In Development

NZGOAL

Introduction [45]

136 The law of copyright in New Zealand is contained in the Copyright Act 1994 and case law on the interpretation of its provisions. This Appendix provides a brief introduction to certain features of copyright law, namely:

the nature and exercise of copyright;
ownership of copyright;
duration of copyright;
Crown copyright as a particular species of copyright;
specific public sector works in which there is no copyright;
infringement of copyright; and
copyright and licensing.

137 These features are considered the most relevant to NZGOAL. Other features of copyright law, such as the range of statutorily permitted acts in relation to copyright works, internet service provider liability, remedies for infringement and performers’ rights, are not addressed.

The nature and exercise of copyright

Copyright exists in qualifying original works

138 Copyright is a property right that exists in certain original works. To be protected, the original works must come within one or more of the following categories:[46]

literary, dramatic, musical, or artistic works;
sound recordings;
films;
communication works; or
typographical arrangements of published editions.

139 Dealing briefly with each in turn:[47]

“literary work” means any work, other than a dramatic or musical work, that is written, spoken, or sung, including a table or compilation and a computer program;
“dramatic work” is defined non-exhaustively to include a work of dance or mime, and a scenario or script for a film;
“musical work” is a work consisting of music, exclusive of any words intended to be sung or spoken with the music or any actions intended to be performed with the music;
“artistic work” means a graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality; or a work of architecture, being a building or a model for a building; or a work of artistic craftsmanship, not falling within the previous parts of this definition; the definition does not, however, include a layout design or an integrated circuit within the meaning of section 2 of the Layout Designs Act 1994);
“sound recording” means a recording of sounds, from which the sounds may be reproduced, or a recording of the whole or any part of a literary, dramatic, or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced;
“film” means a recording on any medium from which a moving image may by any means be produced;
“communication work” means a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme; and
a “typographical arrangement of a published edition” refers to a typographical arrangement of a published edition of the whole or any part of one or more literary, dramatic, or musical works.[48]

Low threshold for originality

140 As the Court of Appeal has stated, the “threshold test for originality is not high”, the determining factor being “whether sufficient time, skill, labour, or judgment has been expended in producing the work”.[49] The Court has also reiterated the axiom, or principle, that copyright is not concerned with the originality of ideas but with the form of their expression.
A work is not original, however, if:

it is, or to the extent that it is, a copy of another work; or
it infringes the copyright in, or to the extent that it infringes the copyright in, another work.[50]

Copyright does not protect mere facts or information

142 It is important to note from the outset that copyright does not protect mere facts or information. It protects original works (which, as noted below, may include datasets or databases).

No registration

143 Registration of copyright is not required and no formal system for the registration of copyright exists in New Zealand.

Literary works, datasets and databases

144 While this NZGOAL does not address each category of qualifying work in any detail, it is important to comment on copyright in datasets and databases, as a good deal of the public sector information that people and companies are likely to want takes the form of datasets and databases.

145 The Copyright Act’s definition of “literary work” includes a “table or compilation”, and 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”.[51] It follows that certain datasets and databases can, in principle, qualify as literary works.[52] By way of example:

it is “well established that copyright may subsist in publications such as dictionaries, directories, maps, or in the mere preparation of lists”;[53]
reports showing financial survey data, tabulated and converted into certain ratios for comparison, have been held to be protected by copyright.[54]

146 At the same time, and as the Court of Appeal has observed:[55]

“In such cases, there can be no claim to any right in the information contained in the compilation where the compiler of factual information is not the author or originator of the individual facts recorded in the compilation. … The only claim can be to copyright in the compilation itself. It must be shown that a sufficient degree of labour, skill, and judgment is involved in preparing the compilation. That may arise, for example, through the manner in which the information is selected for inclusion in the publication, the format or presentation of the data or … the selection and calculation of the relevant ratios, percentiles, averages, and other details.”

147 One can go further and state that where individual facts or components in a dataset or database do not, of themselves, constitute original literary (or other qualifying) works (irrespective of their authors or originators), then there will be no copyright in those individual facts or components. It is only the compilation as a whole – the dataset or database – that qualifies as a copyright work.

