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Objectives and principles of TRIPS
New Zealand is a Party to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which sets out some important objectives and principles related to the protection and enforcement of intellectual property rights. The Agreement's Intellectual Property chapter incorporates these objectives and principles.
For example, Parties may take measures to protect public health and nutrition, promote the public interest in sectors of vital importance to their socio-economic and technological development, and prevent the abuse of intellectual property rights by right holders.
A geographical indication (GI) is a sign or name which identifies a good as originating from a particular region, where a given characteristic of the good is essentially attributable to that origin, for example Champagne.
The provisions in CPTPP ensure that Parties provide open and transparent procedures when protecting GIs under domestic laws and regulations. These include considering whether a term is a commonly used descriptive term in that market, and providing procedures to oppose and cancel GIs.
Separate due process standards also apply where the Parties agree to protect GIs through trade agreements. These provisions benefit New Zealand exporters who use common descriptive terms to market their goods overseas by ensuring they have a sufficient opportunity to comment on the terms that TPP Parties are considering protecting through trade agreements.
Traditional knowledge and cultural expressions
CPTPP includes a number of provisions aimed at improving the treatment of traditional knowledge in intellectual property systems. These encourage information sharing between intellectual property offices on their practices for dealing with traditional knowledge, and require Parties to endeavour to provide quality patent examination practices that take account of traditional knowledge.
CPTPP also permits a Party to take measures to preserve, promote and respect traditional knowledge and traditional cultural expressions in a manner consistent with that Party’s international obligations.
Balance in the copyright system
The Parties will also endeavour to achieve balance in their copyright systems, including through the adoption of new exceptions and limitations. This obligation helps ensure copyright laws remain relevant in light of changing technology.
CPTPP gives New Zealand to give the New Zealand Customs new powers to act on its own initiative to temporarily detain suspected shipments of goods that infringe copyright or trade marks. These new powers help right holders take infringement action against the importer of the goods. Customs’ border protection measures are also extended to the exportation of trade mark and copyright infringing goods.
Unlike the previous TPP agreement, the CPTPP does not require New Zealand to:
- extend the copyright term from 50 to 70 years
- provide stronger protection to technological protection measures (TPMs) – digital ‘locks’ that protect copyright works
- provide stronger protection for rights management information (RMI) - information about the rights in a copyright work
- provide stronger protection for encrypted programme-carrying satellite and cable programme signals - such as pay television services
- make any changes to internet service provider (ISP) liability provisions relating to internet copyright infringement – for example by requiring ISPs to terminate internet accounts or adopting a “three strikes” style graduated response regime.
Regulatory review exception
CPTPP requires each Party to provide an exception to patent rights that allows the use of a patented medicine to produce information required to seek regulatory approval of a generic version of that medicine.
This exception is important as it will help enable pharmaceutical manufacturers to seek regulatory approval for a generic medicine without infringing any patents. This exception is already provided for in New Zealand’s patent legislation.
CPTPP does not prevent Parties from allowing pharmaceutical manufacturers to export generic medicines to seek regulatory approval in other countries. Exporting for this purpose is currently permitted under New Zealand law.
New Zealand has adopted a 12 month “grace period” for patent applicants. This means that if inventors make their inventions public, they will not lose their ability to be granted a patent in New Zealand if a patent application is filed within 12 months of the disclosure.
CPTPP requires New Zealand to maintain a system that:
- enables pharmaceutical patent holders to be notified that a genetic version of their product has been submitted to Medsafe for approval to enter the New Zealand market, and
- ensures there is sufficient time and opportunity for a patent owner to seek preliminary injunctions to resolve patent disputes before a generic version of its patented medicine enters the market.
New Zealand’s current law and practice already satisfies these requirements through the information Medsafe publishes on its website, the availability of injunctive relief and the time it takes Medsafe to process applications.
Additional damages for trade marks
New Zealand has to give the High Court the ability to award ‘additional damages’ for trade mark infringement, in addition to the compensatory damages already available under the Trade Marks Act 2002. This will align the remedies for trade mark infringement with those available for copyright infringement under the Copyright Act 1994.
CPTPP does not require any changes to New Zealand’s laws on parallel importing. It allows Parties to freely determine whether or not they provide for the international exhaustion of intellectual property rights in their domestic laws.
Data protection for agricultural chemicals
CPTPP requires each Party to provide 10 years of data protection for new agricultural chemicals. New Zealand already meets this obligation after a recent amendment to the Agricultural Chemicals and Veterinary Medicines Act 1997.
New rights for performers
CPTPP requires New Zealand to provide performers, such as musicians and actors, with moral and property rights over the live communication of their performances to the public and recordings made from their performances. The new rights are similar to the existing moral and property rights currently given to authors of copyright works.