secrecy

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.

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

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

FBI FOIA IRC Chat Channels used by Anonymous by Smiley Hill

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

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

All FBI field offices

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

CDR USSTRATCOM Offutt AFB Nebraska, Strategic Command commander

CDR USTRANSCOM Scott AFB Illinois, United States Transportation Command commander

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

CIA WASHINGTON DC - always down for a good time

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

DEPT OF JUSTICE WASHINGTON DC - fetching banhammer

DEPT OF STATE WASHINGTON DC

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

DIRNAVCRIMINVSERV - Probably HEADQUARTERS. NAVAL CRIMINAL INVESTIGATIVE SERVICE.

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

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

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

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

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

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

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

US SECRET SERVICE WASHINGTON DC

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

WHITE HOUSE SITUATION ROOM WASHINGTON DC.

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

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

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

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

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

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

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

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Background on Executive Order 13636:

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

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

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

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

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

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

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

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

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

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

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

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

G. The Department of Defense Civil Disturbance Plans

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

1. Civil Disturbance Operations Mission

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

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

2. Combatant Commanders’ CONPLANs

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

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

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

a. Custody and Detention

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

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

b. Search and Seizure

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

(1) Stop and Frisk

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

(2) Search Incident to Lawful Apprehension

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

(3) Exigent circumstances

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

(4) Emergency

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

(5) Hot pursuit

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

(6) Plain View

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

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

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

c. Confinement Facilities

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

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

d. Riot Control Agents

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

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

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

Iran-Contra is not dead: Gary Webb's Dark Alliance on the big screen! Kill the Messenger tackles corporate media & CIA-aligned drug trafficking

"Even now, those who like to say Iran-Contra’s long over, are wrong.

There are still Congressional hearings about it today that we don’t hear much about because they’re behind closed doors, but there is still media interest in it.

There are many people within the government who can still be hurt, and they are in even higher positions than they were then. That’s why it remains sensitive.”Al Martin, The Conspirators: Secrets of an Iran Contra Insider p282 (2002)

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Nothing is ever really acknowledged in America until it gets the Hollywood treatment, wrapped by a screenplay and soundtrack into that big image-stream narrative America tells itself as it reproduces its existence every day. The difficult map of intelligence agencies and the war on drugs has mostly been skirted by Hollywood, but in an overdue turn of good fortune Gary Webb’s story finally gets pinned to the Big Board pretty well.

Journalist Gary Webb used the Internet to nearly bring the war on drugs to the brink of collapse by exposing intelligence connections to leading cocaine flows in the US during Iran-Contra. In the 1990s major media forces were faced with critical new voices undermining the credibility of America's post-EO12333 drug war system. Like many before and since, Webb got the corporate media banhammer, portrayed here in incisive and indicting detail (looking at you, Walter Pincus).

"For the better part of a decade, a San Francisco Bay Area drug ring sold tons of cocaine to the Crips and Bloods street gangs of Los Angeles and funneled millions in drug profits to an arm of the contra guerrillas of Nicaragua run by the Central Intelligence Agency, the San Jose Mercury News has found." Gary Webb circa 1996.

Leading the way with a star-studded cast in Focus Features’ Kill the Messenger, a decent set of films taking on Iran-Contra-related intelligence intrigue and the war on drugs is hitting the US this month, and a veritable wave of news stories exploring these old narratives are popping up nationwide!

I was very lucky to get into an advance screening & now trying to provide here more links for those both new and old to this sick twisted tale at the heart of the American Dream. Iran-Contra really fascinated me in 2007 & I got books, started putting videos together until l’Affair d’2008RNC pulled me away into more local concerns. "Iran-Contra Goggles” remain useful to decode the same basic corrupt systems we have today.

Kill the Messenger covers Webb’s tragic story, as he exposes the roles of CIA assets moving literally tons of cocaine into the US to create a covert money source for the Contras in Nicaragua. Freeway Ricky Ross, the key recipient of the cocaine, has a film coming out Oct 17th, Freeway: Crack in the System and Shadows of Liberty also features a Gary Webb-oriented segment, “Killing the Messenger".

dark-alliance-7anim.gifKill the Messenger encompasses Gary’s story, Dark Alliance, the first groundbreaking news story to really go viral over the Internet, providing readers around the world with primary source documents and more to explore. Animated gifs - a new technology at the time - showed cocaine pathways flowing into the US.

Iran-Contra aficionados and Gary’s family, who supported the film’s production, will feel a strong sense of vindication, although the latter third of the story quits expanding our view of this high-level drug underworld as the bottom of Gary’s life gradually falls out.

We get a sound foundation under the story, it seems they didn’t cut any especially bad corners that would undermine this critical shot at contextualizing Webb in American journalism.

This film doesn’t explain Southern Air Transport or Barry Seal, later extensions of similar work, or the similar sad fates of Danny Casolaro, Michael Ruppert and others.

darktop.gifAs is tradition, it’s already been belittled in the New York Times - by David Carr, who frames the notion of CIA drug trafficking networks as it "might ring some distant, skeptical bell” — ignoring his own paper’s recent reporting on Karzai’s brother’s CIA-backed cartel style operation etc.

Jeremy Renner played a laudable role getting this whole thing out the door: "It resonated with movies like 'All the President's Men' and 'The Parallax View.’”

The CIA leisure suits, aviator sunglasses and careful color palettes harken to these carefully styled 1970s paranoia thrillers, both directed by Alan J Pakula in the “Paranoia Trilogy”.

Andy Garcia as Norwin Meneses and Michael Kenneth Williams as Freeway Ricky Ross are excellent, while Oliver Platt as the rumpled, dubious editor, Michael Sheen as the bureaucrat, all of these are well-crafted roles if brief. West Wing's Richard Schiff as the Washington Post's coverup editor ringleader was just right.

Ray Liotta’s surprise covert ops "nighttime of the soul” scene is also pretty damn good.

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This nice media wave is a good chance for everyone to learn more, and hear from the old journalists who also got the banhammer for daring to push the truth out there. Robert Parry has a new piece: The CIA/MSM Contra-Cocaine Cover-Up (Oct 3 2014).

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I’ll suggest giving money to NarcoNews to help them keep rolling, if you can. Part of the backstory contextualized by NarcoNews: The Field: Hollywood’s Gary Webb Movie and the Message that Big Media Couldn’t Kill. NarcoNews is hosting the original Dark Alliance archive here. Sept 24th update with the family: Narco News: Gary Webb: Vindicated

The CIA has even released its creepy internal reaction piece for PR control via FOIA: http://www.foia.cia.gov/sites/default/files/DOC_0001372115.pdf - "Managing a Nightmare: CIA Public Affairs and the Drug Conspiracy Story,” and the Intercept IDed the CIA writer as Nicholas Dujmovic.

“It’s like we say “Iran-Contra”. "Iran-Contra" activity continues to go on today. In some cases, it’s the very same names and faces. In other cases, it’s a newer, younger generation of names and faces. But the narcotics, weapons and fraud aspects still continue to this day.” - Al Martin p330

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More coverage and reviews: How Kill the Messenger Will Vindicate Investigative Journalist Gary Webb | The Informer | LA Weekly

Positive review in Variety: ‘Kill the Messenger’ Review: Jeremy Renner Plays Journalist Gary Webb | Varietybush-cocaine.jpg

Skeptical review: 'Kill the Messenger' Review: Jeremy Renner's Muckraking Feels Half-Baked in This Biopic - TheWrap (Sept 26th)

'Kill the Messenger': Film Review - The Hollywood Reporter

Esquire Sept 2013: The late Chuck Bowden’s The Pariah - Esquire. A must-read on this whole equation. (on Scribd)

Ex-L.A. Times Writer Apologizes for "Tawdry" Attacks | News | Los Angeles | Los Angeles News and Events | LA Weekly

Robert Parry 2013: Contra-Cocaine Was a Real Conspiracy | Consortiumnews discussing how he and Brian Barger started the Contra-cocaine scandal unravelling at the AP in 1985.

cia-cocaine-reagan-bush-clinton.jpg“Kill the Messenger”: The dark side of journalism - Opinion Shop Sept 19 2014

Jeremy Renner Wears a Wedding Ring -Showbiz411 discusses film

Out On The Weekend - Esquire - Sept 5, quick story referencing Gary

The film is also based on a book by Nick Schou of the same name. Interview here. Book: Kill the Messenger: How the CIA's Crack-Cocaine Controversy Destroyed Journalist Gary Webb: Nick Schou, Charles Bowden. Audiobook read by Bowden.

Nick Schou on the adaptation of 'Kill the Messenger' | Creative Loafing Atlanta

Kill The Messenger: the Gary Webb story has holes but Renner's performance still sticks – review | Film | theguardian.com (Sept 26th)

CinemaBlend positive review: Kill The Messenger Review - CINEMABLEND

Pretty good WSWS writeup on recent FOIA: CIA document details cover-up of drug trafficking by Contras - World Socialist Web Site

We lost Charles Bowden recently and he was a true friend of Gary Webb. Charles Bowden has died, but his voice is louder than ever | the narcosphere Sept 2 2014

Public radio interview

Rotten Tomatoes only has 6 reviews up. This is #7 - and the only one with Ollie DC-6 gif below!

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Freeway Ricky Ross is making his move in all this, somehow having survived everything so far. Last summer: Freeway Rick Is Dreaming - Los Angeles Magazine (May 2013) An odd story by Jesse Katz who had a unique long term relationship with him as a journalist.

Trailer for Freeway: Crack in the System: Dropping Oct 18th:

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Another film, Shadows of Liberty, (FB) released in 2012 & playing Midwest theaters lately, includes everything from a “Killing the Messenger” segment on Webb & Dark Alliance to a Iraq marketing section covering Iraq Intel war spoofing, Iraqi National Congress, Rendon Group psyops discussed by James Bamford. Both hit the New York Times pretty hard, as well they should, in propagandizing for Iraq & attacking Webb.

In a latter section Sibel Edmonds and Phil Giraldi look at covert agents among US nuclear secrets & Marc Grossman at the State Dept. Really a nicely rounded collection, even if I’m not a big fan of some of the film participants. Detailed notes here. New Zealand review here.

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Other materials. From inside the CIA: Statement of the CIA IG Hitz in 1998: https://www.uspiked.com/assets/article-assets/Shadows of Liberty/Statement of CIA Inspector General to The House Committee On Intelligence - March 16, 1998 - Wikisource, the free online library.pdf (also here) STATEMENT BY FREDERICK P. HITZ, INSPECTOR GENERAL, CIA.. Volume 1: https://www.cia.gov/library/reports/general-reports-1/cocaine/overview-of-report-of-investigation-2.html

Introduction: The Contra Story — Central Intelligence Agency

Namebase index from Hitz Report. Better know a player: CIA Report on Contras and Cocaine

Fusion: A drug cartel guide to laundering millions — Fusion (9/30/2014)

Freeway Ricky Ross as advocate for literacy: Former Drug Kingpin ‘Freeway’ Rick Ross Becomes Advocate for Literacy | Atlanta Daily World (9/26/2014)

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Supporting material: Panthers, Crips & Bloods: Bastards of the Party - Top Documentary Films (2005) a must see for the development of Los Angeles gang structure in the context of massive importation of drugs & sophisticated police & federal operations since the days of the Black Panthers.

Pissed off CIA honcho Duane Clarridge - “there’s never been a conspiracy in this country!” (great clip in two of these films)

EO12333: The Private Contractor angle: roughly speaking, once this executive order was created, devious operations could be wrapped in corporate fronts like “Southern Air Transport”, “Vortex”, “Evergreen International” and others even lesser known.

2.7 Contracting. Agencies within the Intelligence Community are authorized to enter into contracts or arrangements for the provision of goods or services with private companies or institutions in the United States and need not reveal the sponsorship of such contracts or arrangements for authorized intelligence purposes. Contracts or arrangements with academic institutions may be undertaken only with the consent of appropriate officials of the institution.

Executive Order 12333 is back in the news: The Ghost of Ronald Reagan Authorizes Most NSA Spying - The Intercept

They also point to a gap in the public reaction to Ed Snowden’s revelations about those programs. Despite that fact that most of the NSA’s spying relies on Reagan’s directive, Executive Order 12333, the vast majority of reform efforts have concentrated on the Foreign Intelligence Surveillance Act (FISA) and other legislative fixes. “Congress’s reform efforts have not addressed the executive order,” notes Alex Abdo of the ACLU, ”and the bulk of the government’s disclosures in response to the Snowden revelations have conspicuously ignored the NSA’s extensive mandate under EO 12333.”

The documents assert that mandate baldly. A legal factsheet from the NSA, dated June 2013, states that the FISA, which requires judicial oversight over spying on Americans, “only regulates a subset of the NSA’s signals intelligence activities. NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order 12333.”

Often referred to as “twelve triple three” or EO 12333, the executive order came into being in 1981 under Reagan. Much of the post-Snowden debate, particularly with respect to the bulk collection of Americans’ phone records, has focused on the interlocking legal authorities of Section 215 of the Patriot Act and the 2008 FISA Amendments Act. But, the ACLU notes, “because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts.” The documents describe procedures for safeguarding the rights of Americans whose information might be “incidentally” collected under 12333, but those procedures are overseen by the director of national intelligence or the attorney general.

