New Zealand: Public Consultation On The Copyright Act Review Now Underway

Last Updated: 6 December 2018
Article by Ken Moon
Most Read Contributor in New Zealand, November 2018

Introduction

The New Zealand Copyright Act 1994 (the Act) is now under review. The review has got underway in earnest with the November release of a 126-page Issues Paper by the Ministry of Business, Innovation & Employment (MBIE). This review is supposedly of the whole of the 1994 Act and not just of selected parts or to solely take into account technological advances since the Act was amended in 2008, although internet issues are pre-eminent.

MBIE identifies a large number of potential issues upon which it seeks submissions from interested parties. Some of these issues have emerged from complaints it has received over the years. Not surprisingly, many of these conflict with each other. For example, some complainants allege that the Act over-protects creative works while others have complained about under-protection. MBIE appreciates that the Act, as it stands, may adequately address some issues it has identified and is happy to receive submissions arguing for no change.

Adherence to international copyright treaties

Over the years, New Zealand has not been good at amending its copyright legislation to ratify international copyright treaties or conventions. However, as is noted in the Issues Paper, under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), New Zealand is obliged to make amendments to incorporate many of the provisions in the IP Chapter of the TPP – ironically drafted by the US1. Some of these require implementation of terms of the 1996 WIPO Performers and Phonograms Treaty (WPPT) which addressed internet issues, particularly for performers who had previously been side-lined. These amendments will anticipate some likely submissions, but there are other provisions of the WPPT which will need to be addressed in the review.

Potential issues of interest

Fair use and exceptions to copyright infringement

Currently, the Act ensures certain listed non-commercial activities are not infringements of copyright, including those categorised as 'fair dealing'. The Act also makes specific exceptions for the education industry and libraries. This is the traditional British approach.

The US approach on the other hand is a broad 'fair use' defence to claims of infringement where the courts have greater flexibility in assessing whether the use of a copyright work is a fair use which can be excused, even when it is a commercial use.

Should a fair use defence be adopted in place of fair dealing? Social media advocates favour this. However, fair use is somewhat subjective and reduces the certainty of legal opinions on what is infringement and what is not.

As to the adequacy of the existing statutory exceptions to infringement, it is time to look at whether the reproduction of parts of a work for the purposes of satire should be excepted. Also, should exceptions for public playing of works and format-shifting be more extensive? On the other hand, is the current exception for reproducing artistic works on public display, such as sculptures, unnecessarily broad. An example being applying an image of a sculpture to t-shirts without obtaining a licence from the sculptor and paying royalties.

Internet-related issues

  • If a website includes a link to infringing content stored on another website, does that constitute copyright infringement? It can be in the EU.
  • Since 2008, copyright owners have had the exclusive right to communicate their work to the public, whether by broadcasting or over the internet. MBIE puts aside downloading and focuses on streaming—suggesting that broadcasting and streaming are very different technologies and questioning whether they should be treated the same. The formulation of the right to communicate came from the WIPO Copyright Treaty (the sole purpose of which was to adapt copyright to the internet) and, in any event, the particular transmission technology is irrelevant from a creator's point of view.
  • New Zealand is the only country that has 'communication works' specified as a work in which copyright subsists. This makes broadcasts and internet streams to the public copyright works in themselves, in addition to any copyright attaching to the content being communicated. Thus, retransmission may constitute infringement. This was the most far-sighted of all the 2008 amendments to the Act. MBIE believes it is problematic because it is hard to know who might constitute the 'public'. Strangely, MBIE did not see this as a problem with the communication right mentioned above.
  • User-generated content on social media platforms, even if it is supposedly merely 'inspired' by existing content, can amount to copyright infringement if it reproduces a substantial part of that content. Should this be the case or should there be exceptions?
  • Currently, section 43A of the Act provides an exemption from infringement for transient reproduction of a work if it is an integral part of the technological process for communicating the work. This has application to the streaming of content, but has been interpreted differently by New Zealand and British courts. Clarification seems called for even if all that is done is inserting a definition of 'transient'.

Software-related issues

  • The Act does not allow for a copyright owner to renounce their copyright. Some software developers (and users) have wished for this instead of retaining copyright and adopting a licensing scheme of the open source or creative commons types. Should renunciation of copyright be provided for?
  • The Act currently already provides specific exceptions to infringement for computer programs such as:
    • decompilation of a program in order to write an interoperable program
    • copying or adapting a program to allow for continued use and for correcting errors
    • studying the functioning of the program to determine the ideas that underlie it while loading, displaying, running, transmitting, or storing the program.

These were radical enough when introduced in the 2008 amendments, but MBIE is asking if there should be further exceptions to program infringement.

Enforcement of copyright

  • MBIE notes that in some cases it has been difficult for a plaintiff to prove ownership of copyright because of the lack of a copyright register. It asks whether a voluntary register be made available, as in Canada. It is questionable whether there have been enough or any real injustices in past copyright cases to justify the costs of running such a register of ownership.
  • Legal action for copyright infringement can only be taken by copyright owners or their exclusive licensees. Should non-exclusive licensees be able to sue?
  • Should the Act provide a remedy for groundless threats of copyright infringement, namely allowing the recipient of such threats to take legal action against the issuer and providing penalties such as injunctions and damages?

Relationship between copyright and registered design protection

The old question of whether the overlap between copyright protection for product design and protection by the Designs Act has been raised yet again. Is there a problem? Should New Zealand have an Australian-style demarcation between the two forms of design protection? The fear of New Zealand protection providing greater protection for foreign designers compared to what New Zealand designers may receive in some other countries emerges. Of course, New Zealand designers are accorded unregistered design rights in European Union countries, and the Berne Convention has allowed for copyright protection of 'applied art' when desired by signatory countries. Italy was renowned for this form of protection.

Due date for submissions to be made

Submissions on the Issues Paper can be made to MBIE until 5.00pm on 5 April 2019. An online portal can be used for this. Submissions will be published, although confidentiality can be claimed for some content.

Footnote

1 Some of the copyright provisions in the CPTPP Act come into force on 30 December 2018 – see our article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions