Chapter 17 - Intellectual Property

Article
17.1:
Definitions

For the purposes of this Chapter:

(a) broadcasting means the transmission to the public by
wireless means, including 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
organisation or with its consent;

(b) communication to the public of a performance or a
phonogram has the meaning in Article 2(g) of the WIPO
Performances and Phonograms Treaty;

(c) fixation in relation to performances and phonograms
means the embodiment of sounds, or of the representations
thereof, from which they can be perceived, reproduced or
communicated through a device;

(d) intellectual property refers to all categories of
intellectual property that are the subject of Sections 1 to 7
of Part II of the TRIPS Agreement, namely: copyright and
related rights; trade marks; geographical indications;
industrial designs; patents; layout designs (topographies) of
integrated circuits; and protection of undisclosed
information^17-[32];

(e) performance refers to a performance fixed in a phonogram
unless otherwise specified;

(f) 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;

(g) 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;

(h) 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;

(i) 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 right holder, and provided that
copies are offered to the public in reasonable quantity;

(j) WIPO means the World Intellectual Property Organization;
and

(k) work includes a cinematographic work.

Article
17.2:
Purpose

The Parties recognise that it is important to provide
adequate and effective protection and enforcement of
intellectual property rights, promote efficient and transparent
intellectual property systems and achieve an appropriate
balance between the legitimate interests of intellectual
property right holders and of users in subject matter protected
by intellectual property rights.

Article
17.3:
General Provisions

1. The
Parties reaffirm their existing rights and obligations with
respect to each other under the TRIPS Agreement and any other
multilateral intellectual property agreements to which both are
party.

2. 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)
anti-competitive practices that may result from the abuse of
intellectual property rights;

provided that such measures are consistent with this
Agreement.

3. Each
Party shall give effect to the provisions of this Chapter and
may, but shall not be obliged to, implement in its domestic law
more extensive protection than is required by this Chapter,
provided that such protection does not contravene the
provisions of this Chapter.

Article
17.4:
International Agreements

1. Each
Party shall ratify or accede to the following agreements by 1
January 2009 in a manner consistent with its domestic law and
subject to the fulfilment of its necessary internal
requirements:

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

(b) the Budapest Treaty on the International Recognition of the
Deposit of Microorganisms for the Purposes of Patent
Procedure (1980); and

(c) the International Convention for the Protection of New Varieties
of Plants (1991).

2. Each
Party shall undertake reasonable efforts to ratify or accede to
the following agreements, in a manner consistent with its
domestic law and subject to the fulfilment of its necessary
internal requirements:

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

(b)
the Patent Cooperation Treaty (1970); and

(c)
the Patent Law Treaty (2000).

Article
17.5:
National Treatment

1. In
respect of all intellectual property rights covered in this
Chapter, each Party shall accord to persons of the other Party
treatment no less favourable than it accords to its own persons
with regard to the protection^17-[33] and enjoyment of such
intellectual property rights and any benefits derived from such
rights, subject to the exceptions provided in multilateral
intellectual property agreements to which either Party is, or
becomes, a contracting party.

2. A Party
may derogate from paragraph 1 in relation to its judicial and
administrative procedures, including requiring a person 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:

(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 restriction on
trade.

3.
Paragraph 1 does not apply to procedures provided in
multilateral agreements concluded under the auspices of WIPO in
relation to the acquisition or maintenance of intellectual
property rights.

Article
17.6:
Application of Agreement to Existing Subject Matter

1. Except as
it provides otherwise, including Article 17.32, 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.

2. Except as
otherwise provided in this Chapter, 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 the territory of the Party where the
protection is claimed.

Article
17.7:
Application of Agreement to Prior Acts

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
17.8:
Industrial Property

1. Each
Party shall provide a system that permits owners to assert
industrial property rights and interested parties to challenge
such rights through administrative or judicial means, or
both.

2. Each
Party shall endeavour to simplify and streamline its
administrative procedures and participate in international
fora, including the WIPO fora, dealing with reform and
development of the industrial property system.

