Chapter XVII of the Chile-U.S. FTA and Chapter XV of DR-CAFTA are the first comprehensive Agreements on intellectual property rights (IPR) negotiated in the Western Hemisphere since the WTO TRIPS Agreement in 1994 (TRIPS).

The IPR Chapters of the Chile-U.S. FTA and DR-CAFTA build on the standards and disciplines of the TRIPS Agreement and recent Treaties concluded under the auspices of the World Intellectual Property Organization (WIPO). Although there are some differences, both FTAs are very similar in terms of basic structure and content. Both cover general provisions, trademarks, domain names in the Internet, geographical indications, copyright and related rights, patents, measures related to certain regulated products and enforcement measures.

Both Chapters require accession to specific international intellectual property Agreements and, in some instances, they implement and/or further develop provisions of these IPR Agreements. Additionally, both Chapters address technological developments unforeseen during the Uruguay Round negotiations, particularly in the areas of copyright and related rights, domain names in the Internet and enforcement.

In the “Final Provisions” Parties agreed to phase-in periods for certain IPR obligations. These periods and the obligations covered under the Chile-U.S. FTA and DR-CAFTA are different and in some cases country-specific. Each transitional period is indicated with a footnote in the corresponding provision.

Some of the main features and significant differences between the two Chapters are described below.

General Provisions: both Chapters provide for accession to a number of intellectual property treaties, contain the national treatment obligation (Chile-U.S. FTA Art.17.1.6; DR-CAFTA Art.15.1.8) and allow Parties to implement more extensive protection than required under the FTA (Chile-U.S. FTA Art.17.1.1; DR-CAFTA Art.15.1.1). Other general provisions included in both Chapters cover transparency (Chile-U.S. FTA Art.17.1.12; DR-CAFTA Art.15.1.14), protection of existing subject matter (Chile-U.S. FTA Arts. 17.1.9-11; DR-CAFTA Arts. 15.1.11-13), control of anticompetitive practices (Chile-U.S. FTA Art.17.1.13; DR-CAFTA Art.15.1.15) and technical cooperation (Chile-U.S. FTA Art.17.1.14; DR-CAFTA Art.15.1.16).

Regarding accession, there are some differences between the Chile-U.S. FTA and DR-CAFTA in the number of treaties and the dates to bring them into force.

Notwithstanding that all Parties involved in both FTAs (with the exception of the DR) have already ratified the WIPO Copyright Treaty (WCT) (1996) and the WIPO Performances and Phonograms Treaty (WPPT) (1996), only DR-CAFTA requires each Party to ratify or accede these treaties (by the entry into force of DR-CAFTA, pursuant to Art.15.1.2).

Both FTAs require ratification or accession to the Patent Cooperation Treaty (PCT); Chile-U.S. FTA (Art.17.1.2) before January 1, 2007, whereas DR-CAFTA (Art.15.1.3(a)) establishes January 1, 2006, as the deadline. This latter date also applies to DR-CAFTA Parties (Art.15.1.3(b)) with respect to the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1980). The Budapest Treaty is not included in the Chile-U.S. FTA.

Both FTAs provide for ratification of the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974) and the Trademark Law Treaty (1994). The only difference is the deadline to comply with this commitment: January 1, 2009, under the Chile-U.S. FTA (Art.17.1.3(b),(c)) and by January 1, 2008 under DR-CAFTA (Art.15.1.4(a),(b)). The Chile-U.S. FTA (Art.17.1.3(a)) also requires ratification or accession to the International Convention for the Protection of New Varieties of Plants (UPOV Convention 1991) before January 1, 2009. In the case of the UPOV Convention 1991, DR-CAFTA (Art.15.1.5) establishes country-specific deadlines: June 1, 2007, for Costa Rica; January 1, 2010, for Nicaragua, and January 1, 2006 for the rest of the countries.

Under both the Chile-U.S. FTA (Art.17.1.4) and DR-CAFTA (Art.15.1.6), Parties agreed to undertake reasonable efforts to ratify or accede the Patent Law Treaty (2000), the Hague Agreement Concerning the International Registration of Industrial Designs (1999) and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989). No specific date is established to comply with this commitment.

The two FTAs address their relationship to the TRIPS Agreement. Under the Chile-U.S. FTA, in the Preamble, Parties “…affirm… the rights and obligations set forth in the TRIPS Agreement;” and “...Recognize ‘the principles set out in the 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”. Furthermore, the Chile-U.S. FTA (Art.17.1.5) provides that “nothing in this Chapter …shall derogate from the obligations and rights of one Party with respect to the other by virtue of the TRIPS Agreement or multilateral intellectual property Agreements concluded or administered under the auspices of the World Intellectual Property Organization (WIPO)”. In DR-CAFTA there is no “no derogation” clause. However, pursuant to Article 15.1.7, “Parties affirm their existing rights and obligations under the TRIPS Agreement and intellectual property Agreements concluded or administered under the auspices of the World Intellectual Property Organization (WIPO) and to which they are party”. Additionally, DR-CAFTA Parties reached an “Understanding regarding certain Public Health Measures.” Pursuant to this Understanding, Parties highlighted that Chapter 15 of DR-CAFTA does not affect a Party’s ability to take necessary measures to protect public health by promoting access to medicines for all in terms similar to those agreed under the Doha Declaration on the TRIPS Agreement and Public Health in the WTO. Moreover, the Understanding points out that Chapter 15 on IPR in DR-CAFTA does not prevent the effective utilization of the solution reached to implement Paragraph 6 of the aforementioned Declaration (with respect to countries with insufficient or no manufacturing capacities in the pharmaceutical sector).

Both FTAs provide for national treatment. The Chile-U.S. FTA (Art.17.1.6) accords this treatment to “persons of the other Party” whereas DR-CAFTA (Art.15.1.8) refers to “nationals.” As exceptions to National Treatment both FTAs allow for derogations in relation to their judicial and administrative procedures requiring an address or agent for service in their territory and for procedures related to the acquisition or maintenance of rights concluded under the auspices of the WIPO (Chile-U.S. FTA Arts. 17.1.7-8; DR-CAFTA Arts. 15.1.9-10). Unlike DR-CAFTA, Chile-U.S. FTA (Art.17.1.6) contains an additional limitation to national treatment. It subjects to reciprocity protection to performers and producers of phonograms with respect to secondary uses of phonograms by means of analog communications and free over-the-air broadcasting.

