Australia has ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and in doing so has triggered the 60 day countdown until the agreement will take effect. After years of negotiation (and re-negotiation following the withdrawal of the United States from the Trans-Pacific Partnership by President Trump), Australia became the sixth nation out of the 11 signatories to ratify (joining New Zealand, Japan, Canada, Mexico and Singapore), enough to bring the agreement into force. The remaining nations yet to ratify are Chile, Malaysia, Brunei, Peru and Vietnam.
Many of the more wide-ranging (and controversial) intellectual property provisions of the original TPP have not been carried over into the CPTPP. However, the intellectual property provisions of the CPTPP do include some important changes that New Zealand businesses and innovators need to be aware of.
The CPTPP requires New Zealand to extend the powers of Customs to allow it to act on its own initiative to temporarily detain imported or exported goods that it suspects infringe copyright (or trade marks).
Moral and property rights will be extended to performers, such as musicians and actors, for the live communication of their performances to the public as well as recordings made of those performances. These rights include the right to be identified as a performer, to not have their work subject to derogatory treatment, and for consent to be obtained from the performer before copying, issuing or providing copies of the performance to the public. Currently, these rights are afforded to authors of copyright works.
The extension of the copyright term in the TPP from 50 years to 70 years has not been included in the CPTPP. New Zealand will retain its existing copyright term of 50 years for films and sound recordings and the life of the author plus 50 years for books, screenplays, music, lyrics and artistic works. New Zealand will also not be required to:
- provide stronger protection for digital "locks" to protect copyright work
- provide stronger protection for rights management information; or
- alter its internet service provider liability provisions for copyright infringement.
In addition to the increased powers of Customs to detain trade mark infringing goods, New Zealand will also be required to give the High Court the power to award additional damages for trade mark infringement. This will be in addition to the existing availability of compensatory damages under the Trade Marks Act 2002.
The CPTPP will require New Zealand to provide a 12 month grace period for patent applicants. Under this requirement, inventors will not be deprived of their ability to be granted a patent in New Zealand if an inventor makes their invention public, provided the inventor files the patent application within 12 months of disclosure. This is important for many New Zealand businesses who will now not lose the right to patent their invention through accidental disclosure.
New Zealand will now also need to ensure pharmaceutical patent holders (who have provided their details to Medsafe) are informed of someone seeking to use their drug's clinical trial data before marketing approval is granted.
When does it take effect?
There is now a 60 day countdown period before the agreement comes into effect. This means we can expect the CPTPP to be operative in New Zealand on 30 December 2018.
“It has benefits that will spread throughout the economy to every person in New Zealand from the factory floor to the farm owner to all of the other service industries that rely upon our export industries.”