TRADE MARKS

Article
17.9:
Trade Marks Protection

Each Party shall provide that trade marks shall include
trade marks in respect of goods and services, collective marks
and certification marks. A Party is not obligated to
treat certification marks as a separate category in its
domestic law. Each Party shall provide, in accordance
with its domestic law, that a sound may constitute a sign, and
a combination of colours may form all or part of a sign.
Each Party may provide trade mark protection for scents.
The Parties shall not require, as a condition of registration,
that trade marks be visually perceptible. A Party may
require that trade marks be represented graphically.

Article
17.10:
Use of Identical or Similar Signs

Each Party shall provide that the owner of a registered
trade mark 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, including
subsequent geographical indications, for goods or services that
are related to those goods or services in respect of which the
trade mark is registered, where such use would result in a
likelihood of confusion.^17-[34]

Article
17.11:
Exceptions to Trade Mark Rights

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

Article
17.12:
Well Known Trade Marks

1. Article
6bis of the Paris Convention for the Protection of
Industrial Property shall apply to goods or services that
are not identical or similar to those identified by a well
known trade mark^17-[35], whether registered or not,
provided that use of that trade mark in relation to those goods
or services would indicate a connection between those goods or
services and the owner of the trade mark, and provided that the
interests of the owner of the trade mark are likely to be
damaged by such use.

2. Each
Party recognises 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, and shall be guided by the principles contained in this
Recommendation.

Article
17.13:
Trade Mark System of Protection

Each Party shall provide a system of protection for trade
marks that provides procedures for examination as to substance
and formalities, opposition, and cancellation, which shall
include, but not be limited to:

(a) providing to
the applicant a communication in writing, which may be
electronic, of the reasons for any refusal to register a trade
mark;

(b) providing the
opportunity for the applicant to respond to communications from
the authorities responsible for registration of trade marks, to
contest an initial refusal, and to appeal judicially any final
refusal to register a trade mark;

(c) providing an
opportunity for interested parties to oppose the registration
of a trade mark or to seek cancellation of a trade mark;
and

(d) requiring that
decisions in opposition or cancellation proceedings be reasoned
and in writing.

Article
17.14:
Electronic Trade Marks System

Each Party shall provide, to the maximum extent
practical:

(a) a system for
the electronic application, processing, registration and
maintenance of trade marks; and

(b) a publicly
available electronic information system of registered trade
marks.

Article
17.15:
Term of Protection for Trade Marks

Each Party shall provide that initial registration of a
trade mark shall be for a term of no less than 10 years.

Article
17.16:
Classification of Goods and Services

Each Party shall maintain a trade mark 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 of June 15, 1957, as
amended.

Article
17.17:
Geographical Indications

1. Each
Party shall recognise that geographical indications may be
protected through a trade mark or sui generis system or
other legal means.

2. Each
Party shall provide the means for persons of the other Party to
apply for protection of geographical indications. Each
Party shall accept applications without the requirement for
intercession by a Party on behalf of its persons, and
shall:

(a) process
applications for geographical indications with a minimum of
formalities;

(b) make its
regulations governing filing of such applications readily
available to the public;

(c)
ensure that applications for geographical indications are
published for

opposition and provide procedures for:

(i)
opposing geographical indications before registration; and

(ii)
cancellation of any registered geographical indications;

(d) ensure that
measures governing the filing of applications for geographical
indications set out clearly the procedures for such actions and
shall include contact information sufficient for applicants to
obtain specific procedural guidance regarding the processing of
those applications; and

(e) provide that
the grounds for refusing an application for protection of a
geographical indication, or for opposing such an application,
include the following^17-[36]:

(i)
the geographical indication is confusingly similar to a trade
mark that is the subject of a pre-existing good-faith pending
application or registration; and

(ii)
the geographical indication is confusingly similar to a
pre-existing trade mark, the rights to which have been acquired
through use in good faith in the territory of the Party.

COUNTRY NAMES

Article
17.18:
Country Names

Each Party shall provide the legal means for interested
parties to prevent commercial use of country names of the other
Party in relation to goods in a manner which is likely to
mislead consumers as to the origin of such goods.

PATENTS

Article
17.19:
Availability of Patents

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. For the
purposes of this Article, a Party may treat the terms
"inventive step" and "capable of industrial
application" as synonymous with the terms
"non-obvious" and "useful",
respectively.