Exercise of rights

148 Only the owner of the copyright in a work may do the following in New Zealand regarding that work:

copy it;
issue copies to the public whether by sale or otherwise;
perform, play or show it in public;
communicate the work to the public;
make an adaptation of it;
do any of the foregoing in relation to an adaptation; or
authorise another person to do any of the foregoing acts.

149 These exclusive rights are subject to statutorily permitted acts and the doing of acts in accordance with copyright licences.

Ownership of copyright

150 The default position under the Copyright Act is that the person who is the author of a work is the first owner of any copyright in the work.[56]
151 That default position is displaced in employment and commissioning contexts, as follows:

where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person’s employer is the first owner of any copyright in the work (which we can call the “employment rule”);[57] and
where a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording, and the work is made in pursuance of that commission, that person is the first owner of any copyright in the work (this is known as the “commissioning rule”).[58]

152 Note, however, that:

the commissioning rule does not apply to all literary works; and
both the employment rule and the commissioning rule may be modified by contract (i.e., an employee or contractor might, by contract, be treated as the first owner of certain types of works otherwise falling within the employment and commissioning rules).

153 Note also that some distinct rules apply to Crown copyright works. Crown copyright is discussed separately below.

154 Copyright is assignable, i.e., it may be transferred to another. Such transfer may complete or partial, partial in the sense of being limited so as to apply:

to one or more, but not all, of the things the copyright owner has the exclusive right to do; and/or
to part, but not the whole, of the period for which the copyright is to exist.[59]

Duration of copyright

155 For literary, dramatic, musical and artistic works:

copyright expires at the end of the period of 50 years from the end of the calendar year in which the author dies;
if the work is computer-generated, copyright expires at the end of the period of 50 years from the end of the calendar year in which the work is made; and
if the work is of unknown authorship, copyright expires at the end of the period of 50 years from the end of the calendar year in which it is first made available to the public by an authorised act.[60]

156 For sound recordings and films, copyright expires at the later of:

the end of the period of 50 years from the end of the calendar year in which the work is made; and
if it is made available to the public by an authorised act before the end of that period, 50 years from the end of the calendar year in which it is so made available.[61]

157 For communication works, copyright expires at the end of the period of 50 years from the end of the calendar year in which the communication work is first communicated to the public.[62]

158 For typographical arrangements of published editions, copyright expires at the end of the period of 25 years from the end of the calendar year in which the edition is first published.[63]

159 Different duration rules apply to Crown copyright. They are discussed below.

Crown copyright as a species of copyright

Nature of Crown copyright

160 Crown copyright is a species of copyright regulated principally by section 26 of the Copyright Act.[64] That section states that:

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;[65] and
copyright in such a work is referred to as “Crown copyright”, even if such copyright is assigned to another person;[66]

Duration of Crown copyright

161 Crown copyright expires:

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
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.[67]

Works of joint authorship

162 In the case of a work of joint authorship where one or more, but not all, of the authors are persons employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services, the section applies only in relation to those authors and the copyright existing by virtue of their contribution to the work.[68]

Definition of “Crown” does not include Crown entities and SOEs

163 “Crown” for these purposes is defined in section 2 of the Copyright Act to mean Her Majesty the Queen in right of New Zealand and includes a Minister of the Crown, a government department, and an Office of Parliament. It expressly does not include a Crown entity or a State enterprise named in Schedule 1 to the State-Owned Enterprises Act 1986. As such, while Crown entities and State owned enterprises do enjoy copyright in their original works, their copyright is not “Crown copyright”.

Specific public sector works in which there is no copyright

164 Section 27(1) of the Copyright Act contains a list of governmental and Parliamentary materials in which no copyright exists. In essence, no copyright exists in Bills, Acts, regulations, bylaws, NZ Parliamentary debates, select committee reports laid before the House, court and tribunal judgments, and reports of Royal commissions, commissions of inquiry, ministerial inquiries, or statutory inquiries.

165 Section 27(1A) goes on to state that no Crown copyright exists in any work, whenever that work was made:

in which the Crown copyright has not been assigned to another person; and
that is incorporated by reference in a work referred to in subsection (1) (that is, those works referred to in paragraph 164 above).

