TransPacific Partnership (TPP) Negotiating Parties - TPP IP Chapter-Leaked Draft- Section I: Internet Service Providers (& Appx) lyrics

{SECTION I: INTERNET SERVICE PROVIDERS} Article QQ.I.1:267 {Internet Service Provider Liability} [CL/BN/NZ/MY/VN/CA/SG/MX propose; AU/US oppose: 1.268 Each Party shall limit the liability of, or the availability of remedies against, internet service providers269 [when acting as intermediaries270], for infringement of copyright or related rights that take place on or through communication networks, in relation to the provision or use of their services.] [CA propose: 2. Limitations referred to in the previous paragraph shall cover at least the following functions: a. mere conduit, which consist of the provision of the means to transmit information provided by a user, or the means of access to a communication network; b. hosting of information at the request of a user of the hosting services c. caching carried out through an automated process, when the internet service provider: i. does not modify information other than for technical reasons; ii. ensures that any directions related to the caching of information that are specified in a manner widely recognized and used by industry are complied with; and iii. does not interfere with the use of technology that is lawful and widely recognized and used by the industry in order to obtain data on the use of information ; d. providing an information location tool, by making reproductions of copyright material in an automated manner, and communicating the reproductions.] [CA propose: 3. Qualification by an internet service provider for the limitations as to each function in the previous paragraph shall be considered separately from qualification for the limitations as to each other function. Eligibility for the limitations in the previous paragraph may not be conditioned on the internet service provider monitoring its service, or affirmatively seeking facts indicating infringing activity.]--FOOTNOTES-- 267 Negotiators' Note: JP is still considering its positions on this Section. 268 Negotiator's Note: PE is still considering its position on paragraphs 1, 2 and the new paragraph 3 presented by CA. 269 Each Party may determine, within its domestic law, what constitutes an internet service provider. 270 Negotiator's Note; NZ is still considering this phrase.84---PAGE BREAK--- [CL/BN/NZ/VN/MX propose; AU/US/SG/MY oppose: 2. 271 272 The framework in Paragraph 1 [CA oppose: will only apply if an internet service provider meets conditions, including] [CA/CL/VN propose; NZ/MX oppose: shall be accompanied in a Party's law by]: (a) [CA/NZ/CL/VN/MX propose: procedures for notifications of claimed infringement and for] removing or disabling access to infringing material [CA/CL/MX oppose: upon notification from the right holder through a procedure established by each Party]; and] [CA/NZ/CL/VN273 propose: (b) legal incentives for internet service providers to comply with these procedures, or remedies against internet service providers who fail to comply.]] [CA propose: 4. Each Party shall provide legal incentives for internet service providers to comply, or remedies against internet service providers who fail to comply, with any procedures established in each party's law for: (a) effective notifications of claimed infringement; or (b) removing or disabling access to infringing material residing on its networks.][CA/CL/VN 274] propose: [CA oppose: 3.] [CA propose: 5.] The framework in Paragraph 1 will not apply to the extent that an internet service provider provides a service primarily for the purpose of enabling acts of copyright or related right infringement.] [CA propose: 6. This Article is without prejudice to the availability in a Party's law of other defences, limitations and exceptions to the infringement of copyright or related rights. This Article shall not affect the possibility of a court or administrative authority, in accordance wth Parties' legal systems, or requiring the internet service provider to terminate or prevent an infringement.] [US/AU/SG/NZ/PE propose; BN/VN/CA/MX oppose: 1. [SG/MY oppose 275: For the purpose of providing enforcement procedures that permit effective action against any act of copyright 276 infringement covered by this Chapter, including expeditious--FOOTNOTES-- 271 Negotiators' Note: VN to consider this provision further. 272 Negotiator's Note: BN is considering its reactions to the proposals presented by CA on paragraphs 2 and 3. 273 Negotiator's Note: MX is considering its reactions to paragraph 2b and 3. 274 Negotiator's Note: NZ is considering its reactions to paragraph 3. 275 Negotiator's Note: NZ proposes to look at the placement of this paragraph vis a vis its placement elsewhere in the text. 276 For purposes of this paragraph, "copyright" includes related rights. Negotiators' Note: The placement of the85---PAGE BREAK--- remedies to prevent infringements and criminal and civil remedies] each Party shall provide, consistent with the framework set out in this Article: (a) [MY/VN oppose: legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials; and] (b) limitations in its law [MY/NZ/SG propose: on the liability of, or on the remedies] [NZ/MY/VN oppose: regarding the scope of remedies 277 ] available against service providers for copyright infringements that they do not control, initiate or direct, and that take place through systems or networks controlled or operated by them or on their behalf, as set forth in this subparagraph (b).278 [PE propose: 279] (i) [MY/VN oppose: These limitations shall preclude monetary relief and provide reasonable restrictions on court-ordered