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| Image Credit NASA/JPL-Caltech Public Domain Wikimedia Commons |
According to the Department for International Trade, the Prime Ministers of New Zealand and the United Kingdom agreed in principle the terms of a free trade agreement on 20 Oct 2021 (see UK agrees historic trade deal with New Zealand DfIT press release 20 Oct 2021). Copies of those terms have been posted to the British and New Zealand government websites).
Overview
The agreement in principle contains a short instruction and the following 32 sections:
- National treatment and market access for goods
- Rules of origin
- Customs procedures and trade facilitation
- Sanitary and phytosanitary measures (SPS)
- Animal welfare
- Technical barriers to trade (TBT)
- Trade remedies
- Cross-border trade in services
- Domestic regulation
- Financial services
- Telecommunications
- Temporary entry of business persons
- Investment
- Digital trade
- Government procurement
- Intellectual property
- Competition
- Consumer protection
- State-owned enterprises and designated monopolies (SOEs)
- Good regulatory practice (GRP) and regulatory cooperation
- Labour
- Environment
- Small and medium-sized enterprises (SMEs)
- Trade and gender equality
- Indigenous trade
- Trade and development
- Anti-corruption
- Transparency
- Initial provisions and general definitions, final provisions
- General exceptions and general provisions
- Dispute settlement
- Additional outcomes.
The introduction makes clear that the agreement in principle does not create any legally binding obligations. Work on a legal text which will be binding if it is accepted by the two governments is said to be substantially completed. In accordance with the Change of Focus announced on 23 Sept 2021, this article will focus on the intellectual property provisions of the agreement in principle.
Intellectual Property
Section 16 of the agreement in principle promises provisions on copyright and related rights, design protection, trade marks, geographical indications (GIs), trade secrets, enforcement, patents and test data but nothing that will affect the price of medicines for New Zealand or the National Health Service.
Copyright
In respect of copyright, the New Zealand government has agreed to extend the term of copyright for authors of literary, dramatic, musical, or artistic works by 20 years within 15 years of entry into force of the agreement. At present, s.22 (1) of the New Zealand Copyright Act 1994 provides a term of the life of the author plus 50 years. The term of copyright for computer-generated works and works of unknown authors will be increased from 50 years to 70. There are likely to be similar extensions to copyright in sound recordings and films under s.23 (1) and communication works under s.24 (1).
In respect of copyright, the New Zealand government has agreed to extend the term of copyright for authors of literary, dramatic, musical, or artistic works by 20 years within 15 years of entry into force of the agreement. At present, s.22 (1) of the New Zealand Copyright Act 1994 provides a term of the life of the author plus 50 years. The term of copyright for computer-generated works and works of unknown authors will be increased from 50 years to 70. There are likely to be similar extensions to copyright in sound recordings and films under s.23 (1) and communication works under s.24 (1).
The British and New Zealand governments have agreed to adopt (in the case of New Zealand) or maintain (in the case of the UK) artists' resale rights schemes on a reciprocal basis. For those who are not familiar with artists' resale rights or droit de suite, I covered the introduction of the British scheme in Copyright: Resale Right Directive to be implemented in New Year on 17 Dec 2005 NIPC Law, Copyright: Resale Rights Directive Implementation on 21 Dec 2021 NIPC Law and Copyright: Happy New Year for Artists on 1 Jan 2006 in NIPC Law. Further information on the right can be found in this guidance from the Intellectual Property Office. New Zealand will introduce a resale rights scheme within 2 years of the entry into force of the agreement.
Rights in Performances
The New Zealand government will extend the duration of rights in relation to performances mentioned in s.193 of the New Zealand Copyright Act 1994 from 50 years from the end of the calendar year in which a performance takes place to 70 years within 15 years of the coming into force of the agreement.
Both governments have agreed to adopt or maintain a public performance right for performers to cover communication to the public of phonograms,
Registered Designs
The free trade agreement will require the New Zealand government to make all reasonable efforts to join the Hague Agreement on Industrial Designs. This agreement facilitates the registration of industrial designs in much the same way as the Patent Cooperation Treaty facilitates applications for patents and the Madrid Protocol facilitates the registration of trade marks. The United Kingdom has been a member since 13 June 2018.
GI
The governments have agreed to review the free trade agreement to ensure that the geographical indications of British agricultural produce and foodstuffs are adequately protected in New Zealand and those of New Zealand agricultural produce and foodstuffs in the UK in the following circumstances. The first of those is if New Zealand introduces a bespoke scheme for agricultural products or foodstuffs, or substantively amends its domestic registration system. At present, New Zealand wines and spirits may be registered under the Geographical Indications (Wine and Spirits) Registration Act 2006. The other circumstance is if no changes are made to New Zealand's GI laws within 2 years of the entry into force of the free trade agreement.
Traditional Knowledge
The two governments will work together on the WIPO Intergovernmental Committee on traditional knowledge. The free trade agreement will contain provisions on genetic resources, traditional knowledge and traditional cultural expression, For example, the agreement will provide for consideration of traditional knowledge associated with genetic resources in patent examinations. This will take account of the contribution of the Maori community to New Zealand (see Maori IP on the IP Office of New Zealand's website).
Other Provisions
There are references to wine labelling, medicines and medical devices that may require amendment of existing British and New Zealand IP laws in the technical barriers to trade section. Similarly in the sections on telecommunications, digital trade, competition and SME. I will explore those issues more fully when a draft text of the agreement is published. One possible lacuna in the treaty will be the exclusion of a procedure for resolving disputes between investors and host governments.
Further Information
Further Information
Anyone wishing to discuss this article may call me on +44 (0)20 7404n 5252 during UK office hours or send me a message at any time through my contact form.
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