Both FTAs call for technical cooperation to strengthen the use of IPR as a research and innovation tool, facilitate cooperation, exchange of information and coordination as well as the implementation of electronic systems for the management of intellectual property. DR-CAFTA (Art.15.1.16), however, goes beyond the Chile-U.S. FTA (Art.17.1.14) and establishes a Committee on Trade Capacity Building.

Trademarks: in the area of trademarks, both Chapters provide for very similar standards of protection building on the provisions of the TRIPS Agreement.²⁸ Both the Chile-U.S. FTA (Art.17.2.1) and DR-CAFTA (Art.15.2.1) ²⁹ require the protection of collective, certification and sound marks and may extend trademark protection to geographical indications and scent marks. The Chile-U.S. FTA (Art.17.2.2) mandates that each Party shall have the opportunity to oppose the application for a trademark. DR-CAFTA (Art.15.2.6) includes a similar provision as part of the requirements of the system for registration of trademarks, including the possibility of opposition after registration.

Building on TRIPS Article 20, both the Chile-U.S. FTA (Art.17.2.3) and DR-CAFTA (Art.15.2.2), establish that Parties are to ensure that the use or effectiveness of trademarks shall not be encumbered through measures requiring the use of the common name or generic reference as the common name for goods or services. Both FTAs identify as examples of such encumbrances the following: requirements regarding size, placement or style of use of a trademark in relation to the common name.

Both FTAs include provisions dealing with rights conferred and exceptions and limitations to these rights. Under exclusive rights for trademark owners, both Chapters add coverage for goods or services that are related to the goods or services in respect of which the trademark is registered, including geographical indications, where use would result in likelihood of confusion (Chile-U.S. FTA Art.17.2.4; DR-CAFTA Art.15.2.3). DR-CAFTA also incorporates geographical indications to the presumption of likelihood of confusion in case of the use of an identical sign for identical goods or services.

Both DR-CAFTA (Art.15.2.5) and the Chile-U.S. FTA (Art.17.2.6) broaden the protection of well-known marks to goods and services which are not similar, whether registered or not, provided that there is a connection or association between the goods or services and the owner of the well-known mark and that the interests of the owner of the trademark are likely to be damaged. The Chile-U.S. FTA (Art.17.2.7) goes beyond and provides for appropriate measures to prohibit or cancel the registration of a trademark, identical or similar to a well-known trademark, if the use is likely to cause confusion or constitutes unfair exploitation of the reputation of the trademark. Under the Chile-U.S. FTA (Art.17.2.8) and DR-CAFTA (Art.15.2.5 ftnt.6), a Party shall not require that the reputation of the trademark extend beyond the sector of the public that normally deals with the relevant goods or services to determine whether a trademark is well-known. Additionally, the Chile-U.S. FTA (Art.17.2.9) recognizes the importance of the WIPO Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks (1999).

In addition to certain minimum due process and transparency requirements in the system for the registration of trademarks, both FTAs set forth the objective to provide a system for the electronic application, processing, registration and maintenance of trademarks (Chile-U.S. FTA Art.17.2.10-11; DR-CAFTA Art.15.2.6-7). DR-CAFTA (Art.15.2.7) also seeks to make available a public electronic database-including an on-line database- for trademark application and registration.

Both FTAs refer to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (1979). Neither FTA requires ratification or accession to this Treaty. Under DR-CAFTA (Art.15.2.8), for purposes of trademark application or registration, goods and services are to be grouped according to the classes of the Nice classification. Under the Chile-U.S. FTA (Art.17.2.12) Parties are only encouraged to classify goods and services according to Nice.

Only DR-CAFTA (Art.15.2.9) provides for a renewable term of registration of no less than 10 years.

Unlike the Chile-U.S. FTA, DR-CAFTA (Art.15.2.10) establishes that no Party may require recordal of trademark licenses to establish the validity of the license or to assert any right in a trademark. A footnote clarifies that such recordal may be established only to provide public notice as to the existence of the license.

Domain Names on the Internet: both FTAs include provisions regarding domain names. According to these provisions each Party shall provide for an appropriate procedure for the settlement of disputes, based on the principles established in the Uniform Domain-Name Dispute-Resolution Policy (UDRP), in order to address the problem of trademark cyber-piracy (Chile-U.S. FTA Art.17.3.1; DR-CAFTA Art.15.4.1). Both Chapters also require Parties to provide online public access to a reliable and accurate database of contact information for domain-name registrants with due regard to laws protecting privacy (Chile-U.S. FTA Art.17.3.2; DR-CAFTA Art.15.4.2). ³⁰

Geographical Indications (GIs): both the Chile-U.S. FTA (Art.17.4.1 ³¹) and DR-CAFTA (Art.15.3.1) mirror TRIPS Article 22 with respect to the definition of geographical indications. Both FTAs add to this definition by establishing that any sign or combination of signs, in any form whatsoever, shall be eligible as a geographical indication.

Both FTAs establish the obligation to provide for the “legal means” to identify and protect geographical indications (Chile-U.S. FTA Art.17.4.2-3  ³³; DR-CAFTA Art.15.3.2). Only DR-CAFTA clarifies that “legal means to identify” refers to “a system that permits applicants to provide information on the quality, reputation, or other characteristics of the asserted geographical indication (DR-CAFTA Art.15.3.2. ftnt. 8).” Pursuant to Article 17.4.11, Parties to the Chile-U.S. FTA shall communicate to the public the means to implement the commitments under the Section on Geographical Indications within six months of the entry into force of the FTA.

Regarding the relationship between trademarks and geographical indications, both FTAs provide as grounds to refuse protection or recognition of GIs cases where a geographical indication is confusingly similar (under the Chile-U.S. FTA) or likely to be confusingly similar (under DR-CAFTA) to pre-existing registration, good-faith pending application or trademark rights (Chile-U.S. FTA Art.17.4.10; DR-CAFTA Art.15.3.7 ³²). In the case of pre-existing trademark rights DR-CAFTA also requires that the rights were acquired in accordance to each Party’s law. DR-CAFTA (Art.15.3.7 ftnt.9) adds a footnote stating that it is understood that each Party already has established grounds for refusing protection of a trademark if it is confusingly similar to a protected geographical indication, including equivalent grounds to those provided in Article 15.3.7.

Both the Chile-U.S. FTA (Arts. 17.4.4-8) and DR-CAFTA (Arts. 15.3.3.-6) establish specific requirements for the system to apply for protection or recognition of geographical indications. These requirements cover several procedural steps such as: minimum of formalities, transparency, publication, opposition procedures and public notice.

