Copyright 



What is copyright?

The term copyright refers to a set of exclusive rights given to creators of original works.

In New Zealand, copyright is an automatic registered right that is exercised every time an original work is created, published and performed.

This means that if you create an original work you don’t need to put a copyright notice on it in order for it to be protected (though it’s a good idea to do this anyway as a reminder). No one is allowed to copy or use your work without your permission (there are some exceptions - using it for the purpose of news reporting, critique, research, education or public administration).

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What is the difference between the terms copyright, trademark and intellectual property?

Copyright automatically protects original creative works (literary, dramatic, musical, etc) whether they are published or unpublished. You don’t have to register your work to get copyright protection.

A trademark is used to protect a work, symbol, name or device that is used for the purpose of trading goods (e.g. a logo, a combination of colours, a special font or a specific phrase). A trademark can be used to distinguish some goods or services from others because it acknowledges the source of the goods or services. You have to register a trademark to protect it.

Intellectual property (IP) is the general term for any invention or creation that can be protected by national and international law. Copyright and trademarking protect some types of intellectual property.

Other ways of protecting intellectual property include taking out a patent (for example to protect an invention or the idea behind an industrial product), registering a design (for example to protect the original visual appearance of an item), or applying for exclusive rights over the propagation and sale of a new plant variety.

The Intellectual Property Office of New Zealand has lots of information about the protection of different types of intellectual property.  

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What types of work does copyright protect?

To be protected by copyright, the work has to be original. 

The kinds of original work that is protected by copyright includes original writing, film scenarios, musical scores, sound and film recordings, broadcasts, and typographical arrangements. 

There are some types of original works that are not protected by copyright:

  • Public documents like Acts of Parliament and court or tribunal judgements.
  • Copyright protects the expression of ideas but not the ideas themselves. For example, the text of a novel is protected by copyright but the plot of the novel is not.
  • In some situations people can use copyright protected material without permission, without infringing copyright. These include using it for the purpose of news reporting, critique, private research, education or public administration. More about this is on the Intellectual Property Office website.  

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How long does copyright protection last?

Most types of original work are protected for around 50 years after the work was made or made public, or 50 years after the copyright owner dies:

  • Literary, dramatic, musical or artistic works: copyright protection lasts for 50 years after author dies.  
  • Computer-generated work: copyright protection lasts for 50 years after the work was made.
  • Industrially applied three dimensional works: copyright protection lasts 16 years from the time the work is industrially applied.  
  • Works of artistic craftsmanship commercially applied: copyright protection lasts 25 years from the time the work is commercially applied.  
  • Sound recordings and film: copyright protection lasts 50 years from the end of the calendar year in which the sound recording or film was made or made available to the public, whichever is the later. 
  • Broadcasts, cable programmes and other communication works: copyright protection lasts 50 years from the end of the calendar year in which the work is first communicated to the public,
  • Typographical arrangement of published editions (e.g. the layout of words, images and so on in a magazine): copyright protection lasts until 25 years from the end of the calendar year in which the edition was first published.

Once the copyright period of a work ends, the work can be freely used by anyone. More about the duration of copyright is on the Intellectual Property Office website.

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Who owns the copyright to an original work?

The creator is usually the owner of any copyright in that work. There are two exceptions - if the work was created in the course of employment, the employer is be the copyright owner unless they have agreed otherwise; if a person commissions and agrees to pay for a work then that person (the commissioner is the copyright owner.

It’s also possible for a work to have more than one copyright owner. For example with a music CD there could be different copyright owners for the CD cover design, musical scores, song lyrics, music performance and/or singing, the written artist profiles, and for the final product. 

Copyright ownership can also be “assigned” (transferred) from the owner to another person.

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What rights do I have as a copyright owner?

As a copyright owner you have exclusive rights in relation to your work, to perform, copy, publish, broadcast, sell (or in the case of computer programmes and circumstances, rent) the work.

If you are the creator of the work then you also have moral rights, even if you are not the copyright owner. These give you the right to be identified as the creator of the work, the right to object to derogatory treatment of the work and the right not to have a work falsely attributed to you.

More information for copyright owners is on the Intellectual Property Office website.

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The photographer who did our family portrait wants to retain the right to use the photos to promote their business. Do I have to agree to this?

It’s common for the contract between a professional photographer and their client to include a clause which allows the photographer to use the photographs in any way that they wish (e.g. to promote their business, to submit to competitions).

If you are thinking of getting portrait photographs done, it’s well worth reading the terms and conditions so that you know what you are signing up for.

You don’t have to accept the terms and conditions as they are - you can negotiate with the photographer over any clause which gives you concern. For example, you might be okay with them using only specific photos, for a shorter period of time, and/or just within New Zealand.

If you are unable to come to an agreement, you can try to find a photographer who will agree to your conditions.  

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What do I need to do if I want to use copyright-protected material?

You will need to get permission (also known as licence) from the copyright owner/s.

To find out who the copyright owner is you can try:

  • looking on the material (e.g. on any packaging) for information about who owns the copyright;
  • contacting the publisher (e.g. if it is an item in a published book or journal);
  • contacting the relevant collecting society – collecting societies are organisations which administer copyright. They provide licensing services to people wanting to use copyright material and distribute the licence fees to the copyright owners.

More about how to find the copyright owner is on the Intellectual Property Office website.

You should apply to the copyright owner in writing, providing detailed information about which work you want to use, why you want to use it and how you will use it. More information about requesting permission from the copyright owner is on the Intellectual Property Office website.

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What can I do if I believe someone has breached copyright by using a photo of mine (without my permission) to promote their business?
 
If the copyright of your work is administered by a copyright collecting society (e.g. the Copyright Licensing New Zealand (CLNZ) represents authors and publishers) you should contact them about it.

You can try contacting the person, explaining to them that they have infringed your copyright and telling them how you would like them to remedy the situation.

If this does not work, you can ask a lawyer (preferably one who is experienced in intellectual property law) to send the person a formal “letter of demand”. The letter will state that further action may be taken if your demand is not met within a stated period of time. 

If that fails, you can choose to take the matter to court. Be aware that this step can be expensive and time-consuming so you would need to weigh up the cost of court action against the amount you are likely to be awarded if the determination goes in your favour.

There is more information about what to do in the case of copyright infringement, on the Intellectual Property Office website.

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How can I be sure I'm not breaking the law when I download something off the Internet?

The general rule of thumb is - if you would normally have to pay to download, watch or listen to a particular item i.e. commercially-produced material, then you might well be breaking copyright law if you use a facility which allows you to download the same thing for free (usually by downloading from a P2P file sharing network).
 
This is because when you download material from a P2P network, you may not be able to tell whether it is protected by copyright until after it has been downloaded. 

The Copyright (Infringing File Sharing) Amendment Act 2011 targets the downloading of copyright-protected material from P2P networks.

Under this law, if your Internet account is detected as being involved in the file sharing of a movie, piece of music, game, software or any other digital file that is protected by copyright, the copyright holder will ask your ISP (Internet Service Provider) to send you an infringement notice by email.

If you receive three of these notices you could end up paying a $15,000 fine. This includes if someone else is using your Internet account to download illegally.

More information about this law is on the Intellectual Property Office website.