New Zealand is one of several countries currently negotiating the Trans-Pacific Partnership Agreement, a regional trade deal that the U.S. would like to see include a major chapter on intellectual property (Canada has been excluded from the talks). A new leak [PDF] of the New Zealand government’s position on the IP chapter is revealing on several levels, most notably for its criticism of the WIPO Internet treaties and the attempts to limit existing flexibilities on digital locks. According to the leaked document:
While there may be good arguments for an early and more rapid development of international solutions, such approach bears the risk of being premature, lacking evidence at the national level that would suggest a desirable international norm.
The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty are examples of such approach. Both treaties attempt to deal with the challenges of enforcing intellectual property rights in the digital environment through legislating on technological measures and rights management. However, by providing stricter digital enforcement measures that are based on traditional concepts of copyright protection, the treaties have limited ability to recognise the reality of emerging new business models and new ways of consuming creative works via the internet.
Developments in the digital content market on the other hand indicate that businesses increasingly recognise that it is not in their interest to enforce copyright through DRM but to focus on monetising current internet user behaviour rather than trying to restrict it. This suggests that neither the WCT nor the WPPT reflect the complexity of creative investment in an online environment and their scope to act as a promoter of innovation remains questionable.
It is New Zealand’s view that TPP parties should only agree to ratify or accede to treaties that clearly support the longer term goals for the TPP region. Given the considerable level of uncertainty regarding the benefits of the WIPO Internet Treaties for the TPP region, New Zealand considers that TPP countries should retain their flexibility to legislate on technological measures.
There are several points worth emphasizing. First, NZ is clearly opposed to attempts to establish international norms on digital locks (ie. anti-circumvention legislation), arguing that countries should retain existing flexibilities on TPMs. Second, the NZ government recognizes the shortcomings of relying on digital lock rules, suggesting that the WIPO approach may actually undermine new business models. Third, it expresses doubt about the ability for digital lock rules to promote innovation. These are all positions that have been raised repeatedly within the Canadian context and serve to provide further evidence that support for the treaties is not nearly as widespread as its supporters claim.