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Under the microscope: The TPP and copyright examined

One of the most difficult and controversial areas in the Trans Pacific Partnership (TPP) negotiations is related to intellectual property. There has been real concern that New Zealand’s intellectual property laws would require far-reaching changes as a result of the agreement, and that the administration of intellectual property laws would be severely impacted. The good news is – now the TPP text has been released – that very little change is required to New Zealand’s current policy settings, except in the area of copyright.

Copyright exists to protect and promote creativity. Copyright is a property right, lasting for a limited period of time, which is given to creators of literary, dramatic, musical and artistic works, sound recordings and films automatically upon their creation. Copyright is ‘infringed’ by any unauthorised use which is made of those works.  This means no one, other than the copyright owner, can make copies, distribute or communicate their work.

Under TPP the copyright term is to be raised from 50 years to 70 years after the death of the author (or in the case of movies and the like, after first release). This will require an amendment to the Copyright Act (1994). An earlier amendment in 2008 dealt with technology issues but not the term, ostensibly because TPP was under negotiation.

There is an active debate amongst economists as to whether extended copyright terms result in more creativity. Nearly all OCED members (including Australia and all EU countries, but not currently New Zealand, Canada or Japan) apply a 70 year term. Copyright term is already longer than the most usual patent term of 20 years. It can be asked why longer protection is required for a book, a song, a piece of software or a movie than for a complex invention or manufacturing process? Also there tends to be one copyright term, which applies equally to everything regardless of the medium. It could be argued that software, being functional, should get a short term. Why not make it equivalent to the patent term? The fact of the matter is that it was found to be easier to give protection to software as a literary work rather than as a new class of work.  

On balance, the TPP intellectual property provisions, while a complex set of legal commitments, will not result in much change to the way things are done in New Zealand except in relation to copyright term and TPMs. This is most certainly not simply ‘US copyright law’ as has been claimed.

What is the effect of extending copyright by another 20 years? Effectively it will cost more to use copyright works. Even ‘minor’ activities such as playing recordings in pubs and ‘music on hold’ will require the payment of royalties for an extra 20 years. Despite this, for most New Zealanders the effect will be hardly noticeable at all. Creators and artists might not be particularly advantaged either – most authors for example sign the copyright over to publishers. The Government has suggested over the very long term a cost of an additional $55 million to the economy as a whole but this is vastly less than the $2.7 billion the Government expects to be secured from TPP. To put the cost into perspective it’s about the same as savings on cheese tariffs to Japan.  

Are there any advantages from extending the term? Extending the term means that copyright will be uniform across all 12 TPP economies including between New Zealand and Australia, which could be of use to the New Zealand creative sector operating in multiple jurisdictions. Simplifying the regulatory framework should result in lower costs and better protections for New Zealand exporters of creative content.

Copyright involves a trade off between the rights of the creator and the rights of users. How can legitimate uses of copyright materials be provided for, and users protected with an increased term? New Zealand legislation already establishes the right of “fair dealing” with copyright materials. This provides for limited exceptions to copyright in some narrow areas (such as copying for the purposes of criticism, review, news reporting and private research). TPP does not go as far as introducing the US practice of “fair use” but the TPP parties have undertaken to achieve balance in their copyright and related systems including by allowing exceptions and limitations to the rights of copyright owners. 

Most of these are the sorts of exceptions and limitations already in place in New Zealand. For example TPP specifically refers to the facilitating access to copyright works by people who are blind. Contrary to general expectations before TPP was concluded, TPP will not make things any more difficult for blind people. Not will TPP result in any changes to obligations on the part of internet services providers in relation to downloading of copyright material – the text makes clear that the obligations follow the practices adopted in New Zealand in 2008.

In one area related to circumvention of technological protection measures (TPMs) – eg. digital locks that protect copyright works such as video games – TPP will require New Zealand to do something different. TPP will require us to establish a criminal offence for those who deliberately set out to circumvent such measures: until now New Zealand law has only targeted devices or software that permit such circumvention. TPP will not require a change to existing law where circumvention is permitted for non-infringing uses (such as for research or after copyright has expired) and will not put an end to circumventing video zoning which is currently permitted under New Zealand legislation

So, on balance, the TPP intellectual property provisions, while a complex set of legal commitments, will not result in much change to the way things are done in New Zealand except in relation to copyright term and TPMs. This is most certainly not simply “US copyright law” as has been claimed – the 70 year term has been in operation in Europe for some time now and the exceptions and limitations are pretty much as already applied in New Zealand. The impact of TPP’s copyright provisions is likely to be pretty limited at best – while they will not encourage more creative works, nor will they result in significantly increased costs or penalties for users.  As with much of the rest of TPP they will mean that New Zealand’s practices and those in other TPP economies are brought more into alignment and closer to international norms. 

Stephen Jacobi is executive director New Zealand International Business Forum (NZIBF), a collaboration of senior New Zealand business leaders working to expand New Zealand’s international business opportunities. Ken Moon is a consultant at AJ Park and specialises in information technology, copyright, and trade secret law.

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