In June 2020, New Zealand started negotiating a comprehensive free trade agreement (FTA) with the UK. On October 20 2021, New Zealand and the UK reached an agreement in principle (AiP) to confirm the parameters of the deal.
The AiP does not create any legally binding obligations but indicates agreement on the key outcomes and parameters of the FTA. The AiP broadly aims to eliminate UK tariffs on New Zealand exports, increase trade and combat climate change. The AiP contains a section on intellectual property (IP), providing that:
New Zealand will extend the term of protection for copyright by 20 years, and will implement this change within 15 years of entry into force of the FTA;
The parties will adopt and maintain schemes relating to an artist’s resale rights;
The parties will adopt and maintain a public performance right for performers to cover communication to the public of sound records;
New Zealand will make all reasonable efforts to join the Hague Agreement on international registration of industrial designs;
The UK acknowledges that Te Tiriti o Waitangi/The Treaty of Waitangi is a foundational document of constitutional importance to New Zealand; and
The UK acknowledges the value of Māori IP and traditional knowledge and will work with New Zealand to identify appropriate ways to advance recognition and protection of the Haka Ka Mate.
Copyright provisions
The Copyright Act 1994 (New Zealand) provides that copyright in literary, dramatic, musical and artistic works lasts for the life of the creator plus 50 years. The FTA will extend this term of protection to 70 years, bringing New Zealand into line with the UK, US, and Australia.
New Zealand has also agreed to introduce a resale rights scheme for artists, allowing artists to receive royalty payments from their work in the same way as authors and songwriters. This right would last for the same period as copyright and entitle creators of original works of art (such as paintings, engravings and sculptures) to a royalty each time one of their works is resold through an auction house or art market professional.
Protecting Māori IP and the Haka Ka Mate
The FTA provides further that the UK will cooperate with New Zealand to identify appropriate ways to advance recognition and protection of the Haka Ka Mate.
The Haka Ka Mate is a ceremonial Māori dance or challenge that was composed by the Ngāti Toa Rangatira chief Te Rauparaha, a descendant of Hoturoa. In New Zealand, the Haka Ka Mate was formally recognised as a taonga (treasure) in 2014 through the Haka Ka Mate Attribution Act 2014 (NZ). The Act acknowledges the significance of Ka Mate as a taonga of Ngāti Toa Rangatira and creates a right of attribution where there is any publication of Ka Mate for commercial purposes or any communication of Ka Mate to the public.
The FTA may therefore require the UK to enact legislation similar to the Haka Ka Mate Attribution Act. The AiP provides further that the UK will provide a separate letter acknowledging Ngāti Toa Rangatira’s guardianship of the Haka Ka Mate.
Next steps
Once New Zealand and the UK conclude negotiations and the full text of the agreement is finalised, the agreement will be signed and ratified. At that stage, the agreement will enter into force and a plan will be developed for legal reform.
Kathleen Henning
Trademark executive, AJ Park
E: kathleen.henning@ajpark.com
Kieran O’Connell
Principal, AJ Park
