An Expensive Ear-Worm: Why You Don’t Hear Frosty the Snowman © in the Mall

At about this time every year the debate about best and worst Christmas music heats up. As we move through the month of endless repetitions of the same batch of Christmas songs blaring through the shop stereo, you might notice you never hear your favourite ditty and pause to ask: whatever happened to Frosty?

The answer may be copyright.

The recent High Court case of Australian Performing Right Association Limited v JT Hi Fi Limited and John Tom1 reminds us of the importance of understanding when you might need to secure permission before playing music in your store. In this case JT Hi Fi Limited trading as Paul Money Hi Fi played five songs in its Mt Eden store without securing a license to so do. Because the music was used to demonstrate sound quality, the Court held it was a public performance under the Copyright Act and one authorised by JT Hi Fi and Mr Tom.

In the absence of permission from the copyright owner, JT Hi Fi and Mr Tom were held to have infringed copyright in the works. The Court awarded compensatory damages of $2,123.20 with additional damages of $15,000 to the copyright owner.

Because copyright is an unregistered right, the owner of copyright does not need to have ownership listed on any particular index in order to claim those rights. But you can still take steps to minimise the risk that your catchy tune could result in an expensive outcome.

• Performers rights may be indexed, so do some searching.

Queries through the Australasian Performing Right Association (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS) is a good first step.2

• Traditional music is more likely to be out of the period for copyright protection.

Copyright has a limited life so the older the music, the more likely it is that any copyright term has expired. You should bear in mind that traditional Christmas carols may be safe to use, but modern re-working of traditional carols could still attract copyright.

• Seek help from a professional.

Assessing whether you are at risk of breaching another person’s intellectual property rights is not something that should be treated lightly. Using someone who conducts these sorts of checks for a living can save you time, and may in the long run be the difference between Christmas cheer and a nasty letter.

1 [2019] NZHC 2508.


Educational Purposes Exemptions and Copyright

It is relatively common knowledge that authors and artists are entitled to copyright protection for original work. What is less well understood is how to identify who owns those rights, and in what circumstances the work can be used without being at risk of legal breach.

Copyright Act under Review

There are several points where educators may need to consider ownership and the ability to use copyright material. This article looks in brief at the educational purposes exemptions under the Copyright Act 1994 focusing on materials used by teachers when preparing a teaching course. Because the Copyright Act 1994 is under review, the parameters for these exemptions may well change, however a clear understanding of some of the founding principles of the exemptions is a valuable tool.

The Copyright Act 1994

The Copyright Act 1994 (“the Act”) provides a framework for authors and artists to identify a period of statutory monopoly for original work and an opportunity to reap a financial reward through licence or sale of original work during that period. The ability to benefit financially is meant to encourage artists and authors to develop original works. This must be balanced with a public interest in making certain information available to the wider community 1. The Act sets out various scenarios where the balance of public interest means copyright work should be able to be disseminated without risk of legal breach, including exemptions for educational purposes.

These exemptions to infringement are not an inherent permission for large scale copy and dissemination of whole bodies of work. Therefore, it is important to work carefully through the legal framework.

First Steps: Finding Out Who Owns the Copyright

Copyright does not need to be registered in order to exist. While the Act provides a framework to identify ownership and transfer of copyright, it does not provide for a Register and as such there is no cohesive central repository which records who owns copyright in various works. Some, but not all, work may be listed with Copyright Licensing New Zealand 2, but it is not enough to simply check this resource and assume that anything not listed there is free to use.

Copyright is generally owned by the author of an original work, unless it is a commissioned work or the work of an employee for an employer undertaken in the course of employment. Copyright may also be transferred in writing with the agreement of the first owner to another company or other individual 3.

A good first point of reference is to look for the © symbol. Proper marking will include a date from which copyright is claimed and the owner of that copyright.

In the absence of this sort of marking a series of questions will help identify copyright ownership:

  • Is the material original?
  • Is the author alive?
  • Is it published by a company or an individual?

Some Common Myths

A common misunderstanding is that copying of 10% or less of an original work is permitted and does not constitute copyright infringement. This is not correct in New Zealand. The Act makes no mention of 10% and you should not rely upon this formula. There is also no overarching fair use exemption for use of copyright materials.

It also does not matter where the material has been found – copyright can still exist regardless of whether the material is a printed publication or found on the internet.

If your use does not fit within the educational purposes exemptions, and you do not have permission for the copy, then you are at risk of legal breach.

The Educational Purposes Exemption

To fall within the educational purposes exemptions under the Act, the person providing the material must be part of an educational establishment or resource supplier as defined under the Act 4.

The Act then sets out a series of situations where copyright work can be copied for educational purposes and the calculation of acceptable level of copying for each scenario 5.

At a minimum in all circumstances the copying must be done by or on behalf of the person giving the course, and the material must be related to the course of instruction.

Copies Beyond the Educational Exemption

Where material could fall outside of the educational purposes exemptions, it is important to ensure permission has been obtained from the copyright owner.

A common way to secure permission is to obtain a licence. Licences must be negotiated with the copyright owner, or an agent employed by the copyright owner. The fee for the licence should be reasonable for the work and level of copy. While the Copyright Tribunal is available to assist in setting reasonable fees, it will not insist upon a licence where the owner refuses.

There are also important differences between a licence scheme for a body of work or group of users, and a series of individual licences which achieves the same end. It is important to be cautious and clear when negotiating the different options 6.

Acknowledging Sources

In all cases owners of original work are entitled to recognition of their authorship and to integrity in copies that are made – so called “moral rights” 7.

When using copies of original work, you should acknowledge your source every time and ensure the copy is accurate.

Guidelines are Key

Guidelines set in place early can help educators work through the exemption provisions and avoid potentially costly difficulties. Key points to note for educational exemptions guidelines include:

  • Exemptions are limited to statutorily recognised educators.
  • The material must be linked to a course of study.
  • The Act sets out formulas which limit the information that can be copied. This is not 10%!
  • Sources need to be acknowledged and copies need to be true.

Talk to your IP Advisor today for further help.

1 University of Auckland v Copyright Licensing Limited [2014] NZHC 1015 at paras 11 and 12.

2 Copyright Licensing New Zealand

3 Copyright Act 1994 section 21.

4 Copyright Act 1994 interpretation of educational establishment references in turn the Education Act 1989 and Private School Conditional Integration Act 1975.

5 Copyright Act 1994 sections 44 to section 49.

6 Copyright Licensing Ltd v University of Auckland [2015] NZCA 12 discusses the limits of the powers of the Copyright Tribunal to become involved in negotiating fees for individual licences and licence schemes.

7 Copyright Act 1994 Part 4.