Copyright was once a relatively arcane area of the law which had little impact on the general public. Technological changes associated with the growth of the internet have changed that. Copyright law is now hotly debated, and many members of the public have strong opinions on how the law should operate.
What is copyright?
Copyright is a property right and is one of the main areas of intellectual property. As with other forms of intellectual property, it allows for the recognition and protection of the intangible fruits of a person’s efforts.
Copyright arises automatically where a person creates material which falls within the scope of one of the types of “works” listed in the Copyright Act 1994. Generally speaking copyright protects a particular embodiment created, not the underlying idea.
What can be protected?
Copyright protection applies to different types of works, namely:
- Literary works;
- Artistic works;
- Dramatic works;
- Musical works;
- Sound recordings;
- Communication works; and
- Typographical arrangements.
A person may have more than one type of copyright in a work. For example, a song will normally have copyright in its lyrics as a literary work, and in the music (including the melody) as a musical work.
There is no need for registration of a work in New Zealand, although registration is required in some overseas countries. It is good practice to use the “©” in conjunction with the name and of the author and date of creation, as this creates a presumption of authorship, and puts other parties on notice as to the assertion of copyright. It is not a formal requirement, however.
For practical purposes the most common types of copyright are literary and artistic works, although much of the public debate and controversy relates to copyright in sound recordings and films (including television programmes).
In some ways it is unfortunate that the Act uses the term “literary work”. This suggests some need for greatness, such as a novel like “War and Peace”, but in fact it also includes mundane works like a letter or a blogspot. Text-based or word-based work would be more accurate.
The English Court of Appeal found that the invented word “Exxon” was not sufficient to be recognised as a literary word by itself, although somewhat controversially the New Zealand High Court found that phrase “Field friendly – the best choice for field work” was capable of being a literary work. I was briefed for an appeal from a decision of the District Court striking out a claim, and on appeal the High Court accepted that a single poem could qualify as a literary work.
Copyright law protects software on the basis that the source code is a literary work. The appearance of a website or piece of software could also be protected as an artistic work.
Artistic works and protection of utilitarian designs
“Artistic works” also has a broad definition. This includes graphic works, photographs, models, sculptures or collages, architectural works and works of an artistic craftsmanship (is defined in the Act). One of the major features of New Zealand copyright law is that utilitarian artistic works are protected by copyright. In most countries, there is an exclusion for material which would normally be the subject of design right protection. This means that the design rights regime is under used, compared to other countries, and copyright has a greater importance.
The creation of 3 dimensional model can infringe copyright in the 2 dimensional design. A lesser term of protection applies rather than is where a design has been industrially applied. The period of protection is 16 years rather than the usual period of life of the author plus 50 years. A different term applies for works of artistic craftsmanship (a higher standard, which has a subjective aspect) of 25 years.
Other requirements for protection
In order to qualify for copyright protection, a work must be “original”. This is a slightly different use of the term “original” from its everyday usage. It does not mean novel or inventive, but simply means that the work must originate from the author (i.e. be their creation).
Copyright protects the expression of an idea rather than an underlying idea itself. Because copyright subsists without a need for registration, it protects a much wider range of works than patent law (which relates to inventions).
Copyright protection prevents copying the actual form of an existing work protected by copyright, rather than precluding independent creation of an identical work.
Who owns copyright?
The first owner of copyright is normally the creator of the work, referred to under copyright law as the “author”.
There are exceptions to this general rule. The major one is that works created by an employee in the course of their employment will belong to the employer. The general rule is also subject to any agreement to the contrary.
Regardless of who the first owner is, they do not need to take any steps to register their copyright under New Zealand copyright law. Copyrights subsists automatically once a work is created. (The position is different in some other countries.)
Joint ownership of copyright is possible, although it is preferable to avoid this if possible as it can become very complicated (particularly in relation to exploitation of works based on the original copyright work).
As a property right, copyright can be assigned or licensed and it is common to have contractual terms which expressly address the issue of ownership and copyright.
How long does copyright last?
The term of copyright in New Zealand is generally the life of the author plus 50 years. After that time the work becomes part of the public domain and can be copied without permission of the copyright owner. The term is much shorter for artistic works which have been industrially applied (i.e. mass-produced) – in that case, the term is only 16 years from the date on which the 50th copy was made.
