Two Regimes, One Market: IP–Services Linkages and New Zealand’s Trade Policy

Nikita Melashchenko · VUWLR · (2025) · paper · source ↗︎

International trade in services increasingly depends on intellectual property (IP) assets such as software, databases, brands and creative content. Yet the two regimes governing this single market, namely the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), operate on separate tracks in both multilateral and bilateral negotiations. This article examines how IP regulation and services trade intersect within New Zealand’s trade policy and argues that greater coherence between the two regimes is essential for maximising market access. It develops a doctrinal map for reading the GATS and the TRIPS Agreement together when IP rights are inputs and/or outputs to scheduled services, and introduces an IP–Services regulatory toolkit to identify linkages between the two regimes. Case studies of computer services and audiovisual streaming demonstrate that market access commitments deliver only when upstream IP settings align with trade disciplines. The article concludes that New Zealand should treat IP and services as one market, calibrating IP standards so they support, rather than undermine, openness and competition in services. This approach would benefit New Zealand’s knowledge economy and ensure compliance with its international trade obligations.

Key points

• GATS and the TRIPS Agreement govern the same economic reality — IP-intensive services trade — but operate as separate legal tracks in both WTO negotiations and bilateral FTAs, producing a structural coherence gap.
• Market access commitments under GATS deliver only when upstream IP settings (availability of protection, scope of exclusive rights, exceptions, licensing, and enforcement) are aligned with trade disciplines, a barrier on the IP side can neutralise an open services schedule.
• A doctrinal map for reading GATS and TRIPS together is developed, covering subject matter availability, the “right to authorise,” coordination of exceptions and the necessity test across both instruments.
• An IP–Services Toolkit is introduced as a practical instrument for identifying where IP choices intersect with scheduled services commitments in negotiation and compliance contexts.
• Case study on computer and digital services: copyright availability, software interoperability exceptions, and data-mining rules determine whether SaaS, cloud and platform models can actually benefit from scheduled market access.
• Case study on audiovisual streaming: territorial licensing, geo-blocking and content-ownership structures operate as IP-based gatekeepers, with origin-neutral rules producing origin-sensitive outcomes in practice.
• Only 21.3% of FTAs with digital trade chapters cross-reference services or investment chapters; none explicitly link digital trade and IP chapters except to note their compartmentalisation.
• Three cross-cutting policy patterns identified: legally binding taxonomy lags technology (technology-neutral scheduling needed); licensing predictability is a competitiveness issue especially for foreign SME suppliers; transparency in IP administration often determines whether access is real or only nominal.
• The main recommendation is coherence by design: cross-chapter linkages in FTAs, baseline transparency for IP-implementing measures that materially affect scheduled services and technology-neutral scheduling to capture contemporary delivery models.
• New Zealand should calibrate IP standards so they support, rather than undermine, openness and competition in services, ensuring that what is negotiated is realisable and consistent with its international trade obligations.