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 New Zealand's intellectual property legislation is essentially derived from English legislation and common law. However, the government has been increasingly reviewing the copyright legislation in light of the new digital and electronic world. There is a discussion in section 10 below of the Electronic Transactions Act 2002. Copyright The Copyright Act 1994 (Copyright Act) gives copyright protection to original works of literary, dramatic, musical or artistic works, sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions. Copyright subsists in any work to which labour, skill or independent judgment has been expended and does not require that the expression of an idea should be in an original or novel form. The right attaches to the work itself and vests in the author or creator, unless the author has been commissioned to create the work or creates the work in employment. In accordance with the Berne Convention, to which New Zealand is a signatory, copyright vests as soon as the work is created – it does not need to be registered. The owner of the copyright in a work, under the Copyright Act, has the exclusive right to do the following acts in New Zealand:  copy the work; issue copies of the work to the public; perform, play or show the work in public; broadcast the work or include the work in a cable programme service; make an adaptation of the work; or authorise another person to do any of these acts.The copyright in literary, dramatic, musical and artistic works generally lasts for the life of the author plus fifty years. Although a copyright notice © is not required in New Zealand, it is desirable to display the notice for better international protection under international convention. Trade marks The Trade Marks Act 2002 (Trade Marks Act) provides a system of trade mark protection that is modern, efficient and cost effective. In summary the legislation: defines the scope of rights protected by trade marks; outlines the process for registering a trade mark; defines what may be registered as a trademark; provides enforcement mechanisms for registered trademarks; contains measures to deter pirating of copyright works and counterfeiting of trade marks; and contains protections for well known trade marks.The registration of a trade mark under the Trade Marks Act is effective for a period of ten years commencing at the date of registration. Trade marks may be renewed for further periods of 10 years with the onus being on the applicant or owner of the trade mark to renew the trade mark before the expiry date. Designs Registered design protection under the Designs Act 1953 (Designs Act) provides an exclusive right to create a marketing advantage from the visual design of products. A registered design prevents others from using the design without consent. A registered design must be novel and have some visual appeal rather than be entirely related to the use or function of the product. Shapes, configurations, patterns or ornaments applied to an article by an industrial process and having visual appeal are permitted designs that may qualify for registration. Under the Designs Act, the period of protection is for an initial five years, with rights of renewal for two further five-year periods. International protection requires registration of the design in each country of use. Patents Patents can protect a new invention. Patents are granted for inventions that are new and are not obvious when compared to similar existing technology. New products, manufacturing processes, chemical compounds, biotechnology and computer software can all be patented. Applying for a new patent registration is an effective strategy where an invention is significant and may result in long-term commercial gains. The patent gives an exclusive right to manufacture, sell, import and use the patented invention for a twenty year period. International protection requires registration of the invention in each country of use. Business and company names - passing-off 8.16 There is presently no register of business names in New Zealand. Although a company name can be registered under the Companies Act 1993, this gives no right to the exclusive use of the name as a trade mark. There may, however, be passing-off issues to consider if a company trades under a brand name or trade mark that is also a registered company name. Passing-off is a tort generally concerned with protecting business goodwill. The purpose of a passing-off action is to prevent unfair competition between businesses that can result when one business seeks to benefit by usurping another's reputation or goodwill. While the Fair Trading Act 1986 similarly prohibits misleading and deceptive conduct in trade, it focuses largely upon consumer protection. Passing-off on the other hand is concerned more with unfair business competition and focuses on business or trade protection. The two actions are often invoked together. Web or domain names It is no longer unusual for domain names to be the subject of applications for registration as a trade mark. The focus when accepting a domain name for trade mark registration is on any identifier that is the distinctive portion of the mark, as opposed to the standard address code matter, for example, www, com and in New Zealand, .co.nz. The courts in New Zealand have considered domain name issues, in particular, protecting businesses against cybersquatting. Parallel importation The Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 has relaxed the parallel importing laws in New Zealand and amended the definition of an "infringing" copy under the Copyright Act 1994. Articles that are not infringing copies when and where they are manufactured will not be infringing copies in New Zealand when they are imported. However, non-genuine or pirated goods are still prohibited from being imported and the penalties have been increased under the amended legislation |
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