Relations soured so far that the funds used member political dues to disparage Rybak's role in the lawsuit in a mailing to DFL delegates last year when he sought party endorsement for governor. The police fund also asked the Democratic National Committee to not choose Minneapolis for its 2012 convention, citing the pension cuts....

Merger prospects in the past were blocked by the clout of the police and fire funds at the Capitol. Their political arms donate liberally, and fund leaders assiduously attend political fundraisers.

Schirmer has breakfasted with governors Mark Dayton and Tim Pawlenty. Minneapolis police and fire retirees reported contributing at least $180,000 in state political races last year. Most legislative pension commission members got the $500 maximum. The political arm of retired firefighters gave $44,500 to the House DFL caucus but also $11,500 to the new Republican House majority.

That's one reason leadership of both parties pays heed to the pension funds and that the city had trouble finding bill sponsors from among Republicans this year.

"They have some power there," Rybak conceded. "But the growing understanding that people have has made it easier to take some of the positions I have that are tough politics but are right."

[See also Police Officers Federation fund 300085 - a different one.]

In the last election Hodges' lead opponent, Mark Andrew, represented the police-aligned side of the city's political economy and Brian Rice, longtime attorney for fire and police, was a close ally. An embarrassing story, Sept 2013 in SW Journal: "Brian Rice: Mark Andrew has said ‘no’ to me many times". LOL, just imagine how much leverage Rice lost when the police pension fund was taken outta the game. It's ok, this year he got AFSCME Council 5.

More w Brian Rice Schemes: http://www.startribune.com/local/minneapolis/212857381.html
His lobbyist registrations: http://www.cfboard.state.mn.us/lobby/lbdetail/lb6485.html
"widespread influence": http://www.startribune.com/local/minneapolis/225742511.html
"Rasputin of Parks And Rec" ranked by CityPages, the lobbyist of the pension funds : http://www.citypages.com/2010-01-20/news/the-10-most-influential-lobbyis...
2008 Pension Scheme stuff: http://www.minnpost.com/politics-policy/2008/01/just-movies-minneapolis-...
2013 Web of Alliances - the Old Guard in Mpls: http://www.startribune.com/local/minneapolis/212857381.html

The Star Tribune Editorial Board has also raised this issue more recently again:

Hodges won the Editorial Board’s endorsement for mayor in October 2013, in part because of her work reining in fiscally irresponsible city pension funds while serving on the City Council. Those efforts no doubt labeled Hodges as an enemy at police union headquarters, and she failed to win the union’s backing for mayor. Delmonico’s comments on Pointergate confirm why that’s a badge of honor.

And a mention mapped out this connection earlier in Strib: Tensions between police union and Mayor Hodges may trace back to her council actions.

[Former MPD chief] Dolan said that some of the rift may be traced to Hodges’ time on the council, when she clashed with union leaders during contentious pension negotiations.

Lt. Mike Sauro, a 40-year veteran of the department who was at the negotiations, said the process did not endear cops to Hodges.

“Promises that were made, she said those were made by past administrations, those don’t apply now,” Sauro said Monday. “I don’t think she likes cops, regardless of what her actions suggest.”

In Feb 2011 Hodges a public face on pension:

Council Member Betsy Hodges, who has championed pension reform at City Hall, explained that the conditions of the pension were written into state statute, and therefore needed to be adjusted by the legislature. The city is also embroiled in a court battle with the pension fund.

2010 FOX9 March 2010:

Councilwoman Betsy Hodges says the old police and fire pensions are unique. Not only do pensioners control the board, but benefits are determined not by what the retiree made while working, but what the oldest and highest paid still on the force are making.

In 2011 she posted on Facebook:

Sep 14, 2011. Yesterday was a good day for Minneapolis property tax payers: the police pension fund voted to merge with the state fund, the biggest ramining step to finalizing the deal that will end one of the biggest and unfair drivers of Minneapolis property tax increases, and I voted on the Board of Estimate and Taxation for a 0% maximum property tax levy increase. It passed 5-0, with Carol Becker abstaining.

Star Tribune endorsed on basis of fighting w police over pension money:

Hodges won her first four-year term on the Minneapolis City Council in 2005, and not long after started work on what would become her most notable accomplishment: reform of fiscally irresponsible pension funds in the face of a fierce counterattack by the powerful police and firefighter unions. The reforms saved city taxpayers from $20 million in potential property tax increases in 2012 but were politically costly for Hodges when mayoral endorsements were handed out. Taking on special interest groups has never bothered Hodges — an attribute that helps her stand out in the field of top mayoral contenders.

SW Journal article reposted on campaign site says similar: http://www.betsyhodges.org/blog/2013/betsy-hodges-proud-of-her-record-at...


Anyway turning from Hodges & the pension issue to this new MGIA: Midwest Gang Investigators Association http://www.mgia.org/ who are speaking up for the cops on #Pointergate.
Minnesota Chapter Board - http://www.mgia.org/board.asp
Position 	Name 	Email
President 	Michael Martin 	Email memartin@umn.edu
Vice President 	Tony Spencer 	Email Tony.Spencer@ci.stpaul.mn.us
Secretary 	Susan Schema 	Email Sue.Schema.state.mn.us [sic, probably @state.mn.us]
Treasurer 	Kris Lundquist 	Email kristina1lundquist@msn.com

MIKE MARTIN: NEXUS MPD / MIDWEST POLICE GANG INTEL ORG: Mike Martin from MGIA is available as an expert witness these days and his organization jumped into the #pointergate fray with KSTP. Check out this page:: http://www.minnesotagangs.com/training.html

My favorite item here. Even the URLs: http://www.minnesotagangs.com/contact-us.html

Fourth Precinct at forefront of MPD terrorism - MN Spokesman Recorder March 2010:

we ask how Mike Martin continues as the inspector in charge of the precinct compared to why Black inspectors Dan Battum and Lee Edwards were dismissed.... I say "rogue," for how else are we to explain that over half of the lawsuits and millions of dollars paid out these past 14 months came out of the Fourth Precinct? http://www.tcdailyplanet.net/news/2010/03/13/opinion-fourth-precinct-for...

MN Daily: http://www.mndaily.com/2010/03/21/mpls-police-team-fills-gap-left-metro-...

This is not Rugel’s first endeavor into gang territory. He was a member of both the Minnesota Gang Strike Force in the late 1990s and the original Minneapolis Police Gang Unit in the mid 1990s.
Minneapolis police Inspector Mike Martin worked closely with Rugel in the Minneapolis Police Gang Unit. Martin said he and Rugel were sergeants at the time; Martin supervised patrols, Rugel intelligence and both handled investigations.

LinkedIn profile. Note Mike Martin affiliates with Police Executive Research Forum which was directly responsible for coordinating the crushing of the Occupy movement via police chief conference calls. Perhaps the worst gang networking event of all time were those police chief phone calls that organized the Big Banhammer.
https://www.linkedin.com/pub/mike-martin/1b/91/a9b

Mike Martin
Assistant Director, Department of Emergency Management at University of Minnesota
    Greater Minneapolis-St. Paul Area
    Law Enforcement
Current	
    University of Minnesota,
    National Gang Center,
    Minneapolis Police Department
Education	
    Senior Management Institute for Police - Police Executive Research Forum
Summary

I joined the Department of Emergency Management after serving as a licensed police officer for 23 years. During this time I rose in rank from being a Police Officer to being a Civil Service Captain. I also worked for five years as the appointed Inspector, Commander, of the Minneapolis Police Department's 4th Precinct.
During my career I had the opportunity to be awarded and recognized for my work as the Investigative Commander and Acting Incident Commander for the 35W Bridge Collapse, for leading the MPD as the Incident Commander for the Northside Tornado response, and for coordinating the response and recovery efforts of the MPD as the Incident Commander during the active workplace shooter incident at Accent Signage Systems. I have completed FEMA and DHS certifications for NIMS and ICS.
In my current position I work to protect the students, faculty, staff, and visitors on all of the University of Minnesota campuses and properties.

MPR 2012 story on gang violence spike: http://www.mprnews.org/story/2012/04/12/gangs-driving-crime

2004: http://news.minnesota.publicradio.org/features/2004/03/19_williamsb_cops...

Police Chief William McManus suspended Lt. Mike Carlson, Capt. Mike Martin and Deputy Chief Lucy Gerold, and asked for a BCA investigation into allegations that the officers ordered the destruction of an internal memo.

The memo was critical of the department's handling of the shooting of officer Duy Ngo by another officer. Ngo was shot last Feburary while Ngo was working undercover. The memo details mistakes by officers investigating the shooting.

CityPages: May 2010 http://www.citypages.com/2010-05-12/news/alisha-neeley-s-death-leads-to-...

Fourth Precinct Inspector Mike Martin says girls in the past were more likely to be auxiliary members of gangs through their boyfriends or brothers. Now they are increasingly independent, and their violence is escalating as they fight other girls with mace, padlocks, and knives.

"We've been fortunate that not a lot of serious violence has been associated with girls in gangs or cliques, but that's a natural evolution we might be seeing in the future," Martin says.

Lake Calhoun shooting 2010: http://www.streetgangs.com/billboard/viewtopic.php?f=174&t=48933

Inspector Mike Martin, commander of the 4th Precinct in north Minneapolis, says the increase in gang activity is due in part to a volatile mix of gang members on the streets.

