New Zealand copyright law: A brief overview

By Susy Frankel

New Zealand has come a long way since 1842, when the country’s first copyright law was passed in the form of the “Ordinance to Secure the Copyright of Printed Books to the Authors thereof”.

In the eyes of the law a person’s creative works – the products of their mind – are regarded as assets. Just like assets that are more solid, these works must be protected from theft or damage.

In New Zealand copyright is governed by the Copyright Act 1994. It protects creative works such as books, films, music, artworks and plays. It also protects works that may be seen as less cultural, including computer programs and industrial designs. Performers’ rights – a set of rights included in the act – give performers a limited right to control the recording and transmission of their performances.

What can be copyrighted?

As long as a work is original, copyright comes into being automatically when the work is created. It does not have to be unique in the sense of being the only one of its kind, but it must not be a copy of something else.

Copyright does not protect information or ideas – only their expression. That means there can be numerous similar copyright works. For example, there are many romance novels, which share similar ideas and plots, but each one is expressed differently. In this way copyright is supposed to encourage the production of creative work.

The hard part is trying to work out how similar copyright works can be. The law says that copyright is infringed if the second work is substantially similar to the first. ‘Substantial is a test of quality, but there is no rule that sets out what ‘substantial’ means. Each case must be considered on its own facts.

Use versus infringement

Making an exact copy of a copyright work, such as downloading a song (unless the performer or songwriter has allowed it) definitely infringes copyright. However, if a book or picture simply inspires someone to write a story or make a film, that is not infringement.

Copyright does allow some use, even if it is copying, called ‘permitted acts’, if it is for a purpose such as education or research. These permitted acts have a lot of detailed rules about who is allowed to make a copy, what they are allowed to make a copy for and when they can make a copy. If the rules are complied with, there is no copyright infringement.

The right to remix

A t-shirt series by Shigeyuki Kihara, a leading New Zealand artist, featured the logos of well-known brands such as KFC and Burger King. When the series was exhibited, three of the T-shirts were removed on legal advice. The right to remix – to take well-known (or not so well-known) images, logos or sounds, and alter them to express something else – was part of intellectual property law in Australia and the United States, but didn’t exist in New Zealand.

Who owns the copyright?

Copyright comes into being automatically, as soon as a work is created. The author or creator of the work is usually the first owner of copyright. In the case of a film or a sound recording the producer is defined as the author for ownership purposes. These are the statutory rules, but they can be changed by written contract.

Also, there are some exceptions where the author is not the owner, for example, where the work is made in the course of employment or it is a commissioned work of a type listed in the Copyright Act. These include some artistic works and computer programs.

Licensed use of copyright works

Copyright owners can choose to be the only ones to use their works (except for permitted acts) or they can license others to use their works. This can be done through contracts or through licensing – including Creative Commons licensing.

Creative Commons Aotearoa New Zealand is part of the international Creative Commons non-profit organisation that has developed several different licences, able to be used by the public for free. All require that the creator of a work be acknowledged, but other conditions vary. Creative Commons relies on copyright, as it is the copyright that is licensed.

Once a Creative Commons licence is used, a copyright owner may not be able to regain control of their copyright work. Therefore for some copyright owners Creative Commons licensing may not be appropriate.

Length of copyright

Copyright in New Zealand lasts for the life of the author of a literary, dramatic, musical or artistic work plus 50 years. Where there is no human author – as in the case of sound recordings, films, and communication works (which are mostly owned by producers and production companies) – copyright lasts for 50 years from the end of the year the work was made or first made available to the public.

Copyright in other countries (including Australia, the US and the EU) lasts for longer.

Moral rights

Moral rights are another set of rights covered in the Copyright Act. These apply to authors of literary, dramatic, musical and artistic works, as well as to directors of films made on or after 1 January 1995. The rights are:

  1. the right of attribution, that is, to be named as the creator of the work (or director, if the work is a film)
  2. the right of integrity, which means you may object to your work being changed in a way that is derogatory
  3. the right to not have work falsely attributed to you.

Digital copyright

Intellectual property laws have evolved to fit local needs. In copyright, for example, New Zealand has developed its own approach to making the law more relevant in a digital environment.

In 2008 the Copyright Act 1994 was amended to give copyright owners greater protection when their works are online. A copyright holder’s right to communicate had previously been a right to broadcast. Under the new law the copyright owner’s right to broadcast is a general right to communicate, including via the internet.

Copyright owners sometimes build technological protection mechanisms (TPMs) and digital rights management into their work to control uses of the material. Bypassing TPMs for commercial gain became a criminal act, as did removal or alteration of digital-rights-management information.

The new law also included many new exceptions to make sure permitted acts with copyright works, such as fair dealing for research and private study, were still possible online.

There are important flexibilities in New Zealand’s law, such as allowing for parallel imports. Parallel imports are copies of goods that were imported into New Zealand when they were first placed on the market overseas. The legitimacy of parallel imports cannot be defeated by TPMs. So, for example, region coding on the original copyright work does not limit a parallel imported copy.

About the author

Susy Frankel
Susy is the Director of the New Zealand Centre of International Economic Law, Chair of the Copyright Tribunal (NZ) and Professor of Law at Victoria University of Wellington. Before joining Victoria University, in 1997, Susy practiced law in New Zealand and London. She qualified as Barrister and Solicitor of the High Court of New Zealand in 1988 and as a Solicitor of England & Wales in 1991. Suzy has published books, articles and book chapters and is frequently invited to give conference presentations on various aspects of intellectual property law and policy. She may be contacted at susy.frankel[at]vuw.ac.nz.