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Classic item: The only memo that made it out of Ollie’s Shredding Party, the Annotated Oliver North memo: Oliver North – Release of American Hostages in Beirut ("Diversion Memo") | Genius

From the Wilderness, Michael Ruppert’s old website: C.I.A. IG Report - Vol II - Oliver North is Toast!

Basic writeup: (3/23/98) CIA Admits Knowledge of Contra Drug Trafficking

The CIA IG report Part II: Volume II: The Contra Story — Central Intelligence Agency

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Who? Oliver Hardy? Andy Garcia’s great line in Kill the Messenger about how it was Ollie’s idea to run drugs & guns around is a nod to Oliver North’s wonderful note: The “Honduran DC-6 which is being used for runs out of New Orleans is probably being used for drug runs into U.S."

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A personal favorite :]

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The 1996 Los Angeles CIA Town Hall meeting on drug trafficking was a critical moment. I would identify this meeting as the closest point to total collapse of the war on drugs edifice since Nixon, and it’s worth noting Deutch resigned shortly thereafter. This meeting cost the director of the CIA his job - and two years later they had to concede so much of Gary’s work was 100% accurate.

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Another regular day - Day 28 of Iran Contra hearings Part 1, July 14 1987: They get into the weird Continuity of Government stuff in the 3rd hour.

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Gary Webb on Gary Webb - CIA Drug Smuggling [2004] - YouTube

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Mr Blum - portrayed in similar hairstyle fashion in Kill the Messenger: CIA Allegations of Cocaine Trafficking Conspiracy - Crack Epidemic (1996) - YouTube. Good stuff around 47 minutes about the prosecution manipulations.

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Immortal Technique - Immortal Technique - Peruvian Cocaine feat Diabolic, Tonedeff, Poison Pen, Loucipher, C-Rayz Walz - YouTube. The Scarface-sampling hiphop opus magnum of this whole damn thing.

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Classic: Gary Webb on C-SPAN 1996: How Crack Funded a CIA War: Gary Webb Interview on the Contras and Ronald Reagan (1996) - YouTube

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OTHER LINKS:10561558_519106554857975_5309717516771745206_n.jpg August 2005: Judas Retires: Jerry Ceppos and the Burning Memory of Gary Webb: Judas Retires: Jerry Ceppos and the Burning Memory of Gary Webb | the narcosphere. Still around at the LSU Mass Comm school: LSU Manship School of Mass Communication

Meh 2005 piece from AJR on Webb: American Journalism Review

Timeline: Understanding the Iran-Contra Affairs

Bill Conroy 2005: "He Drew Blood" » CounterPunch - includes Bowden discussion.

Esquire: Gary Webb's Glorious Comeback - Esquire June 2013

Esquire: Gary Webb And The Limits Of Vindication - Esquire June 2013

Semi-related: alt journalist Wayne Madsen on Franklin sex trafficking scandal which had Iran-contra financing connections. The “Conspiracy of Silence” is related but goes way, way beyond all this. Wayne also suspects a similar Iran-Contra-like complex role related to 9-11 and the Pinal Air Park intel aviation field in Arizona, I wouldn’t be surprised if that’s how it turns out. (The late author Philip Marshall seemed to be on this tack as well before his weird death in early 2013.)

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MOAR BIBLIOGRAPHY:10606152_537701239665173_8067769002059518467_n.jpg Dark Alliance is now available in paperback and you should buy it at your local bookseller.

Powderburns by Cele Castillo covers much of the same arena. Here is his Webb web page.

The Politics of Heroin in Southeast Asia (1972) by Alfred McCoy is *critical* because it’s probably the first academic book that shows how heroin is used geopolitically by US covert forces to finance their allies through the power of chemical dependency combined with covert logistics and the monopoly granted by the force of the state. Everything subsequent follows this pattern. [PDF 1] [PDF 2]

Film: The House I Live In by Eugene Jarecki (2012) & How to Make Money Selling Drugs (2012) by Matthew Cooke.

Al Martin: The Conspirators: Secrets of An Iran-Contra Insider (2002). Horribly edited but you won’t find a better collection of names and front companies, code words and the true texture of Reagan era intel/fraud complexes. *Not* for beginners.

Life During Wartime: Resisting Counterinsurgency by AK Press. Kristian Williams (Editor); Lara Messersmith-Glavin (Editor); William Munger (Editor). Great guide to drug war militarization in its most sophisticated forms.

Barry & The Boys: The CIA, the Mob & America’s Secret History (2001, 2006) by Daniel Hopsicker. Covers Iran-Contra related nodes especially Florida and New Orleans aviation and shell activities, Barry Seal and a lot of hemispheric covert operations in a jaunty style. Mad Cow Morning News has been persisting in Iran-Contra style exposures for a long time in Florida .

End Times: The Death of the Fourth Estate (Counterpunch): Alexander Cockburn, Jeffrey St. Clair. Covers corporate media corruption with major case study of media hit on Webb,

Cocaine Politics: Drugs, Armies and the CIA and Central America by Peter Dale Scott and Jonathan Marshall. (1991)

The Iran Contra Connection: Secret Teams and Covert Operations in the Reagan Era by Jonathan Marshall, Peter Dale Scott and Jane Hunter (1987)

The Killing Game by Gary Webb (2011). There are plenty of other good books but this can get you started, anyway.

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Kill the Messenger was also the title of a film about FBI whistleblower Sibel Edmonds, produced in 2007. Watch it here, I thought it was quite good.

Also: Support NarcoNews! Narco News Needs Your Help at this Exciting Moment

A final note: Michael Kenneth Williams, who notably played gangsta-assassin Omar on the Wire, does a great job as Ricky Ross. He also plays an oddly related role in 2014’s “The Purge: Anarchy”, a pulpy dystopian fantasy about the government granting everyone the “right” to kill each other 12 hours a year. Williams’ character is the revolutionary who recognizes & resists how the elite surveil them and clink champagne glasses, as the lower classes kill each other mercilessly to maintain social stratification. I couldn’t think of a better parallel to the modern American war on drugs.

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Keep riding with those Aviators, Gary.
RIP Truth Tellers.

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.

Trans Pacific Partnership discussion & community QA with Keith Ellison, IATP & MN Fair Trade Coalition. Malaysia Round starts July 15

I was glad to help publish live video from a panel and community discussion about the controversial and incredibly dangerous Trans Pacific Partnership secret treaty now being developed by corporate weasels and a trade representative unit of the White House, with almost all of Congress barred from reviewing the document.

tpp_0.jpg

US Rep. Keith Ellison (DFL-MN5) spoke out against the TPP as a secret process saying it should be occurring in public. Josh Wise from MN Fair Trade Coalition did a great job emceeing the panel and covering a lot of detailed ground including the intellectual property leaked provisions of the draft treaty of doom. (FB MN Fair Trade)

One of them, Jim Harkness, was from the Institute for Agriculture and Trade Policy, which has achieved a lot of laudable changes in trade for small communities around the world, and non-gazillionaires in general. Unedited Video URL: http://www.youtube.com/watch?v=__Nmry3Hm_0

Full video unedited. Sorry about the bad sound sync. This video is licensed: CREATIVE COMMONS WITH ATTRIBUTION. Please Remix!! :)

Also I was able to get in the last question on the QA, proposing Rep. Ellison should post a bill to US Congress that would make it illegal for the trade representative to hold any secret documents longer than one month, which would neatly solve the authoritarian secret treaty problem, and enable all Americans to participate in US diplomatic policy processes on a far more equal basis than the current situation :)TPP_WhySoSecret.jpg

Mon., July 1, 6:00 pm - 7:30 pm

Minneapolis Regional Labor Federation

312 Central Avenue

2nd Floor

Minneapolis, Minnesota

FB: Keith Ellison explains the TPP: The largest corporate power grab you've never heard of!

LINX:U.S. Senator calls for more transparency around the Trans-Pacific Partnership | OpenMedia.ca

Home | Our Fair Deal

Senator Warren Presses White House to Release Pacific Trade Text - Businessweek

Time for transparency - why don’t Canadian representatives have same access to crucial TPP drafts as their U.S. counterparts? | OpenMedia.ca

Canada’s two-tier approach to trade talks: Geist | Toronto Star

Digital Rights Groups Shut Out of Secret TPP Negotiations | Electronic Frontier Foundation

Trans Pacific Partnership Agreement | Electronic Frontier Foundation

Take Action - petition

Reassess Trans-Pacific Partnership Agreement - Columnist - New Straits Times

The BRAD BLOG : Rep. Grayson Warns About Details of Classified 'Trans-Pacific Partnership' Agreement

Trans-Pacific Partnership (TPP): 18th Round of TPP Negotiations Set for Kota Kinabalu, Malaysia -- July 15-24, 2013 | Office of the United States Trade Representative - OFFICIAL SITE

Warren on Trans-Pacific Partnership: If people knew what was going on, they would stop it | The Raw Story

LEAKED DOCS FROM LAST JUNE: U.S. trade proposal would let corporations overrule laws | The Raw Story

Alan Grayson On Trans-Pacific Partnership: Obama Secrecy Hides 'Assault On Democratic Government' - way to go Alan! Glad he's throwing some punches on this crap.

Obama-Backed Trans-Pacific Partnership Expands Corporate Lawsuits Against Nations for Lost Profits | Democracy Now! - JUNE 6 2013

The Obama administration is facing increasing scrutiny for the extreme secrecy surrounding negotiations around a sweeping new trade deal that could rewrite the nation’s laws on everything from healthcare and Internet freedom to food safety and the financial markets. The latest negotiations over the Trans-Pacific Partnership (TPP) were recently held behind closed doors in Lima, Peru, but the Obama administration has rejected calls to release the current text. Even members of Congress have complained about being shut out of the negotiation process. Last year, a leaked chapter from the draft agreement outlined how the TPP would allow foreign corporations operating in the United States to appeal key regulations to an international tribunal. The body would have the power to override U.S. law and issue penalties for failure to comply with its rulings.

We discuss the TPP with two guests: Celeste Drake, a trade policy specialist with the AFL-CIO, and Jim Shultz, executive director of the Democracy Center, which has just released a new report on how corporations use trade rules to seize resources and undermine democracy. "What is the biggest threat to the ability of corporations to go into a country and suck out the natural resources without any regard for the environment or labor standards? The threat is democracy," Shultz says. "The threat is that citizens will be annoying and get in the way and demand that their governments take action. So what corporations need is to become more powerful than sovereign states. And the way they become more powerful is by tangling sovereign states in a web of these trade agreements."

The Trans-Pacific Partnership Agreement & copyright. "Many of the same special interests that pushed for legislation like SOPA and PIPA have special access to this forum—including privileged access to the text as well as US negotiators."


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Lots more info:: Trans-Pacific Partnership

Anyway leave it there for now. BIG DEAL, PEOPLE!! This is from the "secret government" if anything is, and will supersede whole swaths of the Constitution and assorted natural rights of people around much of the world Shock doctrine par excellence.

BREAKING: NSA whistleblower Russ Tice says Obama spied on by NSA; Colin Powell's telecoms tracked by NSA satellite tech

///// UPDATE Friday 2pm Central: Tice got squelched by shady NBC lawyers at the last second according to BoilingFrogsPost.com:

Today MSNBC aired an interview with Mr. Tice disclosing “some” of his revelations, thanks to the vigilant activists who tirelessly shared and disseminated Mr. Tice’s revelations and interview audio. Interestingly, at the last minute, MSNBC told Mr. Tice that they would NOT include his revelations on NSA’s targeting of Obama, elected officials, attorneys, judges and activists. Basically, they censored his entire testimony on these stunning allegations!
In a correspondence with Boiling Frogs Post immediately following his censored interview with MSNBC Mr. Tice stated: “When they were placing the ear-phone in my ear with less than ten minutes left till my air time, the producer in New York said that their lawyers were discussing the material, and at this time, they did not want me to mention anything about the NSA wiretaps against all the people and organizations that I mentioned. That is how it went down. I did say on the air that I know it is much worse and would like to talk about that some time.”
- See more at: http://www.boilingfrogspost.com/2013/06/21/msnbc-censors-nsa-whistleblow...

The heat is on and the squirrels are getting squirrelly!!! /////

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Been waiting to hear more material from Russ Tice, one of the earlier NSA whistleblowers. Fortunately one of our ol' underdogs BoilingFrogsPost.com & Sibel Edmonds got Tice to lay out a lot of new stuff. Tice was a major source for NSA revelations including the 2005 NY Times warrantless wiretapping story.

Named NSA targets by Tice include current Supreme Court Justice Alito, Sen. Dianne Feinstein, Hillary Clinton, Rep. Henry Waxman, then-Sen. Evan Bayh, Sen. John McCain, Sen. Jay Rockefeller, then-US Rep. Kucinich. And of course President Obama.

