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:

• a. 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;
• b. 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;

--FOOTNOTES--
¹ Section 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.
² Negotiators' 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.]
⁴ Negotiators' Note: AU supports including objectives but is still considering the drafting and scope of this article.
⁵ Negotiators' Note: CA supports this provision in principle, but is reviewing the proposal.
⁶ Negotiators' Note: MX will reflect further on the additional subparagraphs (g) and (h).

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• c. 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.
• d. protect the ability of Parties to identify, promote access to and preserve the public domain;
• e. Ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
• f. 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.
• h. 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.]]

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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

--FOOTNOTES--
⁷ Negotiators' Note: JP is reflecting further on this paragraph.
⁸ Negotiators' Note: AU is still considering the drafting and scope of this paragraph.
⁹ Negotiators' Note: AU is considering the drafting of the language.

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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

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

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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:

• (a) Patent Cooperation Treaty (1970), as amended in 1979;
• (b) Paris Convention for the Protection of Industrial Property (1967);
• (c) Berne Convention for the Protection of Literary and Artistic Works (1971);
• (d) Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
• (e) Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
• (f) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
• (g) International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);
• (h) Singapore Treaty on the Law of Trademarks (2006);
• (i) WIPO Copyright Treaty (1996); and
• (j) WIPO Performances and Phonograms Treaty (1996).]

--FOOTNOTES--
¹¹ Negotiators' 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.
¹² Negotiators' Note: MX is flexible if the obligation is on a best endeavor basis.
¹³ Negotiators' Note: SG has no substantive objection to this paragraph and will follow consensus.
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[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

--FOOTNOTES--
¹⁴ Negotiators' 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.
¹⁵ Negotiators' Note: AU considering drafting of this provision.
¹⁶ Negotiators' 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.]

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rights, and any benefits derived from such rights.][NZ/VN/BN/MY/CL/PE/JP/SG¹⁹ propose²⁰; 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.]
2.

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 appoi nt an agent in its territory, provided that such derogation is:

• (a) necessary to secure compliance with laws and regulations that are not inconsistent with this Chapter; and
• (b) not applied in a manner that would constitute a disguised restrict ion 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.]

--FOOTNOTES--
¹⁹ Negotiators' Note: SG/CL is flexible on either approach to National Treatment.
²⁰ Negotiators' 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.
²¹ Negotiators' Note: AU can be flexible on either approach to National Treatment.
²² Negotiators' Note: MY/SG/PE support in principle. CP/JP is considering further.
²³ Negotiators' Note: MX is considering its position in relation to the whole paragraph.
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[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
 

--FOOTNOTES--
²⁴ Negotiators' Note: CA can support consensus on the first sentence.
²⁵ Negotiators' 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.]
²⁸ Text 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.

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

• (a) its laws, regulations, procedures, and administrative rulings of general application concerning the protection and enforcement of intellectual property rights; and]
• (b) [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

].]³¹Article 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
 

--FOOTNOTES--
²⁹ Negotiators' Note: CA supports in principle pending clarification of what is meant by "open to public inspection" in sub-paragraph (b).
³⁰ Negotiators 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.
³¹ Text 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.]
³² Negotiators' 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.
³³ Negotiators' Note: JP will follow consensus on this paragraph.

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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:

• a) identify subject matter that has fallen into the public domain within their respective jurisdictions;
• b) promote access to the public domain; and
• c) 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.
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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.]
 

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