Only the Chile-U.S. FTA (Art.17.4.9) refers to the principle of exclusivity incorporated in the Paris Convention and TRIPS Agreement.

Copyright and Related Rights: both the Chile-U.S. FTA and DR-CAFTA provide very similar protection to copyright and related rights. The main difference is, however, reflected in the structure of their respective sections. DR-CAFTA combines provisions of copyright and related rights whereas the Chile-U.S. FTA has separate headings for copyright and then related rights. Thus, under DR-CAFTA in several instances provisions establish rights and obligations for both copyright and related rights in a single Article. In addition to building on the TRIPS Agreements, both FTAs implement and further develop provisions of the WIPO Internet Treaties, WCT and WPPT.

Both FTAs include the right of reproduction for authors, including temporary copies and storage in electronic form (Chile-U.S. FTA Art.17.5.1; DR-CAFTA Art.15.5.1). DR-CAFTA includes a footnote (DR-CAFTA Art.15.5.1 ftnt. 12), similar to the Agreed Statements under the WCT and WPPT with respect to the right of reproduction, indicating the full application of the right of reproduction in the digital environment. The Chile-U.S. FTA covers this issue only regarding exceptions and limitations (see below, Chile-U.S. FTA Art.17.7.3).

Other rights provided for authors under both IPR Chapters are the rights of distribution and communication to the public, including the making available to the public through interactive access, in very similar terms as provided for in the WCT (Chile-U.S. FTA Arts. 17.5.2-3; DR-CAFTA Arts. 15.5.2, 15.6). Both the Chile-U.S. FTA (Art.17.5.4) and DR-CAFTA (Art.15.5.4) include a copyright term of protection of not less than the life of the author plus 70 years.

For related rights, both IPR Chapters establish rights and obligations for performers and producers of phonograms following the basic rights provided under the WPPT. Among the most relevant provisions, both FTAs provide for the right of reproduction, including temporary copies and storage in electronic form (Chile-U.S. FTA Art.17.6.1³⁴; DR-CAFTA Art.15.5.1). Other rights include the right of distribution, right to authorize or prohibit the broadcasting or any communication to the public of their fixed performances or phonograms, including the making available to the public for interactive access (Chile-U.S. FTA Arts. 17.6.2, 17.6.5(a)³⁵; DR-CAFTA Arts. 15.5.2, 15.7.3(a)).

Under both FTAs the protection for performers shall also include the right to authorize or prohibit the fixation of their unfixed performances and the broadcasting and communication to the public of their unfixed performances, except where the performance is already a broadcast performance (Chile-U.S. FTA Art.17.6.4; DR-CAFTA Art.15.7.2(a)(b)).

Both the Chile-U.S. FTA (Arts. 17.6.6-7) and DR-CAFTA (Arts. 15.7.4, 15.5.4 ³⁶) specify that the enjoyment and exercise of related rights shall(Chile-U.S. FTA)/may(DR-CAFTA) not be subject to any formality and establish a term of protection of not less than 70 years from the end of the calendar year of the first authorized publication or fixation of the performance or phonogram. The criteria for eligibility for protection provided under both FTAs covers nationals of the other Parties and performances or phonograms first published or first fixed in the territory of another Party (Chile-U.S. FTA Art.17.6.3; DR-CAFTA Art.15.7.1).

Both FTAs establish that rules with respect to the broadcasting or communication to the public through traditional/analog communication and free over-the-air broadcasting and the exceptions or limitations to the rights shall be a matter of domestic law (Chile-U.S. FTA Art.17.6.5(b) ³⁷; DR-CAFTA Art.15.7.3(b)). Moreover, both the Chile-U.S. FTA and DR-CAFTA allow Parties to adopt exceptions and limitations in respect of other non-interactive transmissions provided that such limitations do not prejudice the right of the performer or producer of phonograms to obtain equitable remuneration. Under the Chile-U.S. FTA (Art.17.6.5(b)) there is specific mention of compulsory licenses. Unlike the Chile-U.S. FTA, according to DR-CAFTA (Art.15.5.10(b)), no Party may permit retransmission of television signals on the Internet without authorization of the right holder of the content and if any, of the signal.

Under “obligations common to copyright and related rights,” both the Chile-U.S. FTA (Arts. 17.7.1, 17.7.2(b)) and DR-CAFTA (Arts. 15.5.3, 15.5.6(a) (b)) provide for no hierarchy of rights between those of authors and performers and producers of phonograms and the right to freely and separately transfer economic rights by contract and exercise and enjoy fully the benefits derived from such rights. The Chile-U.S. FTA (Art.17.7.2(b)) includes additional provisions governing contracts dealing with work for hire. As provided by TRIPS, WCT and WPPT, both FTAs include the three-step test to confine limitations or exceptions to the rights conferred to certain special cases which do not conflict with the normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder (Chile-U.S. FTA Art.17.7.3; DR-CAFTA Art.15.5.10(a)).

A footnote under the Chile-U.S. FTA (Art.17.7.3 ftnt.17), comparable to the Agreed Statements under the WCT and WPPT regarding exceptions and limitations, allows a Party to extend limitations and exceptions in its domestic laws (already considered acceptable under the Berne Convention) and to devise new ones that are appropriate in the digital network environment. Moreover, the footnote establishes that for works, other than computer software, and other subject-matter, such exceptions and limitations may include temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third Parties by an intermediary; or (b) a lawful use of a work or other subject-matter to be made; and which have no independent economic significance. As previously indicated DR-CAFTA (Art.15.5.1 ftnt. 12) includes a footnote covering the right of reproduction. In the same paragraph DR-CAFTA also refers to exceptions and limitations. The scope in DR-CAFTA is however limited to exceptions permitted under the Berne Convention and Article 15.5.10(a) of DR-CAFTA. Hence, DR-CAFTA does not specifically refer to possible new exceptions or the special cases addressed under the Chile-U.S. FTA.

Both Chapters implement the obligations concerning technological measures pursuant to the WCT and WPPT. Therefore, the Chile-U.S. FTA (Art.17.7.5³⁸) and DR-CAFTA (Art.15.5.7³⁹) contain detailed provisions in order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures. Although the structure is relatively different, both Chapters include a definition of “effective technological measure,” specific conducts and cases where liability exists and corresponding criminal and civil remedies.

Under DR-CAFTA (Art.15.5.7(c)) a violation of a measure implementing this protection is a separate civil cause of action or criminal offense. The Chile-U.S. FTA does not include an equivalent provision.

Both FTAs provide for remedies against the act of unauthorized circumvention and the trafficking of devices, products or components of limited use other than to enable, facilitate or circumvent any effective technological measure. Consequently, the two Chapters make available civil remedies for violations of effective technological measures and criminal penalties for willful violations for purposes of commercial advantage.

Regarding the act of circumvention, the Chile-U.S. FTA (Art.17.7.5(a)) requires actual knowledge, demonstrated through reasonable evidence for the conduct of unauthorized circumvention to be subject to sanctions. Only the Chile-U.S. FTA (Art.17.7.5(a)) establishes that no Party is required to impose civil or criminal liability for a person who circumvents any effective technological measures that protects any of the exclusive rights of copyright or related rights, but does not control access. Furthermore, unlike DR-CAFTA, Chile refers to the possibility of considering circumvention as an aggravating circumstance of another offense.

Both FTAs incorporate a list of very detailed exceptions to protect specific cases of fair use.

The Chile-U.S. FTA (Art.17.7.6) and DR-CAFTA (Art.15.5.8⁴⁰) also implement WCT and WPPT provisions on obligations concerning rights management information. This protection is aimed at prohibiting the removal or alteration of rights management information which identifies the right holder, terms and conditions of use, any numbers or codes attached or connected to a copy of a work, performance or phonogram available to the public. Provisions include definition of rights management information, cases of civil and criminal liability as well as limited exceptions.

Another obligation included in both FTAs requires governments to issue appropriate laws, regulations or decrees to mandate use of authorized software by all federal or central government agencies (Chile-U.S. FTA Art.17.7.4; DR-CAFTA Art.15.5.9⁴¹).

Protection of Encrypted Program-Carrying Satellite Signals: both the Chile-U.S. FTA (Art.17.8) and DR-CAFTA (Art.15.8⁴²) protect right holders of encrypted satellite signals against (i) willful unauthorized reception and further distribution of that signal. Moreover, both FTAs provide for sanctions for those dealing with (ii) devices or systems knowing (or having reason to know under DR-CAFTA) that their function is primarily of assistance in decoding an encrypted signal without authorization of the lawful distributor.

DR-CAFTA subjects these conducts to criminal penalties and civil remedies (compensatory damages). Under the Chile-U.S. FTA (Art.17.8.1) each Party shall make it a civil or criminal offense and requires evidence of actual knowledge by the person infringing the exclusive rights in both instances (i.e., reception, distribution and decoding devices or systems).

Patents: as is the case with other issues, both patent sections under the Chile-U.S. FTA and DR-CAFTA build on TRIPS provisions.

Both FTAs include a general provision on patentable subject matter following the TRIPS Agreement (Chile-U.S. FTA Art.17.9.1⁴³; DR-CAFTA Art.15.9.1). Additionally, DR-CAFTA (Art.15.9.2) indicates that nothing shall be construed to prevent a Party from excluding inventions from patentability as set out in Articles 27.2 and 27.3 of the TRIPS Agreement. The Chile-U.S. FTA does not make specific reference to the exclusions from patentability allowed under TRIPS.

Regarding patent protection for plants, under DR-CAFTA (Art.15.9.2), Parties agreed to undertake “all reasonable efforts to make patent protection available by the date [DR-CAFTA] enters into force.” Under the Chile-U.S. FTA (Art.17.9.2), the commitment is to “undertake reasonable efforts, through a transparent and participatory process, to develop and propose legislation within four years from the entry into force of the Agreement that makes available patent protection for plants”.

The two FTAs contain a provision allowing exceptions as long as they are limited, do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interest of the patent owner, taking account of the legitimate interest of third Parties (Chile-U.S. FTA Art.17.9.3⁴⁴; DR-CAFTA Art.15.9.3).

Both DR-CAFTA (Art.15.9.5) and the Chile-U.S. FTA (Art.17.9.4) cover aspects of the so-called regulatory review or Bolar exception in the patent section. These provisions link patent protection with applications by third Parties to obtain marketing approval or sanitary permits. Under both IPR Chapters use of the subject matter of a subsisting patent to support a regulatory application shall be limited to purposes of meeting the marketing or sanitary requirements. Thus, any product produced under such authority shall not be made, used, or sold in the territory of the Party or exported, if permitted, for purposes other than obtaining marketing approval or sanitary permits. Pursuant to DR-CAFTA this provision is applicable to pharmaceutical or agricultural chemical products. The Chile-U.S. FTA refers only to pharmaceuticals.

Under both FTAs, a Party may revoke or cancel a patent only when grounds exist that would have justified a refusal to grant the patent (Chile-U.S. FTA Art.17.9.5; DR-CAFTA Art.15.9.4). DR-CAFTA (Art.15.9.4) adds the caveat that this provision is without prejudice to Article 5.A(3) of the Paris Convention (dealing with forfeiture of patents to prevent abuse which might result from the exercise of exclusive rights conferred by the patent). DR-CAFTA (Art.15.9.4) also expressly indicates that fraud, misrepresentation or inequitable conduct may be the basis for revoking, canceling or holding a patent unenforceable. The Chile-U.S. FTA (17.9.5 ftnt. 24) only incorporates fraud as possible grounds to revoke or cancel a patent in a footnote to this provision.

The two IPR Chapters require the adjustment of the term to compensate for unreasonable delays in granting the patent. This obligation is triggered by a delay of more than five years from the date of filing in the territory of the Party or three years after a request for examination has been made (Chile-U.S. FTA Art.17.9.6; DR-CAFTA Art.15.9.6⁴⁵).

Both the Chile-U.S. FTA (Art.17.9.7) and DR-CAFTA (Art.15.9.7) establish a twelve-month grace period. Thus, any public disclosures made, authorized by or derived from the patent applicant do not affect the patentability of the invention.

Unlike the Chile-U.S. FTA, under DR-CAFTA (Art.15.9.8) each Party shall provide patent applicants with at least one opportunity to submit amendments, corrections and observations in connection with their application.

DR-CAFTA (Art.15.9.9) further develops the requirement to disclose the invention established in the TRIPS Agreement. Thus, DR-CAFTA provides that such disclosure is considered “sufficiently clear and complete”, if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date. Moreover, DR-CAFTA (Art.15.9.10) establishes a presumption so that an invention is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention, as of the filing date.

Only DR-CAFTA (Art.15.9.11) defines an invention as industrially applicable when it has a specific, substantial and credible utility.

