The Trans-Pacific Partnership Agreement (“TPPA”) Amendment Bill was read for the first time in Parliament on 12 May 2016. This week, Baldwins will be publishing a summary of the changes proposed to New Zealand’s intellectual property laws to comply with the TPPA Amendment Bill, and consider the practical implications of these changes for New Zealand businesses.

The final text of the TPPA was signed on 4 February 2016.[1] However, in order for the TPPA to come into force, it must be ratified by at least six of the signatory countries representing at least 85% of their combined GNP[2].  Ratifying states must also align their domestic laws with the terms of the agreement. That is the purpose of the New Zealand TPPA Amendment Bill (the “Bill”) which will only come into effect if and when the TPPA comes into force.

The changes proposed in the Bill will affect New Zealand intellectual property laws by amending existing copyright, patents, trade marks, and border control laws. In addition to the extension of copyright term (reported here last week), the TPPA also requires New Zealand to extend and strengthen its existing copyright laws relating to performers’ rights, border protection, and technological protection measures.

NEW RIGHTS FOR PERFORMERS

One of the more substantial proposed changes provides new rights for performers (for example, singers and actors).

“Performers’ rights” are extended to performers – actors, singers, musicians and dancers – of live performances.   These rights relate to communicating a performance to the public, recording of performances, and the exploitation of recordings. The rationale for the existence of performers’ rights is that they are thought to provide an economic incentive for performers to participate in and create new performances.

Our current copyright law only provides a performer with the non-property right to consent (or withhold consent) to a performance being recorded or communicated live to the public.[3]  These rights are separate to the copyright rights subsisting in the original works themselves (that is, in scripts, musical notation or official audio visual recordings etc.).

If a recording of a performance is not consented to by the performer, it is termed an “illicit recording”, which is a type of infringement if published or sold.[4] Making copies of such illicit recordings without the consent of the performer can also amount to infringement.[5]

The TPPA requires New Zealand to join the WIPO Performers and Phonograms Treaty, Geneva 1996 (“WPPT”).  WPPT affords performers specific property and moral rights for live performances and recordings of those performances.

The TPPA Amendment Bill therefore proposes:

  • moral rights for performers to be identified as the performer, and to object to the derogatory treatment of their live performances, and recordings made from their performances.[6] As with other moral rights, these cannot be licensed or assigned, although they can be waived.
  • property rights to performers to authorise the reproduction, distribution and rental of recordings made from their performances.[7]  These rights can also be licensed or assigned, making them a new valuable form of intellectual property for performers.

Performers will therefore have greater rights to, and control over, their live performances and recordings – subject to specific exceptions.  The duration of these rights is proposed to be the extended copyright term of 70 years from the date of performance, or 70 years from the authorised release of the performance (if that release takes place within 25 years of the date of performance).[8]

The extension of performers’ rights in New Zealand once the TPPA Amendment Bill comes into force provides a good reason for New Zealand performers to become more aware of their intellectual property rights, particularly given the ease with which illicit recordings can be disseminated through the likes of social media. It also provides a welcome opportunity to benefit from intellectual property rights generated from performance.

It would be advisable for film, television, sound recording and theatre companies to have their performers’ employment contracts reviewed once the amendments are implemented to ensure that they appropriately account for the extension of performers’ rights. Content providers such as radio stations, television programme producers and online content aggregation sites and their users should also be aware of the changes to ensure that they appropriately consider performers’ new moral and property rights.

BORDER PROTECTION

Counterfeit or pirated goods are bad news for traders. The sale of such goods can have numerous negative effects, including diversion of sale, damage or dilution of reputation, and deceiving or confusing consumers into purchasing goods of lesser quality. It is therefore important to prevent counterfeit goods from entering the New Zealand marketplace.

Under current New Zealand law, copyright owners may lodge Notices of their intellectual property rights with New Zealand Customs. These Notices list an owner’s copyright drawings or trade mark registrations, and allow for Customs officers to seize potential counterfeit goods at the border.

Seized goods are detained for 10 working days, during which the copyright owner may seek the importer’s voluntary forfeiture of the goods, or otherwise initiate Court proceedings against the importer.

Under the TPPA, New Zealand is required to extend the powers of Customs officers. In particular, Customs officers will have the ability to seize suspected counterfeit or pirated goods that are:[9]

  • destined for export; or
  • in transit from one Customs office to another Customs office in New Zealand.

This means the border will be insulated from incoming and outgoing counterfeit goods.

