by Hugh Stephens — 13 Aug 2018
Now that India has announced that it will join the World Intellectual Property Organization (WIPO) Internet Treaties (the WCT and the WPPT)[i], the number of acceding states will reach 97. Many emerging economies and virtually every OECD country (Iceland, Norway and New Zealand being the exceptions) is a member. And New Zealand is about to become a contracting party, pushing the total even closer to the one hundred mark.
As outlined by WIPO, the purpose of the WCT and WPPT is to “update and supplement the major existing WIPO treaties on copyright and related rights, primarily in order to respond to developments in technology and in the marketplace…Among other things, both the WCT and the WPPT address the challenges posed by today’s digital technologies, in particular the dissemination of protected material over digital networks such as the Internet.”
Why it has taken New Zealand longer than most of its peers to accede is an interesting question, although the fact that it has decided to add its support to the basic suite of IP treaties that most technologically and culturally advanced countries have embraced is the important thing. Now that it will be joining the international consensus on the WIPO Treaties, this shines the spotlight on the issue of copyright term. Along with Canada, New Zealand is the only one of the 36 OECD member countries to limit its term of protection to “life plus 50 years”, all of the others having moved to the more common “life plus 70 years” standard. More on this below.
One of the reasons for delayed accession may have been that many of the provisions of the WIPO Treaties, especially the World Copyright Treaty, were incorporated into New Zealand law through amendments to copyright legislation back in 2008. Given this, there was likely little demand from domestic stakeholders to sign up to the treaties. The WPPT is bit different and there is a wrinkle because for New Zealand to accede, further legislation will have to be passed. According to a National Interest Analysispublished by the Ministry of Foreign Affairs and Trade (MFAT) in early 2016, to implement WPPT obligations New Zealand law will have to be amended to provide performers with new rights over reproduction and distribution of their live performances, and sound recordings of their live performances. The analysis explains that currently in New Zealand only the producer of a sound recording has rights over its copying and distribution, but the WPPT will require that performers also be given exclusive rights in recorded performances, effectively becoming co-owners. They will also need to be accorded the moral rights in a performance, currently only available to producers.
On the positive side, the MFAT document states that these new rights may benefit some New Zealand performers although it goes on to state that “giving these rights is unlikely to incentivise an increase in the number of performances or an increase in the number of sound recordings created from performances”. The reasoning given is the small size of the New Zealand market, and the fact that most performers will therefore base their production and distribution decisions on larger overseas markets, like the US and Europe. (It’s worth noting that it is precisely in these markets where most performers already enjoy the benefits of the WPPT).
The fact that New Zealand is a small economy and a “net importer” of cultural products seems to have been a factor in the original decision not to join the WIPO Internet treaties when they first became open for accession. A discussion paper circulated in 2001 set out the background of the issue and posed a number of questions, among them whether there would be net benefits to New Zealand, and a concern that if New Zealand acceded to the treaty it “would lead the world in the protection of performers and would raise the attendant question of the reciprocal protection of New Zealand performers in countries that have not acceded to the WPPT…., or which do not provide the same levels of protection.”
The Cabinet decision that followed on from this discussion paper came to the conclusion that New Zealand would not accede for several reasons, among them lack of substantive benefits to New Zealand, and the fact that since New Zealand was a net importer of performances, any benefits would simply flow overseas. Nonetheless, the Cabinet paper recommended that New Zealand take account of what its trade partners were doing (at the time neither the UK nor Australia had acceded) and keep the situation under review. It seems a bit ironic that from being concerned that it might “lead the world” and have to seek reciprocal benefits for New Zealand performers (2001 Discussion Paper), New Zealand sat out the Treaty accession process while most of its trading partners proceeded to ratify and implement the Treaties.
What happened? One explanation is that this was a fairly esoteric issue and it may have just got buried, pushed aside by other higher priority issues. As mentioned above, there was also no perceived need to ratify the treaties since most of the provisions were enacted in the 2008 copyright law update—although why not do it if any additional changes would be minor, and thus “join the club”? (But delay may have actually been a shrewd move from a trade negotiating perspective). A third is that New Zealand’s trading partners didn’t press the issue—until the TPP (Trans-Pacific Partnership) came along that is.
Herein lies another likely rationale for New Zealand’s delay. All bilateral and multilateral trade agreements are a balance of benefits and concessions. Trade negotiators need “coinage” to be able to trade off in return for benefits that they want from other parties. Intellectual property was a particularly sensitive chapter within the TPP with the US in particular wanting a number of concessions and commitments from its negotiating partners. Among these were accession to the WIPO Internet treaties (where parties had not already done so) and the extension of copyright protection to a term of life plus 70. In the end, New Zealand agreed to both, presumably obtaining some concessions in other areas of benefit to the New Zealand economy. I would argue that agreement to both these provisions will benefit New Zealand’s creative sector, and thus were easy concessions to make, but nonetheless they were used as negotiating coinage and cast as “concessions” that had to be extracted from New Zealand in return for other benefits. Had New Zealand acceded to the Treaties during the negotiations, that negotiating coinage would have been taken off the table.
