The recent decision of the New Zealand High Court in G-Star Raw C.V. v Jeanswest Corporation (New Zealand) Ltd is a reminder that copyright laws in Australia and New Zealand differ on some points.
In this case, G-Star successfully sued Jeanswest for infringement of copyright in design drawings for its Elwood jeans in New Zealand in circumstances where it would not have succeeded in Australia.
I use the term 'successfully' with some qualification. After eight days of trial with two counsel on each side G-Star were awarded damages of NZ$325.
G-Star sought additional damages for wilful infringement, but these were declined. Rather, the court chose to infer that the infringement in New Zealand was due to Jeanswest focusing on the copyright position in Australia and failing to recognise that the legal position in New Zealand was different.
A brief synopsise as to some positions common to both Australia and New Zealand and the difference relevant in this case follows.
Australia and New Zealand –common ground
Copyright attaches to original works automatically in both countries. There is no registration system in either and no formal process to go through to obtain copyright protection.
In terms of 'copyright in jeans', the copyright is not in the jeans per se, but rather in the original drawings on which the jeans are based. If you copy the jeans, you infringe copyright in the original drawings on which those jeans are based.
Australia and New Zealand – the differences in copyright
In Australia there is an exemption to copyright infringement in relation to artistic works where the design is or could have been registered as a design under the Designs Act (which includes designs for jeans). This exemption applies if the design has been applied to products (jeans) and sold in Australia or elsewhere.
As a result in Australia if a copyright owner owns a design registration, they need to sue for design infringement. If they do not have a design registration then copyright does not provide a backup option.
The above means that under Australian law Jeanswest were free to use G-Star's jeans as the basis for its own jeans designs without committing copyright infringement.
This contrasts sharply with the position in New Zealand. In New Zealand, copyright continues to exist in artistic works (drawings of jeans) regardless of any design registration. Instead, the term of copyright in artistic works which have been industrially applied is shortened to 16 years to align closely with the design registration term.
Take home points
If you are operating an Australasian business you need to take account of the copyright laws in both jurisdictions. In particular:
- Get design protection in Australia for designs that you will be applying industrially if you want exclusivity over that design in Australia,
- Don't assume you cannot copy a third party's industrially applied design in Australia just because you cannot copy it in New Zealand, and
- Don't assume you can copy a third party's industrially applied design in New Zealand just because you can do so in Australia.
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.