Here is a quick clip: via very big on FiredogLake: BREAKING: NSA Whistleblower Russ Tice Alleges NSA Wiretapped Then-Sen. Candidate Barack Obama | MyFDL

In this bombshell episode of the Boiling Frogs Post Podcast Show NSA whistleblower Russ Tice joins us to go on record for the first time with new revelations and the names of official culprits involved in the NSA’s illegal practices. Mr. Tice explains in detail how the National Security Agency targets, sucks-in, stores and analyzes illegally obtained content from the masses in the United States. He contradicts officials and the mainstream media on the status of the NSA’s Utah facility, which is already operating and “On-Line.” He reveals the NSA as a Deep State that targets and wiretaps US political candidates for its own purposes. We discuss the latest controversies involving the NSA, PRISM, Edward Snowden, and the spins and lies that are being floated by the US mainstream and pseudo-alternative media. Do NOT miss this revelatory interview.

Listen to the preview Here - See more at: http://www.boilingfrogspost.com/2013/06/19/podcast-show-112-nsa-whistleb...

DOWNLOAD HERE > http://www.boilingfrogspost.com/podpress_trac/web/20927/0/BF.0112.Tice_2... - you may want to skip to about 50 minutes to catch the name dropping space spying going on.

bfp_podcast_version.gif"Here's the big one ... this was in summer of 2004, one of the papers that I held in my hand was to wiretap a bunch of numbers associated with a 40-something-year-old wannabe senator for Illinois," he said. "You wouldn't happen to know where that guy lives right now would you? It's a big white house in Washington, D.C. That's who they went after, and that's the president of the United States now."

There was a lot of specific references to space-based platforms - that is National Security Agency satellite technology - which was Tice's specialty to which he has now apparently turned The Blowtorch with excellent timing.

The story is getting out now. Bush-era whistleblower: Obama was NSA wiretap victim in 2004 | The Daily Caller. Huffpo did a quick post: Russ Tice, Bush-Era Whistleblower, Claims NSA Ordered Wiretap Of Barack Obama In 2004. Duly flagged on Cryptogon: Russ Tice on Boiling Frogs Podcast

Iran's press service flagged it: PressTV - NSA spied on Obama: Whistleblower

At the Guardian: Procedures used by NSA to target non-US persons: Exhibit A – full document | World news | guardian.co.uk && Revealed: the top secret rules that allow NSA to use US data without a warrant | World news | guardian.co.uk

Vast discretion vested in NSA analysts -- Glenn Greenwald http://www.guardian.co.uk/commentisfree/2013/jun/19/fisa-court-oversight-process-secrecy

The vast amount of discretion vested in NSA analysts is also demonstrated by the training and briefings given to them by the agency. In one such briefing from an official with the NSA’s general counsel’s office – a top secret transcript of which was obtained by the Guardian, dated 2008 and then updated for 2013 – NSA analysts are told how much the new Fisa law diluted the prior standards and how much discretion they now have in deciding whose communications to intercept:

“The court gets to look at procedures for saying that there is a reasonable belief for saying that a target is outside of the United States. Once again – a major change from the targeting under Fisa. Under Fisa you had to have probable cause to believe that the target was a foreign power or agent of a foreign power. Here all you need is a reasonable belief that the target is outside of the United States …

“Now, all kinds of information can be used to this end. There’s a list in the targeting procedures: phone directories, finished foreign intelligence, NSA technical analysis of selectors, lead information. Now, you don’t have to check a box in every one of those categories. But you have to look at everything you’ve got and make a judgment. Looking at everything, do you have a reasonable belief that your target is outside the United States? So, cast your search wide. But don’t feel as though you have to have something in every category. In the end, what matters is, ‘Does all that add up to a reasonable belief that your target is outside the United States?’”

So vast is this discretion that NSA analysts even have the authority to surveil communications between their targets and their lawyers, and that information can be not just stored but also disseminated. NSA procedures do not ban such interception, but rather set forth procedures to be followed in the event that the NSA analyst believes they should be “disseminated”.

The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.

Also: FBI Admits That Obeying The Constitution Just Takes Too Much Time | Techdirt

And: Skype Provided Backdoor Access to the NSA Before Microsoft Takeover [NYT]

Plus: Straight Outta Government: GSA Mulls Deal With Rap Genius - Nextgov.com (wat?)

And: Obama’s crackdown views leaks as aiding enemies of U.S. | McClatchy

Wowww… busy days people. It's amazing to see a suppressed narrative like the NSA domestic spying apparatus suddenly catch such traction in so many quarters!

The other heinous thing - well one other thing - is the secret TPP treaty. I'm glad reelected Rep. Alan Grayson is going to kick at it. First Congressman Allowed to Read Secret Treaty Says “This ... Hands The Sovereignty of Our Country Over to Corporate Interests” | Zero Hedge

The TPP is nicknamed “NAFTA on steroids.” Now that I’ve read it, I can see why. I can’t tell you what’s in the agreement, because the U.S. Trade Representative calls it classified. But I can tell you two things about it.

1) There is no national security purpose in keeping this text secret.

2) This agreement hands the sovereignty of our country over to corporate interests.

3) What they can’t afford to tell the American public is that [the rest of this sentence is classified].

……..

It is ironic in a way that the government thinks it's alright to have a record of every single call that an American makes, but not alright for an American citizen to know what sovereign powers the government is negotiating away.

***

Having seen what I’ve seen, I would characterize this as a gross abrogation of American sovereignty. And I would further characterize it as a punch in the face to the middle class of America. I think that’s fair to say from what I’ve seen so far. But I’m not allowed to tell you why!

Also: Warren on Trans-Pacific Partnership: If people knew what was going on, they would stop it | The Raw Story

Alright leaving this here for now. Get tuned in and look around - the truth is out there! SAIC, Booz Allen Hamilton, the grip of your sorts on all our lives is in for its createst challenge yet. The infosec praetorians are overdue for a fall in their space-age egos!

Adrian Lamo testimony at Bradley Manning trial

This is worth posting as it is a pivotal section of the case. I can appreciate that Lamo candidly points out Manning did *not* want to funnel this information to foreign powers, which is important to the case. Ugh snitches… Lamo is @6 on Twitter.

Locally there is a rally downtown on Thursday June 6th. Check it out!

UPDATE: Moar Transcripts: https://pressfreedomfoundation.org/bradley-manning-transcripts

MOAR: Bradley Manning Support Network. Follow . Latest today from the Truck: "The CFAA charges are being disproven rapidly."

Art here from Clark :

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via Jenna:

DAVID COOMBS: He told you he was an intelligence analyst?

ADRIAN LAMO: Yes.

DAVID COOMBS: He said to you, he thought he would reach out to somebody like you who would possibly understand?

ADRIAN LAMO: Yes.

DAVID COOMBS: During this initial chat conversation he told

you about his life and his upbringing?

ADRIAN LAMO: In some amount of detail, yes.

DAVID COOMBS: He told you that he was being challenged due to a gender identity issue?

ADRIAN LAMO: Yes.

DAVID COOMBS: He also told you that he had been questioning his gender for years, but started to come to terms with that with his gender during the deployment?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you he believed he had made a huge mess?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: And he confessed that he was emotionally fractured?

ADRIAN LAMO: Yes.

DAVID COOMBS: He said he was talking to you as somebody that needed moral and emotional support?

ADRIAN LAMO: Yes.

DAVID COOMBS: At this point he said he was trying not to end up killing himself?

ADRIAN LAMO: That is also correct.

DAVID COOMBS: He told you that he was feeling desperate and

isolated?

ADRIAN LAMO: Yes.

DAVID COOMBS: He described himself as a broken sole?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He said his life was falling apart and he didn't have anyone to talk to?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: And he said he was honestly scared?

ADRIAN LAMO: He also said that.

DAVID COOMBS: He told you that he had no one he could trust?

ADRIAN LAMO: Correct.

DAVID COOMBS: And he told you he needed a lot of help?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He ended up apologizing to you on several occasions for pouring out his heart to you since you were total strangers?

ADRIAN LAMO: Correct.

DAVID COOMBS: Now at one point he asked you if you had access to classified networks and so on, incredible things, awful things, things that belonged to the public domain, not on some servers dark room in Washington, D.C. What would you do? Do you recall him asking you that question?

ADRIAN LAMO: Yes, I did.

DAVID COOMBS: He told you he thought that the information that he had would have impact on entire world?

ADRIAN LAMO: That is also correct.

DAVID COOMBS: He said the information would disclose casualty figures in Iraq?

ADRIAN LAMO: Yes.

DAVID COOMBS: He believed the State Department, First World Countries exploited the Third World Countries?

ADRIAN LAMO: He made that representation, yes.

DAVID COOMBS: And he told you that the cables detailed what was criminal political fact dealings?

ADRIAN LAMO: Yes.

DAVID COOMBS: He believed that everywhere there was a U.S. post there was a diplomatic scandal?

ADRIAN LAMO: That he did.

DAVID COOMBS: He told you that he believed it was important that the information got out?

ADRIAN LAMO: Correct.

DAVID COOMBS: He thought that if the information got out, it might actually change something?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you he did not believe in good guys versus bad guys anymore?

ADRIAN LAMO: Yes.

DAVID COOMBS: He only believed in a plethora of states acting in self-interest?

ADRIAN LAMO: Correct.

DAVID COOMBS: He told you he thought he was maybe too idealistic?

ADRIAN LAMO: Correct.

DAVID COOMBS: He told you that he was always a type of person that tried to investigate to find out the truth?

ADRIAN LAMO: Something I could appreciate, yes.

DAVID COOMBS: And based upon what he saw, he told you he could not let information just stay inside?

ADRIAN LAMO: Yes.

DAVID COOMBS: He said he could not separate himself from others?

ADRIAN LAMO: Correct.

DAVID COOMBS: He felt connected to everybody?

ADRIAN LAMO: Yes.

DAVID COOMBS: Even told you it felt like we were all distant family?

ADRIAN LAMO: Engagement.

DAVID COOMBS: And he said he cared?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you that he thought he would keep track -- keep track of people that his job impacted?

ADRIAN LAMO: Correct.

DAVID COOMBS: And he wanted to make sure that everybody was okay?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you that the way he separated himself from other analysts was, he cared about people?

ADRIAN LAMO: He said that, yes.

DAVID COOMBS: PFC Manning told you he followed humanist values?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He said he had dogs tags saying "humanist" on it?

ADRIAN LAMO: Yes.

DAVID COOMBS: Do you know what it means to be a humanist?

ADRIAN LAMO: From my understanding the importance of human life and human beings and has a structure of morality.

DAVID COOMBS: PFC Manning told you that at the time he was feeling (inaudible) and no one seemed to see that or care?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you that he was bothered that nobody seemed to care?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He said he thought apathy was far worse than active participation?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you that he preferred the truth (Inaudible)?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He also told you that he was maybe too traumatized to really care about the consequences to him?

ADRIAN LAMO: Yes.

DAVID COOMBS: He told you that he wasn't brave. He was weak?

ADRIAN LAMO: Yes.

DAVID COOMBS: He said he was not so much scared of getting caught and facing consequences as he was of being misunderstood?

ADRIAN LAMO: Yes.

DAVID COOMBS: At one point you asked him what his end game was, correct?

ADRIAN LAMO: Yes, I did.

DAVID COOMBS: And he told you, hopefully worldwide discussions, debates and reforms?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He told you that the reaction to the (Inaudible)?

ADRIAN LAMO: Yes.

DAVID COOMBS: And he said he wanted people to see the truth?

ADRIAN LAMO: Correct.

DAVID COOMBS: He said without information you can't make informed decision as a whole?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: And he told you to, he was hoping that people would actually change if they saw the information?

ADRIAN LAMO: Correct.

DAVID COOMBS: He also told you that he recognized that he may be just young, naive and stupid?

ADRIAN LAMO: Yes.

DAVID COOMBS: And at one point you asked him why he didn't just sell the information to Russia or China?

ADRIAN LAMO: Correct.

DAVID COOMBS: And he told you that the information belonged in the public domain?

ADRIAN LAMO: Yes, he did.

DAVID COOMBS: He believed that information was in the public domain and should be for the public good?

ADRIAN LAMO: Yes.

DAVID COOMBS: You asked him how long he had been helping out WikiLeaks at one point?

ADRIAN LAMO: Yes, I did.

DAVID COOMBS: He told you that he essentially had been --

THE COURT: Sustained. Hearsay.

MR. COOMBS: Very well, Your Honor.

BY MR. COOMBS:

DAVID COOMBS: At one point he told you that his belief or his feelings were that he wanted to eventually go into politics?

ADRIAN LAMO: Yes.

DAVID COOMBS: And at the time he was thinking that humanity could accomplish a lot, if smart people with ideas cooperated with each other?

ADRIAN LAMO: Correct.

DAVID COOMBS: At anytime did he say he had no loyalty to America?

ADRIAN LAMO: Not in those words, no.

DAVID COOMBS: At anytime did he say the American flag didn't mean anything to him?

ADRIAN LAMO: No.

DAVID COOMBS: At anytime did he say he wanted to help the enemy?

ADRIAN LAMO: Not in those words, no.

Kurt Johnson & Corporate NAFTA farm politics, Pork Producers Council 1990s spy ops: HogSpy DFL Primary MN-19A Special Election?

