Abstract:
Free trade agreements now include intellectual property provisions aimed at the harmonising law between trading partners in order to facilitate trade. New Zealand and Australia are parties to the Transpacific Partnership Agreement which has required that members increase protections for copyright. Since 2004 various recommendations have been made in Australia to introduce a broader United States-style expanded fair dealing provision to counterbalance the increased protections for rights owners as a result of the Australia United States Free Trade Agreement and to provide greater flexibility in a rapidly changing digital environment. This paper will consider whether harmonisation of the copyright law of Australia and New Zealand is possible with particular regard to fair use and whether or not it is in the best interests of both parties. Currently both New Zealand and Australia have prescriptive fair dealing exceptions based on the British model which do not readily adapt to developments in technology. If Australia accepts the recommendations and adopts a fair use regime, will New Zealand follow suit? New Zealand Australia Closer Economics Relations (CER) is a commitment to create a seamless trans-Tasman business environment, making it as easy for New Zealanders to do business in Australia as it is to do business in and around New Zealand and includes measures to unify policy, laws and regulatory regimes in both countries. In order to compete on a level playing field with Australia, New Zealand may wish to adopt a similar provision or risk falling further behind in innovation and development of its technology. While there will be strong resistance from rights owners, should it arrive, fair use or an equivalent provision in New Zealand and Australia may end up looking very different to fair use in the US.