YEAR 2007 SPECIAL 301 REVIEW - NEW ZEALAND

UNCLAS SECTION 01 OF 03 WELLINGTON 000158 SIPDIS SIPDIS SENSITIVE STATE FOR EB/IPE - JENNIFER BOGER and EAP/ANP - DAN RICCI STATE PLEASE PASS TO USTR FOR JENNIFER CHOE GROVES STATE PLEASE PASS TO USPTO COMMERCE FOR CASSIE PETERS ITA/MAC/OIPR E.O. 12985: N/A TAGS: KIPR ETRD ECON PREL NZ SUBJECT: YEAR 2007 SPECIAL 301 REVIEW - NEW ZEALAND REF: A. STATE 07944 ¶B. WELLINGTON 138 ¶1. (SBU) Summary: Post recommends that New Zealand (GNZ) not/not be placed on the Special 301 List in 2007. The country's overall commitment to the protection of intellectual property (IPR) is relatively high as compared to most countries cited in the Special 301 review. The government continues to move ahead in updating its intellectual property laws in compliance with international standards, with major revisions to the Patents Bill and the Copyright Amendments Bill ("New Technologies and Performers' Rights Bill") expected to be finalized in 2007. Moreover, New Zealand generally provides adequate and effective protection of intellectual property rights under current legislation. Post remains in contact with local IP industry representatives and the Ministry of Economic Development to help ensure that the pending legislation reflect industry's concerns and are passed as scheduled. Placing New Zealand on the Special 301 list at this stage could backfire, as the GNZ will see it as punishment even though NZ is doing the right thing. End summary. IPR Overview -------------- ¶2. (U) Post remains engaged in an ongoing dialogue with both IP industry representatives and government agencies to help improve IPR laws and strengthen GNZ's commitment to enforcement. The proposed amendments to the Copyright Act 1994 now before a Parliamentary Committee are intended to ensure that the act reflects current developments in digital technologies and international developments in copyright law. Post has made the GNZ aware of industry's concern that portions of the new law dealing with the treatment of Technological Protection Measures (TPM); exception for incidental copying; ISP liability limitation; library digital dissemination; time shifting; and computer program exceptions will need to better address international minimum standards. Regarding patent protection, the GNZ released a draft Patents Bill in 2005 which is expected to be given its first reading in the early part of ¶2007. While this revision to the patent regime is expected to bring NZ's level of protection up to international standards, Post has 
seconded industry's recommendation that the current bill should include provision for patent term restoration that are in keeping with international best practices. These developments, though notwithstanding the need for technical adjustments, are a positive indication that the GNZ is committed to moving forward on enhancing the level of intellectual property protection. The following comments are keyed to topics in ref. A. PhRMA's PWL recommendation -------------- ¶3. (SBU) While the pharmaceutical industry urges that New Zealand be placed on the priority watch list (PWL),post continues to believe that the industry's restricted access to New Zealand's market stems primarily from the cost containment strategies for subsidized drugs. The government affiliated Pharmaceutical Management Agency (PHARMAC) is mandated to spend less than its budget allows, and the pharmaceutical industry has a number of legitimate complaints about its treatment in the purchasing process. However, these industry concerns are not IPR problems. While Post will continue to work to improve access for US pharmaceuticals in New Zealand, we believe this should be dealt with as a market-access barrier and not as a failure to protect intellectual property. Even the pharmaceutical industry trade association here, Researched Medicines Industry Association of New Zealand (RMI - affiliated with PhRMA),assesses that the government's practices do not violate its TRIPS commitments. ¶4. (SBU) The national medicines policy is currently under review by the Ministry of Health, and a parliamentary notice and comment period will take place through the first quarter of 2007. If successful, changes to the national medicines purchasing strategy would be implemented in early 2008. This process would fulfill a promise to the Labor government's coalition partner, the United Future Party, to improve NZ public access to medicines; to extend the use of quality medicines; and to use medicines more rationally. There is currently a well publicized public debate, for example, about access to Herceptin for the treatment of breast cancer. This debate continues to bring pressure on PHARMAC to review/improve its funding policies in order to allow wider access to innovative medicines. This pressure is not likely to subside over the coming year as a number of patients have already filed law suites WELLINGTON 00000158 002 OF 003 challenging PHARMAC's policies. Meanwhile, the press continues to give the matter extensive coverage. ¶5. (SBU) While the level of IP protection for pharmaceuticals is adequate, Post agrees that it is in New Zealand's and our best interests to complete work on the draft Patents Bill this year in order to ensure that New Zealand's patent regime reflects enhanced standards in international patent protection. We believe the better course of action is to continue to work/consult with the GNZ to ensure industry's concerns are reflected in pending legislation. Designation of PWL at this time with the threat of possible trade sanctions may not yield the changes the pharmaceutical industry seeks but may embolden the government to claim its current policies are protecting the population against an avaricious pharmaceutical industry. It is equally difficult to make the case for an IP violation when PhRMA has not been able to estimate the amount of damages for 2006 attributable to a lack of IPR or restricted market access. IIPA's Special Mention of New Zealand's IP Regime -------------- -------------- ¶6. (U) As IIPA noted in its submission, New Zealand's government in December 2006 unveiled the long-anticipated Copyright (New Technologies and Performer's Rights) Amendment Bill. This extensive