"Some career offenders, even young people who've been in prison or juvenile detention facilities, are getting back out and who are acting on revenge and retaliation for incidents that have occurred in the past," said Martin.

TheGrio.com on Native gangs: http://thegrio.com/2012/11/23/street-gangs-gain-foothold-on-native-ameri...

“One of the problems traditionally has been these individuals feel they can commit crimes in the city or on one reservation and then go hide in another reservation or another state,” said Minneapolis Police Inspector Mike Martin, a department gang expert. “I think the federal authorities and state authorities here have sent a message to them that you can run but you can’t hide and we will bring them to justice.”

Hybrid Gangs - Nov 2007 http://www.insidebayarea.com/ci_7361324 Nov 2007:

Hybrid gangs harder for police to track: " Capt. Mike Martin of the Minnesota Gang Strike Force said hybrid gangs are a major cause of that state's increase in violence. Nearly half of their gangs are now hybrid, he said. "

MNForum booster post. The idea of pushing drugs into polygons is pretty quaint: https://www.mail-archive.com/mpls@mnforum.org/msg36017.html

Then "Lieutenant" Mike Martin once stood in front of our community meeting and told a hundred people that he had once been charged with moving the drug dealers out of Whittier and across the bridges over I-35, and now he was promising to move the drug dealers out of the Third Precinct. That he "did not care what bridge they went across, but they were going to be moved some where out of "His " community, or they were going to be going to jail". If Minneapolis wants to clean up the Northside and keep the Drug-Gangs from coming back to the Central or Phillips Neighborhoods then allow Capt. Mike Martin to have the man-power, and just as important, the "Command" he needs. Then the bridge Mike will move the drug dealers across will be the I-94 St Croix bridge, or the I-35 bridge over the Minnesota.

Native Mob sweep 2012:

Authorities are still investigating at least 10 unsolved homicides in Minnesota that may be linked to the Native Mob, said Mike Martin, a gang expert with the Minneapolis Police Department.
He said gang members in custody are under pressure to talk. Most of the defendants are in their 20s. If convicted in federal court, they face sentences between 20 years to life in prison, with no chance of parole.
"In a case like this, it's not unusual for some of the defendants to cooperate and provide information that would lead to other arrests or indictments in the case," Martin said. "The ones who are still out and about are going to be worried that they're going to be next. ... They should be worried."

He ran this listed gang training in Bemidji:

Minnesota Gang Awareness & Identification - Bemidji
Monday, May 13 2013 8:00am - 12:00pm Presented by:

Mike Martin - Minnesotagangs.com

This training session promises to be the most comprehensive overview of gangs you can attend. Designed for teachers, police officers, corrections, probation, social workers, and others who work with kids, the curriculum will cover gang definitions and statutes in Minnesota, why kids join gangs, factors that predispose kids to be involved in gangs, and varying levels of gang involvement. The instructor will then conduct a thorough overview of gangs operating in Minnesota, from the larger Chicago and L.A.-based gangs, to homegrown gangs, and modern hybrid gangs. In addition, participants will receive an overview of Latino gangs, White Supremacist gangs, and Minnesota’s unique brand of Native Gangs. Questions will be encouraged and participants will be exposed to additional sources of information available to them.

Event entered on: April 11, 2013
Event entered by: Basecamp Business via Eventbrite

He wrote MPD report about gang feud w "Skitz Squad and Y.N.T." Strib said in 2012: http://www.startribune.com/local/minneapolis/161686565.html

"They consider it to be kind of a fact of life that people get killed, that houses get shot up, that adults go to prison, and therefore those things are not a deterrent," said Inspector Mike Martin, who wrote the department's internal report. Though he agreed to discuss the report, Martin was not the newspaper's source in obtaining it.

Anyway if Martin's obscure regional police organization is jumping in with KSTP then that strongly suggests he's involved in the story's momentum somehow.


MORE INFO: A lot of good discussion has gone around #pointergate. I recommend my ol colleague Brian Lambert for the media angle: http://www.wrywingpolitics.com/kstp-tv-and-pointergate-post-mortem-of-a-...

Javier Morillo also has several posts and has quit appearing on KSTP: http://thuginpastels.com/ - Twitter: https://twitter.com/javimorillo

Nekima Levy-Pounds particularly on Twitter: https://twitter.com/nvlevy . Here is some info she posted on FB. Emphasis added:

Maybe it's just me, but I am still reeling from that ‪#‎pointergate‬ @KSTP "news" story and feeling a little queasy. It is sickening to see a news station quadruple down on their original story and attempt to undermine our intelligence about the intent and meaning of the original photo and story by working to show Navell in a negative light. They also once again tried to connect him with throwing gang signs, even though the original story said, "There is no evidence that Navell is in a gang." As someone who grew up in a neighborhood with gangs in Los Angeles and who currently works with young men who have been involved in gangs and the criminal justice system, I am appalled and deeply disgusted by KSTP once again and their demonization of young black men; as well as their attempts to have us believe their word and law enforcement's word over what our own eyes and common sense tells us. They just don't get it. We do not see Navell Gordon as evil. He is a young man working hard to turn his life around.

The other aspect that is troubling about this story is the fact that in Minnesota, there have been major concerns about the conduct of certain law enforcement officers in racially profiling and abusing people of color, and mischaracterizing them as gang members. Anyone remember the Metro Gang Strike Force and the ways in which they used fear tactics to gain a license to engage in lawless behavior and assaults of people of color as well as theft of their belongings? I was part of a group that challenged their conduct between 2009-2010, which ultimately resulted in the state's largest gang database being shut down because of racial profiling, a failure to follow the law, and abusive practices. The first link below is an article about their conduct. The second link is the legislative auditor's report. The third link is an evaluation that one of my colleagues, law students, and I conducted in collaboration with the St. Paul NAACP about the use of gang databases in Minnesota.

We have to take a stand and hold the police accountable for abusive practices and demand transparency and accountability. The bad apples make the entire force look bad, and this has to stop. We also must continue to hold KSTP responsible for their racist reporting and irresponsible journalism. They also personally owe Navell Gordon an apology for running a smear campaign against him.......It's time for change.

"Victims of Metro Gang Strike Force Awarded 840,000": http://www.startribune.com/local/minneapolis/163478566.html

Legislative Auditor Report on Metro Gang Strike Force: http://www.auditor.leg.state.mn.us/fad/2009/fad09-18.htm

Evaluation of Gang Databases in Minnesota & Recommendations for Change: https://dps.mn.gov/divisions/bca/Documents/Evaluation%20of%20Gang%20Data...

Reminds me way back in 2010 I went to the SF 2527 Workgroup meeting involving this whole gang database issue:

https://www.youtube.com/watch?v=kld_gcSXdd8

Original 2010 story covers the MN gang intel process: http://www.hongpong.com/archives/2010/10/04/avalanche-fed-local-police-s...

Anyway hopefully this informs the larger problems, some info about intermediate power players and of course the policy process of WTF counts as a "gang" under this system called the "state".

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.

Terrible proposed shield law spells doom for journalists, in particular me :[

mediashieldlawdifi.jpg

Here is some horrible news. I am inquiring further since of course it's people like me that this is intended to chill and/or enable grand juries to throw in prison without charges…. I have put in inquiries with MN Sens. Klobuchar and Franken offices to determine if they believe reporters should be divided into classes, and what is the deal with grand juries here and etc.

Full report by Kevin Gosztola, another non-journalist: Media Shield Law, Which Aims to Protect Only ‘Real Reporters,’ Moves Onward to the Senate | The Dissenter

The Senate Judiciary Committee passed legislation that would establish a federal shield law for reporters or journalists in the United States. The legislation was amended, before passing out of committee, to define who would be a “covered journalist” under the proposed shield legislation.

The proposed shield legislation, the Free of Flow of Information Act of 2013, was introduced by Sen. Chuck Schumer as news of the Justice Department seizing an overly broad set of the Associated Press’ phone records for a leak investigation and of an FBI agent labeling Fox News reporter James Rosen an “aider, abettor and co-conspirator” in a leak investigation were making headlines. However, there is nothing immediately obvious in the proposed media shield that would protect the press from an agency in government committing those kind of abuses. It would not protect someone like New York Times reporter James Risen, who the administration of President Barack Obama has tried to force to testify against his source in a leak case despite protest from media organizations.[….]

MOAR: Why Sen. Feinstein Is Wrong About Who’s a “Real Reporter” | Electronic Frontier Foundation && Why “Members of the News Media” Should Welcome a Shield for the Act of Journalism | emptywheel

PASSED SENATE JUDICIARY: Text of S. 987: Free Flow of Information Act of 2013 (Introduced version) - GovTrack.us

S 987 IS

113th CONGRESS

1st Session

S. 987

To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.

IN THE SENATE OF THE UNITED STATES

May 16, 2013

Mr. SCHUMER (for himself and Mr. GRAHAM) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


A BILL

To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Free Flow of Information Act of 2013’.

SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.

