The UK and New Zealand have announced they have reached an agreement in principle on the central elements of a future comprehensive free trade agreement (FTA). While the FTA looks to provide for the usual things we would expect to see in a trade deal such as greater access for New Zealand meat and dairy products to the British market, it will also have implications for New Zealand content creators and digital exporters. Here’s an overview of the key intellectual property and digital aspects of the in-principle agreement:
- New Zealand has agreed to make changes to our copyright regime by extending the copyright term for authors, performers and producers by 20 years. Currently, copyright on literary, artistic or musical works lasts for the lifetime of the creator of the work plus 50 years. This change will mean copyright will last for the lifetime of the creator plus 70 years. New Zealand has secured a transition period so that it will have up to 15 years to amend existing copyright laws. While New Zealand has previously resisted such a change in other trade deals, this extension brings New Zealand copyright laws in line with other jurisdictions, such as Australia and the United States. The in-principle agreement notes that no other changes are required for patents, trademarks or intellectual property enforcement.
- New Zealand has committed to adopt an artist’s resale scheme within two years of the FTA coming into force. This will operate with the established UK scheme on a reciprocal basis. Broadly, an artist resale scheme would entitle a visual artist to a royalty payment each time their original artwork is resold on the secondary market. New Zealand is an anomaly on this internationally, with most of our major trading partners having some sort of resale scheme in place. Legislation was previously introduced for such a scheme in 2008, but it was withdrawn after the 2009 election. It is unclear at this stage how a resale scheme would operate in practice and we expect to see a draft scheme and consultation from the Ministry of Culture and Heritage Manatū Taonga in due course.
- New Zealand has agreed to maintain a public performance right for performers to cover public communication of phonograms. Like the artist resale scheme, there is little detail in the agreement in principle on this point.
- New Zealand has resolved to make all reasonable efforts to join the Hague Agreement on Industrial Designs (Hague Agreement). The Hague Agreement establishes a system to make it possible for designers to obtain protection in multiple countries by way of a single application.
- In what appears likely to be a detailed sector-specific chapter, both countries commit to various measures guaranteeing non-discriminatory and transparent access to telecommunications infrastructure. As part of this, teleco providers will be able to operate in each country without prior authorisation, including without the need for licensing. This has the potential for new teleco operators to enter the New Zealand market to provide services.
- The FTA will include a specific chapter on the development of closer digital cooperation, including to enable the free flow of data, avoid unjustified data localisation, and encourage electronic payment and contracting. Both countries will retain the ability to make data and privacy laws that are in the public interest.
- Both countries commit to prohibiting requirements for businesses to establish a physical presence before they can provide services in a market – aiding ease of market access for digital and services businesses.
- In a nod to the rise of fintech, both countries commit to allow the provision of new financial services in situations where these are permitted domestically, and to facilitating the flow of financial data.
- In a first for both countries in an FTA, the finalised agreement will include specific provisions guaranteeing consumer protection. Both countries have agreed there is a need to maintain effective practices to protect physical and digital consumers from misleading and unfair conduct.
- The UK has specifically agreed to work with New Zealand to identify ways to recognise and protect the Ka Mate haka. As part of this, both countries will sign a side letter to acknowledge Ngāti Toa Rangatira’s kaitiakitanga of this haka. This is part of an overall commitment by the UK to recognise Māori knowledge and culture.
Negotiators for both countries will look to finalise the full legal text for the FTA in the coming months. Once negotiations are concluded, the FTA will be signed and then ratified by both nations’ Parliaments. We will provide an update on the finalised FTA text once it is released. With both sides touting the “progressive” and forward-looking nature of this FTA, we are interested to see how the finalised agreement will create tangible opportunities in digital trade, given the lack of traditional trade barriers in this area.