New Zealand

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
Crown copyright shall expire (a) in the case of a typographical arrangement of a published edition, at the end of the period of 25 years from the end of the calendar year in which the work is made: (b) in the case of any other work, at the end of the period of 100 years from the end of the calendar year in which the work is made. The copyright of an international organisation under shall expire (a) in the case of a typographical arrangement of a published edition, at the end of the period of 25 years from the end of the calendar year in which the work is made or such longer period as may be specified for the purposes of this paragraph pursuant to subsection (5).
CA s. s.22, s. 26(3), s. 28(2)
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? Yes
Trustpower Ltd Public Relations Institute of New Zealand v The New Zealand Press Association [2005] NZCopyT 1 (27 July 2005)
NZCopyT 1 (27 July 2005)
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
However the government gave consideration, in the development of the Copyright (Infringing File Sharing) Amendment Bill 119-1 (2010) as to whether the penalties under consideration were in breach of the Bill of Rights.
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? In part
Copyright depends 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.” Useful discussion and extracts of key judgements and references to journal articles analysing tthis issue are found in NZGOAL.
CA s.2, s.71; Waikato, para 27; NZGOAL s.171-181
Are rights holders prohibited from excluding user rights under copyright law? In part
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
Is computer software excluded from the scope of patentable subject matter? In part
Background to the latest form of the bill which excludes patenting of computer programs is found at: http://www.parliament.nz/en-NZ/PB/Legislation/Bills/a/f/2/00DBHOH_BILL8651_1-Patents-Bill.htm. The first amending Patents Bill was introduced on 9 July 2008; the second reported from the Commerce Committee on 30 March 2013, in s.15(3a) proposes: "A computer program is not a patentable invention".
PA, PB 235-2