Section 27(1B) states that, except as specified in subsection (1A), nothing in subsection (1) affects copyright in any work that is incorporated by reference in a work referred to in subsection (1).

166 In substance, the effect of subsections (1A) and (1B) is two-fold:[69]

to strip existing and non-assigned Crown copyright from any work that is incorporated by reference into one of the works referred to in subsection (1); and
to ensure that third party copyright in works that are incorporated by reference into any of the works referred to in paragraph 164 is not overridden by section 27(1).

Infringement of copyright

Primary infringement

167 The Copyright Act distinguishes between primary infringement and secondary infringement of copyright. Only primary infringement is addressed here.

168 A person infringes copyright in a work when he or she, other than pursuant to a copyright licence, does any of the following “restricted acts”, either in relation to the work as a whole or any “substantial part” of it:[70]

copies it;
issues copies to the public whether by sale or otherwise;
performs, plays or shows it in public;
communicates the work to the public;
makes an adaptation of it;
does any of the foregoing in relation to an adaptation; or
authorises another person to do any of the foregoing acts.

169 The Act states that:[71]

the copying of a work is a restricted act in relation to every description of copyright work;
the issue of copies of a work to the public is a restricted act in relation to every description of copyright work;
the performance of a work in public is a restricted act only in relation to a literary, dramatic, or musical work;
the playing or showing of a work in public is a restricted act only in relation to a sound recording, film, or communication work;
communicating a work to the public is a restricted act in relation to every description of copyright work; and
the making of an adaptation of a work is a restricted act only in relation to a literary, dramatic, or musical work.

170 So far as copying is concerned, it is worth noting that “copying” is defined broadly to mean, among other things, “in relation to any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means”.[72]

Infringement in the case of datasets and databases

171 Given that the re-use of datasets and databases is highly relevant to NZGOAL, it may be useful to note the courts’ approach to what is required for infringement of copyright where a database or dataset consists of facts or information which, on their own, are not copyright works.

172 As with other types of copyright works, copyright in a database or dataset may be infringed by, among other things, copying either the entire database or dataset or a substantial part of it.[73] In the context of arrangements and compilations, the Supreme Court has endorsed the principle that “the greater the originality, the wider will be the scope of the protection which copyright affords and vice versa”.[74]

173 The Court quoted and approved the following passages from an earlier High Court decision. While these passages were made in the context of a graphic work, the stated principles are considered to apply to “compilations” (a subset of literary works) as well:[75]

“Where … the plaintiff relies for its copyright on a collection of individual features, none of which on their own would attract copyright, this has ramifications when it comes to infringement. To infringe in such circumstances the defendant must have used the same or a substantially similar arrangement or collocation of the individual features. If the defendant has copied the individual features but has made its own arrangement of them, this will not represent an infringement. That is because the plaintiff has no monopoly in the individual features as such but only in their arrangement or collocation. Because the plaintiffs’ copyright resides in the arrangement or collocation the defendant, to infringe, must have copied the arrangement or collocation or a substantial part thereof.”

174 The Court also said:[76]

“As we observed earlier, it may be relevant for infringement purposes to determine how much skill and labour went into the making of the copyright work. This point can have particular relevance in arrangement cases. The skill and labour which has given rise to the arrangement is what gives the work its originality and if that skill and labour is not great, another arrangement of the same unoriginal underlying features may not have to depart greatly from the copyright arrangement in order to avoid infringement. If the level of originality in the copyright arrangement is low, the amount of originality required to qualify another arrangement of the same elements as original, is also likely to be low. Substantial reproduction of those aspects of the work in which the originality lies must be shown to establish infringement. This is consistent with the purpose of the law of copyright which is to recognise and protect the skill and labour of the author of the copyright work.”

Copyright and licensing

175 It is not uncommon for those not familiar with copyright law to confuse the distinction between Crown copyright (or regular copyright), on the one hand, and the licensing of material in which Crown or regular copyright exists, on the other. That is so irrespective of the form that the licensing takes, but has most recently been noticed in discussions around Creative Commons licensing of Crown copyright material.

176 The key point is that Crown or regular copyright in content and licenses to use such content are conceptually distinct things. In a licensing scenario, copyright ownership stays with the owner, but the licensee(s) are permitted to deal with the copyright work in accordance with the terms of the licence.

