Intellectual property law is an umbrella term given to the large and detailed area of law that regulates aspects of human creativity and innovation. There are three main areas of intellectual property law: copyright, patents and trademarks. Each of these areas has related rights, which are also part of intellectual property law.
In New Zealand copyright is governed by the Copyright Act 1994. It protects creative works such as books, films, music, artworks and plays. It also protects works that may be seen as less cultural, including computer programs and industrial designs. Performers’ rights – a set of rights included in the act – give performers a limited right to control the recording and transmission of their performances.
Copyright comes into being automatically when a work is created, as long as that work is original. It does not have to be unique in the sense of being the only one of its kind, but it must not be a copy of something else.
Copyright does not protect information or ideas – only their expression. That means there can be numerous similar copyright works. For example, there are many romance novels, which share similar ideas and plots, but each one is expressed differently. In this way copyright is supposed to encourage the production of creative work.
The hard part is trying to work out how similar copyright works can be. The law says that copyright is infringed if the second work is substantially similar to the first. ‘Substantial is a test of quality, but there is no rule that sets out what ‘substantial’ means. Each case must be considered on its own facts.
Making an exact copy of a copyright work, such as downloading a song (unless the performer or songwriter has allowed it) definitely infringes copyright. However, if a book or picture simply inspires someone to write a story or make a film, that is not infringement.
Copyright does allow some use, even if it is copying, called ‘permitted acts’, if it is for a purpose such as education or research. These permitted acts have a lot of detailed rules about who is allowed to make a copy, what they are allowed to make a copy for and when they can make a copy. If the rules are complied with, there is no copyright infringement.
Shigeyuki Kihara’s T-shirt series ‘Teuanoa’i – adorn to excess’ featured the logos of well-known brands such as KFC and Tip Top. When the series was exhibited at Te Papa three of the T-shirts were removed on legal advice, remaining hidden after Te Papa bought the artwork. The right to remix – to take well-known (or not so well-known) images, logos or sounds, and alter them to express something else – was part of intellectual property law in Australia and the United States, but didn’t exist in New Zealand.
Copyright comes into being automatically, as soon as a work is created. The author or creator of the work is usually the first owner of copyright. In the case of a film or a sound recording the producer is defined as the author for ownership purposes. These are the statutory rules, but they can be changed by written contract.
Also, there are some exceptions where the author is not the owner, for example, where the work is made in the course of employment or it is a commissioned work of a type listed in the Copyright Act. These include some artistic works and computer programs.
Copyright owners can choose to be the only ones to use their works (except for permitted acts) or they can license others to use their works. This can be done through contracts or through licensing – including Creative Commons licensing.
Creative Commons Aotearoa New Zealand is part of the international Creative Commons non-profit organisation that has developed several different licences, able to be used by the public for free. All require that the creator of a work be acknowledged, but other conditions vary. Creative Commons relies on copyright, as it is the copyright that is licensed.
Once a Creative Commons licence is used, a copyright owner may not be able to regain control of their copyright work. Therefore for some copyright owners Creative Commons licensing may not be appropriate.
Copyright in New Zealand lasts for the life of the author of a literary, dramatic, musical or artistic work plus 50 years. Where there is no human author – as in the case of sound recordings, films, and communication works (which are mostly owned by producers and production companies) – copyright lasts for 50 years from the end of the year the work was made or first made available to the public.
Copyright in other countries (including Australia, the US and the EU) lasts for longer.
Moral rights are another set of rights covered in the Copyright Act. These apply to authors of literary, dramatic, musical and artistic works, as well as to directors of films made on or after 1 January 1995. The rights are:
Patents protect scientific and technological inventions. This includes both products and processes, for example, pharmaceutical compounds as well as the ways those compounds are made. Plant-variety rights are an example of rights related to patents.
Not all inventions qualify to be patented. To be patentable an invention must:
Patents are sometimes highly technical because those who create the inventions are scientific specialists. Patented inventions are, however, found in everyday life and include many mechanical things and simple objects, such as engine parts, pens and hairbrushes.