(a) Conditions for Compelled Disclosure- In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to comply with a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information, unless a Federal court in the jurisdiction where the subpoena, court order, or other compulsory legal process has been or would be issued determines, after providing notice and an opportunity to be heard to such covered person--

(1) that the party seeking to compel disclosure of the protected information has exhausted all reasonable alternative sources (other than a covered person) of the protected information; and

(2) that--

(A) in a criminal investigation or prosecution--

(i) if the party seeking to compel disclosure is the Federal Government, based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that a crime has occurred;

(ii) based on public information or information obtained from a source other than the covered person, there are reasonable grounds to believe that the protected information sought is essential to the investigation or prosecution or to the defense against the prosecution;

(iii) the Attorney General certifies that the decision to request compelled disclosure was made in a manner consistent with section 50.10 of title 28, Code of Federal Regulations, if compelled disclosure is sought by a member of the Department of Justice in circumstances governed by section 50.10 of title 28, Code of Federal Regulations; and

(iv) the covered person has not established by clear and convincing evidence that disclosure of the protected information would be contrary to the public interest, taking into account both the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information and the public interest in compelling disclosure (including the extent of any harm to national security); or

(B) in a matter other than a criminal investigation or prosecution, based on public information or information obtained from a source other than the covered person--

(i) the protected information sought is essential to the resolution of the matter; and

(ii) the party seeking to compel disclosure of the protected information has established that the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.

(b) Limitations on Content of Information- A subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information under subsection (a) shall, to the extent possible, be narrowly tailored in purpose, subject matter, and period of time covered so as to avoid compelling disclosure of peripheral, nonessential, or speculative information.

SEC. 3. EXCEPTION RELATING TO CRIMINAL CONDUCT.

(a) In General- Section 2 shall not apply to any information, record, document, or item obtained as the result of the eyewitness observations of, or obtained during the course of, alleged criminal conduct by the covered person, including any physical evidence or visual or audio recording of the conduct.

(b) Exception- This section shall not apply, and, subject to sections 4 and 5, section 2 shall apply, if the alleged criminal conduct is the act of communicating the documents or information at issue.

SEC. 4. EXCEPTION TO PREVENT DEATH, KIDNAPPING, SUBSTANTIAL BODILY INJURY, SEX OFFENSES AGAINST MINORS, OR INCAPACITATION OR DESTRUCTION OF CRITICAL INFRASTRUCTURE.

Section 2 shall not apply to any protected information that is reasonably necessary to stop, prevent, or mitigate a specific case of--

(1) death;

(2) kidnapping;

(3) substantial bodily harm;

(4) conduct that constitutes a criminal offense that is a specified offense against a minor (as those terms are defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)), or an attempt or conspiracy to commit such a criminal offense; or

(5) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e))).

SEC. 5. EXCEPTION TO PREVENT TERRORIST ACTIVITY OR HARM TO THE NATIONAL SECURITY.

(a) In General- Section 2 shall not apply to any protected information if--

(1) the party seeking to compel disclosure is the Federal Government; and

(2)(A) in a criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the Federal Government in preventing or mitigating--

(i) an act of terrorism; or

(ii) other acts that are reasonably likely to cause significant and articulable harm to national security; or

(B) in any other criminal investigation or prosecution, the court finds by a preponderance of the evidence that the protected information for which compelled disclosure is sought would materially assist the Federal Government in preventing, mitigating, or identifying the perpetrator of--

(i) an act of terrorism; or

(ii) other acts that have caused or are reasonably likely to cause significant and articulable harm to national security.

(b) Deference- In assessing the existence or extent of the harm described in subsection (a), a Federal court shall give appropriate deference to a specific factual showing submitted to the court by the head of any executive branch agency or department concerned.

(c) Relationship to Section 2- Subsection (a) shall not apply, and, subject to sections 3 and 4, section 2 shall apply, to any criminal investigation or prosecution of the allegedly unlawful disclosure of properly classified information other than one in which the protected information is sought by the Federal Government to prevent or mitigate the harm specified in subsection (a)(2)(A). In considering the extent of any harm to national security when applying section 2 to such cases, a Federal court shall give appropriate deference to any specific factual showing submitted to the court by the head of any executive branch agency or department concerned.

(d) Subsequent Unlawful Disclosure- The potential for a subsequent unlawful disclosure of information by the source sought to be identified shall not, by itself and without any showing of additional facts beyond such potential disclosure, be sufficient to establish that compelled disclosure of the protected information would materially assist the Federal Government in preventing or mitigating--

(1) an act of terrorism; or

(2) other acts that are reasonably likely to cause significant and articulable harm to national security.

SEC. 6. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

(a) Conditions for Compelled Disclosure-

(1) IN GENERAL- Except as provided in paragraph (2), if any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider, sections 2 through 5 shall apply in the same manner that such sections apply to any document or other information sought from a covered person.

(2) EXCEPTION- If any document or other information from the account of a person who is known to be, or reasonably likely to be, a covered person is sought from a communications service provider under section 2709 of title 18, United States Code, the provisions of sections 2 through 5 governing criminal investigations and prosecutions shall apply in the same manner that such sections apply to any document or other information sought from a covered person in the course of a criminal investigation or prosecution, except that clauses (i) and (iii) of section 2(a)(2)(A) and the phrase ‘particularly with reference to directly establishing guilt or innocence’ in section 2(a)(2)(A)(ii) shall not apply.

(b) Notice and Opportunity Provided to Covered Persons- A Federal court may compel the disclosure of a document or other information described in this section only after the covered person from whose account the document or other information is sought has been given--

(1) notice from the party seeking the document or other information through a subpoena or other compulsory request, not later than the time at which such subpoena or request is issued to the communications service provider; and

(2) an opportunity to be heard before the court before compelling testimony or the disclosure of a document.

(c) Exception to Notice Requirement- Notice under subsection (b)(1) may be delayed for not more than 45 days if the Federal court involved determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation, a national security investigation, or intelligence gathering, or that exigent circumstances exist. This period may be extended by the court for an additional period of not more than 45 days each time the court makes such a determination.

(d) Notice to Communications Service Provider- In all cases in which notice is required to be provided to the covered person under this section, a copy of such notice shall be provided simultaneously to the communications service provider from whom disclosure is sought. Once it has received such notice, the communications service provider shall not comply with the request for disclosure unless and until disclosure is either ordered by the court or authorized in writing by the covered person.

SEC. 7. SOURCES AND WORK PRODUCT PRODUCED WITHOUT PROMISE OR AGREEMENT OF CONFIDENTIALITY.

Nothing in this Act shall supersede, dilute, or preclude any law or court decision compelling or not compelling disclosure by a covered person or communications service provider of--

(1) information identifying a source who provided information without a promise or agreement of confidentiality made by the covered person as part of engaging in journalism; or

(2) records, other information, or contents of a communication obtained without a promise or agreement that such records, other information, or contents of a communication would be confidential.

SEC. 8. PROCEDURES FOR REVIEW AND APPEAL.

(a) Conditions for Ex Parte Review or Submissions Under Seal- With regard to any determination made by a Federal court under this Act, upon a showing of good cause, that Federal court may receive and consider submissions from the parties in camera or under seal, and if the court determines it is necessary, ex parte.

(b) Contempt of Court- With regard to any determination made by a Federal court under this Act, a Federal court may find a covered person to be in civil or criminal contempt if the covered person fails to comply with an order of a Federal court compelling disclosure of protected information.

(c) To Provide for Timely Determination- With regard to any determination to be made by a Federal court under this Act, that Federal court, to the extent practicable, shall make that determination not later than 30 days after the date of receiving a motion requesting the court make that determination.

(d) Expedited Appeal Process-

(1) IN GENERAL- The courts of appeal shall have jurisdiction--

(A) of appeals by a Federal entity or covered person of an interlocutory order of a Federal court under this Act; and

(B) in an appeal of a final decision of a Federal court by a Federal entity or covered person, to review any determination of a Federal court under this Act.

(2) EXPEDITION OF APPEALS- It shall be the duty of a Federal court to which an appeal is made under this subsection to advance on the docket and to expedite to the greatest possible extent the disposition of that appeal.

SEC. 9. RULE OF CONSTRUCTION.

Nothing in this Act may be construed to--

(1) preempt any law or claim relating to defamation, slander, or libel;

(2) modify the requirements of section 552a of title 5, United States Code, or Federal laws or rules relating to grand jury secrecy (except that this Act shall apply in any proceeding and in connection with any issue arising under that section or the Federal laws or rules relating to grand jury secrecy);

(3) create new obligations, or affect or modify the authorities or obligations of a Federal entity with respect to the acquisition or dissemination of information pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); or

(4) preclude voluntary disclosure of information to a Federal entity in a situation that is not governed by this Act.

SEC. 10. AUDIT.

(a) In General- The Inspector General of the Department of Justice shall perform a comprehensive audit of the use of this Act during the period beginning on the date of enactment of this Act and ending on December 31, 2016. The audit shall include an examination of each instance in which a court failed to compel the disclosure of protected information under this Act, and whether this Act has created any procedural impediments that have had a detrimental operational impact on the activities of the Federal Bureau of Investigation.

(b) Report- Not later than June 30, 2017, the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report containing the results of the audit conducted under subsection (a).

