Contributions to this article by Evelyne Robert, Solicitor, Ridgway Blake Lawyers.
The Copyright and Related Rights Act 2000 (Vanuatu) ("the Act") was assented to on the 29th of December 2000 and came into force on 8 February 2011 (upon publication in the Government Gazette). Notably, prior to the Act Vanuatu did not have local copyright legislation in place.
The Act forms part of a package of legislation which also includes a Trademarks Act, Designs Act and Patents Act, all introduced, as prerequisites to membership with the World Trade Organization (WTO) which Vanuatu has been pursuing. The introduction of this law signifies an important step in the development of Intellectual property law in Vanuatu and the Pacific Islands more broadly.
Application of the Act
The Act is designed to offer protection to the creative industry, and applies to works, performances, sound recordings, broadcasts and expressions of indigenous culture,(1) regardless of whether they were created before or after the commencement of the Act. Although operating retrospectively, the Act does not affect contracts or agreements made prior to the commencement of the Act.
The Act also applies to works, performers, producers of sound recordings and broadcasting organizations that are eligible for protection in Vanuatu by virtue of and in accordance with international conventions or other international agreements to which Vanuatu is a party.(2) The Act also states that the provisions of any international treaties in respect of copyright and related rights protected under the Act to which Vanuatu is a party, apply to matters dealt with in the Act, and such provisions prevail in the case of a conflict with provisions of the Act, except where the offence or civil remedies are in relation to expressions of indigenous culture.(3)
What "works" are protected under the Act?
The Act is straightforward in setting out the subject matter in which copyright subsists. The Act protects original "works" defined as artistic work, literary work, dramatic work, musical work, audiovisual work or collective work.(4) The Act also protects "derivative works" defined as translations, adaptations, arrangements and other transformations or modifications of works, collections of works, collection of data sets, and collections of expressions of indigenous culture if the collections are original by reason of the selection or arrangement of their contents.(5)
Protection of 'Expressions of Indigenous Culture'
The Act contains special provisions for the protection of 'expressions of indigenous culture' which comparatively with Australian Intellectual Property protection is a progressive inclusion.
An 'expression of indigenous culture' is defined as any way in which indigenous knowledge may appear or be manifested and includes for example, material objects, names, stories, histories, songs in oral narratives, dances, ceremonies and ritual performances or practices.(6) While it is of course possible that these expressions in their various forms will fall within the definition of 'work' and hence fall within the copyright provisions under the Act, classification as a 'work' is not imperative and thus originality, which could forseeably be difficult for a person or group of persons to establish in relation to ancient indigenous cultural expressions, is not a prerequisite to protection.
Also important is the recognition under the Act of the collective right of ownership of expressions of indigenous culture and collective right of enforcement by the custom owners who may enforce their rights or request the National Cultural Council or the National Council of Chiefs do so on their behalf.
What rights does the copyright owner have?
The copyright in a work comprises both economic rights and moral rights in relation to the work.
The copyright owner has the exclusive right to carry out or authorize the acts defined in the Act which include the following: to reproduce the work in any manner or form, to publish the work, to perform or display the work in public, to broadcast the work, to make an adaptation, arrangement or other transformation of the work, to translate the work, to distribute the work to the public by sale, rental, public lending or otherwise, to communicate the work in any other way to the public.(7)
The copyright owner also has moral rights which are independent to the economic rights and continue whether or not the author is the owner of the economic rights. Moral rights are the rights of the author to:
- to have or not have the author's name indicated on the on copies of the work and in connection to public use, or to use a pseudonym; and
- to object to any distortion, mutilation or other modification of the work, or any other action in relation to the work, if it would be prejudicial to the author's honor or reputation.(8)
Under the Act, during the life of the author the moral rights cannot be transferred however an author may, in writing, waive his or her moral rights.
Which acts don't constitute infringement of copyright in 'works'?
The Act set outs the exceptions to copyright infringement of works as follows: private reproduction for personal purposes(9); temporary reproduction(10); quotation(11); reproduction for educational or legal purposes(12); reproduction by libraries and archives(13); reproduction, broadcasting and other communication to the public for information purposes(14); reproduction and adaptation of computer programs(15); importation for personal purposes(16); and display of works(17).
Duration of copyright in works
The duration of copyright in a work will depend on the kind of work and whether it is: made by an individual or by joint authorship, a collective work, a work published anonymously or under a pseudonym, or a work of applied art. For all other works copyright lasts for the lifetime of the author plus fifty years after the author's death.
Enforcement of rights
The Supreme Court has jurisdiction in respect of civil and criminal matters arising under the Act.(18)
1. Section 4 of the Act.
2. Section 39(2) and section 40(3) of the Act.
3. Section 43(2) of the Act.
4. Section 5 of the Act.
5. Section 6 of the Act.
6. Section 1 of the Act.
7. Section 8 of the Act.
8. Section 9 of the Act.
9. Section 10 of the Act.
10. Section 11 of the Act.
11. Section 12 of the Act.
12. Section 13 of the Act.
13. Section 14 of the Act.
14. Section 15 of the Act.
15. Section 16 of the Act.
16. Section 17 of the Act.
17. Section 18 of the Act.
18. Section 34 and 35 of the Act.
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