Measures Related to Certain Regulated Products: the two FTAs deal with protection provided under TRIPS Article 39.3 when governments require submission of undisclosed test or other data as a condition to grant marketing approval or sanitary permit of pharmaceuticals or agricultural chemical products. Both the Chile-U.S. FTA (Art.17.10.1) and DR-CAFTA (Art.15.10.1(a)) prohibit reliance (market a product on the basis of protected test data concerning safety and efficacy) by third Parties not having the consent of the originator (person providing the information) for a period of at least five and ten years from the date of approval (in the Party, under DR-CAFTA) for pharmaceuticals and agricultural chemical products respectively.

There are some differences between the two Chapters. Under DR-CAFTA the protection covers “…undisclosed data concerning safety or efficacy of a new… product …” whereas the Chile-U.S. FTA refers to “undisclosed information concerning safety or efficacy of a product which utilizes a new chemical entity, which product has not been previously approved…”. In a subsequent paragraph of the same Article (Art.15.10.1(c)), DR-CAFTA defines that a new product is one that does not contain a chemical entity that has been previously approved in the territory of the Party. The Chile-U.S. FTA does not include a definition of new chemical entity.

Regarding the obligation of non-reliance, DR-CAFTA (Art.15.10.1(a)) establishes that Parties shall not permit third persons to market a product on the basis of (1) “the information” or (2) “the approval granted to the person who submitted the information.” Under the Chile-U.S. FTA (Art.17.10.1) the corresponding provision prohibits “to market a product based on this new chemical entity on the basis of the approval granted to the party submitting such information”.

DR-CAFTA (Art.15.10.1(b)) also provides equivalent protection when a Party permits third Parties to submit evidence of prior marketing approval or evidence concerning safety or efficacy of a product previously approved in the other territory. Therefore, unauthorized third Parties cannot obtain authorization to market a product on the basis of: (1) “evidence of prior marketing approval in the other territory” or (2) “information concerning safety or efficacy that was previously submitted to obtain marketing approval in another territory” for a period of at least five and ten years for pharmaceuticals and agricultural chemical products respectively from the date approval was granted in the Party’s territory to the person who received approval in the other territory. In order to qualify for this protection, a Party to DR-CAFTA may require that approval be sought in the territory of the Party within five years after obtaining marketing approval in the other territory. Thus, DR-CAFTA calculates the time period of data exclusivity from the date of approval in the Party’s territory. Under the Chile-U.S. FTA there is no similar provision regarding products previously approved in other territory.

Both the Chile-U.S. FTA (Art.17.10.1) and DR-CAFTA (Art.15.9.10(d)) follow TRIPS with respect to the protection of test or other data against disclosure except where necessary to protect the public. DR-CAFTA adds that information in the public domain may not be considered as undisclosed data and requires protection from unfair commercial use if the Party or an entity on behalf of the Party discloses the information.

The two FTAs include additional provisions providing for linkage of the section on measures related to certain regulated products and patents with respect to pharmaceutical products that are subject to a patent. Both FTAs provide for compensation for unreasonable curtailment of the patent term as a result of the marketing approval process. DR-CAFTA however, includes this provision under the Patent section. Under both Chapters the compensation consists of restoration or extension of the patent term. There is no specific period identified in any of the Chapters (Chile-U.S. FTA Art.17.10.2(a); DR-CAFTA Art.15.9.6(b)).

In addition to this provision, DR-CAFTA (Art.15.10.2(a)) requires Parties to prevent unauthorized third Parties from “marketing a product covered by a patent” (claiming the product or its approved use) during the term of that patent. Under the Chile-U.S. FTA (Art.17.10.2(c) there is a similar provision. However, the obligation for Parties under the Chile-U.S. FTA is “not to grant marketing approval prior to the expiration of the patent term.” Both the Chile-U.S. FTA (Art.17.10.2(b)) and DR-CAFTA (Art.15.10.2(b)) require that patent owners be informed of the identity of any third party requesting marketing approval during the term of the patent. DR-CAFTA also specifies that such request itself needs to be notified when claiming the approved product or its approved use.

Enforcement: as in other sections in the IPR Chapters of the Chile-U.S. FTA and DR-CAFTA, the provisions on enforcement build on the TRIPS Agreement.

Regarding the scope of enforcement remedies and procedures, both Chapters include measures covering: general obligations, civil and administrative, provisional, border and criminal measures as well as limitations on liability of Internet Service Providers. A good number of provisions in both FTAs specifically address procedures and remedies in cases of copyright piracy and trademark counterfeiting.

The two FTAs also deal with technological developments unforeseen at the conclusion of the Uruguay Round. Thus, for example, both Chapters include a new sub-section establishing a system of incentives, cooperation and limited liability for Internet Service Providers (ISP) and make civil remedies available for effective technological measures and rights management information.

A detailed description of the main provisions and differences between the Chile-U.S. FTA and DR-CAFTA in the area of enforcement is provided below.

General obligations: both FTAs provide that procedures and remedies for enforcement shall be established in accordance with the principles of due process, which each Party recognizes as well as the foundations of their own legal systems (Chile-U.S. FTA Art.17.11.1⁴⁶; DR-CAFTA Art.15.11.1).

Both FTAs establish that there is no obligation to put in place a judicial system for the enforcement of IPR (distinct from that for the enforcement of law in general) or to change the distribution of resources from enforcement of law in general to enforce IPR. However, both FTAs also specify that decisions on distribution of enforcement resources shall not excuse that Party from complying with the provisions of the FTA (Chile-U.S. FTA Art.17.11.2; DR-CAFTA Art.15.11.2).

Both FTAs establish that decisions on the merits of a case shall be in writing and reasoned (Chile-U.S. FTA Art.17.11.3; DR-CAFTA Art.15.11.3). Both Chapters provide for publication or to make these decisions publicly available. The only difference is that DR-CAFTA includes this provision under enforcement whereas the Chile-U.S. FTA covers the issue in Article 17.1.12 under General Provisions as part of a broader provision on transparency. Only the Chile-U.S. FTA (Art.17.1.12) adds a caveat to protect confidential information. Both FTAs also require Parties to publicize information, if available, regarding efforts to provide effective enforcement of IPR, including statistical information.