"[T]he activists we are concerned about here are the ones who want to change the way your industry does business--either for good or bad reasons: environmentalists, churches, Public Interest Research Groups, campus organizations, civic groups, teachers unions, and 'Naderites'." (quoted in Montague 1993) -- Ronald Duchin, from the PR firm Mongoven, Biscoe and Duchin, categorises activists as either radicals, opportunists, idealists or realists.... Duchin's formula is therefore to isolate the radicals, turn the idealists into realists, co-opt the realists to support industry solutions and the opportunists will go along with the final agreement. The radicals, he says, need the support of the idealists and realists to have credibility. Without them they are marginalised and "seen to be shallow and self-serving." (Montague 1993) Greenwash - Categorising Environmentalists

Interesting tidbit surfaces! A filed Democratic-Farmer-Labor candidate for Minnesota House District 19A, Kurt Johnson, has just been passed over for endorsement today by DFL, though he came in second in four rounds of balloting. Confusingly, someone named Clark Johnson won DFL endorsement on the fourth ballot in North Mankato today, as reported at Clark Johnson wins DFL endorsement for House 19A » The Free Press, Mankato, MN. The primary is Jan. 29th and the general election is Feb. 12th.

Due to the compressed schedule, all the candidates will appear on the primary ballot. For the general election, eccentric lolcat & famed undercover investigator of pornography Allen Quist will be repping for the Republican Party, fresh off an unsuccessful, but name ID-boosting, congressional campaign vs Tim Walz.

Anyway Kurt Johnson was the president of the primary corporate hog farmer lobby, the National Pork Producers Council, in part of the 1990s. The following bio says 1994 only, though another says 1993. In 1997, NPPC was exposed for hiring corporate spying specialists, Mongoven, Biscoe & Duchin Inc., in 1996. Therefore we could say there is a pretty close overlap between corporate spying and Johnson's tenure, though very little information surfaces online about this. NPPC is also considered by PRWatch as a pro-factory farming ALEC supporter.

Summary point: Not being familiar with the pork industry or MBC's spying, this is not a blockbuster post with sekrit sources but there seem to be interesting patterns. One finds very little documented connection between Johnson & MBC, however it seems reasonable to say there appears 2nd or 3rd degree links connecting Johnson & the MBC operation through NPPC and the pro-checkoff campaign he was co-chairing around 2000.

Johnson has been a player within and a supporter of global trade agreement deals, putting him firmly in the 'globalist' camp if you prefer that label. See this: 1997: Connect Business Magazine » Cover Story » Karl Johnson

Besides co-owning Equity Supply, North Mankato’s Karl Johnson also raises hogs – and lots of them: this year 20,000 and next year about 35,000. Hogs are the means through which he’s earned a national reputation. He’s also worked on the North American Free Trade Agreement (NAFTA) and GATT, testified before Congress, been interviewed by most major news organizations, and currently he sits on a special task force for Secretary of Agriculture Dan Glickman. And all because of hogs.

You could say he “brings home the bacon” for the region’s hog producers.

Karl Johnson is in full command of his facts and can communicate those facts well. He leans back in his chair and makes you feel good about hogs. For once he has the chance to tell you pork’s story from pork’s perspective. And he seems to enjoy that.

CONNECT: When you were president of the National Pork Producers Council, how do you feel you were treated by the media, by politicians and by special interest groups?

Johnson: It’s a mixed reaction, quite frankly, but by-and-large rather well. I wouldn’t say that we had tremendous problems. Obviously I’ve testified before Congress several times and was usually well-received. I worked very hard on the North American Free Trade Agreement (NAFTA) and the GATT agreement. In Washington I was by-and-large rather well-received. We would go in with Congressmen who were concerned about what was happening in their area and we talked about the pork industry – I’ve had that (experience). We go through some negatives, there’s no question about that. There’s some tough interviews.

I was interviewed by the ABC news program probably three years ago now; talking about the swine industry and how it relates to the world. Anyway, I remember we did an hour and a-half interview like this, with TV, so they’re doing the whole thing, and I was in a chair and an office for an hour and a-half. I was put through the wringer, if you will. And I thought I must have done fairly well because they only used ten seconds of it. (laughter) So sometimes you’re beat up a little bit. Mostly we’ve found that, or I’ve found, that interviewers from the Washington Post to the L.A. Times, to the Wall Street Journal, once they’ve started visiting with you and found out some of the facts – at first they were on a mission – but when they found out the facts they would back off. We were treated, I think, fairly decently.

I think, now in the last couple of years, some things have come about where that is not quite as true. I think that we are being viewed as corporate agriculture, which scares everyone. We’re not. I mean, there’s still an awful lot of independent producers that are forming alliances. But it’s being perceived differently. We’ve got some groups within agriculture, there are some offshoot groups, that are fighting this consolidation, if you will, of agriculture. They’re getting some tough times. Sometimes, I think, as well, that in the press it’s not a story unless it’s a negative story. Sometimes that happens. A good friend of mine is a reporter with the Minneapolis Tribune and I know that he has that same opinion – he will agree with me on that. It doesn’t sell papers if you don’t make it a bit interesting.

Occupation: Co-owner of Equity Supply in Mankato. Pork producer, rural North Mankato (currently produces 20,000 market hogs).

Born: December 24, 1945.

Education: Mankato High School Class of ’63. Attended Mankato State University.

National Experience: Past President, National Pork Producers Council (1994). Current Chairman, National Pork Producers Council Foreign Trade Committee. Officer, U.S. Meat Export Federation. Member, Special Task Force, for U.S. Secretary of Agriculture Dan Glickman, on concentration of U.S. packing industry.

Regional and Local Experience: Past President, MN Pork Producers Association (’84-’85). Former Chairman, Mankato Chamber of Commerce Agriculture Committee. Former Member, South Central Technical College Foundation. Chairman of the Board, Frost-BENCO-Wells Electric. Community Board Member, Norwest Bank, Mankato.

Mongroven, Biscoe & Duchin Inc. were hired to spy on opponents of the NPPC partly using revenue from something I'd never heard of before, the "Pork Checkoff", a researcher discovered. See About Pork Checkoff and the National Pork Board. "U.S. pork producers and importers pay $0.40 per $100 of value when pigs are sold and when pigs or pork products are brought into the United States." I'm kind of confused about the status of the checkoff today (large sums collected in Minnesota in 2012), but it seems pretty clear that checkoff money was used to spy on NPPC opponents during an era where Johnson played a key role in defending the checkoff for NPPC. [Nov 2012 MN pork Checkoff report, March 2012 National Pork Checkoff Nominating Committee ]

MBD has a storied history of working as henchmen & specialists on spying on activists for the tobacco industry, the chlorine industry, and they started with Nestlé in 1981 when people fought their nasty baby formula marketing in the developing world. They don't even seem to have a website. Be sure to see Mongoven, Biscoe & Duchin: destroying tobacco control activism from the inside -- Carter 11 (2): 112 -- Tobacco Control including "monitoring and co-opting NGOs" and "character assassination research":

A particularly nasty specialty of MBD is preparing backgrounders on individuals who lead tobacco control efforts, presumably to enable the industry to discredit them in the eyes of the public or decision makers. PM specifically requested that MBD investigate Dr Sydney Wolfe of the Health Research Group (HRG), Cliff Douglas of the American Lung Association, and Scott Ballin of the American Heart Association in 1992. MBD sent information they already had on file and advised “If we had a day or so we could expand on this information significantly.”31 As well as general career path and network information, Mongoven's somewhat desperate attempts to identify a character flaw involve an association with prominent consumer advocate Ralph Nader and a very tenuous suggestion that this may have influenced the awarding of a grant.31 Far more vicious is MBD's work on Dr Gro Harlem Brundtland in relation to her appointment as Director General of the WHO. Brundtland moved tobacco control to the top of the WHO priority list on her appointment, thus posed a significant threat to the industry. In 1998 Mongoven provided intelligence both on the appointment process and Brundtland's loyalties, predicting that she was certain to be elected to the position.32

We are really talking about the dirty black-bag job types, the undertakers of the technocratic 'expertise' driven world dominated by professional Public Relations - as covered by PRWatch writers Rampton & Stauber in Trust Us, We're Experts | PR Watch.

They are still listed here at 1100 Connecticut Ave NW #300 Washington DC 20036, at phone 202-429-1800. (lol same spot as the Anti-Defamation League according to the map!)

via Through tobacco industry eyes: civil society and the FCTC process from Philip Morris and British American Tobacco’s perspectives | Center for Tobacco Control Research and Education  - a little hard to read but interesting - http://tobacco.ucsf.edu/sites/default/files/tc.2010.041657.full_.pdf

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Here's the Big Kit & Kaboodle: The Land Stewardship Project reported the spying involving the NPPC and the Pork Checkoff in 1997: Pork Checkoff 'Spy' Funds Questioned - 1/17/1997 (also posted almost same version at Pork Producers Council uses checkoff to investigate farm groups by Brian DeVore - Rural America / In Motion Magazine)

Pork Checkoff 'Spy' Funds Questioned

NPPC paid PR firm to keep tabs on unknowing sustainable ag and family farm groups, according to Council documents leaked to the media.

1/17/97: The National Pork Producers Council (NPPC) has paid $50,000 to investigate the activities of six family farm and sustainable agriculture groups, according to NPPC documents leaked to the media last week. Part of that money, which was paid to a Washington, D.C., public relations firm, came from the federal pork checkoff, says Alan Guebert, an Illinois-based journalist who wrote about the NPPC's surveillance work in this week's edition of his syndicated column.

The PR firm, Mongoven, Biscoe and Duchin, Inc., was hired by the NPPC in 1996, and its investigation of grassroots groups continues as part of a $100,000, checkoff-sponsored program called Strategic Communication Initiatives, according to NPPC officials.

"The NPPC is run by the big producers and corporate factory farms for their own benefit, and they use our money to do it," said Rodney Skalbeck, a Renville County, Minn., hog farmer and a member of the Land Stewardship Project. "Now they're trying to defuse some of the organizations that represent the average family farmer and rural citizens. It's got to stop. Let's end the mandatory checkoff."

The checkoff is a mandatory system for collecting money from every hog farmer in the country for promotion, research and education purposes. In 1996, the NPPC received approximately $45 million in pork checkoff funds from tens of thousands of producers. Approximately $24 million of that total came from the largest 40 producers in the country, who own more than 1.7 million sows collectively.

Three of the groups being watched by the firm without their knowledge -- Iowa Citizens for Community Improvement, the Missouri Rural Crisis Center and the Minnesota-based Land Stewardship Project -- are members of the Campaign for Family Farms and the Environment (CFFE). The Campaign has confronted NPPC officials on several occasions for promoting industrialized hog factories at the expense of independent family farmers. CFFE groups have also questioned the truthfulness of information provided to state and federal legislators by NPPC and its state affiliates.

In response to the news of NPPC using producers' money for surveillance, the Campaign for Family Farms and the Environment has called for a congressional investigation into the use of NPPC checkoff funds, an end to the mandatory checkoff, and the resignation of NPPC president Bob Ruggles.

"I should be shocked by NPPC's paranoid tactics but I'm not," said Iowa CCI member and Marshall County, Iowa, hog producer Larry Ginter. "Why should my money go to support spying on farm organizations that are trying to help me and other independent family hog producers? It's time to end the mandatory pork checkoff."

Ron Perry, a Livingston County, Mo., hog farmer and a member of the Missouri Rural Crisis Center was also outraged: "It's obvious the NPPC has lost touch with the concerns of average hog farmers. They see us as a threat because we've successfully exposed their corporate agenda. We're having a big impact."

Mongoven, Biscoe and Duchin is regarded as the number one "spies for hire" public relations firm in the country, according to John Stauber, editor of PR Watch, a publication that covers the public relations industry. John Mongoven, president of the firm, was a public relations consultant for Nestle Foods when the company was attempting to counter an international church-led boycott protesting the food company's deadly practice of selling infant formula to women in third world countries.

The Campaign for Family Farms and the Environment is a coalition of eight groups in six states that are fighting against hog factories and concentration in the livestock industry. Other members of the coalition include Illinois Stewardship Alliance, Citizens of Lincoln Township, North Carolina Land Loss Prevention Project, Animal Welfare Institute and the Oklahoma Toxics Campaign.

Release from Brian DeVore, communications coordinator, The Land Stewardship Project.

While he has been involved with this pork checkoff thing, he may have only been president in 1993 if this profile is accurate: Minnesotan Inducted Into Hall of Fame | National Hog Farmer:

North Mankato, MN, pork producer Karl Johnson has been inducted into the National Pork Producers Council (NPPC) Hall of Fame for his outstanding contributions to the pork industry.

Johnson, a 40-year veteran of the pork industry, runs a farrow-to-finish operation with his brother, Paul.

Johnson served as president of NPPC in 1993, during which he represented producer interests on various trade issues including the North American Free Trade Agreement and the Uruguay Round of the General Agreement on Trade and Tariffs. [GATT]

Karl Johnson also served as president of the Minnesota Pork Producers Association, chairman of the U.S. Meat Export Federation and was on the Secretary of Agriculture’s Technical Advisory Committee, which addressed trade issues.

