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New Zealand

Wed, 03/02/2010 - 20:48 — cgordon

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? YES
Must a work be fixed in some material form before copyright attaches? NO
Recording is necessary for some works, such as literary, dramatic or musical work. It is implicitly understood that other media of communication such as film or video are fixed in a material form.		 CA s.15
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? NO
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? NO
Does the compilation of a database of non-original material fall outside the scope of copyright? LIMITED
This would depend on the originality of the content. CA s.2 provides a definition of a compilation. The definition of “compilation” includes “a compilation consisting wholly of works or parts of works, a compilation consisting partly of works or parts of works, and a compilation of data other than works or parts of works” CA s.71 dealing with Abstracts of scientific or technical articles indicates that there is no infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of the abstract to the public. The Court of Appeal has noted that the “threshold test for originality is not high.”		 CA s.2, s.71; Waikato, para 27
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? LIMITED
Under CA s.80D, a term or condition in an agreement for the use of a computer program has no effect in so far as it prohibits or restricts any activity undertaken in accordance with section 80A(2) or 80B(1).		 CA s.80D

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? LIMITED
"Fair use" is not an expression used in the CA. However, CA s.42 allows fair dealing for Criticism, review and news reporting; CA s.43 for Research and private study and CA s.176 defines Fair dealing with respect to Performers rights. CA s.44-49 describe permitted acts or exceptions for educational establishments; CA s.50-57 for libraries and archives and CA s.58-66 for public administration. CA Part 3 contains other permitted acts or exceptions designed to achieve fairness.		 CA Part 3 esp. s.42, s.43; Part 9 s.176
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? LIMITED
Linited time shifting is permitted under CA s.84 provided that it is for personal use of the person making the recording or the personal use of a fellow member of the household. Format shifting for recordings is permissible under s 81A provided that the owner of the sound recording is not bound by a contract that specifies the circumstances in which the sound recording may be copied		 CA s.84 (1), s81A
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? LIMITED
CA s.80(1)permits backup of computer programs subject to subsection (3)of that section;		 CA s.80 (1), s.80B, s.81A
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? LIMITED
Under certain conditions, free public playing or showing of a communication work is permissible if the person is admitted as a resident or an inmate of a place, in temporary accomodation, or a person is admitted as a member of a club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society.		 CA s.81A(1) (f), s.84(1)(a), s.87
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? NO
For EducationIs reproduction permitted for the purposes of research or study? LIMITED
In considering whether copying constitutes fair dealing for the purposes of research or private study, a court shall have regard to the purpose of the copying; the nature of the work copied; Whether the work could have been obtained within a reasonable time at an ordinary commercial price; the effect of the copying on the potential market for, or value of, the work; and where part of a work is copied, the amount and substantiality of the part copied taken in relation to the whole work. CA s.51(3), s.52(3), s.53(3) provide permission to librarians to make a single copy of specific types of work for the purpose of research and study. With permission from the copyright owner, reproduction may be permitted act for encryption research under s.226D(2)(b), s.226E(3).		 CA s.43, s.51(3), s.52(3), s.53(3), s.226D(2)(b), s.226E(3)
Does any such research and study provision cover distance and online education? LIMITED
Yes, but not explicitly. CA s.43 does not authorise the making of more than one copy of the same work, or the same part of a work, on any one occasion so provider, aggregator or licensing scheme contracts are almost certainly necessary to provide sufficient relevant research and study material for distance and online education. CA Part 3 (Acts Permitted in Relation to Copyright Works), sections of which may be construed independently, offer some opportunities to support distance and online education as does Part 8 (Licensing schemes).		 CA Part 3, Part 8
May translations of works be made for educational purposes? LIMITED
Translations are defined as an adaptation in CA s.2(a)ii. An adaptation of a work is a restricted act only in relation to a literary, dramatic, or musical work CA s.34(1). CA s.44 sets out the law relating to educational copying for educational purposes of literary, dramatic, musical or artistic works or typographical arrangements. 		CA s,2(a)(ii), s.34(1), s.44