Customs officers will also be extended ex officio powers, [10] allowing them to detain suspected infringing goods on own initiative. A Notice will not necessarily need to be in place before suspected goods are detained. Customs officers merely need reasonably cause to suspect that the goods are pirated.

However, items seized on suspicion of being a pirated copy must be released if, after 3 days of informing the copyright owner of the seizure, the copyright owner does not file a Notice listing the relevant copyright drawings or trade mark registrations. While Notices of intellectual property rights are therefore not essential, it is still recommended that rights holders continue to lodge Notices to ensure that Customs officers are aware of their rights.

These proposed changes aim to reassure New Zealand businesses that their copyright and trade mark registrations are being protected at our borders, and reassure consumers that they are purchasing genuine goods.

TECHNOLOGICAL PROTECTION MEASURES

The term “technological protection measure” (“TPM”) refers to any digital lock that protects a copyright work from being infringed.  Examples include the copy protection technology found on CDs, DVDs, digital music files, and even websites that prevent their content from being copied.

The TPPA requires New Zealand to provide stronger legal protection for TPMs.  The Bill proposes two main ways of doing this. 

First, the definition of TPM is extended to include “access control” TPMs.[11]  Access control TPMs are measures that control access to a work, as contrasted to the traditional copy control measures mentioned above.  A simple example of an access control TPM is software that requires a password for access.

Secondly, the Bill proposes to specifically prohibit three kinds of conduct:[12]

  1. dealing in TPM circumvention devices – for example, by advertising or selling a device, product, or component for the purpose of circumventing a TPM
  2. providing a service for circumventing a TPM;
  3. circumventing (or providing means for circumventing) an access control TPM without authority.

(The Bill also specifically extends the protection of encrypted programme-carrying satellite and cable signals, and prohibits decoding a satellite signal without authorisation or dealing in a decoding device that is intended to assist in the unauthorised decoding of a satellite signal.[13])

However, the proposed amendments do not prohibit uses of copyright works that are currently legitimate under New Zealand law. In other words, people can continue to break TPMs for legitimate purposes.  For example, a TPM may be circumvented:

  • to enable a person to do an act that does not infringe copyright (e.g. fair dealing for the purpose of research, critique, or news reporting);
  • if that TPM controls geographic market segmentation by preventing a person from playing or operating a physical non-infringing copy of the work.[14] For instance, a person is allowed break a region-code on a DVD legitimately purchased overseas in order to enable that DVD to be viewed on a New Zealand DVD player.

IMPLICATIONS OF THESE CHANGES FOR NEW ZEALAND BUSINESSES

In summary, most of the proposed changes aim to strengthen existing copyrights in order to catch those who intentionally infringe copyright, while maintaining the same exceptions already in place. Businesses who own copyright can feel reassured that their rights are being protected without limiting the genuine freedoms of their consumers.

There has been some public concern about the scope of the TPPA’s reach, but the TPPA Amendment Bill should reassure most that the proposed changes are relatively minor as they affect the general public.  The TPPA does not weaken or remove any exceptions to copyright infringement (including fair dealing), and does not require any changes to New Zealand’s laws dealing with genuine goods (for example, parallel importing of genuine goods is still allowed).

The Trans-Pacific Partnership Agreement (‘TPPA’) Amendment Bill

The TPPA is a free trade agreement reached between 12 countries in the Pacific: New Zealand, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, the United States and Vietnam.

It is one of the most ambitious free trade agreements, aiming to harmonise and liberalise trade and investment, thereby bringing future economic growth for the countries involved. Trade Minister Todd McLay has said that the TPPA will, “support New Zealand’s global connectedness, maximise opportunities for exporters, and in turn grow the prosperity of the economy for the benefit of New Zealanders”.[15]

Following the first reading in Parliament, the TPPA Amendment Bill has now been referred to the Foreign Affairs, Defence and Trade Committee for its review. The Committee will hear submissions from the public and report back to Parliament in November 2016.

From here, the bill goes into a second reading, a further committee, and then a third reading before it goes to the Governor-General for Royal Assent. Omnibus bills such as this one, where various bills are consolidated into one piece of legislation, are often split up during the committee stages into several bills which would each require a separate parliamentary vote. A general timeline of the legislative process can be found here.

Further afield, support for ratification of the TPPA has stalled in the US, threatening the viability of the agreement as a whole. The TPPA provisions cannot enter into force unless at least the US and Japan ratify the agreement. It is thought that a ratification vote may be sought in the US in the “lame duck” period after the US election in November and before the new President is appointed to office.