Copyright
What is Copyright?
Copyright is an intangible property right that exists in works attracting copyright within the scope of the Copyright Act 1994. Copyright prohibits the unauthorized copying of these works.
Copyright does not protect a general idea or principle behind the work. Instead it protects the expression of it in some tangible form. Examples of the works attracting copyright are literary, musical, dramatic and artistic works.
The owner of copyright has the right to copy a work, to distribute copies to the public, to adapt the work and to authorize another person to do any of these things.
What requirements must be met to attract Copyright?
To attract copyright the work must qualify as one of the “works” defined in the Copyright Act. It must also be an original work which means that it must have been created without any copying from another source. The subject matter does not necessarily have to be new or unique.
Copyright can exist in 2D or 3D works. If a work is produced on more of an industrial scale then there will not be copyright in the 3D work but it will still exist in the 2D drawings so it is important to store the drawings safely.
The author or creator of the work must also be a citizen or resident of New Zealand or any other country that is a member of the Universal Copyright Convention.
Can I register it?
There is no formal registration process in New Zealand. Copyright is something that exists inherently in the work that is created provided it is original.
In some other countries such as the USA there is a copyright registration process.
Who owns Copyright?
The author or creator of the work is the first owner of copyright in the work. The author can assign the rights to another entity.
Where the author is an employee employed to create the work, the owner of copyright will be the employer.
Where the author is commissioned to create the work and there is a promise of remuneration for this, the owner of copyright will be the party that commissioned the work.
How long does copyright last for?
Copyright lasts for 50 years from the death of the author of the work. However, where a work is put into production, copyright will last for 16 years.
Do I have rights overseas?
You will have rights in many overseas countries which are members of the relevant international conventions.
However, some countries have different rules so you should do your research on this first. For example, some countries might require some form of registration. Also, some countries do not recognize any copyright in a work that has been produced and instead require it to be registered as a design.
Can I sell or licence my copyright?
Yes you can but you will need to assign (in writing) the copyright to the new owner if you sell it. If you want to licence the use of it you need a licence agreement in place.
How do I enforce my copyright?
Once you become aware of an unauthorized copying of your work you should contact your attorney. Try to obtain as much information as you can on the suspected infringement. Do not contact the other party.
It is important to take action quickly once you become aware of the unauthorized copying as you would be unlikely to succeed in obtaining an injunction to get the other party to stop their activities if there is undue delay in bringing the infringement action.
How can I avoid infringing someone else’s Copyright?
When creating a work of your own, create it without reference to any other works you have seen.
If you are already aware of another copyright work, you could also commission someone independent to create the work on your behalf and make sure they do it without knowledge or reference to the copyright work.
If you want an objective opinion on whether your work might infringe another persons copyright you should contact us. It is a complicated issue to answer and depends not just on the degree of similarity between the two works, but also on what else is already known in the market. If the copyright work is very unique then your work may not have to be that similar to infringe copyright. It is not an issue of what overall percentage of the work is copied. The Courts look at what feature is really the subject matter of the copyright action. This might only be a small part of the overall work. If this feature is the same or similar enough, then copyright may be infringed. It is often said that it is an issue of quality, not quantity.
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