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
"Fair use" is not an expression used in the CA. CA Part 3, each section of which should be construed independently, contains permitted acts or exceptions designed to achieve fairness (fair dealing). There are a number of elements in its sections which facilitate fair dealing for private or domestic use, in addition to CA s.43: Research and private study.
CA Part 3, Part 9 s.176
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Limited 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), s.81A
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
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? In part
Free public playing of sound recordings or showing of communication works is permissible where a person is admitted as a member of a club or society with a charitable, educational, religious, or social welfare purpose, or the resident of a venue or temporary accommodation and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the venue, club or society. This exception does not apply to hotels, motels, camping grounds, or any other place that admits persons for a fee for purposes of hearing or viewing a sound recording or communications work.
CA s.81, s.81A(1) (f), s.84(1), s.87, s.87A
For EducationMay students copy works for private research or study? In part
Yes, but 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? In part
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 s.163
May translations of works be made for educational purposes? In part
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 educators copy works for use in the classroom? In part
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, s.163
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
CA s.43A, s.43(4), s.175A
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
While many subsections of 92B exclude or limit the liability of intermediaries such as ISPs, under 92C(5) nothing in 92 B,C, or E limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.
CA s.92B s.92C(5); s.92E(3), s.120
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? No
While it was contemplated asking ISPs to do this in the Copyright (Infringing File Sharing) Amendment Bills 119-1 and 119-2 (2010), the monitoring responsibility has been made that of the copyright owner. Instead, Internet Protocol Address Providers (IPAPs) must keep records of User IP addresses for a minimum of 40 days, to facilitate external rights owner monitoring, and keep records of alleged infringements by users for a minimum of 12 months. However, in accordance with the Films, Videos, and Publications Classification Act 1993 in order to prevent access to known websites that contain publications that promote or support, or tend to promote or support the exploitation of children, or young persons, or both for sexual purposes, most N.Z. ISPs have partnered on a voluntary basis with the Department of Internal Affairs and apply the Digital Child Exploitation Filtering System Code of Practice January 2010,.
CA 92C; s.92D, s.92E, part 6, FVPC, DCEFS CoP
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? In part
NZGOAL framework is designed to encourage legitimate reuse of work and its champions have supported the NZ Mix and Mash Competition advertised via http://www.mixandmash.org.nz/ which provides a protected opportunity for N.Z. consumers to do so using N.Z. public domain, open access works, open source, and open data. But the concept of remix or mashup is not expressly treated in the CA.
NZGOAL
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? In part
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
However, the Green Party has put forward a Member's Bill: Green Party Copyright (Parody and Satire) Amendment Bill (http://www.greens.org.nz/sites/default/files/green_party_copyright_parody_and_satire_amendment_bill.pdf ), not yet on the Parliamentary order paper, to introduce into New Zealand copyright law the authority to use a copyright work for the purpose of parody or satire, and bring New Zealand's law in line with laws of other developed countries. It is proposed to be an amendment to section 42(1) of the CA based on the modle of Australian Copyright Act 1968, section 41A.
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? In part
Criticism or review of a work or performance of a work must be accompanied by sufficient acknowledgement
CA s.42(1), 176
May quotations be used for any purpose? In part
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 if they 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), this is acceptable 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 librarians copy works for users for the purpose of research or study? In part
There are a number of conditions for reproduction for the purpose of research or study. These vary, depending on the nature of the item copied but in many cases require that those receiving the copy understand /agree to the terms of supply, for example, that no person is supplied on the same occasion with more than 1 copy of the same work and that where any person to whom a copy is supplied is required to pay for the copy, the payment required is no higher than a sum consisting of the total of the cost of production and a reasonable contribution to the general expenses of the library or archive.
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? In part
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
Can lending libraries operate without incurring public lending rights fees to copyright owners? In part
In accordance with the by the Public Lending Right for New Zealand Authors Act , the Public Lending Right scheme is to compensate registered, resident New Zealand authors for the use of their nominated books in libraries that make these authors' books available for use in New Zealand. Only if a library did not hold an item that qualified during the survey period, or was a school library; private library; special library in a science or technology body; or government department named in Schedule 1 of the State Sector Act 1988, would it be able to operate without contributing data enabling such fees to be paid.
PLRNZA, PLRNZA Regs s.5
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? Yes
A body not established or conducted for profit, prescribed by regulation under this Act may copy otherwise copyright works on behalf of those with specific visual impairments, those unable to hold or manipulate books and deaf or hard of hearing, or physically or mentally disabled in any other way, S.89 provides for a wider range of disabled.
CA s 69, s.89, s.190
In public affairsAre laws excluded from copyright? Yes
Parliamentary bills, Acts of Parliament, Regulations, and Bylaws
CA s.27(1)
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? In part
Parliamentary debates and Select Committee Reports laid before the House, Reports of Royal commissions, commissions of inquiry, ministerial inquiries, statutory inquiries, judgements of any court or tribunal 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. The New Zealand Government Open Access and Licensing (NZGOAL) framework encourages use and reuse of state agency works in accordance with the national principles for which it provides guidance in application. Crown copyright items on which the copyright has expired may be issued, it is suggested, with a no known rights statement, under most circumstances. The latter statement is not intended to be used for copyright datasets and databases. Government data is often freely accessible, or else made available under relative permissive licences, depending on the value or privacy of the content. The Legal and Policy Copyright sub-section of the New Zealand Government Web Standards reconcile the existence of Crown copyright with with government desire for reuse by suggesting adoption wherever applicable, of the phrase: "anyone can utilise any of the material available on the website free of charge and without permission of the agency provided that the source and copyright status of the material is acknowledged."
CA s.27, s.59, s.26, NZGOAL, NZGWS
Are the results of publicly funded research required to be published under an open access licence? No
However talks are underway with tertiary institutions with regard to the principles and practice of the NZGOAL framework. Individual research institutions have promulgated policies to either require or encourage consideration to do so.
NZGOAL

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? Yes
To achieve the result of no rights reserved, any of the rights conferred by this Part may be waived by instrument in writing signed by the person waiving the right. Moral rights may not be assigned. Total relinquishment of copyright is not explicitly treated in the CA.
Pt 4 107
Can public domain works be used without the need for any payment or registration of the use? Yes
Public domain is not a term used in the CA.
NZGOAL
Does the law make special provision for the legal use of orphaned works? No
There are no provisions in the CA for this. The nearest situation provided for is in s.67: Acts permitted on assumptions as to expiry of copyright or death of author in relation to anonymous or pseudonymous works.
Is parallel importation of copyright works permitted? In part
Not by commercial non-licensees. Single copies generally permissible for private use. However, importing of films within nine months of original overseas release constitutes secondary infringement of copyright. On 31.10.2013 the terms be reviewed.. There is concern that should the influence of the United States within the extended Trans-Pacific Partnership be successful, parallel importing options may be rolled back.
CA s.35, s.131, s.135
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? Yes
There are several of these: The Declaration on Open and Transparent Government and the New Zealand Data and Information Principles informing the Open Government Information and Data Re-use Work Programme, and the New Zealand Government Open Access and Licensing (NZGOAL) framework.The GOVIS conference programme faciliates knowledge of these policies and programmes. The Ministry of Education has been running OSS and OER training programmes for years, and CCANZ has worked with the Ministry of Education and WikiEducator to provide workshops for schools and as well as with WikiEducator and the Open Education Resource Foundation to offer support in projects like their collaboration with the Open Courseware Consortium to create resources for open content licensing in education.
NZGOAL
Are there national programmes or policies that specify or promote the use of open document formats? In part
The New Zealand Data and Information Principles and the New Zealand Government Open Access and Licensing (NZGOAL) framework, related government web standards, DigitalNZ.
NZGOAL, NZGWS

