12 Meaning of infringing copy

(1)

In this Act, the term infringing copy, in relation to a copyright work, shall be construed in accordance with this section.

(2)

An object is an infringing copy if its making constitutes an infringement of the copyright in the work in question.

(3)

An object that a person imports, or proposes to import, into New Zealand is an infringing copy if—

(a)

the making of the object constituted an infringement of the copyright in the work in question in the country in which the object was made; or

(b)

the importer would have infringed the copyright in the work in question in New Zealand had the importer made the object in New Zealand, unless the object is one to which subsection (5A) or subsection (6) applies.

(4)

Where in any proceedings the question arises whether an object is an infringing copy, and it is shown—

(a)

that the object is a copy of the work in question; and

(b)

that copyright exists in the work or has existed at any time,—

it shall be presumed until the contrary is proved that the object was made at a time when copyright existed in the work.

(5)

In this Act, an infringing copy includes a copy falling to be treated as an infringing copy under any of the following provisions of this Act:

(a)

section 85(4) (which relates to incidental recording for the purposes of a communication work):

(b)

section 93(1) (which relates to subsequent dealings with copies made under Part 3).

(5A)

An object that a person imports or proposes to import into New Zealand is not an infringing copy under subsection (3)(b) if—

(a)

it was made by or with the consent of the owner of the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made; or

(b)

where no person owned the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made, any of the following applies:

(i)

the copyright protection (or other equivalent intellectual property right protection) formerly afforded to the work in question in that country has expired:

(ii)

the person otherwise entitled to be the owner of the copyright (or other equivalent intellectual property right) in the work in question in that country has failed to take some step legally available to them to secure the copyright (or other equivalent intellectual property right) in the work in that country:

(iii)

the object is a copy in 3 dimensions of an artistic work that has been industrially applied in that country in the manner specified in section 75(4):

(iv)

the object was made in that country by or with the consent of the owner of the copyright in the work in New Zealand.

(6)

In this Act, an infringing copy does not include a literary work or an artistic work that—

(a)

relates to a medicine that has been imported by the Crown pursuant to section 32A of the Medicines Act 1981; and

(b)

has been made, copied, published, adapted, or distributed, in an overseas country, by or with the licence of the owner of the copyright in the work in that country.

Compare: 1962 No 33 s 10(5); 1990 No 71 s 2; Copyright, Designs and Patents Act 1988 s 27 (UK)

Section 12(3): substituted, on 19 May 1998, by section 5(1) of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).

Section 12(5)(a): substituted, on 31 October 2008, by section 10 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).

Section 12(5A): inserted, on 19 May 1998, by section 5(2) of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).