Monthly Archive: February 2020

Copyright: Access to Literary Works for the Visually Impaired in New Zealand

On the 4th January 2020 the Copyright (Marrakesh Treaty Implementation) Amendment Act entered into force in New Zealand, implementing Aotearoa’s obligations under the Marrakesh Treaty, to which New Zealand acceded last October.

 

What is the Marrakesh Treaty?

The “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled” came into force in September 2016 following negotiations conducted by the World Intellectual Property Organisation (WIPO).

The primary goal of the Treaty is to increase the accessibility of books and other literary works to the blind, visually impaired, and otherwise print disabled.  It enables this by providing a harmonised international framework (between countries that have ratified the Treaty) for copyright limitations and exemptions that permit the reproduction, distribution, import and export of copyright-protected works in formats such as Braille, audio and large-print.

Under traditional copyright law, the generation and international transfer of works reproduced and adapted in these ways might otherwise be prohibited or significantly restricted.

 

Copyright in Aotearoa

Copyright protection in New Zealand is provided for by the Copyright Act 1994 and the Copyright Regulations 1995.

Copyright owners have the exclusive right to copy their works; issue copies to the public; perform, play, show or communicate their works to the public; make an adaptation of their works; or authorise a third party to do any of these acts.

Aside from certain fair use provisions and other exclusions, for a third party to do any of the above, including potentially reproducing or adapting a work in another format, without the appropriate permissions or authorisation, might constitute copyright infringement, and would thus be prohibited.

Previously, New Zealand’s copyright laws did allow for a relatively limited group of people and organisations to adapt a copyright-protected work into Braille or other formats to assist others with print disabilities.  However, international copyright restrictions created challenges for importing such copies from overseas.

 

What Does the Marrakesh Treaty Enable?

Broadly speaking for New Zealand, the Marrakesh Treaty expands the definition of those entities that can make and obtain these accessible works.  It also facilitates easier importing and exporting of accessible format copies between New Zealand and other Marrakesh Treaty countries.

An “accessible format copy” is defined in the Copyright Amendment Act as: “a copy of a published literary, dramatic, musical, or artistic work, or a part of the work, in an alternative manner or form that gives persons who have a print disability access to the work”.

The following organisations can now apply to be “authorised entities” in order to make and obtain accessible format copies of works:

  • Educational Establishments
  • Educational Resource Suppliers
  • Prescribed Libraries (as defined in the Copyright Act)
  • Charitable Entities (who have a purpose consistent with making accessible format copies available to people with a print disability)

Once authorised, these entities can:

  • Make and distribute, within New Zealand, accessible format copies of literary and artistic works
  • Export these copies to other Marrakesh member countries
  • Import accessible format copies made by authorised entities in other Marrakesh member countries
  • Reproduce copies of accessible format copies of works legally made or imported into New Zealand
  • Provide accessible format copies legally made or imported into New Zealand

Anyone wishing to become an “authorised entity”, and before beginning any of the permitted activities, must notify the New Zealand Ministry of Business, Innovation & Employment first.

Once authorised, there are a number of limitations associated with the permitted activities which include ensuring the accessible format copy respects the integrity of the original work (as far as is reasonably possible), ensuring the copy is only provided to the intended and authorised people or organisations, and keeping good records of all activities in this regard.  Further details are available from MBIE or a copyright attorney.

 

The Accessible Books Consortium (ABC) Global Book Service

WIPO together with a number of organisations that represent the visually impaired, as well as those that represent authors and publishers, launched the Accessible Books Consortium (ABC) in 2014.  Its purpose is to globally increase the numbers and availability of books in accessible formats, thereby helping to facilitate the Marrakesh Treaty.

The ABC accomplishes this is three ways.  Firstly, in sharing the technical skills required to reproduce literary works in accessible formats.  Secondly, it encourages the publication of works in formats accessible to both the sighted and visually impaired from the outset – the concept of “born accessible” publishing.  Thirdly, it has built and maintains the ABC Global Book Service – an international catalogue and database to facilitate the international exchange of accessible content.

Once a New Zealand organisation has been recognised as an “authorised entity”, it will be able to use the ABC Global Book Service to access and internationally share books in accessible format.