Perhaps more interesting is Johnson's staunch advocacy in farm world for NAFTA and GATT, and his particular role writing these trade deal which benefitted big agri-biz corporations at the expense of the family farm both domestically and internationally.

See quote in AP story in Kentucky New Era: Farmers' split on NAFA leaves lawmakers confused - Oct 25 1993.

In 1991 Johnson was named as Vice President of NPPC according to Nevada Daily Mail March 19 1991. The Nevada Daily Mail - Google News Archive.

According to New Ulm Journal there were ad buys planned by Karl, unclear if will happen now.

Karl Johnson

Karl Johnson, a hog farmer and former president of several pork producer organizations on the state and national level, feels his strength in the endorsement and in a 19A race against Quist is his ability to reach rural voters. He said he has strong name recognition in the district, making him able to peel away voters from Quist's demographics, as well as being able to run without needing to spend money on introducing himself to voters.

All the DFL candidates previously said they would abide by the endorsement, and party leadership indicated they expected unity in the process.

However, Karl Johnson declined to comment Thursday when asked if he would abide by the endorsement. He acknowledge purchasing ads for his candidacy that started Thursday and will air through the weekend in the Mankato area. He also has ads planned for the middle of next week in a wider area, including KNUJ in New Ulm.

It In the late 1990s, the National Pork Producers Council was discovered to have employed notorious low-profile corporate spying specialists via the 'pork checkoff' money. By 2000, a fully confusing situation had resulted:

NPPC Accuses Anti-Checkoff Forces of Misleading Actions - source http://www.agriculturelaw.com/headlines/aug00/aug24c.htm

August 24, 2000

The National Pork Producers Council says opponents of the pork research and promotion program, also known as the checkoff program used "blatant efforts to mislead ... and misrepresent information" about two checkoff programs. The information was in a Wednesday news release distributed by the Campaign for Family Farms along with the Iowa Citizens for Community Improvement, Missouri Rural Crisis Center and the Land Stewardship Project, NPPC said.

"As pork producers, we should not tolerate the blatant efforts to mislead producers and misrepresent information about the pork checkoff, being told by anti-checkoff activists," said Karl Johnson, Mankato, Minnesota pork producer and co-chair of the Vote Yes Task Force. "It is time to set the record straight."

Johnson said, "The anti-checkoff activists are targeting a study being conducted by Louisiana State University (LSU). The study was designed to assess producer needs. Results will be used to help determine direction of producer education programs to assure producers have access to the types of programs and information they need-- like modern record keeping, production practices, educational seminars and risk management."

Jeffery Gillespie, LSU agriculture economics associate professor, who was quoted in the news release, said they misrepresented the facts, according to NPPC. In reality, NPPC added, Gillespie said, "This is an economic research study designed to look at a cross-section of pork producers. LSU developed this study with the intent of identifying producer needs. NPPC had no input or changes into the construction of the survey. Checkoff funding was provided to support the printing and mailing costs."

The results of the LSU study will not be complete or available until August 2001, therefore having no impact on the outcome of this referendum, NPPC noted.

"Unfortunately, the anti-checkoff activists did not stop there in their misinformation," said Johnson. "They also alleged the National Pork Producers Council was using checkoff funds in Colorado. In reality, the Colorado Pork Producers Council used state checkoff funds to air consumer radio commercials in Colorado, the content of which USDA had approved," according to Johnson.

By law, pork checkoff dollars can not be used to persuade a producer to vote for or against the checkoff. They can only be used to encourage producers to vote.

Donna Reifschneider, co-chair of the Vote Yes Task Force said pork producers should be "wary of the plethora of misinformation and half-truths being touted by anti-checkoff activists." She added, "This is only the latest in a string of attacks against the checkoff and the producer programs it funds. We are not going to stand still and let the anti-checkoff activists attack the highly successful pork checkoff any longer. It is time they get their facts straight. We stand by the truth, it must also be required of the Campaign for Family Farms and the Environment, the Iowa Citizens for Community Improvement, Missouri Rural Crisis Center and the Land Stewardship Project."

In their news release, the activist groups said two examples of NPPC "misuse of checkoff funds to influence the vote" had been found by "hog farmer members of the Campaign for Family Farms." They said NPPC's "repeated misuse of checkoff funds to influence the checkoff vote demonstrates the lack of accountability of the checkoff" and called on USDA’s Agricultural Marketing Service of USDA to suspend checkoff spending until the final results of the referendum are posted.

"Hog farmers," the groups claimed, "found out the Colorado Pork Producers Association is proposing to use $12,000 in checkoff funds to air 30 second radio ads promoting the checkoff and emphasizing the benefits of the checkoff program. The commercials will run in the major pork producing areas of Colorado during the absentee voting period (August and September)."

That, they added, is "unconscionable (in) that at the same time producers' share of the retail dollar has dropped from 46 cents to less than 30 cents, NPPC attempts to spend checkoff dollars to influence the upcoming checkoff vote." Rhonda Perry, Missouri hog farmer and Missouri Rural Crisis Center member, said, "They can't play by the rules because they'll lose, they know that independent hog farmers will vote to end their mandatory, multi_million dollar tax."

They also claimed NPPC has used checkoff dollars to fund a recent study by Louisiana State University (LSU) that was supposedly intended to find out which type of producer (independent, contract or corporate) will likely be left in hog production in the future.

"The head of research for the study, LSU Associate Professor Jefferey M. Gillespie, confirmed that checkoff dollars were being used," the news release said. "According to Gillespie, the study contains two questions about how producers are planning to vote in the pork checkoff referendum. Gillespie said the NPPC will use this information to help them identify different types of producers that will vote to continue the mandatory pork checkoff."

NPPC is violating federal rules by using checkoff dollars to influence the vote, the groups said. "The USDA clearly explained to the NPPC that they could not use checkoff dollars to sway the vote, yet that's exactly what they're doing," said Wayne Demmer, a Dubuque county independent hog producer and Iowa CCI member. "They will attempt to use the radio ads to promote the benefits of the checkoff and the information from the LSU study to develop referendum strategies to try to figure out how to win votes."

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Here is kind of a key article from the High Plains / Midwest AG Journal in 2000:

Co-chair of the Vote Yes Task Force, Karl Johnson, said, "The pork checkoff has been a phenomenal success at what it was designed to do, build demand and address issues that individual producers couldn't do on their own. The pork checkoff is producer-driven and has evolved to meet the needs of pork producers."

According to Johnson, a Mankato, MN, pork producer, "The checkoff-funded Pork. The Other White Meat advertising campaign, originally undertaken to reposition pork to U. S. consumers, has done so. Today, the campaign has increased U.S. pork demand, reversing a dramatic decline from 1979 to 1985."

Johnson continued that U.S. pork is making its mark worldwide. Through checkoff-funded foreign market development, the U. S. now is a net exporter of pork, instead of a net importer. In 1990, the U.S. exported only 244 million pounds of pork. In 2000, the U.S. will export about 1.275 billion pounds of pork.

Johnson also cited a 17% increase in pork's usage at restaurants, as a direct result of checkoff-funded efforts. He said that increase is important, because 54% of all U.S. pork is eaten by people away from home.

& similar: NPPC Counters Anti-Checkoff Claims | from National Hog Farmer.

Chicago Tribune November 29 1993: Nafta Likely To Boost Export Opportunities For U.s. Pork Producers - Chicago Tribune

Buoyed by congressional passage of the North American Free Trade Agreement, pork industry leaders are predicting rising export opportunities into Mexico, already our country's second-largest market.

"Congress has sent a strong signal to America's pork producers . . . that our trade policy is going to back U.S. pork producers' efforts to compete in the global marketplace," said Karl Johnson, a pork producer from Mankato, Minn., and president of the Des Moines-based National Pork Producers Council.

"Approval of NAFTA is a landmark decision that will greatly enhance our opportunity to export pork and pork products as well as live hogs to Mexico," Johnson asserted. "It also shows that the United States is not going to concede important markets to our subsidized competitors, such as the European Community. This is especially critical during these final days of the negotiations on the General Agreement on Tariffs and Trade."

Johnson said U.S. pork producers are in a position to provide the 400,000 metric tons of additional pork demand that Mexico probably will need by the year 2000. He pointed out that 1992 U.S. pork exports to 62 countries totaled far less: 140,180 metric tons.

At present, Mexico cannot export fresh, chilled or frozen pork or live hogs to the U.S. because of hog cholera in Mexico. The prohibition continues under NAFTA. Meanwhile, the trade accord requires Mexico to eliminate over the next 10 years its tariffs of 20 percent of the value of U.S. pork and live hog shipments.

Comments from the pork producers came as leaders of farm and commodity groups for the most part hailed the passage of the controversial trade agreement between the U.S., Mexico, and Canada as good for American agriculture, especially Midwest agriculture. The agreement phases out tariffs and other trade barriers. [...........]

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AP July 26 1993: Farm Groups Lobby Congress For Trade Agreement: ''If we don't open trade with Mexico, someone else will,'' said Karl Johnson, president of the National Pork Producers Council.

March 2001: AgriMarketing.com - Pork Checkoff Vote Raises Questions and Concerns: "Pork Producer "Vote Yes" Task Force Co-chair Karl Johnson, a producer from Mankato, Minn., adds that discontinuation of the pork checkoff would be detrimental to the work the checkoff already has accomplished. "The progress made with the image, acceptance and demand for pork will slip away, the pork industry could experience accelerated consolidation, and coordinated efforts of research, education and information will be lost," Johnson says. "

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From 1996: MBD: Mission Despicable | PR Watch

by John Stauber and Sheldon Rampton

Have you ever wondered what it's like to talk to a spy? The experience is quite a bit less dramatic than the scenarios you see in Mission Impossible, according to activists who have recently been targeted by phone calls and other information-gathering efforts.

The field operatives who gather information for Mongoven, Biscoe & Duchin are typically polite, low-key and do their best to sound sympathetic to the people they are interrogating. They have misrepresented themselves, claiming falsely to be journalists, friends of friends, or supporters of social change. Most of the time, however, they simply give very limited information, identifying their company only by its initials and describing MBD euphemistically as a "research group" which helps "corporate decision makers . . . develop a better appreciation of the public interest movement" in order to "resolve contentious public policy issues in a balanced and socially responsible manner."

MBD performs its services by pumping members of activist groups for information about their philosophical beliefs, funding sources, organizational structure and affiliations, and names of key personnel. Information only gets shared in one direction, however. "Our relations with our clients are confidential," stated MBD President Jack Mongoven in a June 7, 1995 memo refusing PR Watch's request for a list of MBD's corporate clients.

MBD says it is "grateful" when activists "cooperate" by answering its information requests, but don't expect the company to show its gratitude in any meaningful way, such as sending you a copy of the reports it writes about you. Those reports will be stamped confidential and delivered only to MBD's clients, who pay as much as $9,000 per month for the privilege of seeing them. Otherwise, MBD's "research" only sees the light of day on the rare occasions when a conscience-stricken corporate employee decides to turn whistleblower.

Raw material: Letter and Survey from MBD to the Wilderness Society | PR Watch

Mongoven, Biscoe & Duchin - SourceWatch

Sourcewatch also identifies NPPC as an ALEC supporter: National Pork Producers Council - SourceWatch

Here is a full report on NPPC using pork checkoff funds for the MBD spying: Summary of AMS Audit of NPPC - Prepared by Hugh Espy / Rural America - In Motion Magazine

Summary of AMS Audit of NPPC


Prepared by Hugh Espy,
Iowa Citizens for Community Improvement
Des Moines, Iowa

Compliance staff from the Unites States Department of Agriculture's (USDA) Agricultural Marketting Service (AMS) conducted a limited review of a complaint that the National Pork Producers Council (NPPC) had used checkoff funds collected by the National Pork Board to pay Mongoven, Biscoe and Duchin (MBD), Washingson D.C. public relaltions firm, for information on the activities of certain activist (family farms) groups and individuals.

The reviewers were able to determine that NPPC used non-checkoff funds to pay for the report in question, but that the NPPC did not pay for thc report until after the media and the USDA began questioning the funding subject matter of the report.

The review also disclosed that the NPPC had an existing agreement with MBD to routinely monitor groups and individuals, A total of $51,300 was paid by checkoff funds for these services.

The AMS review focused on four main questions:

  1. Did NPPC use checkoff funds to pay for thc MBD report entitled "Overview of Farm Groups"?
  2. Was the material produced by MBD consistent with the project description (provided by NPPC to the USDA) that USDA had approved?
  3. Was the material produced by MBD under the "contract" allowed under the Pork Promotion, Research and Consumer Order?
  4. Was the "contract" between NPPC and MBD entered into properly?

Question #1:

Did NPPC use checkoff funds to pay for the $3.449 MBD report entitled "Overview of Farm Goups?

Conclusion from AMS compliance staff:

NPPC ultimately paid $3,449 for the MDB report from unrestricted funds (noncheckoff funds). However, the check to pay for this report was issued on February 6, 1996. alnost a week after the report began to generate interest from the media. In addition, the check was backdated about three weeks. Coincidentally, the check was issued shortly after the media and AMS questioned the principal people involved (Charles Harness, Mike Simpson, etc.).