(c) Review- Not later than 30 days before the submission of the report under subsection (b), the Inspector General of the Department of Justice shall provide the report to the Attorney General and the Director of National Intelligence. The Attorney General or the Director of National Intelligence may provide such comments to be included in the report submitted under subsection (b) as the Attorney General or the Director of National Intelligence may consider necessary.

(d) Form- The report submitted under subsection (b) and any comments included under subsection (c) shall be in unclassified form, but may include a classified annex.

SEC. 11. DEFINITIONS.

In this Act:

(1) COMMUNICATIONS SERVICE PROVIDER- The term ‘communications service provider’--

(A) means any person that transmits information of the customer’s choosing by electronic means; and

(B) includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider (as such terms are defined in section 3 or 230 of the Communications Act of 1934 (47 U.S.C. 153 and 230)).

(2) COVERED PERSON- The term ‘covered person’--

(A) means a person who--

(i) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by--

(I) conducting interviews;

(II) making direct observation of events; or

(III) collecting, reviewing, or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data, or other information whether in paper, electronic, or other form;

(ii) has such intent at the inception of the process of gathering the news or information sought; and

(iii) obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies, or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations, or a channel or programming service for any such media), mechanical, photographic, electronic, or other means;

(B) includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph (A); and

(C) does not include any person who is or is reasonably likely to be--

(i) a foreign power or an agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

(ii) a member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a));

(iii) designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order No. 13224 (50 U.S.C. 1701);

(iv) a specially designated terrorist, as that term is defined in section 595.311 of title 31, Code of Federal Regulations (or any successor thereto);

(v) a terrorist organization, as that term is defined in section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II));

(vi) committing or attempting to commit the crime of terrorism, as that offense is defined in section 2331(5) or 2332b(g)(5) of title 18, United States Code;

(vii) committing or attempting the crime of providing material support, as that term is defined in section 2339A(b)(1) of title 18, United States Code, to a terrorist organization; or

(viii) aiding, abetting, or conspiring in illegal activity with a person or organization defined in clauses (i) through (vii).

(3) DOCUMENT- The term ‘document’ means writings, recordings, and photographs, as those terms are defined by rule 1001 of the Federal Rules of Evidence (28 U.S.C. App.).

(4) FEDERAL ENTITY- The term ‘Federal entity’ means an entity or employee of the judicial or executive branch or an administrative agency of the Federal Government with the power to issue a subpoena or issue other compulsory process.

(5) PROPERLY CLASSIFIED INFORMATION- The term ‘properly classified information’ means information that is classified in accordance with any applicable Executive orders, statutes, or regulations regarding classification of information.

(6) PROTECTED INFORMATION- The term ‘protected information’ means--

(A) information identifying a source who provided information under a promise or agreement of confidentiality made by a covered person as part of engaging in journalism; or

(B) any records, contents of a communication, documents, or information that a covered person obtained or created--

(i) as part of engaging in journalism; and

(ii) upon a promise or agreement that such records, contents of a communication, documents, or information would be confidential.

////

This is Washington-Speak for "SILENCE PEONS - CHILLING EFFECTS ARE THE NEW FREEDOM". Ughhhh terrible. More to follow.

Suspended radio network warns against consolidation of industry // Low Power FM FCC applications due in October

A radio network that once syndicated such grumpycats as Laura Ingraham, Michael Savage and Monica Crowley, previously Dick Morris etc claims to be halting operations because of abuses by the massive Westwood One network, which is attempting to merge with Cumulus Radio.

Having driven around a lot lately, it's clear American radio is really quite terrible nowadays, with mindless auto-repeats of top hits copied and re-copied around the country, the only local content crudely spliced Emergency Alert System weather alerts. Talk Radio Network (TRN) seems pretty typical of the industry but indeed more consolidation will just make things worse.

Press release: SOURCE Monday, September 9, 2013 - TALKERS.COM

TRN Issues Response to Reports of Financial Problems at the Company. TALKERS magazine has received a press release from Talk Radio Network and CEO Mark Masters in response to reports of financial problems at the company. Below is the full press statement as received from TRN at 2:30 pm ET on 9/9:

ARE YOU DIAL GLOBAL’S (WESTWOOD ONE’S) NEXT VICTIM?

The truth about the proposed merger between Dial Global/Westwood One and Cumulus is a dark one for our industry. Dial Global/Westwood One’s market power in programming and sales representation, combined with Cumulus Network’s programming and distribution power in the top 100 U.S. markets, will have a devastating effect on most every area of the radio industry. Our previous experience with Dial Global/Westwood consists of improper, illegal, and/or unethical conduct that is set forth in the second amended complaint http://www.trn1.com/uploads/files/SecondAmendedComplaint.pdf in our pending antitrust action against Dial Global/Westwood One and others.   If this merger is allowed to occur, the results of our previous experiences with Dial Global/Westwood One will be magnified tenfold to radio stations and content producers, which will be at the mercy of the newly empowered Dial (Westwood One)/Cumulus and the leverage that can be brought to bear by this new behemoth.

If this merger is allowed to occur, the culture of corruption at Dial/Westwood, as described in our second amended complaint, and other filings, will surely infect and spread within the new behemoth entity and victimize the rest of the industry, resulting in a super monopoly.

Sadly, the actions described in the second amended complaint are forcing the TRN companies to cut back to the basic operating essentials pending resolution of the multiple issues raised in their legal actions against Dial Global/Westwood One. We had hoped that the change in management at Dial Global/Westwood One would bring about a new paradigm focused on correcting the prior harms in a manner which would be helpful to our companies and the industry as a whole. Sadly, recent events have shown that the opposite is true and that the behaviors that gave rise to the lawsuits against Dial/Westwood One are endemic throughout the Dial/Westwood One monopoly. The ruthless and unethical behaviors that have continued through multiple executive teams at Dial/Westwood are breathtaking in their scope and arrogance.

We encourage the rest of our industry to stand together, and with us, now. We have been in business for 20 years, and have had excellent relationships with the other companies in our industry during that time. But this is a horse of a different color. Please contact the Federal Trade Commission’s Bureau of Competition (antitrust@ftc.gov) and the Antitrust Division of the Department of Justice (antitrust.complaints@usdoj.gov or (202) 307-2040), your state’s Attorney General, and your local member of Congress about the dangers of this proposed merger and its threat to your First Amendment rights, business and products. As for us, we will continue to pursue Dial Global/Westwood One in federal court and other appropriate forums, for monopoly and other improper behaviors, expose the behaviors described in the second amended complaint, and achieve ultimate victory from the tragedy that Dial Global/Westwood One have imposed upon our companies and others within the industry.

DIAL/WESTWOOD ONE SCORES INITIAL VICTORY WITH ARNN

The actions described in the second amended complaint with respect to America’s Radio News Network (“ARNN”), and additional actions which will be the subject of future filings, have now succeeded on an interim basis with respect to ARNN. Specifically, ARNN has been forced to suspend its broadcast operations, effective at the close of its broadcast day on Friday, September 6, 2013, pending the successful outcome of its actions against Dial Global/Westwood. ARNN has arranged for appropriate feeds to be provided to its affiliates for a reasonable period of time to enable them to secure alternate programming.

AS TO RUMORS OF OTHER ONGOING OPERATIONS

All of the TRN companies have been severely damaged by the Dial Global/Westwood One conduct addressed above and also addressed in the various legal actions which the TRN companies have brought, or will bring, against Dial Global/Westwood.   That conduct has forced all of these companies to make wrenching internal decisions and to take painful internal actions. As Dial Global/Westwood One has been collecting our advertising revenues, but refusing to pay them over to us or to account for them, these companies have now been forced to reduce as many operating costs as possible. However, the current rumors of an alleged shutdown of broadcasting operations for non-ARNN programming are unfounded. Broadcasts of the other programs are continuing without interruption.

CALL TO ACTION!

If Dial/Westwood can do this to us, they certainly can do this to you – so you need to join together, and with us, in opposing this dangerous merger, with as much force as you can muster, so that you can have a future that is not controlled by a monopoly http://www.trn1.com/uploads/files/SecondAmendedComplaint.pdf

///////

See also :: Talk Radio Network - Wikipedia // Talk Radio Network: Company News //

Is anyone interested in Low power FM licenses? See FCC Update: Low Power Window Announced at Last! | Prometheus Radio Project Due in October with awesome 4 month window of opportunity :/

Preparing to Apply Checklist | Prometheus Radio Project

The new low power application form is out! To get a sense of what is on the application and what you need to do, Prometheus has prepared a checklist. This checklist is designed to help organizations along the path to apply for low power FM (LPFM) radio licenses.

Be sure to fill out the Prometheus applicant support form to get updates and support through the application process.

Click the number to the left to read the full details about each task.

Meet the FCC Requirements

(1)

We have confirmed that there is an available channel at our location.

(2)

We are an eligible nonprofit (or school, government agency, or Indian Tribe) and we can prove it.

(3)

The members of our board either meet all eligibility requirements or fall into the listed exceptions and we can prove it.

(4)

Our organization is based close enough to our transmitter site and can prove it.

(5)

We have a description of our organization’s educational program and ­how our proposed station will be used to advance it.

(6)

We have a detailed description of the nature of our proposed station programming and, if possible, program schedules.