amendment to New Zealand's copyright law contains many valuable improvements but some provisions remain problematic for industry. Post agrees with IIPA's recommendation that a more effective course of action would be to continue to engage the government in order to ensure that the draft legislation provides more useful tools for dealing with piracy. Post has already presented the list of noted shortfalls in the draft legislation to the Ministry of Economic Development, the agency primarily responsible for drafting legislation and monitoring IP enforcement. Post has engaged Bronwyn Turley, Senior Policy Advisor to the GNZ for intellectual property issues to begin a dialogue to address the needed technical corrections. Prior Years' Special 301 Issues -------------- ¶7. (U) Ref B is the formal response by the government of New Zealand to issues raised in prior years' Special 301 submissions by industry. As noted previously, New Zealand law continues to allow parallel importation in certain defined circumstances. In 2003, a partial ban on parallel importation of films (including VHS, VCD and DVDs) was introduced. The Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act amended provisions of the Copyright Act relating to infringement by importation. The ban bars parallel import of any film within nine months of it first being made available to the public, whether in New Zealand or elsewhere. The only exceptions are parallel imports of films for the importer's private and domestic use. The partial ban contains a five year sunset clause and will be reviewed again in 2008. ¶8. (U) In conversations with local film industry representatives W.J. Hood of Film and Video Labeling Body (FVLB) and Tony Eaton of New Zealand Federation Against Copyright Theft (NZFACT - affiliated with MPAA),Post Econoff learned that industry and government Ministers whose portfolios deal with copyright issues are discussing ways to further strengthen New Zealand's IPR enforcement. Both Judith Tizard, Assoc. Minister of Commerce and Trevor Mallard, Minister of Economic Development are positively inclined to extent the partial ban beyond 2008. According to industry, an increasing number of GNZ Ministers are now aware of the positive benefits of a strong IP regime for both New Zealand's economic development and increased tax revenues, especially as New Zealand's domestic film industry plays a more pronounced role on the international stage. ¶9. (U) Post is unaware of any new legislation related specifically to domestic protection of traditional knowledge or expressions of folklore. However, the proposed changes to the Patents Act 1953 include a provision to set up a Maori consultative committee that would advise the patents commissioner on whether a patent application pertains to an invention that is derived from Maori traditional knowledge, indigenous plants or animals, and whether the commercial exploitation of such an invention would be contrary to Maori values. New Zealand continues to express a right to avail itself of the various exclusions and exceptions contained in the TRIPS Agreement. Enforcement -------------- WELLINGTON 00000158 003 OF 003 ¶10. (U) The New Zealand government says it is committed to enforcing its IPR-related laws adequately and effectively, and created new criminal offenses for trademark infringements and increased penalties for copyright infringements under the Trade Marks Act 2002, which entered into force in August 2003. In most instances, the government responds to complaints raised by rights holders rather than initiating action against IP infringers. Those complaints have been relatively few, and so the government does not track enforcement-related statistics, such as civil and criminal penalties. The government lacks a central body to coordinate the sharing of information on illegal IP activities and enforcement efforts. There is an effort underway to set-up a new office within New Zealand Customs by mid 2007 that will be exclusively dedicated to IP enforcement issues. We are not aware of any industry complaints related to Trade Mark enforcement in New Zealand. ¶11. (U) Currently, New Zealand Customs can confiscate and destroy pirated products if the holder of the trademark or copyright has requested that Customs detain the goods. That request is valid for five years and can be renewed. Customs does not have the power to prosecute, but rights holders can pursue relief through civil lawsuits and have 10 working days to do so after the goods are detained. Otherwise, the goods are released or, at the importer's request, destroyed. The provisions apply only to trademarks and copyright registered in New Zealand. Customs has no authority to detain infringing IP goods from being exported. Almost all the infringing goods imported into New Zealand originated in Asia, particularly China, and most of the intercepted and investigated goods were clothing, footwear and headwear. The number of pirated CDs and DVDs intercepted by Customs has declined sharply, after peaking in early 2005. While it appears that CDs and DVDs are increasingly being copied to order within New Zealand, making detection of local production increasingly difficult, industry has an ongoing cooperative dialogue with local authorities to better police IPR as new forms of piracy are detected. The New Zealand Department of Internal Affairs has had some success, however, in stemming domestic sales of pirated and counterfeit products by closing down e-auction sites. Conclusion -------------- ¶12. (U) Post maintains that, despite certain technical deficiencies in the pending revisions to the intellectual property laws now before Parliament, there remains a strong commitment on the part of the GNZ to continue to improve its IPR regime and bring it into conformance with international standards. GNZ's enforcement of current IP laws also reflects the government's proactive stance as they learn and adapt to help stem new forms of piracy. While there is additional work to be done to strengthen the law and enhance enforcement, Post recommends the better course of action is to engage the GNZ and monitor the progress of IP legislation rather than place New Zealand on this year's watch list. McComick