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Now its called CPTPP - moving right along (slowly)

December 05, 2017

Contacts

Partners Earl Gray, Richard Watts
Senior Associates Sarah Chapman

Intellectual property

After several years of negotiations and hundreds of thousands of pages of documents, the TPP was signed in February 2016. From an intellectual property perspective, the effects for New Zealand were heralded by some as being profound - extension of copyright terms, changes to patentable subject matter and patent term extensions potentially signalled a new age for NZIP. And then came Trump. And it was gone.

But now it’s back, the Phoenix-like and uncatchily named CPTPP is afoot. We look at what it may mean for New Zealand’s IP regime...

The Trans-Pacific Partnership or TPP is a trade agreement that was signed by twelve Pacific rim countries (including the United States) in February 2016 after many years of negotiation.

In our article of March 2016, we discussed the consultation document released by the Ministry of Business, Innovation and Employment in connection with the legislative implementation of the TPP intellectual property chapter. Changes that were required to intellectual property, and other, laws to comply with the TPP were subsequently written into New Zealand legislation under the Trans-Pacific Partnership Agreement Amendment Act 2016. That Act included amendments to the Trade Marks Act 2002, the Copyright Act 1994 and the Patents Act 2013. However, although the TPP had been ratified by New Zealand in May 2017, the amendment Act had not been brought into force.

The United States had signed the TPP under President Obama. Donald Trump had, though, publicly campaigned against trade deals. As a result, after he became President of the United States, the US withdrew from the agreement in early 2017.

Given the United States’ size and bargaining position, many of the obligations in the signed TPP were based on United States requirements. Its withdrawal from the agreement, therefore, provided an opportunity for the remaining members to revisit those obligations.

At the recent Asia-Pacific Economic Cooperation (Apec) conference in Vietnam in early November, Trade Ministers from the eleven remaining TPP members reached agreement on the core elements of what is now called the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

The Ministry of Foreign Affairs and Trade has said that the CPTPP includes many of the elements that were negotiated as part of the TPP but with some significant differences, including the suspension of a number of original provisions. In addition, there are four specific issues that require further discussion before an agreement can be finalised.

A large number of the suspended provisions relate to intellectual property issues, and include provisions relating to:

  • Patentable subject matter
  • Patent term adjustment for unreasonable granting authority delays
  • Patent term adjustment for unreasonable curtailment
  • Protection of undisclosed test or other data
  • Biologics
  • Term of protection for copyright and related rights
  • Technological Protection Measures (TPMs)
  • Rights Management Information (RMI)
  • Protection of encrypted program-carrying satellite and cable signals
  • Legal remedies and safe harbours

Of particular interest are the suspensions of the changes to the copyright protection term and the patent term extensions.

Under the TPP, the term of copyright in New Zealand was to change from life of the author plus 50 years to life of the author plus 70 years - a significant term and one that applies in the United States and many of New Zealand’s other key trading partners, such as the United Kingdom. For the time being, though, the term of copyright in New Zealand will remain at life of the author plus 50 years.

Based on the drafting of the original provisions of the TPP, patent term extensions for unreasonable delays by the granting authority or unreasonable curtailment (delays in achieving marketing approval) were unlikely to ever be granted in New Zealand (see our earlier article discussed above). As a result, the effect of the suspension of these provisions on patent holders in New Zealand is likely to be limited.

Although the suspended clauses are “on hold”, rather than deleted from the agreement entirely, the United States will not be able to simply reinstate them if it rejoins the partnership. As with any agreement, the United States could negotiate their return, but there would need to be a consensus across all member countries.

Provisions that remain in the agreement and effective include those relating to performers’ rights (eg moral rights and rights relating to sound recordings) and border protection measures (eg the ability for Customs to detain goods it suspects are pirated).

Once agreement has been reached on the four outstanding issues, we expect the full text of the agreement will be published and a discussion paper issued in respect of any proposed changes to New Zealand laws as a result. So, watch this space…