Australian free-trade intellectual property bargain raises NZ ICT fears

UPDATED: law won't change before any agreement is signed, says Tizard

The local IT industry could be materially affected by the relative speed of drafting of New Zealand's emerging copyright legislation and progress towards free-trade negotiations with the US.

The free-trade agreement between Australia and the US negotiated earlier this month has meant Australia agreeing to stringent US-style provisions on intellectual property protection, including extended periods of copyright (up to 20 years longer than those currently in effect in Australia) and patenting of software.

The latter is not customary in Australia, but has been respected, though hotly discussed, in New Zealand. Some argue the inability to build on others' software development work retards innovation.

A “side letter” to the Australian agreement makes strong prescriptions as to how ISPs should handle potential breaches of intellectual property law by their subscribers (including release of subscriber information), what evidence in rebuttal must be collected from the subscriber and what courts and other arenas are appropriate for resolution (see

New Zealand government sources, who do not wish to be named, downplay the prospect of something similar happening here. Amendments to our copyright law are already at the drafting stage, and we have not yet reached formal negotiation on any US trade deal, they say.

However, other sources in government policymaking have privately expressed fears that our government’s enthusiasm for a similar deal could yet compromise freedom to evolve our own intellectual property laws and dispute resolution procedures.

Australia is still in the process of reforming its three-year-old copyright law and some sources fear the free-trade agreement has compromised this process.

Australia's Linux community is particularly strong in its criticism of the deal. The legal safety of such practices as reverse-engineering programs and data formats to help produce compatible open source competitors is unclear, they say (see

The terms of the agreement are also stronger than current Australian or contemplated New Zealand law in banning the use of devices and software which “circumvent” rights management, as well as their manufacture and marketing.

At a Wellington seminar on copyright law last year, it was suggested that a simple CD writer might qualify as a “circumvention” device, since some allow copying of some kinds of “rights-managed” content, after merely warning about the protection.

Associate commerce minister Judith Tizard says a prospective FTA with the US “certainly” has the potential to affect decisions on copyright law “but not until we sign a free-trade agreement.” As negotiations progress, she says, the government will obviously be looking out for New Zealand’s interests.

“We have a reasonable understanding of what [the US government] will be pushing for, of course, from the Australian agreement,” she says.

Government policy as expressed in the second of its strategic priorities, improving international communications, states “MED will be working with other agencies to coordinate NZ’s regulatory [environment] with those of our major trading partners.”

"Basically what we’re saying is that we want to have as much market integration as possible," Tizard says. "But we should only look at moving towards the same rules and regulations where it’s in New Zealand’s interest.

"We are keeping an eye on what our trading partners are doing, obviously. We’re extremely interested in. making sure that we are [progressive] on copyright law. We probably don’t want to move too far ahead of anyone but if there are issues that are in NZ’s interest, we will fight hard to make sure we maintain those.

"We’ve made a commitment to go back to users and owners, so any legislation will be widely debated.”

For the full text of the Australian agreeement, see

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