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? $150,000 or imprisonment or a term not exceeding 5 years. CA s.131, s.198, SA 32(1)(a)
What is the maximum penalty for copyright infringement for a corporation? As above. CA s.131, s.198, SA 32(1)(a)
Is innocent infringement of IP treated differently by the law? 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 legal purposes? Yes
CA s.226D
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? Yes
Only by intermediaries for prescribed groups under conditions nominated in this Act.
CA s.226E
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Section 27 of the Fair Trading Act 1986 provides for the making of Consumer Information Standards (CIS) regulations that apply to the design, use, promotion or supply of goods or services, but few of these have been developed to date.
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? No
There are no specific rules regarding the award injunctions in the CA. High Court and district rules etc. provide the rules for getting injunctions. and there is case law that sets this out in further detail. A judge may consider public policy grounds.
Klissers
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? In part
The user would not have their account suspended before first receiving detection notice, a warning notice, and an enforcement notice of copyright infringement. At that stage, the rights owner may seek an order from a District Court requiring the IPAP to suspend the account holder's Internet account for up to 6 months. The court may take into account the degree of the account holder's reliance on access to the Internet; and the identity (if known) of the user who engaged in the infringements identified in the notices; any other matter that may be specified in regulations; whether it would be manifestly unjust to suspend the account holder's account or other factors before deciding if suspension is appropriate. However, the provisions for suspension are not yet in force.
CA s.122B, 122P
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
CA 198(5), s.131, s.198,
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? Yes
CA s.112A(2), s.121, s.125, s.174, s.188B, s.196, 87B, 88(2)(c)
Is there provision to penalise the wrongful allegation of copyright infringement? Yes
Where a person brings proceedings alleging an infringement of copyright or a contravention of section 226A, a court may, on the application of any person against whom the proceedings are brought,— (a) make a declaration that the bringing of proceedings was unjustified: (b) make an order for the payment of damages for any loss suffered by the person against whom the proceedings are brought.
CA s 130
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition? Yes
A person may object to the application within three months of the advertised acceptance and/or within twelve months of being granted. A request for an extension of time may be granted if reasons for an extension exist.. However, under the proposed Patents Bill 235-2, modifications are proposed to this. See Subpart 9 of the commentary on the bill, found at: http://www.legislation.govt.nz/bill/government/2008/0235/latest/DLM2843000.html?search=sw_096be8ed8054d616_pre-grant_25_se&p=1&sr=0 . This reads: " We consider that there is merit in maintaining a modified form of pre-grant opposition, and recommend amending subpart 9 by inserting new clauses that would enable third parties to oppose a patent before it was granted. Amending subpart 9 thus would require a number of consequential amendments, including inserting new clause 89A (Relationship between re-examination and other proceedings), amending clause 93 (When patent must be granted), and inserting new clause 181A (Request or claim may not be considered in certain circumstances). We recommend that these, and other, amendments be made where necessary. We think that the grounds on which third parties can oppose a patent being granted, request that a grant of patent be re-examined, or request that a patent be revoked should be consistent, and recommend amending the appropriate clauses of this bill to achieve this. It would also be necessary for the Intellectual Property Office of New Zealand to develop re-examination guidelines."
PatA 21, PatRegs 9, PB 235-2

Recent or upcoming changes

Legislative changes

On 1 September 2011, the contentious Section 92A requiring Internet service providers to have policy for terminating accounts of repeat infringers, was repealed without coming into force by section 4 of the Copyright (Infringing File Sharing) Amendment Act 2011.  However a graduated "three strikes" scheme for addressing file sharing infringement has been put in place with a narrower definition for ISPs (Internet Protocol Address Providers - IPAPs); more explicit notification and enforcement processes, civil remedies or criminal sanctions. The provisions allowing a District Court to order suspension of an alleged file sharing infringer's Internet account for up to 6 months are yet to come into force.

