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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to obtain and enforce copyright protection within New Zealand
If you are the author or creator of an original work, then NZ COPYRIGHT ACT 1994 automatically protects your intellectual property rights in the work if certain criteria are met.
What are the criteria for copyright protection?
Protection under the COPYRIGHT ACT 1994 will automatically apply if both the following criteria are met:
- The work must be in a tangible form (that is, the work must be written down or recorded).
- The work must be an original work of the author.
How long does copyright last for?
The Act gives protection for a limited period of time. Once this expires the work is considered to be in the public domain. The relevant periods are as follows:
- Copyright in a literary, dramatic, musical or artistic work expires 50 years after the end of the calendar year in which the author dies. (If the work is computer-generated, copyright expires 50 years after the end of the calendar year in which the work is made.)
- Copyright in a sound recording or film expires 50 years after the end of the calendar year in which the work is made, or 50 years after it is made available to the public, whichever is later.
- Copyright in a broadcast or cable programme expires 50 years after the end of the calendar year in which the broadcast is made or the cable programme is included in a cable programme service.
Under the Act you are entitled to grant licences for the use of your copyrighted work. Under an exclusive licence the licensee has the same rights as the copyright owner to use the copyrighted material.
The licensing agreement should be in writing and should clearly set out the terms of the licence.
What kinds of infringements does copyright protect against?
If you have copyright in a work, your copyright is infringed if:
- the work is copied
- copies of the work are distributed to the public
- the work is performed, played or showed in public, or broadcast or included in a cable programme service
- in the case of a literary, dramatic or artistic work, the work is adapted in some recorded form (whether in writing or otherwise)
- an infringing copy of the work is imported into New Zealand, or is sold, hired or otherwise dealt with in the course of business, without a copyright licence
- a person makes, imports, possesses for business purposes, or sells or hires out the means of making infringing copies, without a copyright licence
- a person permits premises of public entertainment to be used for a performance that infringes copyright, or provides the apparatus for performing, playing or showing the work in infringement of copyright
Enforcement of copyright
Copyright can be enforced through a court action. The remedies include damages or an injunction to prevent an act that is infringing or would infringe copyright.
Protecting your interests as an employer
If you are an employer, you should ensure that whatever your employees invent or create is the property of the business. Under the COPYRIGHT ACT 1994 the ownership of the copyright automatically goes to the employer if the employee is contracted to carry out the relevant work. But in addition many employment contracts impose conditions or terms that specifically provide for copyright ownership by the employer.
- Enforcement of any of the provisions of the Act will require advice from a lawyer.
- You should seek legal advice before finalising a licensing agreement to ensure that it is clear and to prevent disputes arising.
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