Other findings related to Question #1

In early December l996, Charles Harness at NPPC asked Ron Duchin at MBD to prepare a report on .several organizations that had taken positions critical of the large-scale hog operations and chages in the pork industry. The request was; made by telephone and there was no evidence that it was ever confirmed in a written contract or letter.

MBD prepared a report entitled "Overview of Various Organizations Concerned with Rur~al/Hog Industry Issues." The report contained "ovenviews of organizations concerned with rural issues that we (Mongoven) have determined will be the leaders of continuing anti-hog, anti-corporate livestock production in the coming year." The organizations named in the report were: Iowa Citizens for Community Inprovement, the Missouri Rural Crisis Center, the Land Stewardship Project, the Center for rural Affairs, the National Farmers Union, and the Corporate Agribusiness Research Project. the report was sent to about 30 state pork producer groups.

NPPC officials claim that they received MDB's invoice for the report shortly after they received the report on December 17, 1996. They also claim that the invoice was not paid within several weeks (as was NPPC's usual practise) because it was "misplaced" on a "manager's desk" for more than 45 days. Harness claimed he backdated the check for accounting purposes, but NPPC's Chief Financial Officer (Jim Stavneak) said the backdating was irrelevant from an accounting standpoint.

Duchin claimed the MDB invoiced NPPC on December 16 following the completion of its report. But MBD's invoice for the report is out of sequence with other MBD invoices. Four other invoices sent by MBD to NPPC are sequentially ordered in chronological order. Only the MBD invoice for the $3,449 report is out of order.

Member groups of the Campaign for Family Farms and the Environment (which inludes Iowa CCI, LSP and MRCC) think that NPPC was planning to use checkoff funds to pay for the $3,449 rport. NPPC was forced to use non-checkoff funds when the report became public.

Question #2:

Was the material produced by MBD consistent with the project description (provided by NPPC to the USDA) that USDA had approved?

Conclusion from AMS compliance staff:

No. The information provided by MBD to NPPC through the checkoff-funded agreement was not consistent with the objectives and methods of the project description (Strategic Communications Inititative) approved by the USDA. NPPC told USDA that the objective of its 1996 Strategic Communications Inititative was to encourage positive reporting by "targetting" certain writers in order to encourage positive reporting. NPPC led USDA to believe that it was going to launch a positive promotion campaign.

However many of the reports submitted by MBD provided information on organizations and people with critical views of the pork industry. NPPC's project describes "targetting" writers, but the reports rarely (if ever) identified writers. Instead they focused on the activities of organizations.

Question #3:

Was the material produced by MBD under the "contract" allowed under the Act and the Order?

Conclusion from AMS compliance staff:

No. The subject matter of MBD's report fell outside the generally-recognized limits on the use of checkoff funds. Areview of the subject matter contained in MBD's checkoff funded reports for November 1996 through January 1997 reveals that the reports were primarily concerned with groups opposed large-scale agricultural operations. These reports were separate from the $3,349 report completed in December 1996.

The AMS told National Pork Board executive director Mike simpson in a May 1990 letter that checkoff funds could not be used to monitor or discredit activist organizations. Despite this, NPPC used checkoff funds to pay MBD for monitoring groups or individuals that were largely critical of large scale hog operations, including groups that have members who are hog farmers.

Other findings related to Question #3

NPPC's relationship with MBD's began in 1995 when NPPC entered into an agreement with MBD to provide information on a particular ogranization. On or about May 1, 1996, Harness (NPPC) and Duchin (MBD) entered into an oral agreement whereby NPPC would pay MDB for gathering information, during a 3-month trial period, on individuals and groups that might be critical of pork industry practises and/or large scale hog operations. NPPC sent MBD a check for $14,4000 on May 17, 1996 for the 3-month contract. This money came from checkoff funds.

After the 3-month trial period, Harness requested that MDB continue to monitor and report as it had during the trial period. MDB agreed, and Duchin wrote Harness on July 12, 1996, confirming their oral agreement to continue MDB's monitoring and reporting services. The monthly fee was $4,100, which would be paid for with checkoff funds.Between mid-May 1996 and late January 1997, NPPC paid MDB a total of $51,300 from checkoff funds for monitoring activist groups and individuals.

MBD produced checkoff-funded reports for NPPC on the following organizations: Pew Charitable Trusts, National Wildlife Federation, Wilderness Society, National Audobon Society, Sierra Club, League of Conservation Voters, Natural Resources Defense Council, Environmental Defense Fund, World Wildlife Fund, Friends of the Earth, World Wide Fund for Nature Gulf and Caribbean Campaign, and activist senior citizen and student groups that may be active on local environmental issues.

The AMS findings directly contradict earlier statements made by Harness and AL Tank, NPPC's CEO. Both Harness and Tank had said that NPPC monitored issues, not organizations.

Question #4:

Was the "contract" between NPPC and MBD entered into properly?

Conclusion from AMS compliance staff:

Probably not. In December 1995, NPPC contracted with the National Pork Board to perform the Pork Board's administrative functions. Therefore, when NPPC enters into contracts using checkoff funds, NPPC is acting either as a de facto Board, or, at the very least, as the Board's agent. As such, NPPC and those it contracts with are required to comply with the same law and regulations as the Pork Board.

The unwritten agreement between NPPC and MBD was a contract. It contains the general terms for the service and products to be provided, and the consideration to be paid for them. On the other hand, it lacks specificity, and omits many of the normal business terms found in written contracts, including provisions for governing law, waivers, indemnity, termination, and the like.

The Order requires that every contract the Pork Board enters into must contain certain specific provisions. Because the contract in this case is oral, it cannot fulfill the Order's requirements. The NPPC-MBD agreement is also at aodds with the agreements between the Pork Board and NPPC. For example, Pork Board-NPPC agreement states that all contracts the NPPC enters into that are for more than $10,000 must contain certain provisions relating to affirmative action and civil rights. The Order requires that all Pork Board contracts specify that the contractor's records are to be made available to the Secretary (of Agriculture Glickman)'s representatives for inspection (MBD refused to give AMS compliance staff access to its billing and collection records). The NPPC-MBD agreement does not contain many of these required terms.

Published in In Motion Magazine April 12, 1999.

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Circa Nov 25, 2000: Pork Checkoff Vote Completed; Results Pending » Market to Market » Iowa Public Television

Karl Johnson and his brother, run a 1,300 sow farrow-to-finish operation near Mankato, Minnesota.

Rhonda Perry raises hogs too, but other than that, the two have little in common.

Johnson's hogs are raised in confinement buildings and about half of them are marketed through contracts with packers.

Karl Johnson: "pork production has changed like the world has changed. It's become more consolidated. how many hardware stores are there left? Not very many small hardware stores, not very many car dealers, implement dealers, that type of things. Farms are getting larger. and pork producers have gotten larger. i don't know that i'm necessarily in favor of that, but something that happens if you're going to stay economically viable, you have to get larger and that's kind of the name of the game in the world today. "

Perry's pasture farrowed hogs are raised outdoors near Armstrong, Missouri and marketed directly to consumers through a producer-owned co-op called patchwork family farms.

Rhonda Perry: "unfortunately these projects come about because we don't have fair and open markets and that's not a good thing. And the environment in which this project took place and others will take place you know is a very negative environment for farmers and rural communities. and its not good that we have to have these types of projects in order to survive but it is good that we have figured out how to do it and we've been creative and we've been able to provide a quality product to consumers."

In addition to philosophical differences in husbandry and marketing, Perry and Johnson are diametrically opposed on a referendum determining the future of the pork checkoff.

This past September, pork producers voted on whether to continue the mandatory program.

Currently, a farmer marketing 1,000 hogs annually, pays about $450.00 into the checkoff fund, which is administered by the national pork board.

Most of the money is earmarked for promotion and research conducted by the national pork producers council, or N.P.P.C.

Larry Ginter: "today is a great day for agriculture because hog farmers across the u.s. are taking a big step towards reclaiming our industry."

In April of 1999, a handful of rural activists, armed with piles of petitions, announced they had more than enough signatures to force a vote on whether the checkoff should be continued.

The campaign for family farms, a coalition of seven grassroots rural groups, gathered signatures for about a year to force the vote.

Larry Ginter: "i want my checkoff dollars back!"

It wasn't the first time the group aired their dissatisfaction with the checkoff or the national pork producers council.

In 1997, the campaign for family farms marched to N.P.P.C. headquarters, where they posted a sign reading "national factory farms council."

Johnson, a past president of the national pork producers council, says promotion is a key reason why producers should vote to continue the checkoff.

Karl Johnson: "I think people need to remember, go back before we had the mandatory check off, back to the mid '80's when we were losing demand quite rapidly, pork was not considered the meat at all to eat and after the check off came in place, we came up with "pork the other white meat" campaign. Through that efforts, we really changed the public's perception of pork. these things have just contributed to the survival, if you will, of us as independent pork producers."

There's little doubt "the other white meat" has been a successful promotional campaign for the pork industry.

a recent study conducted by northwestern university revealed the "other white meat" to be the fifth most recognizable slogan in contemporary advertising history.

Meanwhile, a Texas A study, commissioned by the national pork board, estimated producers reap a 5-to-1 net return ratio on their checkoff dollars.

Rhonda Perry: "what we're here today to say is that this gravy train to the NPPC is coming to a halt..."

Those opposed to the checkoff, cite different numbers. According to the campaign for family farms, pork producers have paid more than half-a-billion dollars into the fund since the program became mandatory in 1986.

During that time the campaign claims 250,000 pork producers, or 2 out of every 3, have gone out of business.

And the hog farmers share of the retail dollar plummeted from 46-cents at the checkoff?s inception to about 21-cents today.

Perry, who favors a voluntary checkoff, claims independent pork producers are paying into a system that yields little if any benefit.

Perry: "we're paying for that. We're paying for their lobbying activities and you know through corporate control of our markets and we?re just saying we're not going to pay anymore, we're not going to pay the checkoff anymore for commodity groups to say they represent us and we're not going to continue to pay into and participate in a system that doesn't work for us at our expense. and you know, by doing that, it actually changes the playing field a little bit."

The pork checkoff was turned down as noted in this press release Jan 11 2001 (I think that's the year)National Pork Producers Council Comments on USDA Announcement of Pork Checkoff... -- re> DES MOINES, Iowa, Jan. 11 /PRNewswire/ --

DES MOINES, Iowa, Jan. 11 /PRNewswire/ -- "We are deeply disappointed and very concerned by USDA's announcement regarding the pork checkoff referendum," said Craig Jarolimek, National Pork Producers Council president. "Instead of a sincere attempt to capture the will of the majority of legitimate pork producers about their checkoff, USDA let political motivation decide the fate of one the most successful commodity programs in American agriculture. USDA unequivocally understands the negative impact termination of the pork checkoff will have on every pork producer in this country," said Jarolimek, a Forest River, N.D., pork producer.

"Again and again producers are citing to us examples of flaws in the referendum voting process," said Karl Johnson, co-chair of the Vote Yes Task Force. "These situations include giving out the wrong voting materials; failing to posts lists of producers who had requested absentee ballots; and failing to post lists of producers who had voted in person, all of which resulted in the disqualification of the voter without their knowledge. Equally as disturbing, other producers were allowed to cast both absentee and in-person ballots or were allowed to cast ballots in violation of referendum rules.

"The checkoff was designed by pork producers, for pork producers, so that all pork producers would pay their fair share and reap the benefits from the checkoff-funded programs," said Johnson, a Mankato, Minn., pork producer. "The progress made with the image, acceptance and demand for pork will slip away, the pork industry could experience accelerated consolidation and coordinated efforts of research, education and information will be lost. In a time when even larger slaughter numbers are expected, as forecasted by USDA's own Quarterly Hogs and Pigs Report, programs providing those tools to producers become even more critical."

At the request of pork producers, the Pork Promotion Research and Consumer Information Act became law in 1985. The pork checkoff funded research, promotion and education programs designed to build a future and create opportunities for pork producers. In September, pork producers had the opportunity to vote on the future of the 14-year pork checkoff program. Approximately $54 million was collected through the pork checkoff in 2000. As required by the Pork Act and Order, 20% of money is returned to state pork associations for investment in state-directed promotion, consumer education and research programs.

SOURCE National Pork Producers Council

PR Newswire (http://s.tt/1yGSy)

A really confusing settlement is here: http://www.pork.org/filelibrary/Checkoff%20Settlement%20Seperation%20Agreement/MOA-govt4.pdf

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More cites for MBD: footnote 100 at The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product ... - Brandt - Google Books

Mongoven, Biscoe & Duchin/Women and Children First: On the Front Line of the Chlorine War - SourceWatch

Mongoven, Biscoe & Duchin/Behind Enemy Lines - SourceWatch

This partially available book about the struggle against corporate agriculture (including carbon markets as privatization of the atmosphere) seemed relevant - there was a Google hit but I can't find the quote: … and the echo follows. (2010)

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Anyway I thought this was an interesting bit of loose research on agricultural globalism, rural farm politics, professional corporate spies and of course the mysterious Politics of Bacon.