Article
17.20:
Exceptions to Patent Rights

A 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 account of the legitimate
interests of third parties.

Article
17.21:
Patent System of Protection

1. Each
Party shall provide an opportunity, either before or after
grant, for interested parties to oppose the grant of a patent
or to seek its revocation or cancellation^17-[37].

2. Each
Party shall provide that a patent may only be revoked or
cancelled on grounds that would have justified a refusal to
grant the patent.

3.
Notwithstanding paragraph 2, a Party may also provide that a
patent may be revoked or cancelled on the basis of fraud, or
that the patent is used in a manner determined to be
anti-competitive in a judicial proceeding ^17-[38].

Article
17.22:
Grace Period for Patents

Neither Party shall use the information contained in a
public disclosure to prevent patentability due to a lack of
novelty or inventive step if the public disclosure:

(a) was made or
authorised by, or derived from, the patent applicant; and

(b) occurs within
12 months prior to the date of filing of the application in the
territory of the Party.

Article
17.23:
Classification of Patents

Each Party shall maintain a patent classification system
that is consistent with the Strasbourg Agreement Concerning
the International Patent Classification of March 24, 1971,
as amended.

DOMAIN NAMES

Article
17.24:
Dispute Settlement and Registration Database

1. Each
Party shall require that the management of its country-code
top-level domain (ccTLD) provide an appropriate procedure for
the settlement of disputes, based on the principles established
in the Uniform Domain-Name Dispute-Resolution Policy.

2. Each
Party shall require that the management of its ccTLD provide
online public access to a reliable and accurate database of
domain-name registrations in accordance with each Party's
law regarding protection of personal data.

COPYRIGHT

Article
17.25:
Right of Reproduction

1. Each
Party shall provide that authors^17-[39] of literary and artistic
works have the right to authorise or
prohibit^17-[40] all reproductions of their works, in any manner or
form, permanent or temporary (including temporary storage in
material form)^17-[41].

2. The
Parties reaffirm that it is a matter for each Party's law
to prescribe that works shall not be protected by copyright
unless they have been fixed in some material form.

RELATED RIGHTS

Article
17.26:
Right of Reproduction

1. Each
Party shall provide that performers, in respect of their
performances, and producers of phonograms, in respect of their
phonograms^17-[42], have the right to authorise or prohibit all
reproductions, in any manner or form, permanent or temporary
(including temporary storage in material
form)^17-[43].

2. The
Parties reaffirm that it is a matter for each Party's law
to prescribe that performances and phonograms shall not be
protected by related rights unless they have been fixed in some
material form.

COMMON PROVISIONS TO COPYRIGHT AND RELATED
RIGHTS

Article
17.27:
Term of Protection for Copyright and Related Rights

Each Party shall provide that where the term of protection
of a work (including a photographic work), performance or
phonogram is to be calculated:

(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:

(i)
not less than 70 years from the end of the calendar year of the
first authorised publication of the work, performance or
phonogram; or

(ii)
failing such authorised publication within 50 years from the
creation of the work, performance or phonogram, not less than
70 years from the end of the calendar year of the creation of
the work, performance or phonogram.

Article
17.28:
Effective Technological Measures

Each Party shall provide for civil remedies or
administrative measures and, when appropriate, criminal
penalties, against the circumvention of effective technological
measures that are used by authors, performers and producers of
phonograms in connection with the exercise of their copyright
and related rights, and that restrict acts in respect of their
works, performances or phonograms, which are not authorised by
those right holders, or permitted by law.

Article
17.29:
Rights Management Information

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 with
respect to civil remedies, having reasonable grounds to know,
that it will 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 altered without authority; or

(iii)
distributes to the public, 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, upon the suit of any injured person, and
subject to civil remedies.

(b) Further to
paragraph (a), each Party shall provide for the application of
criminal procedures and penalties at least in cases where acts
prohibited in subparagraph (a) are done knowingly, wilfully and
for purposes of commercial advantage. A Party may exempt
from criminal liability prohibited acts done in connection with
a non-profit library, archive, educational institution or
broadcasting entity^17-[44] established without a
profit-making purpose^17-[45].