For civil, administrative and criminal proceedings involving copyright and related rights, both FTAs establish presumptions that, in the absence of proof to the contrary, the person indicated as the author, producer, performer or publisher of the work, performance or phonogram in the usual manner, shall be presumed to be the designated right holder, and that the copyright or related right subsists in such subject matter (Chile-U.S. FTA Art.17.11.6; DR-CAFTA Art.15.11.5). Unlike DR-CAFTA, to qualify for this presumption, under the Chile-U.S. FTA a Party may require that the work appear on its face to be original and that it bears a publication date not more than 70 years prior to the date of the alleged infringement.

Civil and Administrative: both FTAs provide that each Party shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right (Chile-U.S. FTA Art.17.11.7; DR-CAFTA Art.15.11.6). In the corresponding footnote, both Chapters identify as right holders, duly authorized licensees (under the Chile-U.S. FTA) and exclusive and other authorized licensees (under DR-CAFTA) having legal standing and authority to assert such rights. Furthermore, DR-CAFTA indicates that the term licensee shall include the licensee of any one or more of the exclusive IPR encompassed in a given intellectual property.

Under both FTAs Parties shall provide that judicial authorities have the authority to compensate the right holder with actual damages suffered as a result of the infringement (Chile-U.S. FTA Art.17.11.8; DR-CAFTA Art.15.11.7). Both IPR Chapters require authority to order the payment of profits at least in the case of infringement of trademark, copyright or related rights.

Both FTAs include rules to determine actual damages. Under both the Chile-U.S. FTA (Art.17.11.8.) and DR-CAFTA (Art.15.11.7) judicial authorities shall consider, inter alia, the legitimate or suggested retail value of the infringed goods. DR-CAFTA incorporates the possibility of other legitimate measure of value that the copyright holder presents.

Both FTAs require pre-established (or statutory) damages, at least with respect to copyright and related rights and trademark counterfeiting. Under the Chile-U.S. FTA (Art.17.11.9⁴⁷), statutory damages shall be established as prescribed by each Party’s domestic law, that the judicial authorities deem reasonable. Pursuant to DR-CAFTA (Art.15.11.8) statutory damages are considered an alternative to actual damages to be set out in domestic law and determined by the judicial authorities. Moreover, statutory damages should be sufficient to compensate for the harm caused and constitute deterrent to future infringements.

For proceedings concerning copyright or related rights and trademark counterfeiting under both FTAs, judicial authorities shall, apart from exceptional circumstances, have the authority to order court costs or payment of fees and reasonable attorney’s fees (Chile-U.S. FTA Art.17.11.10; DR-CAFTA Art.15.11.9). The Chile-U.S. FTA refers to payment to the “right holder” by the “infringing party” whereas DR-CAFTA uses the broader terms “prevailing party” and “losing party”. DR-CAFTA also adds the payment of attorney’s fees for cases of patent infringement, at least in exceptional circumstances.

Under both IPR Chapters judicial authorities shall have the authority to order the seizure of suspected infringing goods, materials and implements concerning copyright and related rights infringement and trademark counterfeiting (Chile-U.S. FTA Art.17.11.11; DR-CAFTA Art.15.11.10). The provision in DR-CAFTA covers “related” materials and implements whereas the Chile-U.S. FTA covers materials and implements by means of which goods are produced where necessary to prevent further infringement. DR-CAFTA adds authority to seize documentary evidence relevant to the infringement, at least for trademark counterfeiting.

Also provided for under both the Chile-U.S. FTA (Art.17.11.12) and DR-CAFTA (Art.15.11.11) is the authority to order the destruction of goods found or determined to be infringing under the Chile-U.S. FTA or pirated or counterfeited under DR-CAFTA. Both FTAs allow for discretion by judicial authorities in applying this remedy. DR-CAFTA specifies that this provision is applicable to “pirated or counterfeited goods”.

Both the Chile-U.S. FTA and DR-CAFTA include a provision on charitable donations under this section. There are some differences regarding the scope and specific rules between the two FTAs. Under the Chile-U.S. FTA (Art.17.11.12(b)), the provision covers goods that infringe copyright and related rights and require authorization of the right holder for instances other than special cases that do not conflict with the normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder. Like the Chile-U.S. FTA, DR-CAFTA (Art.15.11.11(c)) also requires authorization by the right holder but does not refer to exceptions based on the three-step test under the Berne Convention. In addition to goods that infringe copyright and related rights, counterfeit trademark goods may be donated to charity outside the channels of commerce, when the removal of the trademark eliminates the infringing characteristic of the good under both the Chile-U.S. FTA (Art.17.11.12(d)) and DR-CAFTA (Art.15.11.11(c)). However, both FTAs establish that the simple removal of the trademark lawfully affixed shall not be sufficient to permit the release of goods into the channels of commerce.

Both FTAs include rules with respect to materials and implements. Under the Chile-U.S. FTA (Art.17.11.12(c)) judicial authorities, at their discretion, shall have the authority to order that material and implements actually used in the manufacture of infringing goods be destroyed. DR-CAFTA (Art.15.11.11(b)) provides a similar remedy so materials and implements used in the manufacture or creation of pirated and counterfeit goods be promptly destroyed. DR-CAFTA also provides for an alternative, in exceptional circumstances, without compensation, to dispose of such materials and implements outside the channels of commerce. The Chile-U.S. FTA Article 17.11.12(c) indicates that authorities shall take into account the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third Parties. Under DR-CAFTA the provision is discretionary. Therefore authorities may take into account these factors. Both the Chile-U.S. FTA and DR-CAFTA limit this provision to third Parties holding an ownership, possessory, contractual or secured interests.

Both FTAs include a provision dealing with right of information (Chile-U.S. FTA Art.17.11.13; DR-CAFTA Art.15.11.12). Under the two FTAs judicial authorities shall have the authority to order the infringer to provide any information regarding any person involved in the infringement and the distribution channels. DR-CAFTA also requires information regarding any aspect of the infringement and the means of production, including the identification of third Parties involved in production and distribution of the infringing goods or services. In case of non-compliance, both FTAs require authority to impose sanctions. The Chile-U.S. FTA specifically identifies fines or imprisonment.

The Chile-U.S. FTA (Art.17.11.5) makes civil remedies available for the protection of effective technological measures and rights management information. DR-CAFTA includes similar provisions directly under “Obligations pertaining to Copyright and Related Rights, Articles 15.5.7 (effective technological measures) and 15.5.8 (rights management information) and a very specific provision (Art.15.11.14⁴⁸) listing all civil remedies available in these cases: a) provisional measures, including seizure of devices and products suspected of being involved in the prohibited activity; b) actual damages (plus any profits not taken into account in computing actual damages) or pre-established (statutory) damages; c) court costs, fees and reasonable attorney’s fees; d) destruction of devices and products found to be involved in the prohibited activity subject to judicial discretion. No damages may be available against non-profit library, archives, educational institution or public broadcasting entity that can provide sufficient evidence of lack of knowledge that their acts constituted a prohibited activity.