 

Visual Impairment in New Zealand and Benefits of the Marrakesh Treaty

As of 2013, an estimated 4% of the New Zealand population (168,000 people) were considered to have some form of visual impairment that could not be corrected by standard assistance devices such as glasses.  Visual impairment was also strongly related to age, with 11% of adults over 65 displaying some form compared with 2% of adults aged 15 to 44.

It is estimated that less than 10% of all written works published globally are published in formats that are accessible to those with a visual impairment or print disability.  This means over 90% of the world’s publications may potentially be inaccessible to this demographic.

As our population both ages and changes in other ways, membership of the Marrakesh Treaty supports access to books, literature and other creative works for everyone, thereby helping to address one potential barrier to all members of society being able to engage in public life.

This can deliver clear benefits through improved access to education, employment and other opportunities to contribute to society, which in turn can raise overall well-being.

Alistair Curson

 

References

Hayes M, Toner E. (2020, January 17). “Law to improve visually-impaired people’s access to copyright works comes into force in New Zealand”. Retrieved February 16, 2020, from: https://www.ajpark.com/insights/ip-updates/marrakesh-treaty-in-force-in-new-zealand/

Ministry of Business, Innovation & Employment. (2020, January 16). “The Marrakesh Treaty”. Retrieved February 16, 2020, from: https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/copyright/the-marrakesh-treaty/

New Zealand Copyright Act 1994. Retrieved February 16, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html

New Zealand Copyright Act 1994, s16. Retrieved February 16, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345923.html

New Zealand Copyright (General Matters) Regulations 1995. Retrieved February 16, 2020, from: http://www.legislation.govt.nz/regulation/public/1995/0146/latest/whole.html

New Zealand Copyright (Marrakesh Treaty Implementation) Amendment Act 2019. Retrieved February 19, 2020, from: http://www.legislation.govt.nz/act/public/2019/0043/latest/LMS110851.html#LMS110886

New Zealand Copyright (Marrakesh Treaty Implementation) Amendment Act 2019, s4. Retrieved February 19, 2020, from: http://www.legislation.govt.nz/act/public/2019/0043/latest/LMS110867.html

New Zealand Intellectual Property Office. “About IP: Copyright: Legislation”. Retrieved February 16, 2020, from: https://www.iponz.govt.nz/about-ip/copyright/legislation/

New Zealand Intellectual Property Office. (2020, January 06). “Marrakesh Treaty enters into force”. Retrieved February 16, 2020, from: https://www.iponz.govt.nz/news/marrakesh-treaty-enters-into-force/

New Zealand Parliament. “Copyright (Marrakesh Treaty Implementation) Amendment Bill”. Retrieved February 16, 2020, from: https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_80988/copyright-marrakesh-treaty-implementation-amendment-bill

Stats NZ. “Disability Survey: 2013”. Retrieved February 16, 2020, from: http://archive.stats.govt.nz/browse_for_stats/health/disabilities/DisabilitySurvey_HOTP2013/Commentary.aspx

Wikipedia. (2020, February 12). “Marrakesh VIP Treaty”. Retrieved February 17, 2020, from: https://en.wikipedia.org/wiki/Marrakesh_VIP_Treaty

World Intellectual Property Organisation. (2014). “Accessible Books Consortium”. Retrieved February 19, 2020, from: https://www.accessiblebooksconsortium.org/export/abc/abc_brochure.pdf

World Intellectual Property Organisation. “Marrakesh Treaty”. Retrieved February 16, 2020, from: https://www.wipo.int/publications/en/series/index.jsp?id=154

World Intellectual Property Organisation. “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled”. Retrieved February 17, 2020, from: https://www.wipo.int/treaties/en/ip/marrakesh/

World Intellectual Property Organisation. “The Marrakesh Treaty”. Retrieved February 16, 2020, from: https://www.wipo.int/marrakesh_treaty/en/

New Patent and Trade Mark Fees in New Zealand

In a couple of days, on 13th February 2020, changes to the fees charged by the Intellectual Property Office of New Zealand (IPONZ) for patents and trade marks will come in effect.

