The Trans Pacific Partnership Agreement (TPPA) has been concluded after eight years of negotiations. While the text of the agreement has still to be released, the agreement is understood to include a chapter on intellectual property, covering matters including patents, trade marks, copyright, industrial designs, geographical indications, trade secrets, other forms of intellectual property, and the enforcement of intellectual property rights.
New Zealand’s Minister of Trade, Hon. Tim Groser, has today confirmed three aspects of the agreement relating to intellectual property:
- first, and according to Mr. Groser, “the most significant change” in the TPPA, is the extension of the term of copyright by 20 years from life plus 50 years to life plus 70 years. It is believed this would apply to both existing and new copyright works;
- second, that there will be a minimum five year period of data protection for next-generation biologic drugs, with the status quo retained for all other drugs. In this regard, Mr. Groser stated that, “New Zealand's existing policy settings and practices will be adequate to meet the provisions we have finally agreed on"; and
- third, Mr. Groser promised that, “consumers will not pay more for subsidised medicines as a result of TPPA and few additional costs are expected for the Government in the area of pharmaceuticals. There will also be no change to the Pharmac model.
In relation to copyright, the extension of the term of copyright in existing works benefits the owners of that copyright, who will be able to seek royalties for a further 20 years. For new copyright works, the argument for the increased term is that it provides an incentive for creativity. The increased term has the potential to compound the issue of orphaned works, being works where the author cannot be found, as no-one is allowed to use orphaned works during the period of copyright protection for such works.
The level of data protection for biologics is consistent with Australia and New Zealand’s negotiating position, based on enabling greater patient access to cheaper, copycat drugs. In contrast, the United States had sought 12 years of data protection on the basis that this would be an incentive for innovation. For more information on what data protection means and why biologics are important, see our earlier article by David Koedyk.
Mr. Groser’s comments in relation to subsidised medicines and Pharmac do not confirm whether an extension on the life of pharmaceutical patents has been agreed or not. Further, while Mr. Groser states that the consumer will not pay more for subsidised medicines, this does not eliminate the possibility that Pharmac will have to pay more for such medicines. It will be interesting to see in practice how the Government meets this promise and its obligations under the TPPA.
We will provide further comments on the intellectual property provisions of the TPPA once the agreed text is released. The Government has 30 days to release the agreed text to the public.
 The TPPA was concluded on 4 October 2015 by Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam. The text of the agreement still needs to be signed and ratified by the member states.
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