May works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
CA s.44-49 set out the law relating to educational copying for educational purposes. Copyright licensing would tend to play a key role in provision of copyright multiple copies.		 CA s.44-49
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
The Act is silent on this matter.
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? YES
CA s.43A, s.43(4), s.175A
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? LIMITED
A court must take into account all relevant matters, including whether the Internet Service Provider knows or has reason to believe that material infringes copyright in the work, has deleted the infringing material or prevented access to it,or not, and has received a notice of infringement in relation to the infringement. 		CA s.92C
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? NO
Presently not required. The section of the Act dealing ISPs is under consultation. See: NZ. Office of the Minister of Commerce. Illegal peer-to-peer file sharing [Cabinet paper]. Wellington, NZ: Office of the Minister of Commerce, 2009, available at http://www.med.govt.nz/s92a-cabinet-paper-p2p.		 CA 92C
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? YES
Privacy Act 1993
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? NO
May computer software be reverse engineered for the purpose of creating interoperable software? LIMITED
CA s.80A-80D
Is the incidental inclusion of a work in other material permitted? YES
CA s.41, s.175
Is there are copyright exception for parody or satire? NO
Do creators who license their work retain the moral right of attribution? YES
CA Part 4
By the pressIs there a copyright exception for the news of the day? YES
CA s.42(2)
May copyright material be reproduced for the purposes of review and criticism? LIMITED
Criticism or review of a work or performance of a work must be accompanied by sufficient acknowledgement		 CA s.42(1), 176
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? LIMITED
Speech and its communication are defined in CA s.2(1) and may be a literary work, or take the form of a presentation by means of a sound recording, film, or communication work, and are subject to the sections applicable to them, e.g CA s.59 regarding judicial proceedings. Rights conferred by CA Part 9 (Performers Rights)are not infringed by anything done for the purposes of parliamentary or judicial proceedings or reporting such proceedings.		 CA s.59, s.181
May quotations be used for any purpose? LIMITED
Copying the work as a whole or a substantial part of it, directly or indirectly is a restricted act. A quotation should accompanied by sufficient acknowledgement. 		CA s.29
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? YES
Provided that the library making the copy is a prescribed library. Conditions vary depending on the nature of the work and for whom the copy is made, e.g under CA s.54(2), providing the copying library makes and keeps a record sufficient to identify the work copied; permits the inspection of the record by the copyright owner during normal office hours; and pays, on demand, equitable remuneration to the copyright owner for the work copied.		 CA s.54(2), s.55
May libraries copy works for users for the purpose of research or study? LIMITED
In each instance the CA requires the copying to be for the purpose of "research and study."		 s.51(3), s.52(3), s.53(2), s.53(3), s.56(4)
Are libraries allowed to make preservation or archive copies of materials in their collections? LIMITED
While conditions for preservation or archive copies vary depending on the nature of the item, copies may only be made where it is not reasonably practicable to purchase a copy of the item in question		 CA s.55
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? LIMITED
CA s.226D(3), s.226D(6), s.226E
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? YES
For those with specific visual impairments, or those unable to hold or manipulate books.		 CA s 69, s.89
In public affairsAre laws excluded from copyright? YES
Parliamentary bills, Acts of Parliament, Regulations, Bylaws		 CA s.27(1)
Are other governmental works excluded from copyright? LIMITED
Parliamentary debates and Select Committee Reports laid before the House,Reports of Royal commissions, commissions of inquiry, ministerial inquiries, or statutory inquiries are excluded. Other policies, such as those promulgated by the State Services Commission encourage interoperability and ready access under certain conditions. However, Crown Copyright applies to certain works, for example, where a work is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services, the work qualifies for copyright and the Crown is the first owner of any copyright in the work, unless the parties to the contract agree otherwise.		 CA s.27, s.59, s.26
Is there a copyright exception for use of material in judicial proceedings? YES
Court and Tribunal Judgements, Reports of Royal Commissions, Commissions of Inquiry, Ministerial Inquiries and Statutory Inquiries		 CA s.60, s.59
Are the results of publicly funded research required to be published under an open access license? NO

