Impi acta - http://es.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement - LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

CONSOLIDATED TEXT REFLECTS CHANGES MADE DURING THE SEPTEMBER 2010 TOKYO ROUND Consolidated Text Anti-Counterfeiting Trade Agreement Informal Predecisional/Deliberative Draft: 2 October 2010 This text reflects the outcome of the 11th and final round of the negotiations held in Tokyo. Some delegations expressed reservation on specific parts of text, which are highlighted in the text by underlines and italic letters. CONSOLIDATED TEXT REFLECTS CHANGES MADE DURING SEPTEMBER 2010 TOKYO ROUND The Parties to this Agreement, Noting, that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally; Further Noting that the proliferation of counterfeit and pirated goods as well as the proliferation of services that distribute infringing material, undermines legitimate trade and the sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public; Desiring to combat such proliferation through enhanced international cooperation and through more effective international enforcement; Intending to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in their respective legal systems and practices; Desiring to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade; Desiring to address the problem of infringement of intellectual property rights, including that which takes place in the digital environment, and with respect to copyright or related rights in particular in a manner that balances the rights and interests of the relevant right holders, service providers and users; Desiring to promote cooperation between service providers and rights holders with respect to relevant infringements in the digital environment; Desiring that ACTA operate in a manner mutually supportive of international enforcement work and cooperation conducted within relevant international organizations; and Recognizing the principles set out in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO Ministerial Conference, held in Doha, Qatar; Agree as follows: 2 CHAPTER ONE INITIAL PROVISIONS AND DEFINITIONS Section A: Initial Provisions ARTICLE 1.1: RELATION TO OTHER AGREEMENTS Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. ARTICLE 1.2: NATURE AND SCOPE OF OBLIGATIONS 1. Each Party shall give effect to the provisions of this Agreement. A Party may implement in its domestic law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice. 2. Nothing in this Agreement creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and enforcement of law in general. 3. The objectives and principles set forth in Part I of the TRIPS Agreement, in particular in Articles 7 and 8 shall apply, mutatis mutandis, to this Agreement. ARTICLE 1.3: RELATION TO STANDARDS CONCERNING THE AVAILABILITY AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS 1. This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law. 2. This Agreement does not create any obligation on a Party to apply measures where a right in intellectual property is not protected under the laws and regulations of that Party. ARTICLE 1.4: PRIVACY AND DISCLOSURE OF INFORMATION 1. Nothing in this Agreement shall require any Party to disclose: (a) information the disclosure of which would be contrary to its law or its international agreements, including laws protecting right of privacy, 3 (b) confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or (c) confidential information, the disclosure of which would prejudice the legitimate commercial interests of particular enterprises, public or private. 2. When a Party provides written information pursuant to this Agreement, the Party receiving the information shall, subject to its domestic law and practice, refrain from disclosing or using the information for a purpose other than that for which the information was requested or required, except with the prior consent of the Party providing the information. Section B: General Definitions ARTICLE 1.X: DEFINITIONS For the purposes of this Agreement, unless otherwise specified: ACTA means the Anti-Counterfeiting Trade Agreement; Committee means the ACTA Committee established under Chapter Five; competent authorities includes judicial, administrative, or law enforcement authorities as may be appropriate in the context and in the laws of each Party; 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 question under the law of the country in which the procedures set out in Section 2, 3, 4 and 5 of Chapter2 are invoked; customs transit means the Customs procedure under which goods are transported under Customs control from one Customs office to another; days means calendar days unless otherwise specified; intellectual property means all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights. in-transit goods means goods under “Customs transit” and under “transhipment”; person means either a natural person or a legal person; 4 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 in which the procedures set out in Sections 2, 3, 4 and 5 of Chapter2 are invoked; right holder includes a federation or an association having the legal standing to assert rights in intellectual property; territory in Section 3 of Chapter 2 means customs territory of a Party and all free zones1 of that Party; transhipment means the Customs procedure under which goods are transferred under Customs control from the importing means of transport to the exporting means of transport within the area of one Customs office which is the office of both importation and exportation; TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement; WTO means the World Trade Organization; and WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done on April 15, 1994; CHAPTER TWO LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS Section 1: General Obligations ARTICLE 2.X: GENERAL OBLIGATIONS WITH RESPECT TO ENFORCEMENT 1. Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further 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. Procedures adopted, maintained, or applied to implement this Chapter shall be 1 For greater certainty, the Parties acknowledge that as used herein, free zone means a part of the territory of a Party where any goods introduced are generally regarded, insofar as import duties and taxes are concerned, as being outside the Customs territory. 5 fair, equitable, and provide for the rights of all participants subject to procedures to be appropriately protected. These procedures shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 3. In implementing this Chapter, each Party shall take into account the need for proportionality between the seriousness of the infringement, the interests of third parties, and the applicable measures, remedies and penalties. 4. No provision of this Chapter shall be construed to require a Party to provide for liability of officials for acts undertaken in the performance of their official duties. Section 2: Civil Enforcement2 ARTICLE 2.1: AVAILABILITY OF CIVIL PROCEDURES 1. Each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right as specified in this section. 2. To the extent that any civil remedy 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 section. ARTICLE 2.X: INJUNCTIONS 1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent infringing goods from entering into the channels of commerce. 2. Notwithstanding the other provisions of this Section, a Party may limit the remedies available against use by government, or by third parties authorized by a government, without the authorization of the right holders to the payment of remuneration provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use. In other cases, the remedies under this Section shall apply or, where these remedies are inconsistent with a Party’s law, declaratory judgments and adequate compensation shall be available. ARTICLE 2.2: DAMAGES 2 {US: For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section.