TPP Intellectual Property and Technology/Internet Issues - Report from Meeting with Negotiators

InternetNZ has expressed concerns about the Trans-Pacific Partnership (TPP) negotiations. Based on what we have seen from leaked texts, we are concerned about the process, and we are concerned about the content of parts of the agreement, particularly on intellectual property issues.

This week we and other technology sector organisations met with the New Zealand negotiators working on these issues, to share our concerns, and to hear their assessments of likely outcomes should the TPP conclude. Our news from this discussion is mixed.

Here are the key concerns we raised:
● whether or not the agreement would require software patents in New Zealand.

● Copyright concerns - that the agreement would extend copyright terms, change ISP liability rules, expand liability for breaking TPM locks on content, and shift the burden in copyright processes to make these harder on defendants.

These concerns all relate to the difference between what New Zealand intellectual property law and policy are today, and what the TPP might require.

We also shared our disappointment about the secrecy of this process too. Internet related policy matters should be developed through open processes that all interested stakeholders can take part in.

The Positives
Negotiators suggested that for most of the issues raised, a TPP finalised consistent with where the text is at today would not affect the current position in New Zealand. Based on today's discussion, it seems that a concluded TPP would not affect New Zealand's:

- exclusion for patents for computer programmes as currently defined in the Patents Act
- "three strikes" graduated response process and safe harbours for ISPs
- current approach to unlocking TPMs for legitimate purposes
- burden of proof in copyright proceedings
- stance on parallel importing

On this basis, some fears people have shared with us - that unlocking a TPM to access content bought lawfully could turn people into criminals, for instance - would not come to pass. If such actions were criminalised in general, particular exceptions would be needed alongside these to avoid material changes to the rights New Zealanders have under our existing copyright law.

All in all, it seems possible New Zealand would not need to make changes to its approach in these areas of policy. We look forward to a relatively open space for the upcoming Copyright Act review, to assess and rework this law which is fundamental to New Zealand's creative and technology sectors.

The Not So Positives
Not all of our concerns have been met. The negotiating end-game on the copyright term, for instance, is not yet clear. New Zealand and other TPP countries may end up having to lengthen the term of copyright to allow a deal to come together.

We can't share everything we learned today as some matters were discussed in confidence. As noted above, our view is that policy in these areas should be made openly.

We are however confident that we have been heard and listened to as a stakeholder group, and that the New Zealand Government is taking the interests of the New Zealand technology industry and Internet community seriously.

We understand from this meeting that there is still work to be done, and given the external factors affecting the negotiations, officials would not be drawn on how long that process may take - or indeed, what ultimately the outcome will be. These negotiators are clearly working hard to protect New Zealand's interests as the negotiations edge closer to a conclusion. They've committed to keep us in the loop from here, as indeed they have been pretty good with thus far.

InternetNZ supports a creative, technology-focused future for New Zealand's people and economy. We appreciate the chance to engage with our negotiators on these matters.

To learn more

For more info on these issues please contact:

James Ting-Edwards
Advisor, InternetNZ

Andrew Cushen
Work Programme Director, InternetNZ