New Zealand 2011

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? Yes
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)
Are works that are not fixed in some material form excluded from copyright? Yes
Copyright does not exist in a literary or dramatic or musical work unless and until the work is recorded, in writing or otherwise. It is immaterial whether the work is recorded by or with the consent of the author.
CA s.15 (1)
Has a court or tribunal ever limited the exercise of copyright 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 copyright 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.
Are databases of non-original material excluded from copyright? 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.”
CA s.2, s.71; Waikato, para 27
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? No
Original computer programs may be made copyright under NZ law.

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). These may relate to incidental copying (CA s.41); transient reproduction of a work (CA s.43A); Literary, dramatic, musical, or artistic works (CA s. 67-78); Computer programs, sound recordings, and films (CA s. 79-81A); Communication works (CA s. 82-91); Adaptations (CA s. 92); Internet service provider liability (CA s. 92A-92E) ; Subsequent dealings (CA s.93. Those relating to CA s. 92 may change following further reading and enactment of clauses in the Copyright (Infringing File Sharing Sharing) Amendment Bill 119-2 (2010). 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 that may apply to home user needs.
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), s81A
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
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
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
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
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? In part
Under the CA, 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. However, there are major changes proposed to current legislation under the Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010).
CA s.92C; Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010)Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010)
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? No
Presently not required. The section of the Act dealing ISPs is under review and subject to change. See: the Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010) and earlier 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; subsequent Copyright (Infringing File Sharing) Amendment Bill 119-1 (2010).
CA 92C; Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010) at http://www.legislation.govt.nz/bill/government/2010/0119/latest/DLM3331800.html?search=ts_bill_Copyright_resel&p=1&sr=1
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? In part
Some leeway is provided for use of state agency works under the New Zealand Government Open Access and Licensing framework (NZGOAL). In November 2010 Digital New Zealand held a Great NZ Mix and Mash Competition (http://www.mixandmash.org.nz/).
http://www.e.govt.nz/policy/nzgoal
May computer software be copied 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
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), 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
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? 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
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? In part
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
Are the results of publicly funded research required to be published under an open access license? No

Freedoms to share and transfer

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? In part
Nothing in the CA recognises this option.
Can public domain works be used without the need for any payment or registration of the use? In part
These may be subject to conditions of an open licence. NZGOAL also recommends the use of ‘no-known rights’ statements for non-copyright material. See: http://www.e.govt.nz/news/new-zealand-government-open-access-and-licencing-framework-released.
Does the law make special provision for the legal use of orphaned works? No
There are no provisions in the CA for this.
Is parallel importation of copyright works permitted? Yes
CA s.144 was repealed. See CA s.35 for certain conditions.
CA s.35
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
Not within the CA. Encouragement is given for open source on the State Service Commission (2003) web page: http://www.e.govt.nz/policy/open-source where it is noted that: "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/). In July 2010 the NZ Cabinet approved a New Zealand Government Open Access and Licensing framework (NZGOAL). See: http://www.e.govt.nz/policy/nzgoal. There are New Zealand Open Source Awards. Principles and protocols for compilation and release of Tier 1 statistics are available at http://www.stats.govt.nz/sitecore/content/statisphere/Home/about-official-statistics/~/media/statisphere/Files/tier-1/tier1-principles-and-protocols.ashx or as (ISBN 978-0-478-26945-1) and links to openly available statistical resources and their interpretations at http://www.statisphere.govt.nz. TKI or Te Kete Ipurangi (http://www.tki.org.nz/Communities/%28view%29/atoz) was the "first[OER] extensive public sector site to be developed with a no fees, open standards philosophy, and to offer bilingual navigation and a standards-based metadata search and discovery tool." An Open Educational Resource Portal for New Zealand schools can be found at: http://wikieducator.org/New_Zealand_Schools_OER_Portal. A New Zealand Open Educational Resources Project was funded by the Tertiary Education Commission,to develop modular courseware freely available to all tertiary education institutions in New Zealand.
Are there national programmes or policies that specify or promote the use of open document formats? In part
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)
Is innocent infringement of copyright 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
CA s.226E
Does national copyright or consumer protection law require that the use of TPMs on copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds? In part
It is evident that when drafting the Copyright (Infringing File Sharing) Amendment bill 199-1 (2010), the Government bore in mind earlier cabinet discussion and decision making relating to non-enacted sections of the Copyright (New Technologies) Amendment Act 2008.
C(NT) Amd A
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? Yes
In 2009, issues relating to ISP 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 progressively delayed. The issues involved encouraged the coming into existence of a Creative Freedom Foundation (http://creativefreedom.org.nz/). On 16 December 2009 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 NZ Parliament Committee report comments on amendments made in the light of a large number of submissions received and actions taken in response to the The Copyright (Infringing File Sharing) Amendment Bill 119-1 (2010), Government Bill. Internet providers and public reaction was such that further amendments were made and introduced to The Copyright (Infringing File Sharing Amendment Bill 119-2 (2010) Government Bill, introduced in November 2010 seeking to "amend Part 6 of the Copyright Act 1994 to provide more effective means for copyright owners to enforce their rights against people involved in unauthorised sharing of copyright material via the Internet (infringing file sharing). It aims to provide copyright owners with a fast-track alternative to existing remedies under the Act. The bill would repeal section 92A of the Act, which was enacted by section 53 of the Copyright (New Technologies) Amendment Act 2008 but not brought into force." Under this bill, ISP, or "Internet service provider” has been replaced by a definition of “ISAP, or Internet protocol address provider.”
The Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010)
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 limited to the loss sustained, rather than a pre-established or statutory damages award? Yes
There are no statutory damages under the CA. However, penalties beyond the loss sustained are contemplated for introduction in the Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010).
The Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010),
Is there provision to penalise the wrongful allegation of copyright infringement? In part
CA s 130
Is there provision to penalise the obstruction of consumers' exercise of user rights? No