relief to compel or restrain certain actions for the following functions, [NZ oppose: and shall be confined to those functions]][280]: (A) transmitting, routing, or providing connections for material without modification of its content[CL propose:281], or the [MY oppose: intermediate and] transient storage of such material in the course thereof; (B) caching carried out through an automatic process; (C) storage, at the direction of a user, of material residing on a system or network controlled or operated by or for the service provider282; and (D) referring or linking users to an online location by using information location tools, including hyperlinks and directories. (ii) These limitations shall apply only where the service provider does not initiate the transmission of the material, and does not select the footnote will depend on the outcome of the chapeau of this paragraph.--FOOTNOTES-- 277 [NZ propose: For the avoidance of doubt, limitations regarding the scope of remedies available can be implemented through limitations on the liability of internet service providers.] 278 This subparagraph is without prejudice to the availability of defenses to copyright infringement that are of general applicability. 279 [PE propose: For greater clarity, the failure of an ISP to qualify for the limitations in subparagraph (b) does not itself result in liability.] 280 [US/PE/SG/AU propose; CL/NZ/VN oppose: A Party may request consultations with the other Parties to consider how to address under this paragraph functions of a similar nature that a Party identifies after the entry into force of this Agreement.] 281 [CL/MY/SG/NZ/AU/PE/US propose: Such modification does not include modifications made as part of a technical process.] 282 [CL/MY/SG/NZ/AU/US propose: For greater certainty, such storage of material may include e-mails and their attachments stored in the provider's server and web pages residing on the provider's server.]86---PAGE BREAK--- material or its recipients (except to the extent that a function described in clause (i)(D) in itself entails some form of selection). (iii) Qualification by a service provider for the limitations as to each function in clauses (i)(A) through (D) shall be considered separately from qualification for the limitations as to each other function[CL oppose: , in accordance with the conditions for qualification set forth in clauses (iv) through (vii)] (iv) With respect to functions referred to in clause (i)(B), the limitations shall be conditioned on the service provider: [CL/MY oppose: (A) permitting access to cached material in significant part only to users of its system or network who have met conditions [NZ propose: imposed by the originator of the material] on user access to that material;] (B) 283complying with rules concerning the refreshing, reloading, or other updating of the cached material when specified by the [CL oppose: person making the material available online] [CL propose: supplier of the material] in accordance with a relevant industry standard data communications protocol for the system or network through which that person makes the material available that is generally accepted in the Party's territory; (C) 284not interfering with technology used 285at the originating site consistent with industry standards generally accepted in the Party's territory to obtain information about the use of the material, and not modifying its content in transmission to subsequent users; and (D) [MY oppose: expeditiously] removing or disabling access, on receipt of an effective notification of claimed infringement, to cached material that has been removed or access to which has been disabled at the originating site. (v) With respect to functions referred to in clauses (i)(C) and (D), the limitations shall be conditioned on the service provider: (A) not receiving a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity; (B) [MY oppose: expeditiously] removing or disabling access to the material residing on its system or network on obtaining actual knowledge of the infringement or becoming aware of facts or circumstances from which the infringement was apparent, such as--FOOTNOTES-- 283 Negotiator's Note: MY needs to reflect further on this provision. 284 Negotiator's Note: MY will reflect further on this provision. 285 CL/SG/NZ/AU/US/PE propose: A Party may require that such technology shall be used in a lawful manner.]87---PAGE BREAK--- through effective notifications of claimed infringement in accordance with clause (ix); [NZ oppose: and (C ) publicly designating a representative to receive such notifications.] [MY/NZ oppose: (vi) Eligibility for the limitations in this subparagraph shall be conditioned on the service provider: (A) adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers; and (B) accommodating and not interfering with standard technical measures accepted in the Party's territory286 that protect and identify copyrighted material, that are developed through an open, voluntary process by a broad consensus of interested parties287, that are available on reasonable and nondiscriminatory terms, and that do not impose substantial costs on service providers or substantial burdens on their systems or networks.] (vii) Eligibility for the limitations in this subparagraph may not be conditioned on the service provider monitoring its service, or affirmatively seeking facts indicating infringing activity [NZ/MY oppose: , except to the extent consistent with such technical measures.] [NZ oppose: (viii) If the service provider qualifies for the limitations with respect to the function referred to in clause (i)(A), court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location.