Improve Your Chances

(7)

We meet the 2-year established community presence point and can prove it. +1 point!

(8)

We can pledge to produce at least 8 hours of locally originated programming every day. +1 point!

(9)

We can pledge to maintain a publicly accessible studio in our community and staff the studio at least 20 hours a week. +1 point!

(10)

We pledge to meet both of the above criteria (we will produce locally originated programming AND maintain a staffed studio). +1 point!

(11)

Our organization has no other broadcast stations. +1 point!

(12)

We are a Tribal Applicant and our station will be located on our Tribal lands. +1 point!

Find a Channel and Antenna Location

(13)  

We have identified an antenna location and we can prove that we have permission to use it.

(14)

If there are multiple channels available at our site, we have identified which one we will apply for.

(15)

Our proposed station complies with all technical rules and we have collected all necessary data about our antenna site.

(16)

We agree to operate within the power and height restrictions that the FCC will calculate based on the data we provide.

(17)

We have identified a possible studio location.

/////

Backstories & Backbones; Security of US Emergency Alert System (EAS) is crap & spoof zombie apocalypses not very difficult apparently; #OpNSA NSA PRISM tunnel servers may be getting noticed; Joe Naccio & NSA revisited

Oh For Facks Sake. All this big government/police state techno-crap is so often easily hacked in some way, which means the Awesome Emergency Powers of Teh Govmints are easily subverted by the Baba Booey fans of the world, or zombie apocalypses as the case may be. Indeed quite possibly all this NSA crap is starting to get hacked (and not just by activists but cynical commercial weasels) and since it's all backdoored to everything and everyone's mom, everyone gets screwed. Well played. Truth tellers keep publishing before it's too late :/

Much of this is old news but why not batch some of it in one place?

On the newer lulz front at least some people are claiming to poke around including determining which servers run in-between points for PRISM mass surveillance for the NSA. And I don't know anything about these IOActive guys who posted on the EAS hack but they seem worth keeping an eye on….

Before the EAS info, here is a good place to look at alternative, well polished and much open source apps : https://prism-break.org/ - bookmark this and use it when setting up any new computer :)

Emergency Alert System Fail: Also covered in ars technica. See this video's crazy audio message for hacked Montana Emergency Alert System clip from this February: http://gawker.com/5983516/montana-tv-stations-emergency-alert-system-hac...

So more or less a main contractor mailed out the damn master login keys to their products controlling the national Emergency Alert System, exactly the opposite of what you're supposed to do.

Clearly in the event of some adverse network screwing with things, it will probably be a mess. Let's say a Jimmy Carter tries to cut off SAIC and Blackwater, triggering an epic new Iran Contra type Ollie North conspiracy scene -- all these dumb horrible systems like the EAS DASDEC will behave horribly.

/////

http://www.ioactive.com/news-events/ioactive_uncovers_vulnerabilities_in...

Press contact:
Craig Brophy
Global PR Manager, IOActive, Inc.
E: PR@ioactive.com
T: +1 206 462 2291

Press Release

IOActive Uncovers Vulnerabilities in United States Emergency Alerting System

Digital Alerting Systems DASDEC application servers found to be vulnerable to remote attack

Seattle, WA July 8, 2013IOActive, Inc., a leading provider of application security, compliance and smart grid security services, today announced that is has discovered vulnerabilities in the Emergency Alerting System (EAS) which is widely used by TV and radio stations across the United States.

IOActive's principal research scientist, Mike Davis, uncovered the vulnerabilities in the digital alerting systems - DASDEC - application servers. The DASDEC receives and authenticates EAS messages. Once a station receives and authenticates the message, the DASDEC interrupts the broadcast and overlays the message onto the broadcast with the alert tone containing some information about the event. The affected devices are the DASDEC-I and DASDEC-II appliances.

“Earlier this year we were shown an example of an intrusion on the EAS when the Montana Television Network's regular programming was interrupted by news of a zombie apocalypse. Although there was no zombie apocalypse, it did highlight just how vulnerable the system is,” said Mike Davis, principal research scientist for IOActive. “These DASDEC application servers are currently shipped with their root privileged SSH key as part of the firmware update package. This key allows an attacker to remotely log on in over the Internet and can manipulate any system function. For example, they could disrupt a station's ability to transmit and could disseminate false emergency information. For any of these issues to be resolved, we believe that re-engineering needs to be done on the digital alerting system side and firmware updates to be pushed to all appliances.”

The EAS is designed to enable to the President of the United States to speak to US citizens within 10-minutes of a disaster occurring. In the past these alerts were passed from station to station using the Associate Press (AP) or United Press International (UPI) “wire services” which connected to television and radio stations around the US. Whenever the station received an authenticated Emergency Action Notification (EAN), the station would disrupt its current broadcast to deliver the message to the public. On Wednesday 26 June, the Cyber Emergency Response Team (CERT) published an advisory providing details of the vulnerability.

IOActive has also issued its own IOActive Labs Advisory outlining the affected products, the impact and the solution.

About IOActive
Established in 1998, IOActive is an industry leader that offers comprehensive computer security services with specialisations in smart grid technologies, software assurance, and compliance. Boasting a well-rounded and diverse clientele, IOActive works with a majority of Global 500 companies including power and utility, hardware, retail, financial, media, aerospace, healthcare, high-tech, and software development organizations. As a home for highly skilled and experienced professionals, IOActive attracts talented consultants who contribute to the growing body of security knowledge by speaking at such elite conferences as Black Hat, Ruxcon, Defcon, BlueHat, CanSec, and WhatTheHack. For more information, visit www.ioactive.com.

////////////

http://ics-cert.us-cert.gov/advisories/ICSA-13-184-02

Advisory (ICSA-13-184-02)

Monroe Electronics DASDEC Compromised Root SSH Key

Original release date: July 03, 2013

OVERVIEW

This advisory provides mitigation details for a vulnerability that impacts the Monroe Electronics DASDEC.

Mike Davis, a researcher with IOActive, reported a compromised root SSH key vulnerability to CERT Coordination Center (CERT/CC). This vulnerability is in Monroe Electronics DASDEC‑I and DASDEC-II appliances. ICS-CERT coordinated with CERT/CC and Monroe Electronics to resolve the vulnerability. Monroe Electronics has produced an update that mitigates this vulnerability.

This vulnerability could be exploited remotely.

AFFECTED PRODUCTS

The following Monroe Electronics products are affected:

  • DASDEC-I
  • DASDEC-II

IMPACT

An attacker who exploits this vulnerability could gain root access to the device and affect the availability, integrity, and confidentiality of the system.

Impact to individual organizations depends on many factors that are unique to each organization. ICS‑CERT recommends that organizations evaluate the impact of this vulnerability based on their operational environment, architecture, and product implementation.

BACKGROUND

Monroe Electronics is a US-based company that maintains offices and research facilities in Lyndonville, New York. Monroe Electronics develops and distributes worldwide electrostatic measuring instruments including electrostatic voltmeters, electrostatic field meters, coulomb meters, and resistivity meters.

The affected products, DASDEC-I and DASDEC-II are emergency alert system (EAS) encoder/decoder (endec) devices that are used to broadcast EAS messages over digital and analog channels. According to Monroe Electronics, DASDEC-I and DASDEC-II are deployed across broadcast radio and television in the communication sector. Monroe Electronics estimates that these products are used primarily in the United States.

VULNERABILITY CHARACTERIZATION

VULNERABILITY OVERVIEW

COMPROMISED ROOT SSH KEYhttp://cwe.mitre.org/data/definitions/321.html, Web site last accessed July 03, 2013." href="http://ics-cert.us-cert.gov/advisories/ICSA-13-184-02#footnotea_ixegenr" name="footnoterefa_ixegenr">a

DASDEC-I and DASDEC-II had publicly available firmware images for these devices that included a private SSH key that authorizes remote logins to the devices. For software versions prior to 2.0-2, where the default SSH keys have not already been changed, an attacker can then log into a device with root privileges.

CVE-2013-0137http://web.nvd.nist.gov/view/vuln/detail?vulnId=CVE-2013-0137, Web site last accessed July 03, 2013." href="http://ics-cert.us-cert.gov/advisories/ICSA-13-184-02#footnoteb_ya73jua" name="footnoterefb_ya73jua">b has been assigned to this vulnerability. A CVSS v2 base score of 10.0 has been assigned; the CVSS vector string is (AV:N/AC:L/Au:N/C:C/I:C/A:C).http://nvd.nist.gov/cvss.cfm?version=2&vector=AV:N/AC:L/Au:N/C:C/I:C/A:C, Web site last accessed July 03, 2013." href="http://ics-cert.us-cert.gov/advisories/ICSA-13-184-02#footnotec_6n5eegx" name="footnoterefc_6n5eegx">c

VULNERABILITY DETAILS

EXPLOITABILITY

This vulnerability could be exploited remotely.

EXISTENCE OF EXPLOIT

No known public exploits specifically target this vulnerability.

DIFFICULTY

An attacker with a moderate skill level could exploit this vulnerability.

MITIGATION

Monroe Electronics has produced a software update, Version 2.0-2 that resolves this vulnerability. DASDEC users can obtain the DASDEC v2.0-2 software update and release notes by contacting support@digitalalertsystems.com.

