Article 2.17: Enforcement procedures in the digital environment 1. 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, includingexpeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement. 2. Without prejudice to the rights, limitations, exceptions or defenses to copyright or related rights infringement available under its law, including with respect to the issue of exhaustion of rights, each Party confirms that civil remedies, as well as limitations, exceptions, or defenseswith respect to the application of such remedies, are available in its legal system in cases of third party liability1 for copyright and related rights infringement.2 3. Each Party recognize that some persons3 use the services of third parties, including online service providers,4 for engaging in copyright or related rights infringement. Each Party also recognizes that legal uncertainty withrespect to 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 take adequate and effectiveaction against copyright or related rights infringement are available and reasonable, each Party shall: (a) provide limitations5 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 when the provider does not select thematerial, and (III) 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 is not aware of the facts or circumstances from which infringing activity is apparent; and (b) condition the applicantion of the provisions of subparagraph (a) on meeting the following requirements:(I) an online service provider adopting and reasonably implementing a (I) (II)
1 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. 2 Negotiator's Note: This provision is intended to be moved and located in the civil enforcement section. 3 For purposes of this Article, person means a natural person or an enterprise. 4 For purposes of this Article, online service provider and provider mean a provider of online services or network access, or the operators of facilities therefor, and includes an entityoffering 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 of the content of the material as sent or received. 5 For greater certainty, the Parties understand that the failure of an online service provider's conduct to qualify for a limitation of liability under...
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