Only DR-CAFTA (Art.15.11.15) provides for authority to order a party to desist from an infringement of IPR in civil judicial proceedings. The objective is to prevent the entry into the channels of commerce of infringing IPR goods immediately after customs clearance or to prevent their exportation.

Under DR-CAFTA (Art.15.11.16) the costs of technical experts appointed by judicial authorities that must be paid by the Parties should take into account the nature and quantity of work to be performed and should not deter recourse to such proceedings. The Chile-U.S. FTA (Art.17.11.16(b)) includes a similar provision under “Provisional Measures” which additionally establishes that such costs should be reasonable and, if applicable, be based on standardized fees.

With respect to Administrative Procedures on the merits of the case, both IPR Chapters establish that equivalent principles shall apply to those provided for Civil Procedures and Remedies (Chile-U.S. FTA Art.17.11.14; DR-CAFTA Art.15.11.13).

Provisional Measures: both FTAs establish an obligation to act expeditiously in requests for relief inaudita altera parte in accordance with their rules of judicial procedure (Chile-U.S. FTA Art.17.11.16; DR-CAFTA Art.15.11.17).

Pursuant to the Chile-U.S. FTA (Art.17.11.16) and DR-CAFTA (Art.15.11.18), the applicant shall provide evidence of legal standing as right holder and of any infringement or imminent infringement as well as reasonable security in an amount sufficient to protect the defendant and prevent abuse. Both FTAs add a sentence that establishes that such security shall not be set at a level that would unreasonably deter recourse to such procedures.

Only DR-CAFTA (Art.15.11.19) requires a rebuttable presumption of validity for patents in proceedings concerning the grant of provisional measures.

Special Requirements related to Border Measures: both FTAs address the requirements necessary to initiate procedures for suspension of the release of suspected counterfeit trademark or pirated copyright goods into free circulation. Pursuant to the Chile-U.S. FTA (Art.17.11.17) and DR-CAFTA (Art.15.11.20⁴⁹) the right holder needs to provide the competent authority with evidence of a prima facie infringement and supply sufficient information to make the suspected goods reasonably recognizable to the customs authorities. In the FTAs there is a caveat clarifying that the sufficient information required shall not unreasonably deter recourse to these procedures.

Both Chapters include a provision requiring the applicant initiating procedures for suspension to provide security or equivalent assurance sufficient to protect the defendant, the competent authorities and to prevent abuse. Both FTAs refer to “reasonable” security and specify that such security shall not unreasonably deter recourse to these procedures. Only DR-CAFTA refers to possible forms of security. It identifies an instrument issued by a financial services provider to cover any loss or damage in the event authorities determine that the Article is not an infringing good (Chile-U.S. FTA Art.17.11.18; DR-CAFTA Art.15.11.21⁵⁰).

Both the Chile-U.S. FTA (Art.17.11.19) and DR-CAFTA (Art.15.11.22⁵¹) build on the last paragraph of Article 57 of TRIPS with respect to the right of information. In the FTAs the authority with respect to this right is no longer discretionary since under both the Chile-U.S. FTA and DR-CAFTA a Party shall grant the competent authorities the aforementioned authority to inform the right holder.

DR-CAFTA (Art.15.11.25⁵²) establishes that application or merchandise storage fees shall not be set at an amount that unreasonably deters recourse to such measures.

The two FTAs provide that competent authorities may initiate border measures ex-officio without the need for a formal complaint. This authority covers goods imported, destined for export or in transit, suspected of infringing IPR (under DR-CAFTA) or counterfeit or pirated (under the Chile-U.S. FTA). Pursuant to the Chile-U.S. FTA each Party may provide that ex officio authority shall be exercised prior to sealing the container or other means of conveyance at customs (Chile-U.S. FTA Art.17.11.20; DR-CAFTA Art.15.11.23⁵³).

Both FTAs provide for remedies under Border Measures. The Chile-U.S. FTA (Art.17.11.21) and DR-CAFTA (Art.15.11.24) require authority to destroy goods found or determined to be pirated or counterfeit by competent authorities (apart from exceptional cases under the Chile-U.S. FTA). Furthermore, the two FTAs establish that authorities shall not permit re-exportation of pirated or counterfeit goods or other customs procedures (aside from exceptional circumstances under DR-CAFTA).

Criminal Procedures and Remedies: both the Chile-U.S. FTA (Art.17.11.22) and DR-CAFTA (Art.15.11.26) provide for criminal procedures and penalties in cases of willful trademark counterfeiting or copyright and related rights piracy on a commercial scale. The Chile-U.S. FTA and DR-CAFTA also incorporate some specific activities within the scope of “copyright or related rights piracy on a commercial scale.” Under the Chile-U.S. FTA, this concept includes the willful infringing reproduction or distribution, including by electronic means, of copies with a significant aggregate monetary value of the infringed goods. DR-CAFTA follows a different formula and includes significant willful infringements of copyright or related rights, for commercial advantage or private financial gain. Moreover, DR-CAFTA includes willful infringements that have no direct or indirect motivation of financial gain provided that there is more than de minimis financial harm. The Chile-U.S. FTA (Art.17.11.22 ftnt.34) also excludes de minimis infringements and indicates that nothing in the FTA prevents prosecutors from exercising any discretion they may have to decline to pursue cases.

Both the Chile-U.S. FTA and DR-CAFTA provide for a number of remedies. The two Chapters include imprisonment and/or monetary fines sufficient to provide a deterrent to future infringements. DR-CAFTA also requires that each Party establish penalties guidelines for judicial authorities. (Chile-U.S. FTA (Art.17.11.22(b)) and DR-CAFTA (Art.15.11.26(b)(i)).

The two FTAs require authority to order the seizure of suspected counterfeit or pirated goods, related materials and implements, assets traceable to the infringing activity as well as documentary evidence relevant to the offense. Both FTAs clarify that items need not to be individually identified in the search order (Chile-U.S. FTA Art.17.11.22(c); DR-CAFTA Art.15.11.26(b)(ii)).