[MY oppose: If the service provider qualifies for the limitations with respect to any other function in clause (i), court-ordered relief to compel or restrain certain actions shall be limited to removing or disabling access to the infringing material, terminating specified accounts, and other remedies that a court may find necessary, provided that such other remedies are the least burdensome to the service provider [CL propose: and users or subscribers] among comparably effective forms of relief. Each Party shall provide that any such relief shall be issued with due regard for the relative burden to the--FOOTNOTES-- 286 [CL/SG/NZ/AU/PE/US propose: A Party may require that such standard technical measures shall be used in a lawful manner, and that such measures are subject to approval by relevant authorities.] 287 [CL/SG/NZ/AU/PE/US propose: A Party may provide that interested parties include copyright owners, service providers or other interested parties, [CL/SG/NZ/AU/US propose: as may be approved by relevant authorities,] as applicable.]88---PAGE BREAK--- service provider [CL propose: , to users or subscribers] and harm to the copyright owner, the technical feasibility and effectiveness of the remedy and whether less burdensome, comparably effective enforcement methods are available. Except for orders ensuring the preservation of evidence, or other orders having no material adverse effect on the operation of the service provider's communications network, each Party shall provide that such relief shall be available only where the service provider has received notice of the court order proceedings referred to in this subparagraph and an opportunity to appear before the judicial authority.]] [NZ oppose: (ix) For purposes of the notice and take down process for the functions referred to in clauses (i) [CL propose: (B)] (C) and (D), each Party shall establish appropriate procedures in its law or in regulations for effective notifications of claimed infringement, and effective counter- notifications by those whose material is removed or disabled through mistake or misidentification. Each Party shall also provide for monetary remedies against any person who makes a knowing material misrepresentation in a notification or counter-notification that causes injury to any interested party as a result of a service provider relying on the misrepresentation.] [NZ oppose: (x) If the service provider removes or disables access to material in good faith based on claimed or apparent infringement, each Party shall provide that the service provider shall be exempted from liability for any resulting claims, provided that, in the case of material residing on its system or network, it takes reasonable steps promptly to notify the [CL oppose: person making the material available on its system or network] [CL propose: supplier of the material] that it has done so and, if such person makes an effective counter-notification and is subject to jurisdiction in an infringement suit, to restore the material online unless the person giving the original effective notification seeks judicial relief within a reasonable time.] (xi) Each Party shall establish an administrative or judicial procedure enabling copyright owners [NZ oppose: who have given effective notification of claimed infringement] to obtain expeditiously from a service provider information in its possession identifying the alleged infringer. (xii) For purposes of the function referred to in clause (i)(A), service 89---PAGE BREAK--- provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user's choosing, [NZ oppose: and for purposes of the functions referred to in clauses (i)(B) through (D) service provider means a provider or operator of facilities for online services or network access288.]] [US/AU/SG propose; CL/MY/NZ/VN/BN/CA/MX/PE oppose: Annex to Article QQ.I.1.3(b)(ix) In meeting the obligations of Article QQ.I.1.3(b)(ix), each Party shall adopt or maintain requirements for: (a) effective written notice to service providers with respect to materials that are claimed to be infringing, and (b) effective written counter- notification by those whose material is removed or disabled and who claim that it was disabled through mistake or misidentification, as set forth in this letter. Effective written notice means notice that substantially complies with the elements listed in section (a) of this letter, and effective written counter-notification means counter- notification that substantially complies with the elements listed in section (b) of this letter. (a) Effective Written Notice, by a Copyright289 Owner or Person Authorized to Act on Behalf of an Owner of an Exclusive Right, to a Service Provider's Publicly Designated Representative290 In order for a notice to a service provider to comply with the relevant requirements set out in Article QQ.I.1.3(b)(ix), that notice must be a written communication, which may be provided electronically, that includes substantially the following: 1. the identity, address, telephone number, and electronic mail address of the complaining party (or its authorized agent); 2. information reasonably sufficient to enable the service provider to--FOOTNOTES-- 288 [CL/MY/SG/NZ/AU/US/PE propose: As used in subparagraph (xii), a Party may provide that network access includes cases in which network access is provided by another provider.] 289 All references to copyright in this letter are understood to include related rights, and all references to works are understood to include the subject matter of related rights. 