177 One way of conceptualising the distinction is to think of copyright as a bundle of rights, some of which can, at the election of the copyright owner, be shared with others by way of various licence arrangements, whether that be a one-off, bespoke license, or a uniform licence such as those offered by Creative Commons.

[45] What follows is necessarily a brief overview of only select aspects of a wide-ranging and sometimes complex area of law. See further S Frankel and G McLay Intellectual Property in New Zealand (LexisNexis Butterworths, Wellington, 2002) pp. 157-320; I Finch (Ed) James & Wells Intellectual Property Law in New Zealand (Thomson Brookers, Wellington, 2007) pp. 166-243; The Laws of New Zealand, Intellectual Property: Copyright, paras 1-7 (LexisNexis, online service); and the IPONZ website at http://www.iponz.govt.nz/cms/copyright.

[46] Section 14(1) of the Copyright Act 1994, as amended by the Copyright (New Technologies) Amendment Act 2008.

[47] The following definitions are found in section 2(1) of the Copyright Act 1994.

[48] “Typographical arrangement” is not defined in the Act, whereas “published edition” is defined, to mean a published edition of the whole or any part of one or more literary, dramatic, or musical works.

[49] University of Waikato v Benchmarking Services Ltd (2004) 8 NZBLC 101,561 (CA), para 27, available online at http://www.nzlii.org/nz/cases/NZCA/2004/90.txt

[52] Detailed discussion of this important issue is beyond the scope of this paper. See, e.g., Frankel and McLay, above n 45, pp. 171-173 and 624-633; Finch, above n 45, pp. 186-188.

[53] University of Waikato, above n 49, para 35. See also YPG IP Ltd and others v Yellow Book.com.au Pty Ltd (2008) 8 NZBLC 102,063, para 38.

[54] University of Waikato, above n 49. See further the extensive discussion of English and Australian case law, and the distillation of principle, in Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited [2002] FCAFC 112, particularly the judgment of Lindgren J at para 160 and the judgment of Sackville J at para 409: The decision is available online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2002/112.html?&nocontext=1.

[55] University of Waikato, above n 49, para 36.

[60] Section 22 of the Copyright Act 1994. Specific rules apply to rules of joint authorship (see subsection (6)). They are not discussed here.

[64] http://legislation.govt.nz/act/public/1994/0143/latest/DLM345937.html

[65] Section 26(1) and (6).

[66] Section 26(2).

[67] Section 26(3).

[68] Section 26(4).

[69] See further the Legislation (Incorporation by Reference) Bill (250-1) (30 March 2005) as reported by the Government Administration Committee, at http://www.parliament.nz/NR/rdonlyres/3DFA2143-5189-4C90-972C-0A5EA2CD6005/48100/DBSCH_SCR_3038_31391.pdf; the Hon Pete Hodgson’s comments during the second reading of the Bill, at http://www.hansard.parliament.govt.nz/hansard/Final/FINAL_2005_04_12.htm; and G McLay Strategy and Intellectual Property - Scoping the Legal Issues (NZ Digital Content Strategy Working Paper 2, April 2006) pp. 44-46, at http://www.parliament.nz/NR/rdonlyres/E795AA07-4CB0-4A5B-806E-976A60A2E2D9/63800/StrategyandintellectualpropertyMcLay3.pdf

[71] See sections 30-34.

[74] Henkel KgaA v Holdfast [2006] NZSC 102; [2007] 1 NZLR 577, para 38. While Henkel was a “graphic work” rather than a literary work/compilation case, Tipping J relied for this statement of principle on Land Transport Safety Authority of New Zealand v Glogau [1999] 1 NZLR 261 (CA), which was a literary work case. A recent decision of the High Court of Australia addresses the issue of copying a “substantial part” of a compilation in detail: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14.

[75] Above n 74, para 40. A recent decision of the High Court of Australia addresses the issue of copying a “substantial part” of a compilation in detail: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14.

[76] Above n 74, para 41. See also YPG IP Ltd and others v Yellow Book.com.au Pty Ltd (2008) 8 NZBLC 102,063, paras 56-59.

Share and Enjoy:

Appendix 2 - Key Features of New Zealand Copyright Law