ICS‑CERT encourages asset owners to take additional defensive measures to protect against this and other cybersecurity risks.

  • Minimize network exposure for all control system devices. Critical devices should not directly face the Internet.
  • Locate control system networks and remote devices behind firewalls, and isolate them from the business network.
  • When remote access is required, use secure methods, such as Virtual Private Networks (VPNs), recognizing that VPN is only as secure as the connected devices.

ICS-CERT also provides a section for control systems security recommended practices on the ICS-CERT Web page. Several recommended practices are available for reading and download, including Improving Industrial Control Systems Cybersecurity with Defense-in-Depth Strategies.http://ics-cert.us-cert.gov/content/recommended-practices, Web site last accessed July 03, 2013." href="http://ics-cert.us-cert.gov/advisories/ICSA-13-184-02#footnoted_t8orqgw" name="footnoterefd_t8orqgw">d ICS‑CERT reminds organizations to perform proper impact analysis and risk assessment prior to taking defensive measures.

Additional mitigation guidance and recommended practices are publicly available in the ICS‑CERT Technical Information Paper, ICS-TIP-12-146-01B—Targeted Cyber Intrusion Detection and Mitigation Strategies,http://ics-cert.us-cert.gov/tips/ICS-TIP-12-146-01B, Web site last accessed July 03, 2013." href="http://ics-cert.us-cert.gov/advisories/ICSA-13-184-02#footnotee_wn76bab" name="footnoterefe_wn76bab">e that is available for download from the ICS-CERT Web page (http://ics-cert.us-cert.gov/).

Organizations observing any suspected malicious activity should follow their established internal procedures and report their findings to ICS‑CERT for tracking and correlation against other incidents.

///////////

http://www.kb.cert.org/vuls/id/662676

Vulnerability Note VU#662676

Digital Alert Systems DASDEC and Monroe Electronics R189 One-Net firmware exposes private root SSH key

Original Release date: 26 Jun 2013 | Last revised: 02 Jul 2013

Overview

Digital Alert Systems DASDEC and Monroe Electronics One-Net E189 Emergency Alert System (EAS) devices exposed a shared private root SSH key in publicly available firmware images. An attacker with SSH access to a device could use the key to log in with root privileges.

Description

The Digital Alert Systems DASDEC-I and DASDEC-II and Monroe Electronics R189 One-Net/R189SE One-NetSE are Linux-based EAS encoder/decoder (ENDEC) devices that are used to broadcast EAS messages over digital and analog channels. IOActive has reported several security issues affecting these devices. The most severe of these issues is the public disclosure of the default private root SSH key. The less severe issues could also contribute to an attacker's ability to compromise a vulnerable device.

Compromised root SSH key (CVE-2013-0137)
Publicly available firmware images for these devices included a private root SSH key that was authorized to log in to the devices (CWE-798, CWE-321). The fingerprint for the compromised SSH key is 0c:89:49:f7:62:d2:98:f0:27:75:ad:e9:72:2c:68:c3. Although this key is not hard-coded, it may be impractical for less technical users to manually disable or change they key prior to firmware version 2.0-2.

Predictable session ID
IOActive reports that the administrative web server uses a predictable, monotonically increasing session ID. This finding is based on running the web server in a test environment. Testing on a variety of firmware versions on devices both at the factory and in the field, Monroe Electronics could not reproduce this finding.

Log information disclosure
Logs available via the web server provide a variety of information about the configuration, operation, and status of the device (CWE-532). Some of the log information is public and may be required by regulation.

Predictable password generation
The dasdec_mkuser script generates passwords in a deterministic way (CWE-341), however these passwords are not for administrative access, and the script is not used for general user account configuration.

Default password
Like many similar devices, the DASDEC and One-Net ENDECs use default administrative credentials. Some sites fail to change the default administrative password and allow unrestricted internet access.

Impact

An attacker with the private key and SSH access can log in to a device with root privileges.

Predictable session IDs could allow an attacker to take control of an existing administrative web session.

Predictable and unchanged default passwords can allow an attacker to log in to a device with root privileges. Devices exposed to the internet are at particularly high risk, for example, see Secure EAS Codecs Prevent Zombie Attacks and US-CERT Alert TA13-175A.

Logs may disclose configuration information that can benefit an attacker.

Solution

Apply an update

On April 24, 2013, Monroe Electronics and Digital Alert Systems released firmware version 2.0-2 that disables the compromised SSH key, provides a simplified user option to install new unique keys, and enforces a new password policy. Monroe Electronics has taken considerable effort to provide update information to DASDEC and One-NetSE users.

DASDEC users can obtain updated firmware and release notes by contacting <support@digitalalertsystems.com>. R189 One-Net users can contact <eas@monroe-electronics.com>.

Disable compromised SSH key

The compromised root SSH key should be disabled immediately, especially if the SSH service is exposed to untrusted networks such as the internet. If SSH connectivity is required, generate, install, and test new SSH keys before disabling the compromised key. The fingerprint for the compromised SSH key is 0c:89:49:f7:62:d2:98:f0:27:75:ad:e9:72:2c:68:c3.

Manually inspect SSH keys

To identify a compromised key, examine the authorized_keys file at /root/.ssh/authorized_keys2.dasdec and use the ssh-keygen command to show SSH key fingerprints. The following example shows the fingerprint for the compromised key:

$ ssh-keygen -l -f authorized_keys2.dasdec
1024 0c:89:49:f7:62:d2:98:f0:27:75:ad:e9:72:2c:68:c3 wood@endec1 (DSA)

Note that ssh-keygen only shows the fingerprint for the first key/line in the file. If authorized_keys2.dasdec contains multiple keys (multiple lines, one key per line), it will be necessary to extract each key (line) to a separate file and run the ssh-keygen command on each key/file. These shell scripts can be used to list and test multiple SSH keys in an authorized_keys file:

To generate new SSH keys, use ssh-kegen.

Restrict access

If for some reason you are not able to remove and replace the compromised SSH key, restrict access to the SSH service to highly trusted hosts and networks only. As a general good security practice, restrict access to all services to trusted hosts and networks.

Change default passwords

Change any default passwords, and do not deploy production systems without changing default passwords. Search engines like Shodan can index systems exposed to the internet and default passwords are usually documented and well-known. It is often trivial for an attacker to identify and access systems on the internet using default passwords.

/////

#OpNSA: Some infos has been coming out about possible probing into the NSA PRISM system. Here are copies of some pastebins about all this. Start here: https://twitter.com/Op_NSA . It is indeed branded Anonymous and they said that two anons got searched over the weekend. What's cooking? Will the now-more-infamous NSA Q Group catch these cats?

#OpNSA claiming to have doxed some NSA officials and posting their phone numbers on interwebs. Something big may be taking off here -- if it turns out to be a honeypot there still better be lulz!

statement here:

Twitter: http://www.twitter.com/op_nsa

IRC: https://webchat.anonops.com/?channels…

Transcript below:

Greetings Citizens of the World, we are Anonymous. It is understood that the recent exposé of the national security agency has angered you. Anger caused by the realization that your own elected representatives promised to vote for your best interests but changed their minds when the price was right, in favor of increased surveillance on your normal everyday life. You hate them for voting your freedom and privacy away, and you have every right to. There are those that say you have nothing to fear if you have nothing to hide, but these are the same people who won’t tell you any of their own personal information upon your request. Complacent cowards like these have made it easier for this enormous surveillance operation to come to fruition. Eventually enough legislation will pass in favor of the evolving police state that will make every citizen a potential terrorist by default, and the NSA is at the core of it all. But you wonder to yourself, what can be done about all of this injustice and corruption? The answer is simple. Raise your voice so loud that no one can ignore it. Create such an overwhelming public outcry that the government and the media will be forced to acknowledge the issue. We need to show those directly responsible for all of this that there will be consequences for betraying us, and it will be the last time they do. In accordance with this we will be initiating stage two of operation national security agency and releasing the personal information of one politician each week that slandered Edward Snowden as a criminal and was involved with supporting the NSA and PRISM. We will make visible to everyone the depth of their violations against our freedom, privacy and well-being. We will expose the precise amount of money it took for them to turn their backs on us and we will show them how it feels to have their privacy abused and their personal information mined, collected and analyzed. But we won’t stop there. Since this affects not just Americans but everyone around the world, it is only right that we give this information as much exposure as possible. Spam the emails of your local representatives voicing your opposition to these surveillance measures along with president obama. Spread flyers regarding the NSA’s data mining and organize protests to inform the public. We will all need to work together in spreading this information as far and wide as we can so that the world is fully aware of what has been orchestrated at their expense. We are all in this together and have an obligation to awaken the masses to see how their rights are being stripped away one by one leaving themselves, their friends, their family and their children vulnerable to government manipulation and control. This will spark an awakening that cannot be stopped.

We are Anonymous.
We are Legion.
We do not forgive.
We do not forget.
Expect us.

This one is interesting, I don't know why anyone would trust any VPN in particular tho :/

/////

http://pastebin.com/BzN9aUkq By: luminary on Jun 29th, 2013 | OpNSA VPN services.

Want to defeat PRISM?

Do you like the idea of free internet usage?

