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[InetBib] ACTA Papiere
sorry für den Umbruch
RK
DRAFT SHARED WITH ACTA PARTNERS OCT 2. 2009
US PROPOSAL
This Document Contains Foreign Government Information to be treated as
U.S. CONFIDENTIAL MODIFIED HANDLING AUTHORIZED*
Section4: Special Requirements Related to the Enforcement of Intellectual
Property Rights in the Digital Environment
Article2.17: ENFORCEMENT PROCEDURES IN THE DIGITAL
ENVIRONMENT
* Each Party shall ensure that enforcement procedures, to the extent
set forth in the
civil and criminal enforcement sections of this Agreement, are
available under its
law so as to permit effective action against an act of trademark,
copyright or
related rights infringement which takes place by means of the
Internet, including
expeditions remedies to prevent infringement and remedies which
constitute a
deterrent to further infringement.
* Without prejudice to the rights, limitations, exceptions, or
defenses to copyright
or related rights infringement available under its law, including
with respects to
the issue of exhaustion of rights, each Party confirms that civil
remedies, as well
as limitations, exceptions, or defenses with respect to the
application of such
remedies, are available in its legal system in cases of third party
liability11 For greater certainty, the Parties understand that third
party liability means liability for any person who authorizes for a
direct financial benefit. Induces through or by conduct directed to
promoting infringement, or knowingly and materially aids, any act of
copyright or related rights infringement by another. Further, the
Parties also understand that the application of third party liability
may include consideration of exceptions or limitations to exclusive
rights that are confined to certain special cases that do not conflict
with a normal exploitation of the work, performance or phonogram, and do
not unreasonably prejudice the legitimate interests of the right holder,
including fair use, fair dealing, or their equivalents. for
copyright or related rights infringement.22 Negotiator?s Note: This
provision is intended to be moved and located in the civil enforcement
section..
* Each Party recognizes that some persons33 For purposes of this
Article, person means a natural person or an enterprise. use the
services of third parties,
including online service providers,44 For purposes of Article,
online service provider and provider mean a provider of online services
or network access, ort he operators of facilities therefore, and
includes an entity offering the transmission, routing, or providing of
connections for digital online communications, between or among points
specified by a user, of material of the user?s choosing, without
modification to the content of the material as sent or received. for
engaging in copyright or related rights
infringement. Each Party also recognizes that legal uncertainly
with respect an
application of intellectual property rights, limitations,
exceptions, and defenses in
the digital environment may present barriers to the economic growth
of, and
opportunities in electronic commerce. Accordingly, in order to
facilitate the
continued development of an industry engaged in providing
information services
online while also ensuring that measures to take adequate and
effective action
against copyright or related rights infringement are available and
reasonable, each
Party shall
* provide limitations55 For greater certainty, the Parties understand
that the fallure of an online service provider?s conduct to qualify for
a limitaion of liability under ist measures implementing this provision
shall not bear adversely upon the consideration of defense by the
service provider that the service provider?s conduct is not infringing
or any other defense. on the scope of civil remedies available against an
online service provider for infringing activities that occur by
* automatic technical processes, and
* the actions of the provider?s users that are not directed or initiated
by that provider and when the provider does not select the
material, and
* the provider referring or linking users to an online location,
when, in cases of subparagraphs (ii) and (iii), the provider does
not have
actual knowledge of the infringement and I not aware of facts or
circumstances from which infringing activity is apparent; and
* condition the application of the provisions of subparagraph (a) on
meeting
the following requirements:
* an online service provider adopting and reasonably
implementing a policy66 An example of such a policy is providing
fort he termination in appropriate circumstances of subscriptions and
accounts on the service provider?s system or network of repeat
infringers. to address the authorized storage or
transmission of materials protected by copyright or related rights
except that no Party may condition the limitations in subparagraph
(a) on the online service provider?s monitoring its services on
affirmatively seeking facts indicating that infringing activity is
occurring, and
* an online service provider expeditiously removing or disabling
access to material or activity, upon receipts of al legally sufficient
notice of alleged infringement, and in the absence of a legally
sufficient response from the relevant subscriber of the online
service provider indicating that the notice was the result of
mistake or misidentification.
except that the provisions of (ii) shall not be applied to the
extent that the
online service provider is acting solely as a conduit for transmission
through its system or network.
* In implementing Article 11 of WIPO Copyright Treaty and Article 18
of the
WIPO Performances and Phonograms Treaty regarding adequate legal
protection
and effective legal remedies against the circumvention of effective
technological
measures that are used by the authors, performers or producers of
phonograms in
connection with the exercise of their rights and that restrict
unauthorized acts in
respect of their works, performances, and phonograms, each Party
shall provide
for civil remedies, as well as criminal penalties in appropriate
cases of wilful
conduct, that apply to:
* the authorized circumvention of an effective technological measure77
For the purposes of this Article, effective technological measure means
any technology, device, or component that in the normal course of its
operation, controls access to a protected work, performance, phonogram,
or protects any copyright or any rights related to copyright. that
controls access to a protected work, performance or phonogram; and
* the manufacture, importation, or circulation of a technology, service,
device, product, component, or part thereof, that is: marketed or
primarily
designed or produced for the purpose of circumventing an effective
technological measure; or that has only a limited commercially
significant
purpose or use other than circumventing an effective technological
measure.
* Each Party shall provide that a violation of a measure implementing
paragraph
(4) is a separate civil or criminal offense, independent of any
infringement of
copyright or related rights.88 The obligations in paragraph (4) and
(5) are without prejudice to the rights, limitations, exceptions, or
defenses to copyright or related rights infringement. Further, in
implementing paragraph (4), no Party may require that the design of, or
the design and selection of parts and components for, as consumer
electronics, telecommunications, or computing products provide for a
response to any particular technological measure, so long as the product
does not otherwise violate any measures implementing paragraph (4).
Further, each Party may adopt exceptions and
limitations to measures implementing subparagraph (4) so long as
they do not
significantly impair the adequacy of legal protection of those
measures or the
effectiveness of legal remedies for violations of those measures.99
Negotiator?s Note: This provision is subject to broader government
action/sovereign immunity provision elsewhere in the Agreement.
* In implementing Article 12 of the WIPO Copyright Treaty and Article
19 of the
WIPO Performances and Phonograms Treats on providing adequate and
effective
legal remedies to protect rights management information, each Party
shall
provide for civil remedies, as well as criminal penalties in
appropriate cases of
wilful conduct, that apply to any person performing any of the
following acts
knowing that it will enable, facilitate, or conceal an infringement
of any copyright
or related right:
* to remove or alter any rights management information1010 For
purposes of this Article, rights management information
means:information that identifies as work, performance, or phonogram;
the author of the work, the performer of he performance or the producer
of the phonogram; or the owner of any right in the work, performance, or
phonogram;information about the terms and conditions of the use of the
work, performance, or phonogram; orany 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. without
authority; and
* to distribute, import for distribution, broadcast, communicate, or make
available to the public, copies of works, performance or phonograms,
knowing that rights management information has been removed or altered
without authority.
* Each Party may adopt appropriate limitations or exceptions to the
requirements of
subparagraphs (a) and (b) of paragraph (6).
--
Prof. Dr. Rainer Kuhlen
Department of Computer and Information Science
University of Konstanz, Germany
German Chair for Communications of the UNESCO (ORBICOM)
Speaker of the Coalition "Copyright for Education and Science"
http://www.urheberrechtsbuendnis.de/
Albertinkatu 19B #27
00120 Helsinki
00358(0)466382198
URL: www.kuhlen.name
Email: rainer.kuhlen@xxxxxxxxxxxxxxx
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