From 2003, smells, shapes, sounds and colours were able to be trademarked. The New Zealand Rugby Football Union grabbed the colour black; Mr Whippy went for a bit of ‘Greensleeves’ and entrepreneur Rob Miller fought for and won the right to trademark the swan-neck shape of his Klipon kiwifruit vine tie. He said, ‘I’m the first person [in New Zealand] to have got a trademark for a shape, and it cost a small fortune.’1
Trademarks protect the names and images that consumers associate with products and businesses. The reason that the law does this is to enable consumers to tell one product from another.
Related to trademarks are geographical indication rights. These are the names of towns, countries or areas that are applied to certain products, and often indicate quality, reputation or production methods.
Some economists say that trademarks also help consumers distinguish quality products from those of lesser quality. In addition, trademarks protect one trader from unfair competition from another trader. For example, the phrase ‘Lemon and Paeroa’ cannot be used on drinks that do not come from the company that makes the Lemon and Paeroa drink.
In the modern world trademarks are everywhere. They are used in language – for example, New Zealanders sometimes refer to shoe polish as ‘nugget’, which is, in fact, a brand name. Because trademarks are so widely used, trademark law has to be careful about not restricting free speech.
Trademark law protects traders from others using their trademarks on competing products, but it does not prevent fair comment on products. Trademarked products are allowed to be criticised. That is, it can be pointed out they don’t work or they represent bad ideas (as long as those discussions are not defamatory or deceptive).
All intellectual property laws are predominantly territorial. Broadly, that means that a registered right (such as a patent or trade mark) is only good in the country or territory where it is registered. Copyright is not registered but it too is territorial and the rules differ between countries. The international agreements on intellectual property require some commonalities between countries’ laws (called minimum standards) but those agreements also allow for some differences between countries’ laws.
New Zealand’s intellectual property law was adopted from British law. The colony’s first copyright law was one of the earliest European laws of the land. The 13th Ordinance of New Zealand (1842) was made to protect as copyright A grammar of the New Zealand language, a book compiled by the Reverend Robert Maunsell.
The first patent in New Zealand (issued in 1861) related to harakeke (New Zealand flax). The patent was granted for an invention for the preparation of Phormium tenax (flax) fibre and other plant fibres for manufacturing purposes.
In 19th-century New Zealand the phrase ‘patent medicine’ was a standard way of describing the potions that claimed to cure every known ill. Rival producers battled for possession of successful names or recipes.
Intellectual property laws have evolved to fit local needs. In copyright, for example, New Zealand has developed its own approach to making the law more relevant in a digital environment.
In 2008 the Copyright Act 1994 was amended to give copyright owners greater protection when their works are online. A copyright holder’s right to communicate had previously been a right to broadcast. Under the new law the copyright owner’s right to broadcast is a general right to communicate, including via the internet.
Copyright owners sometimes build technological protection mechanisms (TPMs) and digital rights management into their work to control uses of the material. Bypassing TPMs for commercial gain became a criminal act, as did removal or alteration of digital-rights-management information.
The new law also included many new exceptions to make sure permitted acts with copyright works, such as fair dealing for research and private study, were still possible online.
There are important flexibilities in New Zealand’s law, such as allowing for parallel imports. Parallel imports are copies of goods that were imported into New Zealand when they were first placed on the market overseas. The legitimacy of parallel imports cannot be defeated by TPMs. So, for example, region coding on the original copyright work does not limit a parallel imported copy.
In the 2000s two of New Zealand’s unique intellectual property law features relate to Māori and the protection of mātauranga Māori (Māori knowledge).
The Trade Marks Act 2002 and the Patents Act 2013 each require a Māori advisory committee. These committees can let the Commissioner of Patents, Trade Marks and Designs know if Māori interests are affected by a trademark or patent application.
The trademark committee has the power to recommend that a trademark should not be registered. The committee also provides guidelines about the use of well-known Māori symbols such as koru and the word ‘kiwi’. The patent committee was new in the early 2000s.
The committees are unique in the world. In 2011 the Waitangi Tribunal in the Wai 262 claim recommended that the committees be given decision-making powers.