From:
http://keepthewebopen.com/tppI read the whole thing and I pulled out things I thought were noteworthy or that I would like to see changed.
According to The Trans Pacific Partnership Agreement (TPP) Intellectual Property Rights Chapter at the above link, as far as I can determine:
4. Each Party shall provide that the owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs, including 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, including a geographical indication, for identical goods or services, a likelihood of confusion shall be presumed.
http://www.wipo.int/geo_indications/en/about.htmlA geographical indication is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. Whether a sign is recognized as a geographical indication is a matter of national law. Geographical indications may be used for a wide variety of products, whether natural, agricultural or manufactured.
While I don't expect it to a problem in America, it would be exceptionally easy for a single corporation to utilize it to corner the export sector(s) of a given country or area and have their export monopoly be legally protected by international law. This is extremely worrying to me and unfair to the citizens of those countries. This should be changed.
Not as important:
17. 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 translated versions of the geographical indication;*6*
22. Each Party shall permit the use, and as appropriate, shall provide for the registration, of signs or indications that identify services or products other than wines or spirits, and that reference a geographical area that is not the true place of origin of the services or of the product, provided that:
(a) the sign or indication is used in a manner that does not mislead the public as to the geographical origin of the goods or services;
(b) use of the sign or indication does not constitute an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967);
(c) use of the sign or indication would not cause a likelihood of confusion with respect to an earlier-in-time similar or identical trademark or geographical indication that is used for identical or similar goods or services; and
(d) where a request for registration is concerned, the sign or indication is not a generic term for the associated goods or services.
IP Law:
4. In order to ensure that no hierarchy is established between rights of authors, on the one hand, and rights of performers and producers of phonograms, on the other hand, 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.
5. Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:
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(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author's death; and
(b) on a basis other than the life of a natural person, the term shall be:
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(i) not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or
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(ii) failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from end of the calendar year of the creation of the work, performance, or phonogram.
Rights Management Information
10. In order to provide adequate and effective legal remedies to protect rights management information:
(a) each Party shall provide that 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 any copyright or related right,
(i) knowingly removes or alters any rights management information;
(ii) distributes or imports for distribution rights management information knowing that the rights management information has been removed or altered without authority; or
(iii) distributes, imports for distribution, broadcasts, communicates or makes available to the public copies of works, performances, or phonograms, knowing that rights management information has been removed or altered without authority,
shall be liable and subject to the remedies set out in Article [12.12 Each Party shall provide for criminal procedures and penalties to be applied when any person, other than a nonprofit library, archive, educational institution, or public noncommercial broadcasting entity, is found to have engaged willfully and for purposes of commercial advantage or private financial gain in any of the foregoing activities. 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.
(b) each Party shall confine exceptions and limitations to measures implementing subparagraph (a) to lawfully authorized activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes.
(c) Rights management information means:
(i) information that identifies a work, performance, or phonogram; the author of the work, the performer of the performance, or the producer of the phonogram; or the owner of any right in the work, performance, or phonogram;
(ii) information about the terms and conditions of the use of the work, performance, or phonogram; or
(iii) any numbers or codes that represent such information,
when any of these items is attached to a copy of the work, performance, or phonogram or appears in connection with the communication or making available of a work, 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 5: COPYRIGHT
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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.
ARTICLE 6: RELATED RIGHTS
1. Each Party shall accord the rights provided for in this Chapter with respect to performers and producers of phonograms to the performers and producers of phonograms who are nationals of another Party and to performances or phonograms first published or first fixed in the territory of another Party. A 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.*13*
2. Each Party shall provide to performers the right to authorize or prohibit:
(a) broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance; and
(b) fixation of their unfixed performances.
3.
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(a) Each Party shall provide to performers and producers of phonograms the right to authorize or prohibit the broadcasting and any communication to the public of their performances or phonograms, by wire or wireless means, including the making available to the public of those 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.
(b) Notwithstanding subparagraph (a) and Article [4.8][exceptions and limitations], the application of this right to analog transmissions and non-interactive, free over-the-air broadcasts, and exceptions or limitations to this right for such activity, shall be a matter of each Party's law.
(c) Each Party may adopt limitations to this right in respect of other noninteractive transmissions in accordance with Article [4.8] [exceptions and limitations], provided that the limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration.
5. For purposes of this Article and Article 4, the following definitions apply with respect to performers and producers of phonograms:
(a) broadcasting means the transmission to the public by wireless means or satellite of sounds or sounds and images, or representations thereof, including wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent; "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;
(b) 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 purposes of paragraph [3], "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public;
(c) fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced, or communicated through a device;
(d) 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;
(e) 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;
(f) 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
(g) 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.
2. Each Party shall make patents available for inventions for the following:
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(a) plants and animals, and
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(b) diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.
3. Each Party may only exclude from patentability inventions, the prevention within its 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 the environment, provided that such exclusion is not made merely because the exploitation is prohibited by law.
4. In civil judicial proceedings, each Party shall, at least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, establish or maintain a system that provides for pre-established damages, which shall be available upon the election of the right holder. Pre-established damages shall be in an amount sufficiently high to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement. 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.*19*
8. A Party may exclude from the application of this Article (border measures), small quantities of goods of a non-commercial nature contained in traveler's personal luggage.
ARTICLE 15: 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. Willful copyright or related rights piracy on a commercial scale includes:
(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful infringements for purposes of commercial advantage or private financial gain.*24*
Finally, I don't think destruction of hardware is necessary. According to this law any type of equipment used in piracy is to be confiscated and destroyed by the authorities. If it must be taken temporarily for an investigation I grudgingly accept that, but after the investigation is through it should be returned in working condition wiped of infringing content and with all other content intact.
EDIT: Also I can't seem to make an account on that site so I can't direct viewers of that page to my post here on B12. Can someone do me a small favor and link to my post here in their comments section in the off chance the respectable Congressman Issa would be interested in the content of my post or if you yourself would be interested in his reading it?
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