In New Zealand
The law of copyright provides a mechanism for protecting the labour, skill and effort expended by someone when they create or design something. That “something” is known in the Copyright Act as a “work”.
Unlike other forms of intellectual property, copyright protection comes into existence automatically and immediately after the work is complete – there is no requirement, or provision, for registration of copyright in New Zealand.
To be eligible for protection a work may have to take a material form – ideas alone are not protected. Works which may be entitled to copyright protection include artistic works, literary works, dramatic works, musical works, films, sound recording, broadcasts and cable programmes.
To most manufacturing businesses in New Zealand the category of “artistic works” is the one which is most relevant. The reason for this is that the term “artistic works” includes not only paintings, drawings and photographs, but also things not generally thought of as “artistic”, such as engineering drawings, and at least in New Zealand, three dimensional items such as models and prototypes. Computer programmes are specifically covered. These are considered to be a type of literary work.
To be entitled to copyright protection a work should be “original”. This does not necessarily mean that the work has to be new or unique to the world but rather, that it is something which has originated from the creator of the work and has not been copied by that person from somewhere else. What this means is that even if another similar work exists this does not prevent separate copyright from existing in each work, provided that the second work was created independently from the first.
The term of protection for copyright works in New Zealand is normally the life of the author plus 50 years. However, for 3 dimensional products the effective term may be reduced to 16 years from the date the product goes into commercial production.
The protection that is obtained by copyright includes the ability to prevent anyone else making a copy of the work, or any substantial part of it. Copyright in engineering plans and manufacturing drawings and specifications can be infringed not only by taking a copy of them, but also by using those plans, drawings or specification to produce the product itself.
Copyright can be a valuable business asset. However, it does have two main disadvantages:
- To establish a case of infringement against a competitor it is usually necessary to show actual copying. While this may be less difficult when the product is an exact copy, when slight changes have been made the task becomes more difficult.
- There is often a dispute about the relevant dates on which the original work was created, which leads to the issue of whom copied who.
The second of these disadvantages can be relatively easily overcome by adopting a practice of documenting the creation of a work. Where the work is a drawing, plan or in written format, it should be dated and signed when completed. If it is a model, prototype or in some other three dimensional form then photographs should be taken and the photographs dated and signed. To confirm the accuracy of the dates steps should be taken to independently prove them. This can be done by arranging for your patent attorney to hold the original works (or signed and dated photographs), or by posting the work to yourself in a sealed and date stamped envelope, for example.
Copyright plays a valuable role in the commercial environment, however, as its protection is limited, where a completely new product or process is developed, or significant developments are made to existing products or processes, then other forms of protection, such as patent or design registration should be considered.
The copyright law in Australia is in many respects similar to that in New Zealand, but there are some significant differences. For example, in many cases copyright in Australia cannot be relied on to protect three dimensional products of the kind that could have been made the subject of a design registration. For this reason it is important to get good advice as to whether one should register one’s product as a design while it is still at the confidential stage of its life.