Article
17.30:
Government Use of Software

Each Party shall maintain appropriate laws, orders,
regulations, government issued guidelines or administrative or
executive decrees which provide that its central government
agencies use only legitimate computer software as
authorised.

Article
17.31:
Exceptions to Copyright and Related Rights

Each Party shall provide for exceptions or limitations to
copyright and related rights included in this Chapter, in
accordance with the Berne Convention for the Protection of
Literary and Artistic Works, the TRIPS Agreement, the WIPO Copyright Treaty and/or the WIPO Performances
and Phonograms Treaty.

Article
17.32:
Application in Time

Each Party shall apply Article 18 of the Berne Convention, mutatis mutandis, to the subject matter, rights and
obligations in Articles 17.25 to 17.31 inclusive.

ENCRYPTED PROGRAM-CARRYING SATELLITE
SIGNALS

Article
17.33:
Protection

1. Each
Party shall make it:

(a) the basis for
a civil action or a criminal offence to manufacture, assemble,
modify, import, export, sell, lease or otherwise distribute a
tangible or intangible device or system, knowing that the
device or system is of assistance in decoding an encrypted
program-carrying satellite signal^17-[46] without the
authorisation of the lawful distributor of such signal; and

(b) the basis for
a civil action or a criminal offence wilfully to receive and
make use of, or further distribute, a program-carrying signal
that originated as an encrypted program-carrying satellite
signal knowing that it has been decoded without the
authorisation of the lawful distributor of the signal.

2. Each
Party shall provide for the availability of civil proceedings
for any person injured by any activity described in paragraph
1, including any person that holds an interest in the encrypted
program-carrying signal or its content.

ENFORCEMENT

Article
17.34:
General

1. Each
Party shall ensure that procedures, remedies and penalties set
forth in Articles 17.34 to 17.40 for enforcement of
intellectual property rights are established in accordance with
its domestic law^17-[47]. Such administrative and
judicial procedures, remedies or penalties, both civil and
criminal, shall be made available to the holders of such rights
in accordance with the principles of due process that each
Party recognises, as well as with the foundations of its own
legal system.

2. Articles
17.34 to 17.40 do not create any obligation:

(a) to put in
place a judicial system for the enforcement of intellectual
property rights distinct from that already existing for the
enforcement of law in general; or

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

The distribution of resources for the enforcement of
intellectual property rights shall not excuse a Party from
compliance with the provisions of Articles 17.34 to 17.40.

2. Each
Party shall provide that final decisions of general application
pertaining to the enforcement of intellectual property rights
shall be in writing and shall state the reasons or the legal
basis on which the decisions are based. Each Party shall
provide that such decisions shall be published,preferably
electronically, or, where such publication is not practicable,
otherwise made available to the public in its national language
in such a manner as to enable governments and right holders to
become acquainted with them.

Article
17.35:
Presumptions for Copyright and Related Rights

In civil judicial and criminal proceedings involving
copyright or related rights, each Party shall provide:

(a) for a
presumption, in the absence of evidence to the contrary, that
the natural person or legal entity whose name is indicated as
the author, producer, performer or publisher of the work,
performance or phonogram in the usual
manner^17-[48] shall be presumed to be the designated right holder
in such work, performance or phonogram; and

(b) in accordance
with its domestic law, for a presumption, in the absence of
evidence to the contrary, that copyright or a related right
subsists in such subject matter.

Article
17.36:
Civil and Administrative Procedures and Remedies

1. Each
Party shall make available to right
holders^17-[49] civil judicial procedures concerning the
enforcement of any intellectual property right.

2. Each
Party shall provide that in civil judicial proceedings, its
judicial authorities shall:

(a)
have the authority to order the infringer to pay the right
holder:

(i)
damages adequate to compensate for the injury the right holder
has suffered as a result of the infringement; and

(ii)
at least in the case of copyright or related rights
infringement and trade mark counterfeiting, the profits of the
infringer that are attributable to the infringement, and that
are not taken into account in determining damages under
subparagraph (i)^17-[50].

(b) in determining
any order for damages made under subparagraph (a), consider, inter alia, any legitimate measure of the value of the
infringed goods or services including the retail price.

