NEW ZEALAND Law and Practice Contributed by: Ashton Goatley, Henry Willis, Sarah Keene and Erin Hickey, Webb Henderson
employment, to limit the vendor’s exposure to costs resulting from termination of employment. 10.3 Employment Protection All employment agreements in New Zealand must contain an “employee protection provision” to apply in the event an employer proposes to sell or restruc - ture its business. While this is not a mandatory right to transfer employment, it may include provisions such as that the employer will keep the employee informed and facilitate discussions with the new employer. In addition, “vulnerable employees” (as defined in the ER Act) are afforded a higher level of statutory protec - tion in the event of an acquisition. These are employ - ees at greater risk of losing their jobs due to their lack of bargaining power, and because they are working in sectors where the work is often contracted or trans - ferred out. The additional protections for vulnerable employees include the right for those employees to choose to transfer over to the new employer on the same terms and conditions of employment. 11. Intellectual Property and Data Protection 11.1 Intellectual Property Considerations for Approval of FDI Depending on the specific sector that intellectual property rights apply to (such as military or dual-use technology), acquisition of intellectual property may amount to investment in a SIB, and may result in the transaction being subject to the call-in NSPO Regime or the National Interest Test under the OI Act (see 7.2 Criteria for Review ). 11.2 Intellectual Property Protections New Zealand provides strong intellectual property protections in line with international treaties. Pro - tections apply in relation to registrable rights (trade marks, designs, patents, geographical indications and plant varieties) and unregistrable rights (copyright). Applications for registrable rights are assessed by the Intellectual Property Office of New Zealand (IPONZ). Alternatively, an international application can be made identifying New Zealand as a designated country in
relation to trade marks, designs and patents. There are no restrictions regarding nationality or residency for applications in relation to registrable rights, but a New Zealand address for service must be provided in an application to IPONZ. Copyright is an automatic right under New Zealand law. Protection is afforded under the Copyright Act 1994, with the length of protection varying depending on the nature of the work. The Copyright Act 1994 includes provisions for the protection of literary, dramatic, musical or artistic work that is “computer-generated”, in which case the first owner of copyright is, ordinarily, the person who undertakes the “arrangements necessary for the crea - tion of the work”. This can encompass a work that has been produced by an AI model with parameters provided by a natural person (subject to the terms of use of that AI model). 11.3 Data Protection and Privacy Considerations The Privacy Act 2020 (the “Privacy Act”) is the primary legislation that applies in relation to data protection in New Zealand. The Privacy Act applies a principles- based approach, prescribing obligations for agencies (including businesses) dealing with personal informa - tion. The term “agencies” is defined broadly under the Pri - vacy Act, and divided into New Zealand agencies and overseas agencies. A New Zealand agency includes an individual who is ordinarily resident in New Zea - land, a public sector agency, a New Zealand private sector agency (such as a private business), a court or a tribunal. “Overseas agencies” include an overseas entity that is not a New Zealand agency, the govern - ment of an overseas country (or an overseas govern - ment entity performing a public function), nor a news entity to the extent it is carrying on news activities. The Privacy Act applies to overseas agencies carry - ing on business in New Zealand, in respect of per - sonal information collected or held by that agency. The criteria for an overseas agency to be found to be “carrying on business” in New Zealand are broad, requiring a holistic assessment of the agency’s activi -
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