Bill to Implement NZ-UK FTA Introduced to Parliament

Following on from the earlier notified Agreement in Principle for a NZ-UK Free Trade Agreement, the United Kingdom Free Trade Agreement Legislation Bill has now been introduced to New Zealand’s parliament as part of the process towards final ratification of the agreement.

In relation to intellectual property the vast majority of the obligations are already met by New Zealand’s current legislation. The only imminent change will be the replacement of section 174B of the Copyright Act 1994 so as to specify that performer’s rights are also infringed by the playing in public by means of a sound recording of the whole or a substantial part of a performance without the performer’s consent. Arguably this is merely clarificational as section 174B currently specifies that a person who communicates to the public the whole or a substantial part of a performance by means of a sound recording without the performer’s consent infringes the performer’s rights. Part of the definition of ‘communicate’ in section 2(1) is to transmit or make available by means of a communication technology and so should already cover the playing of a sound recording.

Some other changes to the Copyright Act 1994 will eventuate at a later date. Within 2-years of the FTA entering into force New Zealand has to introduce an artist’s resale right scheme and operate it on a reciprocal basis with the UK. Under an artist resale right scheme visual artists receive a royalty on the resale of their art works in the secondary art market for as long as the artwork remains protected by copyright. The secondary market would minimally cover resale in either New Zealand or the United Kingdom of an art work first produced in one of those jurisdictions, although it could extend to other jurisdictions that have resale right legislation. There will be flexibility for New Zealand to specify the percentage amount(s) of the royalty, any threshold sales value and how the royalty will be collected. Currently the threshold sale value in the UK is £1,000 and for Australia it is AU $1,000. Resale royalty payments in Australia are mostly between AU $50 and AU $500.

Further out, New Zealand will have up to 15-years from the FTA entering into force to extend the copyright term for authors, performers and producers by 20-years to 70-years either from the death of the author or from the work's creation as is appropriate. The additional term would only apply to works that still have copyright at the date of implementation and so would not reapply copyright to a work that had fallen out of copyright.

Although not subject to a timeframe, New Zealand also has an obligation to make all reasonable efforts to join the Hague Agreement on Industrial Designs – Geneva Act (1999). This will be the subject of a separate national interest and regulatory impact assessment.

There are also conditional obligations under the FTA. If New Zealand’s geographical indications legislation is extended in a bespoke fashion to recognise agricultural products or has substantive changes to the current wine and spirits provisions then that extension will also be done for the UK. This conditional provision is on account of the on-going negotiations for an EU-NZ FTA, and will be reviewed within two years of entry into force of the FTA if no such bespoke changes have been made.

Both parties are also obligated to work towards a multilateral outcome in the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) and to share information and otherwise cooperate in working toward that outcome. There is also a requirement for both parties to endeavour to cooperate to enhance understanding of matters of interest to Māori relating to intellectual property and issues relating to genetic resources, traditional knowledge and traditional cultural expressions.

Author: Quinn Miller

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