NEW ZEALAND REACTION TO JOINING

UNCLAS WELLINGTON 001016

SIPDIS

SIPDIS

DEPT PASS TO USTR STAN MCCOY AND RACHEL BAE, STATE FOR
EB/TPP/MTA/IPC

E.O. 12958: N/A
TAGS: ECON ETRD KIPR PGOV NZ
SUBJECT: NEW ZEALAND REACTION TO JOINING
ANTI-COUNTERFEITING TRADE AGREEMENT (ACTA)

REF: SECSTATE 182554


1. Summary: New Zealand officials are generally supportive of
the objective of enhanced international cooperation in the
enforcement of intellectual property rights (IPR) as proposed
in reftel and welcome the opportunity to participate further
in its development but are also seeking clarification to
certain key concepts expressed in draft proposal. End Summary.


2. Bronwyn Turley, principal policy advisor responsible for
IPR in the Competition, Trade and Investment Branch at the
Ministry of Economic Development (MED),has informed Econoff
that joining ACTA could provide a solid foundation for the
development of further international enforcement efforts and
believes it sends a strong signal that trade in counterfeits
will not be tolerated.


3. Despite GNZ's initial positive reaction to ACTA, they have
provided specific comments and are seeking clarification to
the following points:

-- International cooperation - GNZ maintains that there are
some areas where greater coordination of efforts would be
beneficial, such as a commitment to undertake
multi-jurisdictional enforcement action and the provision for
government sponsored training to third countries i.e.,
non-ACTA countries. In other areas, international
cooperation already occurs within a range of different
inter-governmental organizations, such as APEC, the World
Customs Organization (WCO) and the World Intellectual
Property Organization (WIPO). Should a starting principle of
the proposal be that the existing efforts by APEC, WCO, WIPO
et al, not be duplicated?

-- Role of IP Rights Holders - If IPRs are private property
rights then enforcement activity by right holders is
essential if ACTA members are to address the illegal trade in
counterfeits. Rather than have the government act as a
substitute for enforcement efforts by right holders, GNZ
maintains that any enforcement framework would need to foster
a partnership arrangement. Mindful of the risks of political
pressure to shift the balance of responsibility for
enforcement away from right holders and onto government - how
does USTR see the proposed Agreement striking the appropriate
balance between responsibilities of right holders and those
of government for enforcement efforts?

-- Accommodating National Differences - GNZ believes it is
important that authorities and right holders have the
necessary tools available to prosecute IPR enforcement. They
believe that discussing standards for enforcement would be
valuable but it will be important to recognize in any such
discussion that national differences exist. For example,
Constitutional frameworks may mean that it is inappropriate
to establish sentencing guidelines or give authority to right
holders to undertake search and seizure operations. In small
countries with limited resources, the establishment of
specialized IP police, prosecutors and/or courts may be
impractical. In GNZ's view, it would be useful to clarify
expectations at the outset, in particular to avoid the
perception that a "one-size-fits-all" approach will take hold.


4. MED being conscious of international sensitivities of any
effort to address IP enforcement in international fora,
believes that the political messaging around this proposed
Agreement will be crucial to its success. To avoid a
counter-productive reaction, GNZ believes it will be
important to prevent the perception from taking hold that
this initiative represents a "threat" or that it is a "Trojan
horse" for the introduction of TRIPS-plus substantive
obligations.

Keegan