290 The Parties understand that a representative is publicly designated to receive notification on behalf of a service provider if the representative's name, physical and electronic address, and telephone number are posted on a publicly accessible portion of the service provider's website, and also in a register accessible to the public through the Internet, or designated in another form or manner appropriate for [insert Party name].90---PAGE BREAK--- identify the copyrighted work(s) 291 claimed to have been infringed; 3. information reasonably sufficient to permit the service provider to identify and locate the material residing on a system or network controlled or operated by it or for it that is claimed to be infringing, or to be the subject of infringing activity, and that is to be removed, or access to which is to be disabled;292 4. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; 5. a statement that the information in the notice is accurate; 6. a statement with sufficient indicia of reliability [SG propose:293] (such as a statement under penalty of perjury or equivalent legal sanctions) that the complaining party is the [SG/AU oppose: holder] [SG/AU propose: owner] of an exclusive right that is allegedly infringed, or is authorized to act on the owner's behalf; and 7. the signature of the person giving notice.294 (b) Effective Written Counter-Notification by a Subscriber295 Whose Material Was Removed or Disabled as a Result of Mistake or Misidentification of Material In order for a counter-notification to a service provider to comply with the relevant requirements set out in Article QQ.I.1.3.(b)(ix), that counter-notification must be a written communication, which may be provided electronically, that includes substantially the following:--FOOTNOTES-- 291 If multiple copyrighted works at, or linked to from, a single online site on a system or network controlled or operated by or for the service provider are covered by a single notification, a representative list of such works at, or linked to from, that site may be provided. 292 In the case of notices regarding an information location tool pursuant to paragraph (b)(i)(D) of Article 16.3, the information provided must be reasonably sufficient to permit the service provider to locate the reference or link residing on a system or network controlled or operated by or for it, except that in the case of a notice regarding a substantial number of references or links at a single online site residing on a system or network controlled or operated by or for the service provider, a representative list of such references or links at the site may be provided, if accompanied by information sufficient to permit the service provider to locate the references or links. 293 [SG propose: To satisfy this requirement, the process to be established shall not be costly or cumbersome. An appropriate electronic mechanism may be used or incorporated in this process.] 294 A signature transmitted as part of an electronic communication satisfies this requirement. 295 All referenced to "subscriber" in this letter refer to the person whose material has been removed or disabled by a service provider as a result of an effective notice described in part (a) of this letter.91---PAGE BREAK--- 1. the identity, address, [SG/AU propose: electronic mail address] and telephone number of the subscriber; 2. the identity of the material that has been removed or to which access has been disabled; 3. the location at which the material appeared before it was removed or access to it was disabled; 4. a statement with sufficient indicia of reliability (such as a statement under penalty of perjury or equivalent legal sanctions) that the subscriber [SG/AU propose: is the supplier of the material and] has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; 5. a statement that the subscriber agrees to be subject to orders of any court that has jurisdiction over the place where the subscriber's address is located, or, if that address is located outside the Party's territory, any other court with jurisdiction over any place in the Party's territory where the service provider may be found, and in which a copyright infringement suit could be brought with respect to the alleged infringement; 6. a statement that the subscriber will accept service of process in any such suit; and 7. the signature of the subscriber.296 ]] [CL propose: Annex […] List of Geographical Indications from Chile WINES Name of IndicationValle de Aconcagua--FOOTNOTES-- 296 A signature transmitted as part of an electronic communication satisfies this requirement.92---PAGE BREAK--- Alhué Valle del Bío Bío Buin Valle del Cachapoal Valle de Casablanca Cauquenes Chillán Chimbarongo Valle del Choapa Coelemu Valle de Colchagua Valle de Copiapó Valle de Curicó Region de Aconcagua Region de Atacama Region de Coquimbo Valle del Claro Region del Sur Region del Valle Central Valle del Elqui Valle del Huasco Illapel Isla de Maipo Valle del Itata Valle de Leyda Valle de Limarí Linares Valle del Loncomilla Valle del Lontué Lolol Valle del Maipo Maria Pinto Valle del Marga-Marga Valle del Maule Marchigue Valle del Malleco Melipilla Molina Monte Patria Mulchén Nancagua 93---PAGE BREAK--- Ovalle Paiguano Pajarete Palmilla Panquehue Parral Pencahue Peralillo Peumo Pirque Portezuelo Puente Alto Punitaqui Quillón Rancagua Valle del Rapel Rauco Rengo Requínoa Río Hurtado Romeral Sagrada Familia Valle de San Antonio San Juan Salamanca San Clemente San Fernando San Javier San Rafael Santa Cruz Santiago Talagante Talca Valle del Teno Valle delTutuvén Traiguén Vicuña Villa Alegre Vino Asoleado Yumbel 94---PAGE BREAK--- SPIRITS Name of Indication Country Pisco Chile AGRICULTURAL Name of Indication Country Limón de Pica Chile]