3. Each
Party shall provide that, except in exceptional circumstances,
its judicial authorities shall have the authority to order, at
the conclusion of civil judicial proceedings concerning
infringement of copyright or related rights or trade mark
counterfeiting, that the prevailing party be awarded payment of
courts costs or fees and reasonable attorney's fees by
the infringing party.

4. In civil
judicial proceedings concerning copyright or related rights
infringement and trade mark counterfeiting, each Party shall
provide that its judicial authorities shall have the authority,
at least where necessary to prevent further infringement, to
order the seizure of suspected infringing goods, related
materials and implements by means of which such goods are
produced.

5. Each
Party shall provide that in civil judicial proceedings
concerning the enforcement of intellectual property rights, its
judicial authorities shall have the authority to order the
infringer to provide any information that the infringer
possesses regarding persons involved in the infringement and
regarding the distribution channels of the infringing goods.
Judicial authorities shall also have the authority to
impose fines or imprisonment on infringers who do not comply
with such orders, in accordance with each Party's
domestic law.

6. If a
Party's judicial or other authorities appoint technical
or other experts in civil judicial proceedings concerning the
enforcement of intellectual property rights, and require that
the parties to the proceedings bear the costs of such experts,
the Party should seek to ensure that these costs are reasonable
and related appropriately to, inter alia, the quantity
and nature of work to be performed, or, if applicable, based on
standardised fees, and do not unreasonably deter recourse to
such proceedings.

Article
17.37:
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. With
respect to provisional measures, each Party shall provide that
its judicial authorities shall have the authority to require
the applicant to provide any reasonably available evidence in
order to satisfy themselves with a sufficient degree of
certainty that the applicant is the right
holder^17-[51]and that the applicant's right is being
infringed or that such infringement is imminent, and to order
the applicant to provide a reasonable security or equivalent
assurance set at a level sufficient to protect the respondent
and to prevent abuse, and so as not to unreasonably deter
recourse to such procedures.

Article
17.38:
Criminal Procedures and Remedies

Each Party shall provide for criminal procedures and
penalties to be applied at least in cases where a person
wilfully engages in trade mark counterfeiting or piracy of
works, performances or phonograms on a commercial
scale^17-[52] including wilful infringement of copyright and
related rights for a commercial advantage or financial
gain.^17-[53] Specifically, each Party shall provide:

(a) penalties that
include imprisonment and/or monetary fines that are sufficient
to provide a deterrent to infringement consistent with the
level of penalties applied for crimes of a corresponding
gravity;

(b) that its
judicial authorities shall have the authority to order the
seizure of suspected counterfeit or pirated goods, related
materials and implements that have been used in the commission
of the offence, assets legally traceable to the infringing
activity and documentary evidence relevant to the offence ^17-[54]. Each Party shall further provide that its
judicial authorities have the authority to order the seizure of
items in accordance with its domestic law;

(c) that its
judicial authorities shall have the authority, among other
measures, to order the forfeiture of any assets legally
traceable to the infringing activity for at least indictable
offences, and the forfeiture and destruction of all goods found
to be counterfeit or pirated, and, at least with respect to
wilful copyright and related rights piracy, to order the
forfeiture and destruction of materials and implements that
have been used in the making of the infringing goods.
Each Party shall further provide that such forfeiture and
destruction shall occur without compensation to the defendant;
and

(d) that the
appropriate authorities, as determined by each Party, shall
have the authority to initiate criminal legal action ex
officio in cases of copyright and related rights piracy and
trade mark counterfeiting without the need for a formal
complaint by a person or right holder.

Article
17.39:
Border Measures

1. Each
Party shall provide, in any right holder initiated procedures
for suspension by its Customs Administration of the release
into free circulation of suspected counterfeit trade mark goods
or pirated copyright goods^17-[55] imported into the Party's
territory, that the right holder provide to the satisfaction of
the competent authorities:

(a) adequate
evidence that there is prima facie infringement of the
right holders' intellectual property rights under the
laws of the territory of importation and a sufficiently
detailed description of the goods to make them reasonably
recognisable by the Party's Customs Administration;
and

(b) if requested,
a reasonable security or equivalent assurance sufficient to
protect the defendant and the competent authorities and to
prevent abuse.

