New Zealand: TPP will bring laws in line with Australia

October 28 2015

After many years of negotiation, agreement has been reached on the Trans-Pacific Partnership Agreement. The free trade agreement between 12 countries – Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam – is intended to liberalise trade between the regions while setting out consistent rules that make it easier for participating countries to do business.

New Zealand and Australia were early signatories to the talks, with other countries entering over the years of negotiation. Further countries are expected to sign up in the future.

Intellectual property provisions made up a small proportion of the issues negotiated, but were among the most significant for New Zealand, which has relatively low import tariffs already. Apart from concerns that the government's pharmaceutical purchasing agency Pharmac would be compromised, proposed changes to the patent system led many to expect a rise in pharmaceutical costs under the TPP.

Similar concerns were raised in Australia, which spearheaded opposition to proposed increases in data exclusivity periods. TPP will not require any changes to Australia's IP laws at all. Australia's five years of data protection for biological medicines will remain unchanged and it already has patent term extension and a life of the author plus 70 years copyright term.

Sensible debate was not aided by the media's reporting of these issues, repeatedly confusing the concepts of patent term, patent term extension and data exclusivity periods, as well as misunderstanding the implications of copyright extension.

We will need to wait until details of the agreement are published, but various sources suggest that patent term extensions must be made available for pharmaceuticals experiencing regulatory delays. The New Zealand government release says New Zealand "will have to extend the term of a particular pharmaceutical patent if there are unreasonable delays in examining the patent or getting regulatory approval. New Zealand's processes are efficient, however, so very few patent term extensions are expected, based on current practice, and only in exceptional circumstances." Although it may be rarely used, this is a potentially important change for holders of New Zealand patents but will not affect Australia, which already offers such extensions. Data exclusivity (at present five years in both Australia and New Zealand) seems unaffected.

On the trade mark front, the agreement provides safeguards to protect geographical indications. We don't yet have details of how that might look in practice.

Another new IP provision that will affect New Zealand is extension of copyright from 50 to 70 years from the death of the author (and from 50 years to 70 years from release for films or music recordings). The government estimates this to cost the country NZ$55 million ($38 million) a year in the "very long term", but that figure seems high. Not many copyright works are still being heavily commercialised in New Zealand 50 years after the author's death. Again, Australia already has a 70-year copyright term.

We will provide more information on the expected changes to New Zealand and Australia when details emerge.