Conclusions

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

New Zealand's IP regime is fully compliant with WIPO TRIPS.

New Zealand's participation in negotiations over a proposed Anti-Counterfeiting Trade Agreement (ACTA) led to the development of: acta.net.nz to provide information about ACTA and its potential impacts in New Zealand. A public meeting in April 2010 led to the Wellington Declaration. TPP Watch: Taihoa on the Trans-Pacific Partnership Deal has formed to  voice concern about changes that may be sought under expanded free trade negotiations for the Trans-Tasman Strategic Economic Partnership Agreement

A Copyright (Commissioning Rule) Amendment Bill 299-1 (2008) Government Bill was withdrawn on 16 April 2009, leaving artistic copyright ownership rules unchanged. The term "copyright owner" may be changed to "rights holder" under the latest bill relating to Internet Service Provider Liability.

A 2009  paper on issues relating to ISP 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 2009 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  enouraged the coming into existence of a Creative Freedom Foundation.

The Copyright (Infringing File Sharing) Amendment Bill 119-2 (2010), Government Bill  introduced on 3 November 2010 which would repeal section 92A of the Act, (enacted by section 53 of the  Copyright (New Technologies) Amendment Act 2008 but not brought into force) has proposed tightening a number of definitions, but still fails to make a number of distinctions that would  facilitate fair implementation. It also increases impositions on ISPs. The NZ Parliament Committee report outlines amendments made in the light of a large number of submissions  received, and actions taken in response to the earlier Copyright (Infringing File Sharing) Amendment Bill 119-1 (2010).

There are a number of useful developments and fora 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 access to government data wherever possible. The New Zealand Government Open Access and Licensing framework (NZGOAL) was approved by Cabinet in July 2010 as an open access and open licensing framework that promotes the release for re-use of non-personal copyright works and non-copyright material held by State Services agencies. NZGOAL establishes a standardised approach for State Services agencies to apply when releasing their material for re-use. Encouragement has been given to School Boards of Trustees to consider adopting its principles.  For a number of years New Zealand has permitted  ready use of geographic data  and latterly statistical data. Data.govt.nz provides s a directory of publicly-available, non-personal New Zealand government datasets.

A Creative Commons Aotearoa New Zealand /The Royal Society of New Zealand Advisory Panel Inaugural Meeting was held on Monday 30 August 2010 at which Panel Members discussed draft “Elements for a Roadmap”, proposed workshops and more general means of widening national awareness of open licensing. New Zealanders may use the Creative Commons New Zealand license suite, or choose the international licenses. "CCANZ has worked with the Ministry of Education and WikiEducator to provide some workshops for schools and will also be working more closely with WikiEducator and the Open Education Resource Foundation to offer support in projects - such as their new collaboration with the Open Courseware Consortium to create resources for open content licensing in education." (Source: http://wiki.creativecommons.org/New_Zealand)

The national Digital Strategy 2.0 developed under the previous government  remains 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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