MPD Tracking OccupyMN Facebook BBQs: Minneapolis "secret" Strategic Information Center / Emergency Operations and Training Facility 25 37th Ave NE in Fridley

Dateline: Pseudo-Secret Minneapolis (aka Fridley): What WCCO called the "secret" "City of Eyes" Strategic Information Center has been located on the Google! Your Federal Stimulus Money & FY2010 Homeland Security Appropriations At Work - A Facility for Spying on Facebook Occupy Barbecues

strategic-center-mpls.png

It's nice when data releases tie together a larger system, and we've sure got that here. It's not really "secret" but it's quite shiny & new, not well-known at all, and it is certainly has been used as a site for spying on Occupy activists without criminal predicates by the Minneapolis Police Department. [emails a bit farther down]

///// UPDATE Nov 14 2014: See #Pointergate Pieces: Hodges merged out politically powerful police pensions; KSTP Quadruples Down; Minneapolis gang intel plugs away ///// UPDATE Jan 10 2013: See How to check cops checking your driver's license, Rassmusson lawsuit settlement docs /////

The Minneapolis Police Department files about Occupy Minnesota released by a data request on Monday afternoon are turning up interesting wastes of taxpayer money -- and even the so-called "secret" Strategic Information Center & Emergency Operations and Training Facility at 25 37th Ave Northeast in Fridley, north of the city line by the river & railroad tracks.

Also known as the EOTF/SIC, let's wrangle up everything we can find. Start with architects, via Wold Architects/Engineers: City of Minneapolis EOTF | Wold Architects and Engineers

Wold Architects and Engineers designed a site and facility for the City of Minneapolis Fire Department Training Campus to include a Fire Department’s Training Division; training classrooms multi-used as an Emergency Operations Center for the City’s Emergency Preparedness; a Strategic Information Sensor Monitoring Center for the Minneapolis Police Department; and vehicle storage garages for the Fire Department’s regional asset equipment.

The design exceeds the City of Minneapolis requirement for design to meet LEED Silver.

strategic-4.png

strategic-5.pngThis state-of-the-art federally funded facility allows police to determine... the location of barbecues on Facebook, including even the number of "YES" and "MAYBE" invitees.

This facility also encompasses "Shotspotter" directional microphones all over the city - I wonder if those are ever activated besides the gunshot decibel threshold "trigger" - they are in fact pretty high-fidelity microphones, it has been disclosed (May 28 2012 NYT article) but the manufacturer denies the mics are triggered by conversations.

I for one, am glad that we spent both municipal and borrowed federal tax dollars on training the Minneapolis police to believe a Facebook "YES" invite is real. The simulacrum of today's clicks has become the strategic information of tomorrow!

The old EOC center, used in the 2007 35W bridge collapse, can be seen here via MPR and clearly lacks expensive-enough videoconferencing gear.

Here is the press release from Nov 4 2010: Minneapolis opens Emergency Operations Training Facility - City of Minneapolis

Minneapolis opens Emergency Operations Training Facility

The City of Minneapolis has opened its new Emergency Operations Training Facility, which will help emergency responders and other City staff better prepare for and respond to emergencies. The multi-purpose building helps meet the training and response needs of the Minneapolis Fire Department, the Minneapolis Police Department, and the City's Emergency Management Division, along with other regional partners.

The Emergency Operations Training Facility is a multi-purpose building that includes training classrooms for Minneapolis firefighters and metro emergency managers, a strategic information center for the Minneapolis police, the main training site for the State of Minnesota Structural Collapse Team, and an emergency operations center that will be used during significant emergencies or disasters.

The new facility is built on a 12-acre site in Fridley that the City purchased in 1990, and since that time, the site has been built out as a training facility for Minneapolis Firefighters. Over the years, a fire training tower and propane burn building have been constructed, and special equipment has been purchased to help train emergency responders for incidents involving hazardous materials and collapsed structures. The construction of the new Emergency Operations Training Facility on the site is a major step toward completing this training and response site.

The Emergency Operations Training Facility is built to a LEED Silver Quality Standard for sustainability, and it includes facilities for a wide range of emergency responders from Minneapolis and the region:

Emergency Operations Center

One of the lessons learned from the City's response to the Interstate 35W Bridge collapse in 2007 was that the City's Emergency Operations Center, located in the basement of City Hall, was too small to serve as a center for large-scale emergencies. The new facility fixes that, with 2,800 more square feet of floor space. It will also be used as a back-up Emergency Operations Center for the State, Hennepin County and the City of St. Paul.

Strategic Information Center

The Strategic Information Center is a new space where the Minneapolis Police Department will analyze data to determine long-range trends that pose potential risks to the city. It can provide emergency managers with important information during a major event, incident or disaster.

State of Minnesota Structural Collapse Team

This team serves the entire state with specialized equipment and trained personnel for urban search and rescue and structural collapse incidents. This facility will include apparatus bays for storage of emergency response vehicles and specialty equipment for the Coast Guard, State, City and Metro West region of Homeland Security. In addition, this facility will house training and classroom space, staff offices, support spaces and common spaces.

Coast Guard monitoring.

The U.S. Coast Guard will also use the facility as a monitoring location for cameras placed along the Mississippi River from St. Louis to the metro area.

Published Nov. 4, 2010

Moar casual Google Mapping:

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Apparently they dropped a cool $50K on the fence in early 2012. here is the bid page "To furnish all labor, materials, equipment and incidentals necessary to accomplish the complete construction of Emergency Operations Training Facility Perimeter Fence Project, located at 25 37th Ave NE, Fridley, MN." SRC: Minneapolis, City of - Projects. [A little more on the fence industrial complex below]

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Of course, once Erin Brockovich samples those weird adjacent holding pond things, I'm sure the infamous Fridley Cancer Cluster case will be solved. Perhaps Sgt. Garcia can go out and take some samples!

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I believe at least two of structures are firefighter training buildings - later pics below seem to bear this out.

eoc-marketing-swag1.pngHere is some marketing swag about the video conferencing gear. AVI-SPL Integrates Government Emergency Operation Centers. See the PDF and video too.

eoc-marketing-swag2.pngLet's check out the $330,704 in electronically-created yet borrowed-at-interest-from-private-Fed-cartel recently invested in this barbecue monitoring center. Official less-than-informative stimulus info page: Minneapolis Recovery - City of Minneapolis Minneapolis Police Strategic Information Center.

[Naturally it is funded by the electronically created debt-digits from the Department of Justice Bureau of Justice Assistance (BJA), the same endless police pork hub that brought us all those "you might be a terrorist if you pay in cash" type intel flyers for everything from hotels to hobby stores - many of those flyers were financed by Grant Number 2007-MU-BX-K002, which I included ironically on my own site's banner art. Google it for lulz!] Here's that official page:

The City of Minneapolis is not a primary recipient on this project. No Federal Report XML is submitted for this project.

Dollars Awarded

$330,704

Project Status

Fully completed

Project Description

To establish integrated crime analysis in cooperation with the St. Paul Police Department. Staff will be located in a joint Strategic Information Center (SIC).

Funding Program

MN Department of Public Safety: Byrne Justice Assistance Grant

Responsibility for Implementation

Police Department

Funding Agency

US Department of Justice [BJA/Recovery Act]

Dollars Leveraged

Data not yet available.

Dollars Leveraged Description

Data not yet available.

Dollars Requested

$330,704

Projected Jobs Created

2

Award Type

Grant

Sub-recipient Names

Minneapolis, City of

Vendor Names

No vendors have been contracted to date.

Recovery Funds Spent to Date

$330,704

Perhaps this is even the 'secret' location Tippy spycams are constructed: a while ago prankster MPD Spokester & PIO Jesse Garcia shared pics of a camera construction room & with all the other video rigs this seems a likely spot.

Anyway finally here is the email chain which prompted this line of research. There are surely other gems, we are just barely getting started. Circa page 109 of Part 1:

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The public servant on some of these emails is one Minneapolis Police Department officer Steven Otteson, who has a decidedly low Internet profile.

Poking for traces of intrepid Strategic Facebooker Otteson turns up very little - even though the email is dated June 2012, he has no listed salary on this MPD salary list: My Docstoc. Crossposted the index here: 2011 Minneapolis Police Dept Gross Salary index for Web.

A news story indicated the supervisor of the Strategic Information Center is MPD Lt. Jeff Rugel at 612-673-3428. Page 112:

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"Why are we not getting this stuff from the SIC?" Here is stuff about why they should not have to "spend time looking it up" and it should be run through the SIC... This could kind of be the crux of the whole issue here on Page 114:

sic-track-occupy

Alright, that covers some of the new data on this SIC thing vis-a-vis obsessing on Occupy events, so let's turn to the news coverage of this facility.

Carefully shaped news coverage: Mid-2012 saw a series of mainstream media items intended to shape public perceptions this center is designed to neutralize the threats from the surveilled populace. WCCO went so far as to call it a "secret location". That is some quality Fourth Estate right there.

Coverage for this "City of Eyes" facility on WCCO March 19 2012 (video) City Of Eyes: Your Camera May Help Mpls Police Fight Crime « CBS:

MINNEAPOLIS (WCCO) – Minneapolis police are the first in the country to merge two technologies to help officers fight crime.

The Minneapolis Police Department has combined shot spotter technology and a system of cameras to help catch criminals in the act.

Authorities allowed WCCO-TV’s Reg Chapman into a secret location in Minneapolis, where a strategic information center is housed.

Minneapolis Police Deputy Chief Rob Allen said the room is where police gather intelligence.

“This is the room where we try and fuse the technology we have to monitor video cameras, to monitor the sounds of possible gunshots, and it’s where we have our officers who are trained in intelligence gathering,” he said.

The system in the room is like CBS’ Thursday night show “Person of Interest,” in which cameras are used to help save people from becoming victims of crime.

“If you can anticipate where crimes might happen, you got a far better chance of preventing them from occurring,” Allen said.

According to Allen, when a gunshot goes off, a camera turns toward the source of the sound. Strategic Information Center Commander Lt. Jeff Rugel said the technology helped solve a case where a man was shot, killed and pushed out of a moving car. The sound of the gunfire activated the cameras, which gave police their first clue.

[......]City Of Eyes

The number of cameras connected to the intelligence system is growing and helping police catch more criminals. But not all the cameras are owed by the city.

“The city owns roughly 250 cameras,” Allen said. “We can access right now … an infinite number of cameras.”

According to Allen, any camera that has an IP address, is connected to the Internet, and that police have permission to use can give information to authorities.

So whenever you are in a public space, know that you’re likely on camera. Police are using portable cameras more now than ever. They can put them where they are needed and have one up and running within an hour of the order.

Invasion Of Privacy?

But what about your right to privacy? Police say they are careful not to infringe on anyone’s rights.

“Every time we installed a camera system, we went to the neighborhood and said, ‘You know, this is what we’ve thought about doing? Do you want it or not,’” Allen said.

He says police can’t look into a place where someone has the expectation of privacy. [magic filters eh?] But police still have a wide reach, which gives criminals a greater chance of getting caught on camera.

Crime patterns are currently moving and Minneapolis police hope to add more portable cameras. Police believe if criminals know they are being watched they are more likely not to commit crimes.

Star Tribune writes about this center using Facebook to watch what the state defines as "gang members" (mysteriously, shady rich Caucasian financial operatives never seem to meet this race/age/wealth-biased deviance category schema).

Of course, this week's data release shows this has bloated out to canvassing political movements without even the semblance of illegal activity... there is no "barbecue predicate" but there are of course hourly wages to be paid by Minneapolis taxpayers for monitoring the barbecue Facebook Event. Perhaps even overtime!

Gangs sometimes fire first shots online | StarTribune by Matt McKinney July 14 2012:

Facebook has become a virtual street corner where members trade threats, mourn the dead.

"It's probably no different than any other kids, right?" said Minneapolis police Lt. Jeff Rugel. "They're sharing stuff that they used to do face-to-face or over the phone. But there's criminal stuff." [.....]

Rugel runs the police department's Strategic Information Center, where officers use technology to track crime. One of the jobs in his office amounts to monitoring Facebook full-time. They understand the teen slang and filter through thousands of innocuous and inane comments to look for the few that could solve a crime or stop one before it happens. They try to draw connections out of the Facebook networks to help document the shifting alliances on the street.

Police were aware of Facebook threats between rival gangs weeks before the shooting that killed Nizzel, but the threats weren't specific. When Rugel and his staff sees something that looks like trouble -- a known gang member says he's going to hurt someone -- they pass the information along to officers on the street.

It's a poorly kept secret that the police watch Facebook, said Rugel.

"You see comments every once in a while. 'Don't put that on Facebook. You know who's looking at it,' " he said.

Despite some users' occasional concern, many of the Facebook users monitored by police flaunt their illegal behavior online, showing themselves smoking marijuana, posing with stolen merchandise, the security tags still attached, and making gang signs. [.....]