CA Amd A 2011  was passed under urgency on 1 April 2011 involving a considerable number of changes and additions to the Copyright  Act  and others (see the Schedule at the end of the Act). While most sections of the of the CA Amd A 2011 came into force as of 1 September 2011, certain sections (e.g.,CA 122P, CA122Q) are yet to come into force, just as sections of the associated regulations are intended to  come into force  or cease in 2012 or 2013. 

The CA (IFS) Regs are due for review on 1 March 2012.  The law will apply to infringements on mobile networks only as of 1 October 2013. Rights to parallel import  films within nine months of their original release will change as of 31 October 2013 for those who are not licensees or importing legitimate copies for personal use.

The amended CA  provisions are more closely aligned  with those of  ACTA . With Cabinet's formal approval  New Zealand  signed the agreement  on 1 October 2011 in Japan. The  Cabinet paper seeking  its approval noted some minor overt and redacted changes that will be required to N.Z. copyright law and the Trade Marks Act 2002. New Zealand has up to two years to ratify the agreement  subject to the usual  process, including public consultation and scrutiny by Parliament. The Ministry of Economic Development developed a presentation of changes likely to be needed.

Other developments which may influence A2K  practice,  policy or  IP legislative change

On 8 August 2011 the New Zealand Government agreed to the Declaration on Open and and Transparent Government and  supporting Data and Information Management Principles.

The newly elected government is continuing a process of  restructuring and amalgamation of state agencies, three clusters of which may well bear fruit in relation to the above-mentioned principles, and lead to changes in policies and intellectual property law. 

  • A Minister whose responsibilties encompass the Ministry of Economic Development (which has has oversight of copyright); Science and Innovation; Tertiary Education, Skills and Development, and Finance has been appointed.
  • The Ministry of Science and Innovation replaces the Ministry of Research, Science and Technology and the Foundation for Research, Science and Technology. "It will manage science funding, advise the Government on New Zealand's science system, and drive knowledge transfer from the science sector to business and other research users."
  • As of September 2010  the National LIbrary and Archives New Zealand were subsumed into the Department of Internal Affairs, given their mutual interest in information, preservation of heritage, research and technology applied to community affairs. These agencies are now collaborating on across government and shared solutions such as the  Digital Preservation Strategy. Archives New Zealand is leading the implementation of the government-wide Digital Continuity Action Plan.

The Royal Society has become the affiliated host of Creative Commons Aotearoa New Zealand. CCANZ has appointed an Inaugural Panel, developed a roadmap  involving events and workshops to widen national awareness of open licensing  and is now administering the NZGOAL beta site  to encourage wider use of NZGOAL and CC policies and best practice. Creative Commons is working on a new public domain assertion tool expected to be preferable to the NZGOAL recommended:   "no known rights statement."  Its appropriateness for New Zealand’s legal environment and incorporation into NZGOAL will be assessed as soon as possible upon its release.

 

Summary of position

New Zealand's copyright law reflects its UK origins, but latterly has been considerably amended, primarily to reflect  technological change as well as  media and recording industry association concerns around digital rights management and peer-to peer file-sharing. Some of the sections of the Copyright Act and associated regulations are yet to come into effect in respect of these issues.

New Zealand's IP regime is fully compliant with its WIPO  commitments and TRIPS and is now well placed  to accommodate ACTA. Border protection measures  have been extended to permit customs officers to to detain shipments of both exported and imported infringing goods to provide for ex-officio action. 

There is concern about further changes that may be sought under expanded free trade negotiations for the Trans-Pacific Partnership Agreement, for example, extended duration of copyright, roll-back of parallel importing options, continued geographic and further technological or operational restrictions on consumer action.

Following 2011 changes  to the CA, monitoring and filtering  are not required as a primary ISP responsibility, but IPAPs need processes in place in order to ensure alleged infringements may be accurately verified.  Despite the terminological change from ISP to IPAP, this has not alleviated the burden now placed on all internet account holders to ensure they have means of verifying and protecting themselves against alleged digital copyright infringement. The new law allows for  graduated remedies for infringement, and  there are now very explicit criminal as well as civil enforcement processes.

The intended balance of interests provided by copyright law,now seems tilted in favour of outmoded business models, maintenance of geographic markets, corporate interests and control rather than user interests.

Although New Zealand authors have opted out of the Google Books Settlement, the National Government is considering drawing on Google's services to support their operations. Use of their services may affect some government programmes facilitating open document, access and database services and raise IP,  commercial and wider intelligence, privacy, potential resale and offshore storage conflict of law issues that give a whole new meaning to access to knowledge.

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