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The TPP is getting closer -- what does it mean for the tech sector?

Averill Dickson | July 29, 2015
Despite the apparent nearness of the Trans Pacific Partnership Agreement, the contents are still largely cloaked in secrecy, with no official drafts available.


As this article is being written, chief Trans Pacific Partnership Agreement (TPP) negotiators and the trade ministers of the 12 negotiating countries are due to meet in Hawaii to progress negotiations on the TPP.

This follows the passing, at the end of June, of legislation in the USA (known as a trade promotion authority or TPA) that provides fast track authority for the TPP through the US Congress. The passing of the TPA means that, if US trade negotiators reach agreement on the TPP with the other TPP negotiating countries, Congress can only vote yes or no to the finalised agreement, but cannot amend it. The TPA is seen as a key step towards finalising the TPP, as it means that other negotiating countries can present "best and final" offers without fear that the TPP will be further amended when it gets to the US Congress.

So it seems that the TPP may be getting closer.

Despite the apparent nearness of the TPP, the contents are still largely cloaked in secrecy, with no official drafts available. It is therefore difficult to predict what the implications of the TPP will be for New Zealand's technology sector. Of interest however is the fact that, in May, more than 250 US technology companies released a joint open letter to the US Congress, urging Congress not to pass the TPA. Concerns raised included the lack of transparency regarding the TPP negotiating process and the threats that the TPP presents to free speech, innovation and access to information.

One thing that is clear is that the main touted benefit for New Zealand of the TPP, the removal or reduction of trade barriers such as quotas and tariffs, is likely to be of little benefit to the tech sector, where there are few current barriers of this type. However, the two negotiation drafts of the intellectual property chapter that have been leaked do raise some issues likely to be of concern.

Patentability of software

There appears to be a significant risk that New Zealand may have to back-track on the recently-introduced provision, in the Patents Act 2013, excluding software "as such" from patentability. In the most recent draft of the TPP IP chapter (dated October 2014), New Zealand (and eight other negotiating countries, but not Japan or the USA) supports a provision allowing member countries to exclude plants, animals and diagnostic, therapeutic and surgical methods for the treatment of humans or animals, but only Mexico has proposed a provision allowing member countries to exclude software as such.

Reverse-engineering of software

Section 80A of New Zealand's Copyright Act 1994 allows reverse engineering of software to enable development of other interoperable software, subject to certain conditions. The Copyright Act also prevents parties to a software licence contracting out of section 80A, the result being that a term in a software licence prohibiting reverse-engineering for this purpose has no effect.


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