Intellectual property reform enters touchy area

By COLIN JAMES

Two more bills are due over the next year to follow the Trademarks Bill introduced last week in the snail's-pace revision of intellectual property laws - but the legislative issues are complex and controversial.

The revision of the patents legislation has to deal with the patentability of life forms and medical procedures. Revision of copyright legislation will have to consider the implications of digital forms of recording and transmission and performers' rights.

The trademarks and patents legislation also gets into the touchy area of indigenous intellectual property.

A discussion paper on the copyright legislation will be issued this week. The one on patents awaits the report late this month of the Royal Commission on Genetic Modification and is unlikely to be issued until early next year.

Most of the Trademarks Bill is non-controversial, the product of decade-long technical updating partly in the World Trade Organisation agreement on Trade-related Aspects of Intellectual Property Rights, which prompted a revision of the Copyrights Act in 1994 and also impinges on the patents legislation.

Trademarks will last for only 10 years unless renewed. They will not be issued for commonly used chemical names, protected geographical ones, names of the royal family or if they contain a person's name without that person's permission or are similar to another trademark without permission of that trademark's owner.

But there is controversy over the special protections for Maori - banning trademarks that are "likely to offend a significant section of the community, including Maori."

The controversy will be for all the usual cultural differences of opinion over how much the law should respect or incorporate Maori cultural lore. But it will also be over the new legal direction this represents.

Jack Hodder, an intellectual property law specialist and editor of the legal weekly, Capital Letter, said the trend had been to remove judgmental and social issues from the discretion of people such as trademark registrars because they did not have a special competence to decide them.

In registration of company names, "the broad general discretion to not have names registered because they are offensive has been whittled down because the registrar is not the best person to decide these issues."

Instead, these matters of taste and cultural sensitivity were left to other legislation and the courts.

Mr Hodder said bringing Maori culture in as a ground for refusing a trademark would lead to a "clash of philosophy of individual property rights and collectivist notions of cultural property rights."

These issues, which cut against the grain of British legal tradition, "are causing excruciating policy issues" for legislators.

This issue will also be at the heart of the rewrite of the 50-year-old Patents Act. Should Maori traditional knowledge, about which Maori have been outspoken, be patentable?

Associate Commerce Minister Laila Harre, who is developing the three bills, strongly promotes the extension to cover Maori concerns.

"Taking account of Maori concerns is something we are determined to do," she said. "New Zealand is leading the way internationally on treatment of indigenous knowledge.

"It is not trendy or self-indulgent. It is a huge question around the world and we have quite a lot to offer the world in application of intellectual property law to indigenous knowledge."

Christine Stephenson, of the Ministry of Economic Development, said the Patents Act overhaul was a large exercise.

Much of it was a non-controversial updating of processes. But it also involved complex and potentially controversial issues of what Ms Stephenson called "the boundaries of patentability."

This included "life forms" and medical procedures. "Life forms" runs into issues to be determined by the royal commission.

Ms Harre said that in protecting bio-science developments and medical interventions - where those claiming patents were doing so not on a product but on their knowledge - there was fine line to be walked.

New Zealand had to protect its inventions but it was also heavily dependent on importing technology for access to the latest treatments.

"The stronger we are in protecting our developments the less we can use those that come from somewhere else," she said. "I am going to be very cautious."

Also complex are the issues the new economy poses for updating the Copyright Act to cover the internet and digital records.

The United States passed a Digital Millennium Copyright Act under the Clinton regime, Australia has a new Copyright Act and the European Union has just issued a new copyright directive.

One issue is whether to allow internet service providers some immunity from copyright actions, provided they remove offending material quickly on being alerted by the copyright holder. This is included in the US legislation.

A more complicated issue, said an Auckland expert on intellectual property law who did not want to be named, was that involving DVD encryption, centering on "digital locks."

These are inserted by the manufacturer and limit the number of times the information on a DVD can be accessed by the buyer. This allows "finely graded pricing" according to access limits.

The expert raised two questions. Should not someone who has bought the DVD be able to regard it as his or her property, with full rights of unlimited access, as with a newspaper?

And what should the law do about technically minded people who find ways around the locks? At present the law prohibits devices which can do this but does not prohibit the action. The EU directive does.

Ms Harre said some issues which had been contentious in developing the discussion paper would not be revisited in dealing with public comments on the paper. Educational exceptions and retransmission of material through broadcasting were two of these off-limit items.

Associated with Ms Harre's three bills but separately dealt with is the issue of parallel importing - the importing of branded products from other countries, bypassing the normal distribution channels.

In opposition, Labour promised to reintroduce bans for software, music, books and DVDs. An MED report last December found no evidence of the damage the bans were supposed to correct - although it did recommend action on counterfeiting of branded products.

Commerce Minister Paul Swain is wrestling with the possibility that some restrictions could be reintroduced but a decision is unlikely soon.

* ColinJames@synapsis.co.nz