} 6 1. Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights, to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement. In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price. 2. 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 shall have the authority to order the infringer to pay the right holder the profits of the infringer that are attributable to the infringement. A Party’s legal system may presume the profits of the infringer to be the amount of damages referred to in paragraph 1. 3. At least with respect to works, phonograms, and performances protected by copyrights or related rights, and in cases of trademark counterfeiting, each Party shall also establish or maintain a system that provides for one or more of the following: (a) pre-established damages, or (b) presumptions for determining the amount of damages3 sufficient to compensate the right holder for the harm caused by the infringement, or (c) at least for copyright, additional damages. 4. Where a Party provides the remedy set out in paragraph 3(a) or 3(b), that Party shall ensure that either its judicial authorities or the right holder has the right to choose such a remedy as an alternative to the remedies referred to in paragraphs 1 and 2. 5. Each Party shall provide that its judicial authorities, where appropriate, shall have the authority to order, at the conclusion of civil judicial proceedings concerning infringement of at least copyright or related rights, 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 domestic law. ARTICLE 2.3: OTHER REMEDIES 3 Such measures may include the presumption that the amount of damages is (i) the quantity of the goods infringing the right holder’s intellectual property right in question and actually assigned to third persons, multiplied by the amount of profit per unit of goods which would have been sold by the right holder if there had not been the act of infringement, or (ii) a reasonable royalty or (iii) a lump sum on the basis of elements such as at the least the amount of royalties or fees which would have been due if the infringer had requested authorization to use the intellectual property right in question. 7 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 shall have the authority to order that such goods be destroyed, except in exceptional circumstances, without compensation of any sort. 2. Each Party shall further provide that its judicial authorities shall have the authority to order that materials and implements the predominant use of which has been in the manufacture or creation of such 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. The remedies under this article may be carried out at the expense of the infringer. ARTICLE 2.4: INFORMATION RELATED TO INFRINGEMENT Without prejudice to its domestic law that governs the protection of confidentiality of information sources, the processing of personal data, or privilege, each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority upon a justified request of the right holder, to order the infringer, or in the alternative, the alleged infringer to provide, at least for the purpose of collecting evidence, relevant information as provided in its applicable laws and regulations that the infringer or alleged infringer possesses or controls, to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution. ARTICLE 2.5: PROVISIONAL MEASURES 1. Each Party shall provide that its judicial authorities shall have the authority to order prompt and effective provisional measures: (a) against a party, or where appropriate, against a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property rights from occurring, and in particular to prevent infringing goods from entering into the channels of commerce; (b) to preserve relevant evidence in regard to the alleged infringement. 2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. In proceedings conducted inaudita altera parte each Party shall 8 provide its judicial authorities with the authority to act expeditiously on requests for provisional measures inaudita altera parte, and to make a decision without undue delay. 3. In civil judicial proceedings concerning at least copyright or related rights infringement and trademark counterfeiting, each Party shall provide that its judicial authorities shall have the authority to order the seizure or other taking into custody of suspected infringing goods, materials, and implements relevant to the act of infringement and, at least for trademark counterfeiting, documentary evidence, either originals or copies thereof, relevant to the infringement. 4. Each Party shall provide that its 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, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to such procedures. 5. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures. Section 3: Border Measures4,5,6 ARTICLE 2.X: SCOPE OF THE BORDER MEASURES In providing, as appropriate, and consistent with a Party's domestic system of IPR protection and without prejudice to the requirements of the TRIPS Agreement, for effective border enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate unreasonably between intellectual property rights and that avoids the creation of barriers to legitimate trade. ARTICLE 2.X: SMALL CONSIGNMENTS AND PERSONAL LUGGAGE 1. Parties shall include in the application of this section goods of a commercial 4 Where a Party has dismantled substantially all controls over movement of goods across its border with another Party with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border. 5 It is to be understood that there shall be no obligation to apply the procedures set forth in this section to goods put on the market in another country by or with the consent of the right holder. 6 For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section. 9 nature sent in small consignments. 2. Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage. ARTICLE 2.X: PROVISION OF INFORMATION FROM RIGHT HOLDER Each Party shall permit the competent authorities to request a right holder to supply relevant information to assist the competent authorities in taking border measures provided for under this Section. Each Party may also allow a right holder to supply relevant information to the competent authorities. ARTICLE 2.X: BORDER MEASURES 1. Each Party shall provide procedures for import and export shipments: (a) by which customs authorities may act upon their own initiative, to suspend the release of suspect goods; and (b) where appropriate, by which right holders may request the competent authorities to suspend the release of suspect goods. 2. Each Party may provide procedures for suspect goods in transit or in other situations where the goods are under Customs control: (a) by which customs authorities may act upon their own initiative, to suspend the release of, or to detain, suspect goods; and (b) where appropriate, by which right holders may request the competent authorities to suspend the release of, or to detain, suspect goods. ARTICLE 2.X: APPLICATION BY RIGHT HOLDER 1. The competent authorities shall require a right holder requesting the procedures described in Article 2.X.1.b and Article 2.X.2.b to provide adequate evidence to satisfy themselves that, under the laws of the 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 suspect goods reasonably recognizable by the competent authorities. The requirement to provide sufficient information shall not unreasonably deter recourse to the procedures described in Article 2.X.1.b and Article 2.X.2.b. 2. Each Party shall provide for applications to suspend the release of, or to detain, 10