Well here is a list of Virtual Private Network providers recommended by Anonymous.

These services claim explicitly in their Terms of Service that they don't keep connection

logs on their customers, though it's always best to do some SERIOUS digging into a company's

history before you commit your freedom.

If you don't plan on doing anything illegal and you're merely trying to avoid snoopers

or circumvent censorship, free VPNs will likely suffice, but if you're going for a more

shady flavor of activism, don't leave home without these.

All of these accept Bitcoin, so that's a very helpful attribute. Bitcoin is a highly secure

payment method used if you don't want people to know who you are when you buy things over the internet.

BTGuard VPN

Private Internet Access VPN

Air VPN

PRQ VPN

Mullvad VPN

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http://pastebin.com/TpGTHDSy By: luminary on Jul 7th, 2013 | syntax: None | size: 2.45 KB | hits: 2,365 | expires: Never

PRETENTIOUS MINIATURE PRESS RELEASE:

Greetings, National "Security" Agency -- and our followers whom we love so much:

This may look like a small release, but it's actually huge. See, we hacked the NSA yet again because we just love doing that. These are DNS tunnels that are sending encrypted data to and from the PRISM databases. We have the IP's of those servers. If you crash these servers with DDoS, you literally render PRISM "broken". We are also planning to release some of that data (which we have access to) if we can decrypt it. So anyway. Hit these -- you hit PRISM. And die in the Matrix, you die in real life, etc etc.

SLIGHTLY TECHNICAL INFORMATION THAT MEANS NOTHING TO A LOT OF PEOPLE:

ns3-194.akamaiedge.net 56923 IN A 23.61.199.194

lar7.akamaiedge.net 64613 IN A 222.122.64.131

la11.akamaiedge.net 90000 IN A 213.254.238.131

lac1.akamaiedge.net 90000 IN A 193.108.88.1

la6.akamaiedge.net 70352 IN A 96.7.50.192

ns6-194.akamaiedge.net 90000 IN A 95.100.168.194

ns7-194.akamaiedge.net 90000 IN A 96.7.49.194

lar2.akamaiedge.net 84886 IN A 2.16.40.192

la1.akamaiedge.net 53942 IN A 184.26.161.192

lar6.akamaiedge.net 54809 IN A 195.59.44.137

la7.akamaiedge.net 39448 IN A 96.17.144.197

ns5-194.akamaiedge.net 35282 IN A 184.85.248.194

la3.akamaiedge.net 39672 IN A 96.7.251.131

Acquired by:

Restless

R00tsh3ll - @r00tsh3ll1 (twitter)

Intro Written and Info PASTED by:

Luminary - @aluminary (twitter)

PS:

There's TONS more information to release. We're going through some folders to see what we can and can't release before July 11th, 2013 (DDoS day). There's more to come. For those that have been asking for "proof of a hack", we're releasing some more as we go, but remember: this is the NSA. We have to be very careful about what goes public before we're done actually UTILIZING that information. For those that are understanding of this, you are the people that will receive the best information first! ^___^

//////

http://pastebin.com/X3siNZRC By: luminary on Jul 8th, 2013 | syntax: None | size: 3.64 KB | hits: 120 | expires: Never

Tor Tutorial

By: @aluminary

Greetings, faithful supporters of Anonymous and haters of PRISM. We are Anonymous, and for a moment, we're going to take time off from destroying things we don't like and teach you how to secure yourself and hide your identity while online. Naturally, this will be a benefit to you in the long run. Most people have no doubt heard of “TOR”, or “The Onion Router”. In basic terms, Tor is a routing network that sends all of your internet traffic through many different nodes all scattered about around the world. So imagine you've got a message you want to pass to a friend who's standing 100 meters from you. Whereas your standard internet traffic would be like walking over to your friend and handing him that note, Tor puts many different people between you two. So rather, in this situation, you'd hand the note to one of those people, they'd pass it to a random person, who'd pass that on, again and again until it gets to your friend. This allows the actual source of the traffic to be hidden after it comes through the exit node. Fortunately, Tor is very easy to acquire.

It can be downloaded from here: https://www.torproject.org/

For windows users, that download comes with the Tor browser bundle, which, when used, routes all of your traffic through a series of nodes as mentioned previously. Likely Linux users will know how to properly configure a client or program to use Tor, so we won't waste their time.

Once downloaded, that package will come with Vidalia Control Panel, an .exe file which acts as a sort of mothership. Once opened, a socks5 proxy server will begin running on local host. Your computer is the only computer on the network that will be able to use it unless others are also running Tor. The Tor browser will begin running on its own, so all you'll really need to do once in that browser is simply start searching away like a pro. If you want to verify your privacy because of paranoia, you can visit cmyip.com while using the Tor browser and be assured that your real IP is in fact hidden.

Tor itself is generally considered trust worthy. The thing is, even if nodes are run by undesirable parties, not only would said parties have to own that node, but they'd have to own the entire random path to... well... backtrace you. A downside of this entire thing, though, is that Tor is a high latency network. Because your traffic is being routed all around, it's also a bit slower. You will certainly notice slower internet speeds in applications using Tor (regular browsers not on the proxy won't be any slower). Then again, such a trivial matter is certainly worth the amount of protection Tor will offer you. Tor is a widely used and completely free project available at the aforementioned link.

Remember though, nobody is completely invincible. And human error can play into your traffic, or worse, your identity, being revealed. If, however, you take precautions to make sure Tor is operating and so forth, you will be fine. One more downside of Tor – that is one of the reasons a lot of us use VPN services – is that it's blocked in a lot of places. Because it's so easy and so anonymous, many websites, services, IRCs and networks will block Tor Exit Nodes to eliminate or crack down on abuse. In these cases, you'll probably need special permission to use the Tor server, as is the case with the AnonOps IRC network, which is one widely used meeting place for Anons.

Stay Anonymous. Stay safe.

Keep it up and defeat PRISM. Together, we are strong.

Together, we are Legion.

Twitter: https://twitter.com/op_nsa

IRC: webchat.anonops.com

channel: #opnsa.

^^You cannot use Tor with webchat. J/s

/////////////

Something ought to be said here ^ about the importance of other tracking links in browsers, time attacks, recent tor vulnerabilities that have come up etc. More caution and other layers are pretty surely necessary. Stuff like Ghostery to block various web tracker bugs for example.

A recent tor security example, you would need to keep javascript shut off to be safer from this, as but one example http://tedjonesweb.blogspot.com/2013/06/torbroker-security-vulnerability...

Another recent discussion http://seclists.org/fulldisclosure/2013/Jul/31

"I run 5 tor nodes. I can tell that 5 nodes on the network are save for me. Trust tor. I will not run dsniff or tcpdump. Its save. I will never abuse the logins you gave me for free. Afk now, that one guy is surfing on xhamster, nice video choice" -- "Alex"

Lol well put I suppose. Concise anyway.

Good tor network data source http://torstatus.blutmagie.de/

Router name agentAdrianLamo is doing well lol http://torstatus.blutmagie.de/router_detail.php?FP=ba7385668e2386246f2fb...

Tor vuln paper http://www.syverson.org/tor-vulnerabilities-iccs.pdf

http://www.blackhatlibrary.net/Tor

also for listserv activity https://lists.torproject.org/pipermail/tor-censorship-events/

Tor activity very much logged by NSA as shown recently http://nakedsecurity.sophos.com/2013/06/24/using-tor-and-other-means-to-...

Anyway it's just a normal hesitation in pointing out that Tor or given VPNs are not magically perfect for sure. There are merits to both technologies but magic boxes they are not! Of course one should assume the FBI is listening closely to IPs like webchat.anonops.com etc. 141.101.120.67 & 141.101.120.66

//////

For more on the Op_NSA situation check out

https://twitter.com/Op_NSA

https://twitter.com/aluminary

https://twitter.com/dickfacerax

///////

Email encryption in general:

For basics of encrypting email see Riseup.net: https://help.riseup.net/en/encrypting-email-with-thunderbird

Cryptome.org has had interesting stuff about PGP keys lately as well! http://cryptome.org/2013/07/mining-pgp-keyservers.htm & many posts on PGP keys registered to assorted federal departments! 2013-0744.htm 2013-0746.htm 2013-0741.htm etc

///////

More backstories and Backbones:

Here is a possible explanation of the Company A / B / C listings in the NSA Inspector General report. MCI, AT&T & Sprint:

Date: Wed, 03 Jul 2013 16:05:20 -0400
From: "James M. Atkinson" <jmatk[at]tscm.com>
Organization: Granite Island Group
To: TSCM-L Mailingin List <tscm-l2006[at]googlegroups.com>
Subject: Presidents Surveillance Program of 14 September 2001

On September 14, 2001 the NSA initiated a program on eavesdropping of all or the telephone and internet traffic of all U.S. Citizens, and concealed this quite unlawful program under many layers of secrecy, not because it as in the interests of national security, but rather to hide the violation of the Fourth Amendment.

These are the "initial three backbones" that the NSA tapped into (with the consent of the companies, each of whom gave the NSA full, unrestricted access):

The attached PDF file is a list of all of the funds spent by the program... do the math, and closely observe the date ranges (they perfectly match up, to the day with all of the dates in the Snowden document leaks).

