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CPTPP ratification trundling along

July 31, 2018

Contacts

Partners Earl Gray, Richard Watts
Senior Associates Raymond Scott

Intellectual property

With its rather uninspired and difficult to remember name, it is hardly surprising that the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) has not enjoyed the same attention afforded to its predecessor, the TPP. However, there has been steady progress towards ratification since negotiations on the CPTPP concluded in January this year. Read on to discover what happened to the wide-reaching IP changes that were promised under the TPP.

The TPP promised a number of significant changes to New Zealand’s IP regime, including patent term extensions and extension of copyright terms. With the withdrawal of the United States, which was the main driving force behind the IP changes, many of the significant IP changes have been suspended. This means there is:

  • No requirement to extend the term of copyright protection from 50 years to 70 years;
  • Flexibility around what is patentable, as the CPTPP does not lock in our existing domestic policies on patentability;
  • No requirement to change the term of patents to account for unreasonable delays;
  • No requirement to change the obligations around the liability of internet services providers for online copyright infringement.

The suspended provisions will have no effect on CPTPP parties. Agreement of all members would be needed for these provisions to take effect in the future.

While those headline acts have been consigned to backstage for the foreseeable future, there are a number of other changes put forward in TPP which have made it through to the CPTPP.

Patents Act 2013

A one year grace period for public disclosures of matter constituting an invention will be introduced.

Trade Marks Act 2002

Courts will be able to award additional damages for trade mark infringement, and will be required to order the destruction of counterfeit goods in trade mark infringement cases, except in exceptional circumstances.

Customs will be able to detain exports of suspected trade mark infringing goods where a notice has been accepted from rights holders, and will have powers to temporarily detain suspected trade mark infringing goods without a notice from rights holders.

Copyright Act 1994

Performers’ moral rights are introduced, including the right to be identified as a performer and the right to object to derogatory treatment of a performance.

Additional rights are given to performers over sound recordings of a performance. For example, communication of the whole or a substantial part of a performance without the performer’s consent will infringe the performer’s rights.

Customs will be able to detain exports of suspected pirated copyright works where a notice has been accepted from rights holders, and will have powers to temporarily detain suspected trade mark infringing goods without a notice from rights holders.

What next?

These changes are currently making their way through Parliament in the Trans-Pacific Partnership Agreement (CPTPP) Amendment Bill. The Bill is with the select committee. Submissions on the Bill close on 17 August 2018.

We will keep you posted on developments once the select committee has reported back.

Contributors kate.tidbury@simpsongrierson.com