NZ-UK Free Trade Agreement signed

The Free Trade Agreement between New Zealand and the United Kingdom (NZ-UK FTA, the Agreement), discussed in our article here, has been finalised and was signed on the 28th of February 2022.   The Agreement is comprehensive and wide ranging and a full copy can be found here.  This article focuses on provisions relating to intellectual property rights.

Highlighted in the objectives of the Agreement is the protection and enforcement of intellectual property rights and the promotion and dissemination of technological innovation to the mutual advantage of producers and users of technological knowledge. Key commitments from an intellectual property perspective include:

  • The extension of the copyright term in New Zealand by 20 years for authors, performers and producers, applying 15 years from the date of entry into force of the Agreement;
  • Introduction of an Artist’s Resale Right, defined as an “inalienable right” which cannot be waived, even in advance, and the right to receive royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author;
  • Public Performance rights for performers and producers to direct or indirect use of phonographs published for commercial purposes or for any communication to the public;
  • A commitment from New Zealand to make all reasonable efforts to join the Hague Agreement on Industrial Designs.

Other notable aspects include:

The establishment of the Intellectual Property Working Group tasked with making ongoing recommendations and proposals arising out of reviews of the Intellectual Property chapter of the Agreement.  The Group will be composed of representatives of each Party, including Maori representatives. Thus there may be further IP developments arising out of the foundations of this agreement and the UK-NZ partnership.

A recognition of the importance of Te Tiriti o Waitangi.  IP is recognised as a key area of relevance to Māori, especially with regards to Mātaraunga Māori and Te Ao Māori. Traditional knowledge and its association with genetic resources is highlighted prominently in the agreement.  In general the parties agree to co-operate and to “where relevant and practicable” give Māori a voice, for example in multilateral negotiations before the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The agreement does not require any binding commitment of either party to amend their laws to better recognise traditional knowledge or rights in genetic resources. 

The Haka Ka Mate is specifically referenced, but only to the extent that the parties shall “jointly endeavour to identify appropriate means to advance recognition and protection of Haka Ka Mate”.  A side letter to the agreement specifically recognises Ngāti Toa Rangatira’s guardianship of the Haka Ka Mate.  

No changes to Geographical Indications laws are required by the agreement.  However, there is an opportunity to enter future consultations on recognition and protection of Geographical Indications (currently limited to wines and spirits), assumedly in anticipation of New Zealand’s EU FTA negotiations. If further extensions to the scope of GI protection are made as a result, such protections shall also be afforded to UK geographical indications.  In a side letter to the agreement New Zealand acknowledges protection to Scottish whisky localities, including Campbeltown, Islay, Highland, Lowland, and Speyside to the extent that the use of the representations is misleading or deceptive under the Fair Trading Act 1986.

No changes appear to be necessary to to either country’s patent or trade mark laws.  In particular New Zealand is not required to provide patent term extensions or any data protection beyond what it already does, while the United Kingdom is not required to provide a grace period for prior publication (as provided for example under the CPTPP discussed here).

The Agreement will now pass through a domestic process, including introducing implementing legislation so that it can be ratified and come into force.

If you have any questions as to how the NZ-UK FTA affects you, please contact us.

Sophia Katsoulis / David Nowak

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