Summary of Copyright Law
New Zealand is a member of the Berne Convention (Rome), the Universal Copyright Convention (Geneva) (Of minimal relevance since TRIPs), the World Intellectual Property Organization (WIPO) and the Trade-Related Aspects of Intellectual Property (TRIPs) Agreement.
Copyright protection is not required to be registered in New Zealand, but automatically subsists in certain original artistic works. Copyright also subsists in three-dimensional and industrial works, although it excludes protection for works that are solely functional. Most articles (but not literary works) may be made the subject of design registration (local novelty considerations apply), which may be considered as the equivalent of a “registered” form of copyright in New Zealand. There are a number of advantages associated with design registration, rather than a reliance solely on copyright. Enforcement of copyright depends on establishing that copying occurred, which presents the often difficult task of establishing a link between the original article allegedly copied and how the alleged infringer had the means and opportunity to copy to produce a product which is considered close enough to infringe. There is considerable burden and difficulty on the person initiating the copyright action to produce this evidence. In contrast, in cases of infringement of a registered design, the focus is on the similarity of design between the articles in question.
As copyright (where it applies) is automatic in New Zealand on creation of the work, it is often relied on to protect variations of registered designs, and supplementary to patent protection. It is often relied on in instances where, for one reason or another, registered design protection was not sought. As a consideration in the awarding of damages by the Court in copyright infringement proceedings, copyright owners are recommended to mark or identify the existence of copyright subsisting in works and articles through the following warning: “©” author/owner, date/year”. Copyright also can protect the moral rights of a copyright owner, which includes a right to object to the derogatory treatment of a work, and to the false attribution of an author or director.
The Copyright Act 1994 sought to make New Zealand's copyright law comply with the TRIPs Agreement and the Berne Convention, and cover advances in technology. The Copyright Amendment (Removal of Prohibition on Parallel Importing) Act 1998 amended the definitions of an “infringing copy”, making significant changes to commercial activity and embracing free trade principles. However, following lobbying from cinema owners, the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act 2003 prevents the parallel importation of films during a period of nine months from the initial release anywhere in the world. This exception will apply until 31 October 2013.
The Copyright (New Technologies) Amendment Act 2008 sought to clarify the application of the Act to digital technology and state the provisions of the Act in technology-neutral language. By adding the technology-neutral category of ‘communication works’, protection of digital technology was extended beyond broadcasts and cable programmes. It also introduced exceptions to infringement by allowing format shifting of sound recordings and time shifting for private and domestic use.
In 2011 the Copyright Act was strengthened by several anti-counterfeiting provisions, including: empowering border enforcement and criminal authorities to detain and investigate suspected counterfeit goods; criminal procedures and penalties when wilful piracy or counterfeiting is carried out for commercial advantage; enhanced ability to obtain destruction of fake goods and seizure of the equipment and materials used in their manufacture, along with seizure of the criminal proceeds from piracy and counterfeiting offences.