Following the withdrawal of the USA from the TPP agreement in January of this year, negotiations are continuing in Vietnam between the remaining 11 TPP member nations. Media reports suggest that an agreement in principle has been reached involving the suspension of about 20 terms in the original TPP text, many relating to intellectual property.
The agreement is also to be renamed the Comprehensive Progressive Trans-Pacific Partnership Agreement (CPTPP). It is not clear how close to a full agreement the negotiators are.
The provisions apparently agreed to be suspended include:
- certain provisions relating to patentable subject matter;
- the requirements to provide patent term extensions in the case of delays in granting a patent or providing marketing approval of a pharmaceutical invention;
- the requirement to protect undisclosed pharmaceutical test data;
- the provisions relating to biologics;
- the provisions requiring an increase in the term of protection provided by copyright;
- the requirements for civil and criminal penalties relating to:
- circumvention of technological prevention measures (TPM);
- circumvention of rights management Information (RMI);
- decoding of encrypted satellite and cable signals; and
- provisions relating to legal remedies against ISPs and the grant to them of safe harbours.
Other IP-related obligations will remain in the CPTPP, including those relating to:
- the expansion in scope of Customs’ border-enforcement powers to include goods for export and ex officio seizure powers;
- protection for performers’ property and moral rights; and
- expanded remedies for trade mark infringement.
New Zealand’s parliament has already passed the Trans-Pacific Partnership Agreement Amendment Act 2016 although it has not been brought into force. This Act was intended to come into force when the TPP became effective. It would have amended various New Zealand statutes (including the Copyright Act 1994, Patents Act 2013 and Trade Marks Act 2002) to comply with the original TPP. Given the recent re-negotiations, it seems that this Act will never come into force, at least not in its current form.
MBIE and MFAT have advised that if and when a CPTPP agreement is reached and ratified by New Zealand, there are two likely options for domestic implementation in New Zealand. First, the existing Amendment Act may itself be amended to allow various portions of it to come into force at different times. Parts relating to continuing obligations would be able to come into force immediately while parts relating to suspended obligations would remain not in force. The second option would be to repeal and replace the Amendment Act with new, bespoke legislation.