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 and objectives
The intellectual property (IP) regulatory system provides the legal infrastructure for protecting, promoting and sharing innovation and creativity in New Zealand through the creation of intellectual property rights.
These rights encompass copyright, patents, designs, plant variety rights, trade marks and geographical indications, layout designs for integrated circuits and undisclosed information (trade secrets). Once registered or granted, it is generally the responsibility of the rights holder to enforce their rights.
The IP regulatory system is important for New Zealand as it establishes the framework by which individuals and businesses can protect their investment in creating new products, brands and expressions of ideas (like art or music), while also allowing others to use and further innovate off these. In the absence of IP rights, there could be fewer new products or services developed in New Zealand. There could also be a reduced incentive for foreign innovators to enter into the New Zealand market. Many of the new products and services available in New Zealand originate from overseas.
There are also IP policy initiatives underway that relate to Māori interests in in protecting traditional knowledge and cultural expressions, including Mātauranga Māori, and genetic resources. MBIE’s reviews of the Copyright Act and the Plant Variety Rights Act, and the proposed creation of disclosure of origin requirements in patents are some examples. These are taking into account issues related to taonga species, taonga works and traditional knowledge.
The IP regulatory system provides the legal infrastructure for protecting, commercialising and sharing innovation and creativity in New Zealand.
A number of international treaties that New Zealand is party to underpin the basic principles of our IP system. MBIE regularly assesses the application of these principles within the New Zealand IP system as part of our regulatory stewardship role.
Ministerial portfolio and key statutes
Regulatory agencies and their roles
MBIE is the steward of the IP regulatory system in New Zealand. We lead the development of IP policy and legislation, and register and grant IP rights through the Intellectual Property Office of New Zealand (IPONZ), an operational arm of MBIE. Copyright and layout designs, however, are created automatically with original works and there is no need to apply to IPONZ for these.
IPONZ has Māori Advisory Committees for both patents and trade marks. A primary purpose of these committees is to ensure that we do not grant these IP rights that are likely to cause offense to Māori.
Trans-Tasman IP Attorneys Board
Administers the regulatory and disciplinary regimes for patent and trade marks attorneys in Australia and New Zealand.
Hears disputes about copyright licensing schemes and determines copyright infringements arising from copying works using peer-to-peer file sharing technology.
Ministry of Foreign Affairs and Trade
Negotiates and develops IP chapters in free trade agreements and contributes to other international discussions related to IP, with input from MBIE and other agencies.
The Courts also have a role, when necessary, to carry out compliance, enforcement and dispute resolution functions for IP rights.
Collaboration and information-sharing between regulatory agencies
We work with a number of other government agencies to assess and advise on matters of mutual interest relating to IP. In particular, we regularly work with:
- Customs – on the enforcement of copyright and trade marks at the border.
- Ministry for Primary Industries – to coordinate on the support of MFAT’s work on free trade agreements to ensure effective approaches to IP issues for those in the primary industries; and for the protection of confidential information (trade secrets) in primary industries.
- Te Puni Kōkiri –to develop advice on IP as it relates to the development of the Māori economy.
- Ministry for Culture and Heritage – to develop advice on IP matters that support New Zealand’s culture and heritage, particularly copyright issues.
- Ministry of Health and Ministry of Justice – to help protect confidential information.
Across these agencies, we consult each other when developing policy advice, collaborate on public consultations or other engagement opportunities, and partner together to represent New Zealand in international forums and in the development of international treaties related to IP.
We also collaborate with IP offices in key partner countries like the UK, Singapore, Australia and Canada; and with non-state international regulators like the World Intellectual Property Organization (WIPO). IPONZ has an Arrangement on IP Cooperation with the State Intellectual Property Office of the People’s Republic of China (SIPO).
IPONZ is also a member of the Global Patent Prosecution Highway which allows a patent application to be fast tracked, provided it has had a favourable application in another country involved in the programme. IPONZ is updating its systems and processes to reflect this new service.
In February 2019, IPONZ hosted 26 experts in plant variety testing and examination for the 51st session of the UPOV Technical Working Party for Ornamentals and Forest Trees (UPOV is the International Union for the Protection of New Varieties of Plants). At these UN-style annual meetings, delegates discuss developments in technology and practice in growing trials and documentation of plant characteristics, seeking to identify common best practice, and encourage a high degree of harmonisation and consistency between experts in different countries in this highly specialist field.
Regulated parties and main stakeholders
Producers, owners and users of IP – nearly everyone is affected by intellectual property in some way. Many businesses produce intellectual property through their products, designs and trade marks. Visual and audio artists create intellectual property in the expression of their art form. Anyone who buys a book, streams videos or music online, or plays video games is a user of IP. In New Zealand, the majority of creations with IP protections in place originate from overseas.
Attorneys and law firms – many producers and users of IP utilise the services of attorneys (particularly patent attorneys) to protect, enforce and commercialise their IP.
Processes for engagement with regulated parties and stakeholders
IP policy and regulatory development usually follows the traditional policy development model. This includes consultation on issues and options for change, as well as public consultation on draft legislation. Where it is proposed to amend IP legislation as a result of New Zealand’s accession to an international agreement, such as free trade agreements, the public is consulted, in cooperation with MFAT, during the negotiations and on the substance of the amendments.
On an operational level, the Intellectual Property Office of New Zealand (IPONZ) manages online processes and registers for the different IP types (except copyright and layout designs). These mechanisms allow applicants and other interested persons to submit applications and respond to queries from examiners, search the status of applications and identify rights that have been granted.
IPONZ also has a Stakeholder Engagement team which regularly interacts with key stakeholders as part of its normal work programme to help identify and understand emerging issues, and monitor areas of interest.
A key campaign to raise IP awareness among NZ businesses was launched in May 2018. This included case studies, IP cards for the small business roadshows and launching an IPONZ Facebook page. This campaign is now part of our business as usual.
System’s fitness for purpose
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.
In 2016 we conducted a study of the creative sector [PDF, 2.2 MB] to better understand the efficacy of the current copyright settings, and how technological change is impacting the creative sector. This is informing a review of the Copyright Act which was launched in June 2017 with the release of terms of reference.
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. System maintenance is also underway, for example through implementing changes in response to the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) and planning consultation on what to include in a possible IP Laws Amendment Bill.
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 (IPONZ) is well regarded and is at the forefront of intellectual property rights via web based services.
As the parent organisation to IPONZ, MBIE is 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.
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, geographical indications (for wine and spirits) 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.