What is intellectual property law?
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.
What can be copyrighted?
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.
Use versus infringement
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.
The right to remix
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.
Who owns the copyright?
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.
Licensed use of copyright works
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.
Length of copyright
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:
- the right of attribution, that is, to be named as the creator of the work (or director, if the work is a film)
- the right of integrity, which means you may object to your work being changed in a way that is derogatory
- the right to not have work falsely attributed to you.