Intellectual Property Regulatory System

This page describes the Intellectual Property Regulatory System, its objectives and our qualitative assessment of it. It also lists the main statutes and changes to regulation either planned or in progress.

System description

The Intellectual Property Regulatory System and related international treaties provide the legal infrastructure for promoting innovation and creativity in New Zealand through the creation of intellectual property rights. The intellectual property rights supported by the system encompass copyright, designs, plant variety rights, trade marks and geographical indications. Other than copyright, these rights are granted and administered by the Intellectual Property Office of New Zealand, an operational arm of our Ministry.

Objective of the system

The intellectual property regulatory system promotes innovation and creativity by providing property rights for innovators, and access to information and ideas for those who wish to use them for further innovative activity.

Portfolio

Commerce and Consumer Affairs

Statutes

  • Copyright Act 1994
  • Designs Act 1953
  • Geographical Indications (Wine and Spirits) Registration Act 2006
  • Haka Ka Mate Attribution Act 2014
  • Layout Designs Act 1994
  • Patents Act 1953
  • Patents Act 2013
  • Plant Variety Rights Act 1987
  • Trade Marks Act 2002

Other government agencies with substantial role

n/a

Fitness-for-purpose

Effectiveness

System has some issues against criteria

Like other intellectual property systems governed by the same set of international treaties and agreements, there are significant questions around whether the current settings are the minimum necessary to encourage efficient investment in human innovation and creative works. For example, there is increasing international evidence copyright systems grant protection too easily, and for longer than is necessary to encourage creative endeavour.

Some comparable jurisdictions use broad “fair use” exemptions to balance out the potential harm to consumers of over protection. The effectiveness of New Zealand’s equivalent exceptions is unclear due to a lack of an adequate body of case law. In addition, there is a lack of clarity about how domestic intellectual property law applies to some digital age activities such as creative re-use, data mining, 3D-printing, streaming, and digital archiving. The rise of internet platforms has also raised questions about whether current policy settings are appropriate for the hosting and publishing of digital content.

We have conducted a study of the creative sector to better understand the efficacy of the current copyright settings, and how technological change is impacting the creative sector. A review of the Copyright Act was launched in late June with the release of terms of reference. We are currently developing an issues paper, intended for public consultation in early 2018. The Government will make decisions on the scope of the review and next steps based on feedback on the issues paper.

A major review of the Plant Variety Rights Act is underway to ensure the policy settings remain fit for purpose given the importance of horticulture and agriculture to the New Zealand economy. Significant system maintenance is also underway eg, consultation on the operation of divisional patents.

Efficiency

System has some issues against criteria

All the available evidence suggests the regulatory system is being implemented efficiently. The Intellectual Property Office of New Zealand is well regarded and is at the forefront of intellectual property rights via web based services.

As the parent organisation to IPONZ, we are subject to regular State Service’s Commission’s Performance Improvement Framework (PIF) reviews. A comprehensive regulatory system assessment is desirable once all significant policy reforms have been completed.

Although the system is being implemented efficiently overall, there is increasing evidence copyright is granted for longer than necessary to incentivise the creation and dissemination of copyright works. If this is true for New Zealand, then the copyright system could be:

  • distorting how resources in the creative industries are used, particularly the re-use of existing creative works
  • discouraging the dissemination of creative works
  • prohibiting the unauthorised use of creative works without providing practical and efficient ways of facilitating authorisation
  • placing unnecessary burdens on technological innovation depending on copying creative works for purely functional reasons.

Resilience

System has some issues against criteria

The pace and disruptive impacts of technological change have proved, and will continue to prove, challenging for the intellectual property system. While the high level of international cooperation on intellectual property law means New Zealand will not face these challenges alone, the trend towards greater intellectual property protections is problematic for New Zealand as a net importer of intellectual property. Careful regulatory stewardship and international negotiation will be required if the system is to meet its objectives.