At the same time, New Zealand’s (and Canada’s) commitment to extend their term of copyright protection by an additional twenty years was pulled back when the US withdrew from the TPP. Term extension is one of small number of elements, many of them in the IP chapter, that were “suspended”. Presumably the thinking was that if the US ever decides to re-engage with its erstwhile TPP partners, it will be seeking concessions in the area of IP and copyright, and these can be “traded off” for other benefits. The lesson is clear, even if it is in your own interest, don’t give away “benefits” that someone else is prepared to pay for.
The original TPP was very important to New Zealand as it would have provided preferential access to the US market, putting it on a par with Australia, Canada, Mexico and a number of Latin American countries. There were other benefits but the US was the big prize. After the US withdrew from the TPP upon the arrival in Washington of Donald Trump, the remaining eleven countries that had signed the original Agreement continued discussions. This led to the conclusion of the “Comprehensive and Progressive Trans-Pacific Partnership (CPTPP)” this March. Even though the US is not a participant (at the present time), there are still advantages to New Zealand in becoming a CPTPP member, as the National Interest Analysis (NIA) for the agreement makes clear. The NIA draws the conclusion that given threats to the effective operation of the World Trade Organization, New Zealand needs the international rules of trade law to sustain its economy, jobs and standard of living. The CPTPP will provide a legal framework for nearly one-third of New Zealand’s trade. The conclusion is that it is in New Zealand’s national interest to join the CPTPP.
And along with the CPTPP comes accession to the WIPO Internet Treaties. The modified CPTPP agreement incorporates the original TPP text minus references to the United States and a few provisions that have been “suspended”. Article 18.7 of the original TPP which requires each party to ratify or accede to a number of international IP agreements, among them the two WIPO Internet Treaties, is not one of the suspended articles. Thus New Zealand is required to accede to these agreements as part of its CPTPP obligations. If New Zealand really considers that it is making a concession by joining these treaties it is easier to do so as part of a broader trade agreement where the overall gains can be shown to exceed any “concessions” in specific sectors. Whatever the ultimate motivation, New Zealand’s imminent accession is good news for the creative sector.
Accession to the WIPO Treaties will probably kill two birds with one stone if, as reported, the other regional trade agreement (the Regional and Comprehensive Economic Partnership Agreement, or RCEP) that is currently under negotiation and to which New Zealand is a negotiating party, also contains a requirement to join these two treaties. Earlier leaked text contained such a provision for the RCEP which would form a trade bloc of sixteen nations, the ten ASEAN countries plus India, China, Japan, Korea, Australia and New Zealand.
That leaves copyright term extension as a piece of unfinished business. A study back in 2009 commissioned by the NZ government had pegged the annual cost of term extension to the New Zealand economy at NZD55 million per year, a figure challenged and effectively refuted by Professor George Barker who argued that in fact it would bring benefits of up to NZD150 million annually to the New Zealand economy. The NZ Government study was quoted numerous times by opponents of copyright term extension in Canada, even though there was no evidence of transferability of New Zealand’s situation to Canada—and despite Barker’s debunking of the original figures. With NAFTA currently under renegotiation, Canada may be taking a leaf out of New Zealand’s book by holding out the extension of its copyright term as a “concession” that it may agree to in negotiations with the US in return for NAFTA benefits in other areas. We shall see. If that happens, New Zealand will be standing alone in the OECD as the sole proponent of the shorter copyright term.
Meanwhile, back with the CPTPP, currently three of the eleven signatories have ratified the agreement (Mexico, Japan and Singapore) while New Zealand, Canada and Australia have all introduced implementing legislation into their respective Parliaments. The Agreement will come into effect 60 days after at least 6 of the eleven signatories have ratified. New Zealand is certain to be among them, and will as part of this process join the other 97 countries that have acceded to the WIPO Internet Treaties. This will give New Zealand creators the same level of protection in the digital world that their counterparts in almost one hundred other states already enjoy. This is valuable side benefit of the CPTPP and a real gain for New Zealand’s creative sector. Congratulations New Zealand.
© Hugh Stephens, 2018. All Rights Reserved.
[i] The World Copyright Treaty-WCT, and the World Performances and Phonograms Treaty-WPPT, both negotiated in 1996 and entering into force in 2002.
This blogpost first appeared on Hugh Stephens blog as The WIPO Internet Treaties: New Zealand Will Soon Join 97 Other Countries as a Member (Thanks to the CPTPP)