Copyright Protection in the Digital Environment in Aotearoa

On 16th January 2019 the Ministry for Business, Innovation and Employment announced that New Zealand had joined the World Intellectual Property Organization’s Copyright Treaty (WCT) and Performers and Phonograms Treaty (WPPT).  New Zealand acceded to both treaties on 17th December 2018, and they will enter into force on 17th March 2019.

Both treaties increase the scope of protection of works, as well as the protection of the rights of authors, producers and performers.  There is a particular emphasis on the digital environment, which is of relevance to a 21st century world.  The accession to these treaties is also of particular importance to New Zealand given its strong and growing tech industry.

 

WIPO Copyright Treaty (WCT)

The Berne Convention for the Protection of Literary and Artistic Works is an international agreement covering copyright as an IP right.  The WIPO Copyright Treaty is a special agreement under the Berne Convention focussing on works and authors’ rights in the digital environment.

In addition, the treaty discusses two additional subject matters, of particular relevance to the digital environment to be protected by copyright – computer programmes and databases.

Computer programmes are protected irrespective of the mode or form by which they are expressed.

Databases cover any compilations of data or other materials, in any form, providing the selection and/or arrangement of their contents may be considered an intellectual creation.  In other words, the selection and/or arrangement of the data must meet the originality requirement of copyright, i.e. originate from the author (not be copied).  If this criterium is not met, then the database in question will not be covered by the treaty.

The treaty also grants authors’ rights (beyond those recognised by the Berne Convention) of:

  • Distribution – authorising the original work and copies to be made available to the public via sale or some other transfer of ownership
  • Rental – authorising commercial rental of computer programmes, cinematographic works and works subsisting in phonograms (subject to certain restrictions)
  • Communication to the public – authorising communication to the public, in particular via on-demand and interactive means over the internet

 

WIPO Performers and Phonograms Treaty (WPPT)

The WIPO Performances and Phonograms Treaty also has focus on the digital environment and is concerned with the rights of two categories of beneficiaries – performers and the producers of phonograms.

Performers include actors, singers and musicians.  The producers of phonograms are the people, or other legal entities, that record (fix) sounds.  The overlap that exists between performers rights and the protection of their recorded aural performances is why these two categories are addressed by the same treaty.

The treaty grants performers the following rights associated with their performances when fixed in phonograms.  These, however, do not apply to audiovisual fixations, such as films or movies.  The same rights are also granted to the producers of phonograms:

  • Reproduction – authorising the reproduction of a phonogram
  • Distribution – authorising the original work and copies of the phonogram to be made available to the public via sale or some other transfer of ownership
  • Rental – authorising commercial rental of the original and copies of a phonogram
  • Making available – authorising wired or wireless access to any performance recorded in a phonogram, at a time and from a place chosen by the public, in particular via on-demand and interactive means over the internet

Where a performance is unfixed, i.e. live, performers are granted the rights of broadcasting (but not rebroadcasting), communication to the public (but not for broadcast performances), and the right of fixation (i.e. to record the work).

Performers also enjoy the moral rights to be identified as the performer and to maintaining the integrity of the work.

The treaty also sets out rights with respect to the remuneration to both performers and producers of phonograms published, broadcasted or communicated for commercial purposes.

 

Term of Protection and Paracopyright

Under both treaties, the term of protection must be at least 50 years.

Further, there is an obligation for contracting parties to provide paracopyright protection – legal remedies to support authors where efforts have been made either to circumvent technological protection measures (TPM), such as encryption; or to interfere with digital rights management (DRM), such as metadata intended to identify works and/or the authors as a means to manage distribution and monetisation of a work.

 

Copyright in Aotearoa

New Zealand’s Copyright Act 1994 is currently under review with an Issues Paper published and available for comment (as of 23rd November 2018).  Written submissions should be made by 17:00 NZ on 5th April 2019.  The review is being undertaken because of the rapid changes to technology and the consequent ways in which copyright-protected works are both created and distributed.

Many of the questions raised in the issue paper relate to performers rights, TPMs, communication to the public, and current or emerging technologies that the law should give additional consideration to.

New Zealand’s accession to the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty, together with the outcomes of the review of the existing Act will position the creators of original works in Aotearoa with greater and relevant protection in an ever-evolving digital world.

Details for making submissions in relation to the issue paper may be found here:

https://www.mbie.govt.nz/have-your-say/review-of-the-copyright-act-1994-issues-paper/

 

Alistair Curson

 

References

Ministry of Business, Innovation and Employment. “Review of the Copyright Act 1994”. Retrieved January 28, 2019, from: https://www.mbie.govt.nz/business-and-employment/business/intellectual-property/copyright/review-of-the-copyright-act-1994/

Ministry of Business, Innovation and Employment. “Review of the Copyright Act 1994: Issues Paper”. Retrieved January 28, 2019, from: https://www.mbie.govt.nz/have-your-say/review-of-the-copyright-act-1994-issues-paper/

Ministry of Business, Innovation and Employment. (2018, November). “Issues Paper: Review of the Copyright Act 1994”. Retrieved January 28, 2019, from: https://www.mbie.govt.nz/assets/a28d02fc5c/review-of-copyright-act-1994-issues-paper.pdf

Ministry of Business, Innovation and Employment. (2019, January 16). “New Zealand joins international copyright treaties”. Retrieved January 18, 2019, from: https://www.mbie.govt.nz/about/news/new-zealand-joins-international-copyright-treaties/

New Zealand Copyright Act 1994, s15. Retrieved January 25, 2019, from: http://www.legislation.govt.nz/act/public/1994/0143/117.0/DLM345922.html

Wikipedia. (2018, July 4). “Paracopyright”. Retrieved January 24, 2019, from: https://en.wikipedia.org/wiki/Paracopyright

Wikipedia. (2018, December 24). “Berne Convention”. Retrieved January 23, 2019, from: https://en.wikipedia.org/wiki/Berne_Convention

World Intellectual Property Organisation. (1996, December 20). “WIPO Copyright Treaty”. Retrieved January 24, 2019, from: https://www.wipo.int/treaties/en/text.jsp?file_id=295166#P83_10885

World Intellectual Property Organisation. “Berne Convention for the Protection of Literary and Artistic Works”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/berne/

World Intellectual Property Organisation. “Protection of Non-Original Database”. Retrieved January 24, 2019, from: https://www.wipo.int/copyright/en/activities/databases.html

World Intellectual Property Organisation. “Summary of the WIPO Copyright Treaty (WCT) (1996)”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wct/summary_wct.html

World Intellectual Property Organisation. “Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996)”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html

World Intellectual Property Organisation. “Treaties and Contracting Parties: Contracting Parties; WIPO Copyright Treaty: New Zealand”. Retrieved January 18, 2019, from: https://www.wipo.int/treaties/en/remarks.jsp?cnty_id=12548C

World Intellectual Property Organisation. “Treaties and Contracting Parties: Contracting Parties; WIPO Performances and Phonograms Treaty: New Zealand”. Retrieved January 18, 2019, from: https://www.wipo.int/treaties/en/remarks.jsp?cnty_id=12549C

World Intellectual Property Organisation. “WIPO Copyright Treaty (WCT)”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wct/

World Intellectual Property Organisation. “WIPO Performances and Phonograms Treaty”. Retrieved January 23, 2019, from: https://www.wipo.int/treaties/en/ip/wppt/

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