This contrasts with the term of copyright granted in the United Kingdom and the United States, which is the life of the author plus 70 years. The term of copyright protection was extended in those countries as a result of amendments passed in 1995 and 1998 respectively. There is some pressure to increase copyright in New Zealand.
The Berne Copyright Convention provides for reciprocal recognition of copyright. Copyright works created in countries which are party to the Berne Convention are protected by New Zealand copyright law, but under New Zealand law. If, for example, the term of copyright protection in the “home” country is longer than the term in New Zealand, the shorter New Zealand term will apply.
What rights does a copyright owner have?
The copyright owner has the exclusive right to do certain things in relation to that work. The major right is the right to copy the work, and more importantly the right to take action where someone else copies the work.
Copyright in a work can also be infringed by making an adaptation (e.g. a translation) , performing, playing or showing the work in public or other similar activities. There are also infringing acts where a person does certain things (for example, possessing or providing the means for making an infringing copy in the course of a business) where the defendant’s knowledge is relevant. Knowledge can be relevant to remedy but is not generally relevant to the question of infringement.
The law prohibits copying rather than the making of copies, and it is possible for a work to infringe copyright even where the conduct to infringe copyright even where the resulting work is quite dissimilar from the original work. The focus of the enquiry is on the process followed.
Infringement occurs where a substantial part of the work is copied. There is case law around the meaning of “substantial part”, and when assessing this the Court will consider the quality of what is taken as well as the quantity. Copying a distinctive part or feature may well amount to infringement even if there are original aspects to the new item. The courts have held that copying a few bars of a song may amount to a substantial part – it all depends on the context.
There is a persistent myth that changing 10% of an item (e.g. a garment) means that it no longer infringes. There is no legal basis for that alleged rule of thumb but it continues to be repeated as fact, especially in the fashion industry.
Copyright is not infringed where a third party independently creates something, without direct or indirect reference to the copyright work. If a copyright owner can show both similarity and opportunity (i.e. that the defendant had access to or knew of his or her work) the Court is likely to infer copying.
What happens if someone infringes copyright?
A copyright owner can take legal action against an infringer in the District Court or the High Court.
If successful, the copyright owner may be entitled to damages or an account of profits, as well as a permanent injunction to prevent further infringement by the defendant. The defendant can also be ordered to deliver up infringing copies to the plaintiff.
The Court can award damages which compensate the plaintiff for the losses which he or she has suffered, as well as additional damages. Compensatory damages may reflect the licence fee which the owner would have charged. Additional damages may be awarded where on infringement is blatant or deliberate.
New Zealand courts are generally quite cautious about awarding large amounts of damages, so the cost of pursuing an infringement can exceed the damages obtained.
Parallel importation occurs where a legitimate product manufactured overseas is imported into New Zealand without the consent of the person who owns or is entitled to enforce copyright in New Zealand (such as the New Zealand distributor). This can amount to copyright infringement overseas, but has been generally lawful in New Zealand since 1998.
The one exception where parallel importing is not permitted is in the case of importation of films for commercial use within 5 months of the film first being made available to the public.
Other rights recognised in the Copyright Act
Apart from copyright, the Copyright Act 1994 also recognises moral rights and performers’ rights.
Moral rights vest in the author of a work and can be waived but cannot be assigned. Moral rights are based on personality and artistic integrity regarding treatment of the work rather than protection of economic interests. Moral rights attached to the author of a literary, dramatic, or artistic work and film directors and are in play whenever a work is exploited commercially, performed in public, broadcast or where copies are issued to the public.
Moral rights are treated separately and include:
- The right to be identified as the author or director of a work;
- The right to object to derogatory treatment of a work;
- The right not to suffer false attributions; and
- The right to privacy in respect of certain films and photographs.
There is very little case law on moral rights in New Zealand but they remain an important part of the law.
Performers’ rights confer limited rights on a person who has performed a work separate from copyright. For example, the performer of a new musical work has rights in that work separate from the rights of the composer which are protected by copyright in the musical work and rights in the lyrics (which are literary work for the purposes of copyright laws).