The requirements for a sufficiently detailed description and
a security or equivalent assurance shall not unreasonably deter
recourse to these procedures.

2. Where its
competent authorities have made a determination that goods are
counterfeit or pirated, a Party shall provide that its
competent authorities have the authority to inform the right
holder of the names and addresses of the consignor, the
importer and the consignee, and of the quantity of the goods in
question.

3. Each
Party shall provide that its Customs Administration may
initiate border measures ex officio with respect to
imported or exported goods suspected of being counterfeit trade
mark or pirated copyright goods, without the need for a
specific formal complaint.

4. Each
Party shall provide that goods that have been suspended from
release by its Customs Administration, and that have been
forfeited as pirated or counterfeit, shall be destroyed, except
in exceptional cases. In regard to counterfeit trade mark
goods, the simple removal of the trade mark unlawfully affixed
shall not be sufficient to permit the release of the goods into
the channels of commerce. The competent authorities,
except in exceptional circumstances, shall not be authorised to
permit the exportation of counterfeit or pirated goods that
have been seized, nor shall they be authorised to permit such
goods to be subject to movement under customs control.

Article
17.40:
Service Provider Liability

1. Each
Party shall provide for a legislative scheme to limit remedies
that may be available against service
providers^17-[56] for infringement of copyright or related
rights ^17-[57] that they do not control, initiate or direct and
that take place through their systems or networks.

2. The
scheme in paragraph 1 will only apply if a service provider
meets conditions, including:

(a) removing or
disabling access to infringing material upon notification from
the rights owner through a procedure established by each Party;
and

(b) no financial
benefit is received by the service provider for the infringing
activity in circumstances where it has the right and ability to
control such activity.

COOPERATION

Article
17.41:
Cooperation

Consistent with Article 17.2 the Parties agree to cooperate
through:

(a)
the notification of relevant contact points on the request of a
Party; and

(b) the exchange
of publicly available information concerning policy
developments in intellectual property of a Party on the request
of the other Party and to the extent that the requested Party
is able to provide such information.

Minister Alejandro Foxley

Ministry of Foreign Affairs

Teatinos 180

Santiago

Chile

Dear Minister Foxley

In connection with the signing on this date of the
Australia-Chile Free Trade Agreement (the
"Agreement"), I have the honour to confirm the
following understanding reached by the Governments of Australia
and the Republic of Chile regarding Chapter 17 (Intellectual
Property).

The Parties recognise that Chilean geographical indications
for wines are established by Decree 464 of the Ministry of
Agriculture of December 14, 1994, and its amendments and by the
Law 18.455. Each Party shall provide the means to protect
geographical indications of the other Party in accordance with
Article 17.17.2 (Intellectual Property).

I have the honour to propose that this letter and your
letter in reply confirming that your Government shares this
understanding shall constitute an integral part of the
Agreement.

Yours sincerely

Simon Crean

Minister for Trade

The Honourable Simon Crean MP

Minister for Trade

Parliament House

Canberra ACT 2600

Dear Minister Crean

I have the honour to acknowledge receipt of your letter of
this date, which reads as follows:

"In connection with the signing on this date of the
Australia-Chile Free Trade Agreement (the
"Agreement"), I have the honour to confirm the
following understanding reached by the Governments of Australia
and the Republic of Chile regarding Chapter 17 (Intellectual
Property).

The Parties recognise that Chilean geographical indications
for wines are established by Decree 464 of the Ministry of
Agriculture of December 14, 1994, and its amendments and by the
Law 18.455. Each Party shall provide the means to protect
geographical indications of the other Party in accordance with
Article 17.17.2 (Intellectual Property).

I have the honour to propose that this letter and your
letter in reply confirming that your Government shares this
understanding shall constitute an integral part of the
Agreement."

I have the further honour to confirm that my Government
shares this understanding and that your letter and this letter
in reply shall constitute an integral part of the
Australia-Chile Free Trade Agreement.

Yours sincerely,

Alejandro Foxley Rioseco

Minister for Foreign Affairs