 

The Changes

There are a number of fee changes, but to summarise:

 

Patents will see the following fees increase:

  • Filing and examination request fees
  • Renewal and application maintenance fees
  • Some amendment and restoration fees

 

Trade marks, however, will see the following fees decrease:

  • Application fees
  • Renewal fees

The trade mark search and preliminary advice fees will also change, with the fees for the individual services increasing, but the fee for the combined S&PA service decreasing.

 

Fees relating to design rights remain unaffected.

 

Possible Implications and Effects

Thus, at first sight, patent owners are likely to be financially impacted the most, with trade mark owners seeing financial benefits.  The actual impacts of these changes, however, are only likely to be realised over time.

 

From a patent perspective, costs appear to be increasing.  However, since a patent is providing the owner with a temporary monopoly in the market, these increases in costs are likely to be reasonable if the patent is truly of value and the invention appropriately monetised.

Further, some commentators have speculated that the increase in fees may actually benefit New Zealand businesses.  As in many other global jurisdictions, there is no usage requirement for a patent in New Zealand.  Patents are often filed and used strategically to frustrate competitors, with no intention to work the claimed invention.

The longer-term impact of the patent fee increases may be to dissuade foreign competitors who have been filing in New Zealand with the sole aim of disrupting their competitors here, such that they allow their patents to lapse early, or do not file here in the first place.

 

From a trade mark perspective, costs appear to be decreasing, which will be welcomed by New Zealand businesses looking to establish and protect their brands.

However, it has been speculated that this may actually lead to an increase in trade mark filings, particularly for applications with an unduly broad scope or from applicants with no real intention to use the mark, resulting in the trade mark register becoming relatively bloated with poor quality registrations.

Ironically, this may lead to an increase in branding costs as oppositions and actions brought for non-use and invalidity may be needed to enforce genuine marks and those registered in good faith.

Alistair Curson

 

References:

Allens. (2019, October 24). “IPONZ fee changes – how you can save on patent and trade mark fees”. Retrieved January 28, 2020, from: https://www.allens.com.au/insights-news/insights/2019/10/IPONZ-fee-changes-how-you-can-save-on-patent-and-trade-mark-fees/

Bainbridge D. (2012). “Intellectual Property.” 9th edn, Pearson Education Limited, Harlow, England.

Blijlevens A. (2019, August 22). “Protecting innovation using patents and designs”. Webinar attended August 22, 2019; available from: https://www.ajpark.com/insights/videos-and-webinars/resource/protecting-innovation-using-patents-and-designs-recording

Ellis Terry. (2019, October 07). “Fee Changes For NZ Patents and Trade Marks”. Retrieved February 04, 2020, from: https://ellisterry.com/official-fee-changes-for-patents-and-trade-marks-in-new-zealand/

McIvor R. (2019, June 25). “IPONZ fee changes coming for Patents and Trade marks”. Retrieved February 04, 2020, from: https://www.baldwins.com/news-resources/news/iponz-fee-changes-coming-for-patents-and-trade-marks

New Zealand Intellectual Property Office. (2019, September). “Patent and Trade Mark Fee Changes on 13 February 2020”. Retrieved January 28, 2020, from: https://www.iponz.govt.nz/assets/pdf/about-iponz/patent-and-trade-mark-fee-changes-september-2019.pdf

New Zealand Intellectual Property Office. (2020, January 28). “New patent and trade mark fees will commence from 13 February 2020”. Retrieved January 28, 2020, from: https://www.iponz.govt.nz/news/new-patent-and-trade-mark-fees-will-commence-from-13-february-2020/

Tidbury K, Coughlan O. (2019, September 27). “Changes to IPONZ patent and trade mark fees”. Retrieved February 04, 2020, from: https://www.simpsongrierson.com/articles/2019/changes-to-iponz-patent-and-trade-mark-fees

Ting S, Henning K, Griffiths T. (2019, October 02). “Changes to the Intellectual Property Office of New Zealand’s fees to come into force on 13 February 2020”. Retrieved February 04, 2020, from: https://www.ajpark.com/insights/ip-updates/intellectual-property-office-of-new-zealands-fee-changes/