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
CA s.9
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? LIMITED
Nothing in the CA recognises this option.
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
There are no provisions in the CA for this.
Is parallel importation permitted? YES
CA s.144 was repealed. See CA s.35 for certain conditions.		 CA s.35
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
Not within the CA. Encouragement is given for this in State Service Commission 2003 web page: http://www.e.govt.nz/policy/open-source : "NZ Government Agencies are encouraged to assess open source software alternatives (where these exist) alongside commercial software, and should choose based on cost, functionality, interoperability, and security". Legal advice was provided in the 2006 guide: "Guide to legal issues in using open source software" (http://www.e.govt.nz/policy/open-source/open-source-legal2/).
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
Not within the CA. The government has released a: "Draft New Zealand Government Open Access and Licensing framework (NZGOAL") available at http://blog.e.govt.nz/index.php/nzgoal/.
Are there specifications or incentives in national law/policy for the use of open document formats? NO
Not within the CA.

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? $150,000 or imprisonment for a term not exceeding 5 years. CA s.131
What is the maximum penalty for copyright infringement for a corporation? As above, and corporate officers are specifically made individually liable for signal piracy. CA s.227(2)
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? YES
When the gains to the infringer exceed the maximum amounts, the judge may use the SA to impose further penalties.		 SA s,32(1)(a)
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? YES
CA s.226D
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? YES
CA s.226E
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
Are the operations of copyright collectives subject to public oversight? NO
However an issue can be brought to the attention of the Copyright Tribunal.
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? NO
Details under consultation. See: NZ. Office of the Minister of Commerce. Illegal peer-to-peer file sharing [Cabinet paper]. Wellington, NZ: Office of the Minister of Commerce, 2009, available from http://www.med.govt.nz/s92a-cabinet-paper-p2p.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? NO
The CA does not distinguish between individual and corporation in this respect.
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award? YES
There are no statutory damages under the CA.
Is there provision to penalise the wrongful allegation of copyright infringement? LIMITED
CA s 130

Conclusions

New Zealand's copyrighti law largely reflects its UK origins, but latterly has incorporated technology neutral language and is tending to reflect media and recording industry association concerns around digital rights management and peer-to peer file-sharing.

New Zealand's IPi regime is fully compliant with WIPOi TRIPSi.

A Copyright (Commissioning Rule) Amendment Bill  was withdrawn on 16 April 2009, leaving artistic copyright ownership rules unchanged.

In 2009 issues relating to ISPi definition and responsibilities regarding notification to repeat infringers under a proposed Section 92A gave rise to a public response of such magnitude that  implementation of that section has been delayed.On 16 December the Government announced the release of a Cabinet paper (http://www.med.govt.nz/s92a-cabinet-paper-p2p) containing revised proposals for Section 92A under which ISPs would be redefined and a "three notices" regime outlined.  The issues involved have enouraged the coming into existence of a Creative Freedom Foundation.

New Zealand's participation in negotiations over a proposed Anti-Counterfeiting Trade Agreement (ACTAi) has led to the development of the site: acta.net.nz to provide information about ACTA and its potential impacts in New Zealand. There is also some concern about changes that may be sought under free trade negotiations for the Trans-Tasman Strategic Economic Partnership Agreement.

There are a number of useful fora and developments assisting the public to have easier access to information. Under State Services Commission policies, government departments are encouraged to provide interoperable options, and facilities for public feedback and relatively open accessi to government data wherever possible. A Draft New Zealand Government Open Access and Licensing framework (NZGOAL) was released in August 2009 as a guide for government agencies on using licences allowing reuse of content. And for a number of years New Zealand has permitted  ready use of geographic data  and latterly statistical data

Following  Te Whainga Aronui The Council for the Humanities dissolution as a separate entity and inclusion as a committee of the Royal Society of New Zealand (RSNZ), Creative Commonsi Aotearoa New Zealand (www.creativecommons.org.nz) is likely to be hosted by the RSNZ. The national Digital Strategy 2.0 developed under the previous government is remaining in place but actions that support the outcomes are under review and some may change to reflect the National Government priorities. The National Digital Forum annually showcases new tools for open access.

New Zealand is indicated as opting out of the Google Books Settlement.

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