MCI COMMUNICATIONS SERVICES INCORPORATED/MCI TELECOMMUNICATIONS CORPORATION
AMERICAN TELEPHONE & TELG COMPANY/AT&T
SPRINT COMMUNICATIONS COMPANY

In the IG report these aforementioned companies at listed at Company A, B, and C.

There are four additional companies (and others) to include Verizon, Nextel, Microsoft, Yahoo, Google, and so on.

See also procurement code: DAAB0701DH802 for Booze Allen Hamilton (Snowdens employer)

The project and procurement code as: DXXXXX01XXXXX

The program office as listed at:

2011 CRYSTAL DRIVE STE 911 (One Crystal Park Bldg "Crystal City 2" see also: http://cryptome.org/rummy-op2.htm)
ARLINGTON , VA , 22202-3732
USA

19.1 Billion Dollar Series of Contract initiated on the same day that the president authorized the Presidents Surveillance System for the NSA, and ending on the day it as shutdown.

Using a DUNS# of 790238638

The persons name under whom this was all listed is:

GRAFTON THOMAS BIGLOW
1312 Rhode Island Ave NW
Washington, DC 20005
(202) 483-8707

At the same address is:
Hope L Biglow

Grafton Bigelow is also listed at various addresses in:
414 Second
Cape May, NJ and West Cape May, NJ
(609) 884-4346

Plus several addresses in:
Hyattsville, MD
West Palm Beach, FL

But, the name Grafton Biglow also turns up:

FEDERAL PROCUREMENT DATA CENTER
7th & D Street SW, Room 5652
Washington, DC 20407
Director: Mr. Graffton Biglow
Fax: (202) 401-1546
Internet e-mail: grafton.biglow[at]gsa.gov

Curious coincidence.

Hopefully he had his own phone checked for bugs.

Maybe they can use the "Nuremberg defense"or claim "Befehl ist Befehl"

Very, very carefully look at the attached document, and take very deep and very slow breathes as you read it.

The bottom line is the Rainmaker system captured and indexed 1.17 racks per day of communications, bridging all major service providers, all fiber optic choke points, and eavesdropping mostly on U.S. Citizens (unlawfully) in what is called a "General Warrant" which is explicitly prohibited under U.S. Law.

The President of the United State is just a fucking moron, and utter and complete moron.

--- FUCK THE PIGS ---

-jma

--
James M. Atkinson. President and Sr. Engineer
"Leonardo da Vinci of Bug Sweeps and Spy Hunting"
http://www.linkedin.com/profile/view?id=15178662

Granite Island Group          http://www.tscm.com/
(978) 546-3803                jmatk[at]tscm.com
(978) 381-9111


Presidents-Spy-Program-Sept14-2001.pdf (342pp, 679KB)

/////////

The NSA Naccio Qwest case!

So there have been interesting developments. This bit about the contract hookups reminds me of Qwest's former CEO Joseph Naccio.

Here is what Naccio filed while fighting charges -- unlike virtually every white collar weasel ever, he ultimately got convicted of insider trading, no doubt with only the finest SIGINT available. Redacted PDF :: http://www.wired.com/images_blogs/threatlevel/files/512.pdf

http://www.denverpost.com/breakingnews/ci_22918125/former-qwest-ceo-joe-nacchio-moved-halfway-house - April 2013 he is getting out of jail soon with enormous fines as well. Many posts at Denver Post.

Nacchio, who turns 64 in June, was convicted in 2007 on 19 counts of illegal insider trading connected to his sale of $52 million in Qwest stock. A federal jury in Denver found that he sold the shares based on nonpublic information about the company's deteriorating financial condition.

Lucrative secret contracts indeedly doodley.

http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm 5-11-2006

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard. ...

... the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government.

//////

Oct 15 2007: WSJ story: http://webcache.googleusercontent.com/search?q=cache:http://online.wsj.com/article/SB119240248793758652.html

Nacchio Alleges Reprisal

Qwest Ex-CEO Says Firm Denied Pacts After Spurning NSA

By

DIONNE SEARCEY

and

EVAN PEREZ

Contentions from former telecommunications executive Joseph Nacchio that the government retaliated against his company because he didn't comply with National Security Agency requests could add to the renewed debate over the NSA's secret surveillance of telephone records.

Once-classified documents that were unveiled in the insider-trading case of Mr. Nacchio, the former chief of Qwest Communications International Inc., Q +1.60% suggest the U.S. government didn't offer lucrative contracts to the company after Mr. Nacchio refused to cooperate with what the documents call "improper government requests" in February 2001. The documents, submitted as part of Mr. Nacchio's defense in the insider-trading case, don't elaborate on the government requests. Mr. Nacchio has said in the past he didn't comply when asked by the NSA for access to the private phone records of Qwest customers.

Mr. Nacchio in April was convicted in federal court in Denver of insider trading for selling $52 million of stock in the spring of 2001 as Qwest's outlook was deteriorating. He was sentenced to six years in prison but remains free pending his appeal. His attorneys suggested in pretrial filings that Mr. Nacchio believed the company was about to win secret government contracts that would keep it in the black, despite warnings from his executive team that the company was in financial trouble. The judge at his trial didn't allow much of the classified defense, and Mr. Nacchio's appeal disputes that decision. The latest revelations were in pretrial briefs filed months ago that were unsealed last week.

A spokesman for the Director of National Intelligence office, which oversees the NSA and other intelligence agencies, declined to comment on the allegations in the court filings.

The revelations emerge as the White House is in negotiations with Congress on long-term changes to the 1978 Foreign Intelligence Surveillance Act. Democrats, and some Republicans, in Congress are at odds with the Bush administration's demand that lawmakers preserve the secrecy of the NSA program by granting telecommunications companies immunity from lawsuits for any aid they gave to the government surveillance without a court order.

The administration has balked at giving Congress documents detailing the legal justifications for the NSA program, and says that the secrecy is necessary to protect national security.

Speaking on Fox News channel yesterday, House Majority Leader Steny Hoyer (D., Md.) restated his position that Democrats were willing to pass such immunity, if the administration turned over documents about the NSA program.

Write to Dionne Searcey at dionne.searcey@wsj.com and Evan Perez at evan.perez@wsj.com

///////////

The Daily Caller is trying to get this narrative bounced again: http://dailycaller.com/2013/06/13/jailed-qwest-ceo-claimed-that-nsa-retaliated-because-he-wouldnt-participate-in-spy-program/

CBS news in 2009: http://www.cbsnews.com/2100-250_162-1616326.html

Naccio's argument was not allowed in open court. Of course that Denver judge also had the NSA all over his phone too I would hazard to guess.

But who cares what the NSA does to judge's phones anyway? (see NSA whistleblower Russ Tice specifying NSA space asset surveillance vs Justice Alito for example)

Don't forget Israel re NSA contractors: read up on James Bamford on Israeli contractors & the NSA: http://www.wired.com/threatlevel/2012/04/shady-companies-nsa/ . A few salient snippets on the pervasive role of the spinoff companies of Israel's NSA equivalent, Unit 8200:

Like Narus, Verint was founded by in Israel by Israelis, including Jacob “Kobi” Alexander, a former Israeli intelligence officer. Some 800 employees work for Verint, including 350 who are based in Israel, primarily working in research and development and operations, according to the Jerusalem Post. Among its products is STAR-GATE, which according to the company’s sales literature, lets “service providers … access communications on virtually any type of network, retain communication data for as long as required, and query and deliver content and data …” and was “[d]esigned to manage vast numbers of targets, concurrent sessions, call data records, and communications.”

In a rare and candid admission to Forbes, Retired Brig. Gen. Hanan Gefen, a former commander of the highly secret Unit 8200, Israel’s NSA, noted his former organization’s influence on Comverse, which owns Verint, as well as other Israeli companies that dominate the U.S. eavesdropping and surveillance market. “Take NICE, Comverse and Check Point for example, three of the largest high-tech companies, which were all directly influenced by 8200 technology,” said Gefen. “Check Point was founded by Unit alumni. Comverse’s main product, the Logger, is based on the Unit’s technology.”

According to a former chief of Unit 8200, both the veterans of the group and much of the high-tech intelligence equipment they developed are now employed in high-tech firms around the world. “Cautious estimates indicate that in the past few years,” he told a reporter for the Israeli newspaper Ha’artez in 2000, “Unit 8200 veterans have set up some 30 to 40 high-tech companies, including 5 to 10 that were floated on Wall Street.” Referred to only as “Brigadier General B,” he added, “This correlation between serving in the intelligence Unit 8200 and starting successful high-tech companies is not coincidental: Many of the technologies in use around the world and developed in Israel were originally military technologies and were developed and improved by Unit veterans.”

Equally troubling is the issue of corruption. Kobi Alexander, the founder and former chairman of Verint, is now a fugitive, wanted by the FBI on nearly three dozen charges of fraud, theft, lying, bribery, money laundering and other crimes. And two of his top associates at Comverse, Chief Financial Officer David Kreinberg and former General Counsel William F. Sorin, were also indicted in the scheme and later pleaded guilty, with both serving time in prison and paying millions of dollars in fines and penalties.

Anyway that's enough stuff for now. Figure better to get a hard reference of it for those interested!

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