Fairness and accountability

System has some issues against criteria

Enforcement action for serious breaches of system legal frameworks is generally via the High Court which provides an independent and transparent process with significant appeal rights. However, the absence of a substantive body of case law in some key areas makes it difficult for some system participants to understand the boundaries of intellectual property rights in areas such as copyright law.

The online and electronic nature of the intellectual property registers and transactional processes for patents, trademarks, designs and plant variety rights has improved the transparency of these rights.

The relatively small number of system participants means information about the system can be widely disseminated in a low cost and relatively informal manner.

Key service design and operational changes

August 2016 to July 2017

IPONZ has implemented process and practice changes to support the new trans-Tasman registration regime for patent attorneys. The modernised regime was enacted on 24 February 2017 through the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Act 2016.

On 27 March 2017 IPONZ signed an updated Arrangement on intellectual property cooperation with the State Intellectual Property Office of the People’s Republic of China (SIPO). This is a renewal of an existing arrangement for a further 3 years. A new Commissioner of Patents, Trade Marks, Designs and Plant Variety Rights was appointed on 2 February 2017. External stakeholders were advised and IPONZ’s internal systems, resources and materials were updated.

IPONZ has an outreach programme underway to help businesses develop a better understanding of intellectual property. This year, for example, we attended small business roadshows, developed a campaign for World IP Day and hosted World Intellectual Property Organisation (WIPO) seminars.

IPONZ’s customer service efforts consistently reflect well in client satisfaction surveys, with 85% of clients saying they are satisfied with the overall quality of IPONZ’s service delivery this year. IPONZ was the first intellectual property office in the world to be certified under the new ISO 2015 quality standard. This achievement demonstrates our commitment to quality in all aspects of our work.

August 2017 to July 2018

The Geographical Indications Act register for wines and spirits began in July 2017. Examination processes and practice guidelines have also been developed. IPONZ joined the Global Patent Prosecution Highway in July. This initiative allows a patent application to be fast tracked, providing it has had a favourable application in another country involved in the programme. IPONZ is updating our systems and processes to reflect this new service.

Planned regulatory amendments to legislation for 2017/2018

Matter name

Policy implementation

Planned consultation

Status

Patents Amendment Regulations

Matter Type: Legislative Instrument

Provides procedures for extending patent terms for regulatory delays by IPONZ and Medsafe in accordance with the Trans Pacific Partnership Agreement (TPPA).

Complete.

On hold indefinitely. Requires TPPA to come into force.

Copyright Amendment Bill

Matter Type: Bills

Implementations of the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.

Exposure draft of Bill due to be released late-2017.

Approval to release exposure draft of Bill for public consultation will be sought in late-2017.

Intellectual Property Laws Amendment Bill

Matter Type: Bills

Amendments to facilitate the efficient delivery of the intellectual property regulatory system.

Consultation document to be released in second half of 2017.

Approval to release consultation document to be sought in second half of 2017.

Plant Variety Rights Act Amendment Bill

Matter type: Bills

Subject to policy decisions in the second half of 2018. MBIE will introduce a bill to amend or replace the Act.

Issuer paper in early 2018. Options paper in the second half of 2018. Exposure draft in 2019. Tailored engagement with Māori during 2017 and 2018.

Bill likely to be drafted in second half of 2018.

Regulatory Systems Amendment Bill 2

Matter type: Bills

Amendments to the Trade Marks Act 2002 and the Plant Variety Act 1987.

Exposure Draft of the Bill to be released in late 2017.

The Bill is expected to be introduced to the House of Representatives in 2018.

Trade Marks Regulations 2003, Patents Regulations 2014, and Designs Regulations 1954: implementation of a single address for service and other minor and technical changes.

Matter type: Legislative Instrument

Amendments to the Trade Marks Regulations 2003, Patents Regulations 2014, and Designs Regulations 1954 to allow an Australian address for service. Amendments to the Patents Regulations 2014 to make minor and technical changes.

Complete.

Regulations being drafted.