Trans Pacific Partnership Agreement Negotiation Concluded

Agreement reached
After more than half a decade, the negotiation of the Trans Pacific Partnership Agreement between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States of America and Vietnam, concluded in Atlanta, Georgia, USA on 5 October 2015.

The final text of the agreement is still to be released although the New Zealand Government has provided useful summaries of the main terms, together with fact sheets calculating the impact in various sectors. The final text is likely to be released in the next few weeks, given that it must go through a fast track process to gain approval in the US.

IP chapter leak
There has also been a leak of what is said to be the final version of the intellectual property chapter (PDF). While it will be important to see how this IP chapter interacts with others - most notably the ecommerce chapter and the dispute resolution provisions - what we can see is that the earlier more egregious proposals (primarily) from the US, appear to have been scaled back. There are still areas of concern and the level playing field that we have written on previously has not been provided, it being unclear now whether New Zealand will move to introduce such things as fair use and rights reversion to put New Zealanders on a par with US citizens. Presumably, the review of our Copyright Act, which was delayed to allow for the finalisation of TPP, will now be able to canvas those and other issues.

Copyright changes
On the copyright front, the main changes for New Zealand from the leaked text appear to be:

  • Increased copyright terms so that copyright will now last for 70 years after the death of the author or 70 years after publication of a work with no individual author. New Zealand alone has gained a concessionary transition period on this so that in the first 8 years after accession, these periods will be set at 60 years. These periods are up from our current 50 year terms. The terms will not apply retrospectively to bring a work which is in the public domain back into copyright but, as we read them, they will extend copyright on works already created. So, for example, a book written in 1920 by an author who died in 1966 will now remain in copyright for a further 20 years until 2036. 116 years of copyright protection.

  • Strengthened protections for technological protection measures (TPMs), which are devices or processes such as digital locks on DVDs. These protections include the introduction of a new criminal offence for circumventing a TPM. There are exceptions to this blanket prohibition allowing permitted acts and other non-infringing uses, which exceptions are already provided for in our law . However, copyright is not an exact science. There will often be doubt whether a use of an underlying work is a permitted act under the Copyright Act or otherwise does not infringe copyright, so having a criminal sanction for getting it wrong exponentially increases the risk of making an honest mistake or for businesses seeking to legitimately innovate in the online environment.

  • One topical area where this may impact is virtual private networks (VPNs). VPNs are used for various purposes, in particular to afford a better measure of privacy when accessing websites or transmitting data online. Because they may keep private a person's location, they can also be used to access material which is blocked from New Zealand access - so called geo unblocking. Our view is that geo unblocking using a general VPN is allowed under current copyright law because our law does not protect geoblocking TPMs and allows parallel importation of legitimately purchased digital content from overseas. This makes complete sense since we allow this for physical goods. We will need to check these provisions carefully to see whether there has been a change, whether because the substance has changed or because the criminal sanction effectively makes use of a VPN to access geoblocked content too risky. In either case, that would be a major shift under New Zealand law.

  • More detailed ISP safe harbour provisions. We do not expect these to require much if any change to our Copyright Act although the doubt as to whether search engines are covered in current law will need to be cleared up in our Act to comply with the treaty. The early fear that we were going to return to a requirement for infringer's internet accounts to be terminated has been batted away as it has been in most jurisdictions over the 5 years while TPP has been negotiated.

Next steps
Once the treaty text is released, it will go though New Zealand's usual treaty implementation process. Effectively this means once the treaty is approved by Cabinet and signed, it can only be the subject of a Parliamentary "yes" or "no" vote on the text as a whole after review and public submissions at Select Committee. Any specific changes required to our laws (e.g. the Copyright Act changes) will then also need to be put into appropriate Bills and go through their own select committee process before the treaty can be subject to final binding ratification and come into force in New Zealand. As happened with ACTA, New Zealand will be looking to ensure that it does not jump the gun and take at least the final step until it knows that the other countries are also going to do likewise (ACTA was signed by numerous countries including New Zealand but only one country, Japan, has formally ratified it, so it is not in force). MFAT has a useful explanation of the New Zealand treaty process on its site.

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