Copyright in New Zealand
Copyright is a form of intellectual property in New Zealand which protects original works. These works can fall into a broad range of categories, including artistic works (like paintings or drawings), literary works (like novels), compilations of information, software, and even industrial design.
One catch is that copyright does not protect the underlying idea: it only protects the original expression of that idea. So while copyright could cover the particular set of words in each of the hundreds of novels inspired by Romeo & Juliet, copyright would never cover the underlying idea of star-crossed lovers.
Copyright does not need to be registered in New Zealand: it can enforced as soon as it exists. However, there are a few criteria which must be met to rely on copyright.
Does copyright exist?
The first step to establishing copyright is to have an original work. If there is nothing original, there can be no copyright. While a piece of work does not need to be wholly original to attract copyright, there must be some aspect of originality.
Uniquely in New Zealand, copyright can also exist in three-dimensional works that have been industrially applied. This means that many industrial products are covered by copyright.
In addition, many works produced by the Government are explicitly excluded from copyright coverage, such as statutes.
Who owns the copyright?
Copyright in New Zealand is usually owned by the person who has made the original work – that is, the author. The exception is where the work is created by an employee for an employer or is commissioned by a third party.
If someone who is not the author wants to own copyright and there is no underlying employment or commissioning agreement, the copyright must be transferred in writing.
How Long Does Copyright Last?
The rule of thumb is that individually created artistic works are covered by copyright for 50 years after the death of the author. Where a 3-dimensional work is made from a 2-dimensional drawing, copyright exists for 16 years after the first year where 50 articles were made.
Assessing Copyright Infringement
To find infringement we need to be able to establish five points.
- There is an original work in which copyright resides.
- We can prove the ownership of the copyright.
- Somebody has copied the whole or a substantial part of the original work.
- There is a causal nexus between the original work and the copy.
- There has been a restricted act based on the copy.
A restricted act includes:
- Copying
- Possessing or dealing with an infringing copy
- Providing means to make an infringing copy
Actions Excluded from Copyright Infringement
Certain actions do not constitute copyright infringement, including:
- Reproduction for educational purposes
- Use for research or private study
- Reproduction for criticism and review
- Transient reproduction (that is, incidental use within a larger work, such as a picture in the background in a film scene)
What is a “Substantial Part”?
When a whole is not reproduced, the Courts will assess if the alleged copy includes a substantial part of the original.
The test for a “substantial part” has two parts. A first part is objective and looks at what is contained in the two works and what is in the market place. A second part is subjective and looks at the importance of the area of similarity.
A substantial part is not necessarily a sizable portion of an original work. Rather, the Courts will look at the quality of the alleged copy and assess any unusual features. These “finger prints” in an original work could identify an author and therefore constitute a substantial part.
Moral Rights and © Marking
Claiming copyright by marking is not mandatory but is an effective way to assert control and ownership. In the absence of proper transfer, being able to refer to marking may make it easier to establish infringement.
The author of a copyright work is also entitled to certain rights called moral rights. Moral rights include the right to be named as the author, the right to have a work published anonymously or under a pseudonym, and the right to the integrity of the work including the right to object to use of a copyright work that might be derogatory or harm the reputation of the author.
Copyright: A Valuable Tool
With the right recognition early on, copyright can be a valuable tool to retain control over an original work. In addition, since there is no need for registration (in comparison with trade marks or designs), copyright can be a very low cost way to protect important parts of your business.
To make sure you are making the most of your copyright, we recommend keeping good records about when and how you create your works, and which parts are original.
If you have questions, Ellis Terry are experts in copyright. If you would like to discuss your business and how you can best make use of copyright, contact us: we would love to help.