Pursuant to the Chile-U.S. FTA and DR-CAFTA assets legally traceable to the infringing activity are subject to forfeiture. The two FTAs also require authority to order the forfeiture and destruction of all counterfeit and pirated goods. Moreover, both FTAs expand these remedies to related materials and implements at least with respect to copyright and related rights piracy (Chile-U.S. FTA Art.17.11.22(d)) and DR-CAFTA (Art.15.11.26(b)(iii)).

Both Chapters require ex officio enforcement without a formal complaint at least in cases of trademark counterfeit or copyright piracy (Chile-U.S. FTA Art.17.11.22(e); DR-CAFTA Art.15.11.26(b)(iv)). The Chile-U.S. FTA limits these provisions to appropriate authorities as determined by each Party. In DR-CAFTA, Parties refer to “suspected” cases of counterfeiting or piracy and indicates that this authority shall be available at least for the purpose of preserving evidence or preventing the continuation of the infringing activity.

Limitations on Liability for Internet Service Providers⁵⁴: both the Chile-U.S. FTA (Art.17.11.23) and DR-CAFTA (Art.15.11.27) provide for legal incentives and limitations of liability for service providers with respect to infringement of copyright. These provisions limit the remedies available against service providers that cooperate with copyright owners for copyright infringements that they do not control, initiate, or direct and take place through systems or networks controlled or operated by them or on their behalf.

The two FTAs include a definition of service provider; identify specific functions subject to limitation of liability (i.e., transmitting, caching, storage, linking), and detailed conditions to be eligible for those limitations. Both Chapters clarify that service providers may not be required to monitor for infringing activity (Chile-U.S. FTA Arts. 17.11.23(b),(c),(d); DR-CAFTA Arts. 15.11.27(i)-(vii)).

According to both Chapters the limitations preclude monetary and court-ordered relief to compel or restraint certain actions (i.e., terminate accounts, remove or disable access to infringing material) (Chile-U.S. FTA Art.17.11.23(b); DR-CAFTA Art.15.11.27(i)). Both FTAs provide that relief shall be issued with due regard for the burden to the service provider and harm to the copyright owner and requires proper notice to the service provider and an opportunity to appear before the judicial authority.

Both FTAs include rules for procedures of the notice and take down process. Additionally, the two Chapters require the establishment of an administrative or judicial procedure to obtain expeditiously from a service provider information in its possession identifying the alleged infringer (Chile-U.S. FTA Art.17.11.23(h); DR-CAFTA Art. 15.11.27(xi)).

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²⁸ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: two years from the entry into force of the Chile-U.S. FTA, with respect to the obligations in Article 17.2 on trademarks (Chile-U.S. Art.17.12.2).

²⁹ Guatemala and Honduras may delay giving effect to Article 15.2.1 for no longer than two years, and the Dominican Republic for 18 months, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

³⁰ Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.4 and Costa Rica to Article 15.4.1 for no longer than two years, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

³¹ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: two years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.4(1) through 17.4(9) on geographical indications (Chile-U.S. Art.17.12.2).

³² Costa Rica, Guatemala, Honduras, Nicaragua and the Dominican Republic may delay giving effect to Article 15.3.7 for no longer than two years, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

³³ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: two years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.5.1 on temporary copies (Chile-U.S. Art.17.12.2).

³⁴ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: two years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.6.1 on temporary copies (Chile-U.S. Art.17.12.2).

³⁵ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: four years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.6.5 on the right of communication to the public for performers and producers of phonograms (Chile-U.S. Art.17.12.2).

³⁶ Guatemala and the Dominican Republic may delay giving effect to Article 15.5.4 for no longer than six months, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

³⁷ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: four years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.6.5 on non-interactive digital transmissions for performers and producers of phonograms (Chile-U.S. Art.17.12.2).

³⁸ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: five years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.7.5 on effective technological measures (Chile-U.S. Art.17.12.2).

³⁹ Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and the Dominican Republic may delay giving effect to Articles 15.5.7(a)(ii), 15.5.7(e), 15.5.7(f) for no longer than three years, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

⁴⁰ Costa Rica, Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.5.8(a)(ii) for no longer than two years and El Salvador, for no longer than 30 months, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

⁴¹ Guatemala, Honduras, Nicaragua and the Dominican Republic may delay giving effect to Article 15.5.9 for no longer than one year, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

⁴² Guatemala and Honduras may delay giving effect to Article 15.8, and Costa Rica, El Salvador, Nicaragua to Article 15.8.1, for no longer than 18 months, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

⁴³ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: two years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.9.1 on patents (Chile-U.S. Art.17.12.2).

⁴⁴ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: two years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.9.3-17.9.7 on patents (Chile-U.S. Art.17.12.2).

⁴⁵ Costa Rica, Guatemala, Honduras, Nicaragua and the Dominican Republic may delay giving effect to Article 15.9.6 for no longer than one year, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).

⁴⁶ Amendments to domestic legislation and financial resources required for the full implementation of the obligations shall be in force or available as soon as practicable, and in no event later than: four years from the entry into force of the Chile-U.S. FTA, with respect to the obligations Article 17.9.11 on enforcement (including border measures) (Chile-U.S. Art.17.12.2).

⁴⁷ Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.11.8 (Statutory damages) for no longer than three years, beginning on the date of entry into force of DR-CAFTA.

⁴⁸ Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.11.14 (civil remedies for effective technological measures and rights management information) for no longer than three years, beginning on the date of entry into force of DR-CAFTA.

⁴⁹ Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.11.20 (Border measures) for no longer than two years, beginning on the date of entry into force of DR-CAFTA.

⁵⁰ Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.11.21 (Border measures) for no longer than two years, beginning on the date of entry into force of DR-CAFTA.

⁵¹ Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.11.22 (Border measures) for no longer than two years, beginning on the date of entry into force of DR-CAFTA.

⁵² Guatemala, Honduras and Nicaragua may delay giving effect to Article 15.11.25 (Border measures) for no longer than two years, beginning on the date of entry into force of DR-CAFTA.

⁵³ Guatemala, Honduras and Nicaragua may delay giving effect to Articles 15.11.23 (ex-officio border measures) for no longer than four years, and El Salvador for no longer than two years, beginning on the date of entry into force of DR-CAFTA.

⁵⁴ Costa Rica, Guatemala and Honduras may delay giving effect to Article 15.11.27 (Internet Service Providers) for no longer than 30 months, El Salvador for no longer than one year, the Dominican Republic for no longer than two years and Nicaragua for no longer than 3 years, beginning on the date of entry into force of DR-CAFTA (DR-CAFTA Art.15.12.2).