Just what is going on with the TPPA? One of the most significant consequences for New Zealanders will be a change to the intellectual property laws. How will this impact on New Zealand businesses and creatives?
Agreement between the twelve participating nations has finally been reached on the Trans-Pacific Partnership Agreement (TPP), and it has been revealed one of the deal’s more significant consequences for New Zealand will be a change to its intellectual property laws.
Change to copyright protection period
TPP requires that all participating countries’ copyright law protect copyright from the life of the author plus 70 years. This means an extension of the copyright period by an additional 20 years for both Canada and New Zealand, who both currently hold copyright periods of life of the author plus 50 years.
The term of copyright protection in New Zealand will extend gradually over an eight year period, at first extending to the author's life plus 60 years, and finally to the author's life plus 70 years.
The extension will apply to copyrighted works that are still within their current 50 year term of protection under current law, but will not apply to those that have already entered the public domain.
Impact on businesses
It is difficult to assess the potential impact of the copyright period extension across New Zealand generally, as it may be a positive one for some businesses, and a negative one for others.
For those in the business of creating original copyrighted works, the additional period of protection will be a benefit, with modest potential financial gain in the long term. However, for those wishing to use or adapt copyrighted works due to lapse in near future, they will need to wait an additional 20 years or pay for any use in the interim.
In terms of a tangible cost to the economy, NZ Trade Minister Tim Groser explained in an official statement, “the cost of this [change] to consumers and businesses will be small to begin with and increases gradually over a 20-year period”.
In its recently released factsheet regarding TPP and Intellection Property law in New Zealand, the government has estimated that in the long term, the average cost of this extension will amount to around $55 million per annum.
Impact on creative industries
Similarly, the impact on the creative industry will be mixed, with those creating new original works protected for longer, but with many arguing that the extension inhibits creative freedom, causing artists to face additional restrictions when reusing or adapting works for the current day.
Internet NZ’s Andrew Cushen, has said "the TPP imports long US copyright terms, without the balance of US-style fair-use. That lack of balance means this is bad for Kiwi consumers and creators and is something Internet NZ will be focusing on in how this is implemented in New Zealand." (TPP and Intellection Property law in New Zealand Factsheet)
Current New Zealand law does provide certain exceptions where the use of copyrighted works without permission would not amount to an infringement (and such exceptions will continue), including the principles of fair dealing. However the fair dealing exception is limited to an exhaustive list of prescribed uses; a use does not infringe copyright if it is for one of the following purposes: (i) research or private study; (ii) criticism or review; or (iii) reporting current events. In contrast, the United States’ fair use rules are much more flexible, decided on a case-by-case basis after consideration, on balance, of four relatively broad factors:
the purpose and character of your use (i.e. is it transformative?);
the nature of the copyrighted work;
the amount and substantiality of the portion taken; and
the effect of the use upon the potential market.
In the US, the fair use exemption has permitted the use of copyrighted works in criticism, review, search engines, parody, satire, research, library archiving and news reporting, among others. Flexibility is a key difference between the United State’s fair use defense and New Zealand’s fair dealing principles; the fair use balance test can be more widely interpreted and therefore more easily adapted to the new scenarios we are facing in a fast evolving digital age. A clear example of this was Google’s recent win in the US, where they successfully argued a fair use defense in relation to the reproduction of content within Google Books.
Fresh issues are arising in respect of technological advances in New Zealand, and any uses of copyrighted works that are arguably in the public interest and therefore should not amount to an infringement, will need to either be squeezed into one of the existing prescribed use categories, or will require further legislative change.
In practice, New Zealand’s copyright registration infrastructure will not require a significant transformation, as the right arises automatically for copyrighted works, rather than copyright owners needing to manually register in order to enjoy the benefit of extended rights.
The business team at Cavell Leitch can assist businesses trying to establish their legal position both in respect of their own original copyright protected works, use of current or the soon-to-lapse copyrighted works of others and/or any potential copyright use exemptions available.
Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.