There was also some bidding information online about the estimated $50,000 fence around the facility. Emergency Operations Training Facility Perimeter Fence Project (eBidDoc #1810882) contact: David Schlueter phone: 612-673-2834 e-mail: david.schlueter@ci.minneapolis.mn.us bid date: 01/25/2012 10:00:00 AM

Try http://io.questcdn.com/questio/projects/planholder/planholder_list.html?jobPK=1810882&userPK=&modifiable=FALSE&isQCPI=TRUE

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//////

garcia-yatedo.pngSome other stuff: for what it's worth, this lists PIO Jesse Garcia as being based at the Strategic Information Center.Minneapolis Police Department Employees - Professional Experience,Email,Phone numbers..Everything!: Digging deeper to: Jesse Garcia III - Strategic Information Center, Minneapolis Police Department:

It was scraped off his LinkedIn - no surprise there. But no one put it together... Jesse Garcia III | LinkedIn. I think it would be great if state law were changed so that Garcia could be cross-examined by taxpayers about the flow of drug money through the Federal Reserve Bank of Minneapolis and its member banks, let's say once a month on live community access TV. Looks like he ought to be tapped into that gigaflow of data on bankster crime intel!

Strategic Information Center

Minneapolis Police Department

September 2010 – Present (2 years 5 months)

I am a supervisor in our new intel center that focuses on:

-gang intel

-crime intel

-real time officer assist

-safety camera analysis

-Emergency Operations Center readiness

jesse.garcia@ci.minneapolis.mn.us

Public Information Officer / Media Relations

Minneapolis Police Department

October 2007 – September 2010 (3 years)

More media: Vehicle data, email access among Minneapolis legislative issues | MinnPost - Karen Boros, Nov 2, 2012. Automated License Plate Reader (ALPR) including of course the "secret" camera on nearby Plymouth Ave. N. bridge is controlled from this "Strategic Information unit" according to the article - I would assume this is the same spot it's based, unless it is somehow split:

Currently, the Minneapolis Police Department uses cameras to record the license plates, time and location of vehicles. That data is now public information that can be obtained by anyone requesting the information.

“Our concern is that if it stays public data that people can use it for inappropriate purposes,” said Deputy Chief Robert Allen. The system now doesn’t allow police to inquire how it might be used. “We’re not allowed to make a judgment,” he said.

Access to the data is controlled by about a dozen people working in the department’s Strategic Information unit.

Alright this is taking more than long enough. This thing says it is 22,178 sq ft and it is on parcel 34-30-24-43-0009.

Minneapolis, City of - Projects: An estimated $1.5 million were bid on this beast for just a small chunk of the building, closed Feb 2012.

directions to site: 25 37th Ave NE Fridley, MN 55421

bids close: 02/23/2012, 10:00:00 AM

bids received by: City of Minneapolis Purchasing Department CONSTRUCTION OF THE EOTF APPARAUS BAY ADDITION 330 Second Avenue South Suite 552 Minneapolis, MN 55401

estimated value: $1,500,000.00

project completion date: 08/15/2011

pre-bid meeting information: A Pre-Bid Meeting and site tour will be held on February 15th, at 11:00 AM, Local Time in Room 128 at the Emergency Operations Training Facility located at 25 37th Ave NE, Fridley MN. All interested bidders should attend this meeting.

addenda: 1

project description: Scope of Work Includes: Complete construction of the Apparatus Bay Addition at the City of Minneapolis Emergency Operations Training Facility. This work shall include all labor, equipment, materials, installation, handling, delivery at site, necessary insurance and permits, erection and other required items for general, civil, landscaping, demolition, structural, architectural, mechanical and electrical construction and stability as shown on the plans and specifications.

additional description: This Contract contemplates the complete construction of the Emergency Operations Training Facility Apparatus Bay Addition for the Minneapolis Fire Department located at 25 37th Avenue NE., in Fridley, all in accordance with the Contract Documents. This Project has been designed to comply with the requirements of the State of Minnesota Sustainability Building Guidelines B3 (MSBG B3) Version 2.1 and also the U.S. Green Building Council’s Leadership in Energy and Design ( USGBC LEED®) Rating System. It is the intent of this Contract that the Project shall become MSBG B3 Version 2.1 Certified and LEED® SILVER level of quality building under the LEED®-NC Rating System. Work to be performed consists of the furnishing of all materials, machinery, equipment, labor, supplies, tools, transportation, and other incidentals necessary or convenient to complete the work as shown in the Contract Documents on file in the Minneapolis Finance Department, Property Services Division and with the Purchasing Agent of the City of Minneapolis.

owner: City of Minneapolis

350 South 5th Street, Room 223

Minneapolis , MN 55415

ph: 612-673-3774

contact: Chris Backes e-mail: chris.backes@ci.minneapolis.mn.us

Soliciting Agent: Soliciting agent

Minneapolis, City of

330 2nd Ave. S. Suite 552

Minneapolis, MN 55415

ph: 612-673-2834

fax: 612-673-3565

contact: David Schlueter e-mail: david.schlueter@ci.minneapolis.mn.us

It was used to host a session of the 10,000 Lakes Chapter of the International Code Council. [pdf]

The site's address is place on things like preparedness for your pet: Emergency Preparedness - City of Minneapolis && stuff about exercises (again on the sidebar) City Preparation - City of Minneapolis - the 'meh' front page: Emergency Preparedness - City of Minneapolis. Really need to improve page titles at the city. Perhaps after the election?

Awards - City of Minneapolis:

Minneapolis wins its second Tekne Award

Minneapolis Emergency Operations Training Facility

November 2011: The Minnesota High Tech Association recognized the City of Minneapolis and its Emergency Operations Training Facility with an award at the 2011 Tekne Awards, held Nov. 3 at the Minneapolis Convention Center. The Tekne Awards recognize Minnesota companies and individuals who have shown superior technology innovation and leadership.

The City of Minneapolis took home the award in the “Technology Excellence in a Nonprofit Organization” category that recognized the City’s Emergency Operations Training Facility/Strategic Information Center (EOTF/SIC) for bringing technology and information together to make Minneapolis a safer place. At the facility, technology, digital data, streaming video and highly interactive interfaces come together in one highly efficient communication center for the city.

The Minneapolis Fire Department, Police Department, and Emergency Management division opened the EOTF/SIC in August 2010 as a place where they and other emergency responders could coordinate more closely than had ever been possible before. The facility recently demonstrated its effectiveness during the response to the May 22 tornado that struck north Minneapolis.The multi-purpose building also provides training space for emergency responders.

Here it was, the first one: Minneapolis Emergency Operations Training Facility wins Tekne award - City of Minneapolis: The City of Minneapolis took home the award in the “Technology Excellence in a Nonprofit Organization” category that recognized the City’s Emergency Operations Training Facility/Strategic Information Center (EOTF/SIC) for bringing technology and information together to make Minneapolis a safer place. At the facility, technology, digital data, streaming video and highly interactive interfaces come together in one highly efficient communication center for the city.... and earlier: Oct 18, 2011: Minneapolis Emergency Operations Training Facility a finalist for Tekne award - City of Minneapolis

Mpls. Unveils New Emergency Operations Center | Crime | Downtown News - Nov 4 2010, KSTP Gail Brown: Congressman Keith Ellison secured $750,000 for the project in a 2010 appropriations bill, and he will be attending a ribbon cutting ceremony at 2:30 p.m. along with Minneapolis Mayor R.T. Rybak, City Council President Barb Johnson and other city leaders.

Ellison Secures $750,000 for Minneapolis Emergency Operations Center - Ellison.House.gov Oct 15 2009:

Washington, D.C. – Congressman Keith Ellison (D-Minneapolis) secured a $750,000 appropriation for the City of Minneapolis to build a new Emergency Operations Center in a bill approved by the House today. The funds were included in H.R. 2892, the Homeland Security Appropriations Bill for FY 2010.

Roughly the same stuff in this Council Prez Barb Johnson doc.

It's on Pinterest - see Government & Military for tons of funny stuff including everything from the avispl swag people above. And also: AV Products We Love / Minneapolis Emergency Operations Training Facility

There is a blog post about training there on the Mpls Dept of Civil Rights by Anthony Johnson - Civil Rights Urban Scholars with a helpful slideshow. Tony’s Voice: Our Day As Fire Fighters! | Minneapolis Department of Civil Rights.

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I think you can see this fire training structure (or maybe a similar one) on Google Maps though I have not swung by to check out the Facility myself. Another one:

Minneapolis Emergency Services Employ projectiondesign - AVNetwork.com (undated? A couple pix included)

Fredrikstad, Norway--The City of Minneapolis has deployed 12 projectiondesign F32 DLP projectors as the main display source in the Analyst Room and F22 series projectors in the Incident Command Room of its Emergency Operations Training Facility (EOTF).

Located just outside Minneapolis, the EOTF boasts an extensive surveillance, audiovisual and network infrastructure specified and installed by systems integrator AVI-SPL.

“In a facility like this, even the slightest compromise in performance can result in tragic consequences,” said Fred Primoli, regional VP Sales for AVI-SPL. Primoli and his colleagues worked with the city for nearly two years on the concept, planning and final implementation of the EOTF, with the primary challenge being an interesting one: the creation of a state-of-the-art communications facility that may get activated no more than once in a decade.

“We needed systems that were capable of totally robust operation 24 hours per day, seven days per week – but which also were capable of performing at their best after extended periods of inactivity.

“From the outset we were delighted with the performance of the F32 projectors. The Analyst Room has three rear-projection screens, each measuring 160 inches wide by 120 inches tall, with four projectors driving each screen so that four separate windows can be shown on each one.

“The projectors have been superbly colour-matched to ensure consistency across each screen, while their excellent resolution, contrast and brightness mean they are equally at home showing video or data sources – which is important in an installation such as this where the staff need to a view a combination of both.”

Deputy Chief Robert Allen, a veteran of the Minneapolis Police Department, said: “The new display system allows us to look at a video feed and understand a situation almost instantly. Through video, we can get information to our officers much faster – especially when time is critical. We can zoom in with our cameras and really examine a situation and relay it back to our officers, allowing them to be prepared even before they get there. With this new technology, we can see something happen faster than a police offer 50 feet away.”

F22 series projectors from projectiondesign can also be found in the EOTF’s Incident Command Room that’s used for emergency training and an actual declared emergency.

“There is a large number of emergency monitoring projects in the U.S., and we are delighted that our technology has been used to display high-resolution security-camera images in so many of them," said Anders Løkke, marketing director, projectiondesign. "The Minneapolis EOTF already demonstrated its effectiveness during the tornado that swept through the area last May and, although we would prefer it if our systems never had to be used in similar situations again, the reality is that the city is better-protected now that its providers of emergency services have such easy, immediate and accurate access to security-camera imaging from so many locations.”

“The EOTF was conceived as a place where the various Departments responsible for emergency response and management in Minneapolis could co-ordinate their efforts more closely than had previous been possible,” said Primroli.

Same stuff as May 11, 2012: Minneapolis Emergency Services Goes with Projectiondesign - Fire Apparatus

On May 20 2011 CItyPages reported on Rocco Forte, former Minneapolis fire chief, departing, and Forte talked about being pleased to help finish the complex: "After the 35W bridge collapse, the Republican National Convention, and the tornado that went through South Minneapolis, it is clear that we have one of the finest emergency management teams in the country. It was also a long time goal of mine to complete the Emergency Operations Training Facility that includes an Emergency Operations Center, Strategic Information Center as well as a training facility which seats up to 250 people per day."

Reed Construction Data estimates its cost at $3,988,400 (a more accurate cost estimate is available from RSMeans Online), they say.

There are a couple autogenerated links at Facility Management Minneapolis Product From Industrial Manufacturers, Distributers, Suppliers And OEMs.

There is some PR speak about AVI-SPL getting an award. Press Release/ InfoComm, Sound & Video Contractor Honor AVI-SPL with Two PRO AV Spotlight Awards - Audio/Video Equip./Surveillance - AVI-SPL, Inc. | PRZOOM

On March 11, 2009, the overall cost of the project was pegged by House Research as $27,403,000. SRC: www.house.leg.state.mn.us/hrd/bs/86/hf0554.pdf

This bill would grant $8,000,000 in bond proceeds to the City of Minneapolis to design, construct, furnish, and equip an emergency operations center housed in the City’s current training center and to make other improvements to the training center.

According to the 2008 budget request, the overall cost of the project is $27,403,000 with the City and Hennepin County funding the non-state funded portions of the project. The Joint Emergency Operations Center (EOC) for Hennepin County and the City of Minneapolis will be located at the Minneapolis Fire Training Campus on city owned land. The City contends the current facility is inadequate and limits the effectiveness of the command structure. The City further contends that the Minneapolis Fire Training Campus is an ideal location for the EOC as it would provide a secure operations center with enough room to respond to a major incident affecting the county. Finally, the City believes this request would provide much needed training classrooms at the Minneapolis Training Facility which is the main site for training the State Structural Collapse Team.

HF 554 Status in the House for the 86th Legislature (2009 - 2010) - this is the bill number - I suspect it probably got rolled into the omnibus bill but I will leave that to a Deep Wonk to suss out. // H.F. No. 554, as introduced - 86th Legislative Session (2009-2010).

With a pretty severe shortage of funds for both state and municipal operations, is an open-ended SIC mandate to track protest activity on Facebook really the most prudent use of funds? And doesn't this operational configuration create a chilling effect on political expression in Minneapolis? The research continues....

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