Ex post facto law, the retrospective application of legislation, is not applied in a number of jurisdictions, including New Zealand. Because laws do change however, it is important to understand which laws were in force and are relevant to the question you are asking. The recent outcome of the long running copyright dispute over Led Zeppelin’s “Stairway to Heaven” highlights this.
“Stairway to Heaven” Case
The rock band Led Zeppelin has been in a long running copyright dispute over the acoustic guitar intro to their song “Stairway to Heaven”.
The case, originally brought in 2014 by the estate of the band Spirit, asserted that the “Stairway to Heaven” intro had been copied from Spirit’s earlier instrumental work “Taurus”. In 2016, a jury found in favour of Led Zeppelin, stating that they did not steal the intro, and that their work was original.
However, in 2018, a panel of judges ordered a new trial on the basis that the judge in the 2016 trial had given the jury incorrect instructions, in particular by not allowing them to hear sound recordings of the “Stairway to Heaven” and “Taurus” works for comparison.
The reasoning behind not allowing the sound recordings was that, at the time that the respective works were created (1971 for “Stairway to Heaven”, 1968 for “Taurus”), the US Copyright Act 1909 was in force and the case should be heard according to that law. Under the requirements of the 1909 Act, copyright only covered sheet music, not sound recordings. In was not until later in the 1970s that copyright law in the US was extended to include sound recordings.
The 2018 decision to order a retrial was subsequently appealed with a request for a larger panel of judges to rehear the case. This was heard by a panel of 11 judges earlier this year (March 2020). They overturned the 2018 ruling, reaffirming that the jury had been instructed appropriately in the 2016 case & that the jury’s decision (in favour of Led Zeppelin) stood.
The case was then taken to the Supreme Court (the highest court in the United States), but a few days ago, the Supreme Court declined to take it up, effectively handing final victory to Led Zeppelin.
Applying this Lesson to Effective IP Management in New Zealand
The “Stairway to Heaven” case highlights the importance for businesses to understand which laws were in force at the time of any relevant activities relating to their business strategy, including IP management.
For example, up until a few years ago, patents in New Zealand were prosecuted under the Patents Act 1953. The New Zealand Patents Act 2013 (which came into force in September 2014), however, introduced many reforms to New Zealand IP legislation. Amongst other changes, the criteria for patent examination was extended from local novelty only, to absolute novelty, inventive step and utility.
Many patents prosecuted under the old 1953 Act will still be in force and may be relevant for businesses. For example, if you are pursuing validity analyses of patents of interest, whether for due diligence on the value of patents you wish to license or acquire, or attempting to invalidate a competitor’s patent, it is vital to understand which Act would be applied to test the strength of a patent of interest. The introduction of the new Patents Act 2013 changed the criteria for patentability significantly.
It is important in business management generally to appreciate the dynamic nature of the legal landscape.
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