[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

[InetBib] ACTA Papiere

sorry für den Umbruch


                              US PROPOSAL
This Document Contains Foreign Government Information to be treated as

Section4:       Special Requirements Related to the Enforcement of Intellectual
     Property Rights 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 

*   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 
     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 
     and effective legal remedies against the circumvention of effective 
     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 
     designed or produced for the purpose of circumventing an effective
     technological measure; or that has only a limited commercially 
     purpose or use other than circumventing an effective technological
*   Each Party shall provide that a violation of a measure implementing 
     (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 
     legal remedies to protect rights management information, each Party 
     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"

Albertinkatu 19B #27
00120 Helsinki
URL: www.kuhlen.name
Email: rainer.kuhlen@xxxxxxxxxxxxxxx


Listeninformationen unter http://www.inetbib.de.