Schedule 1 Transitional provisions and savings

s 235

1 Interpretation

(1)

In this schedule, unless the context otherwise requires,—

the 1913 Act means the Copyright Act 1913

the 1962 Act means the Copyright Act 1962

the 1985 Amendment means the Copyright Amendment Act 1985

the new copyright provisions means the provisions of this Act

work means,—

(a)

in relation to the 1913 Act, any thing recognised by that Act as a subject of copyright; and

(b)

in relation to the 1962 Act, any thing recognised by that Act as a subject of copyright.

(2)

References in this schedule to commencement, without more, are to the date on which the new copyright provisions come into force.

(3)

For the purposes of this schedule, a work of which the making extended over a period shall be taken to have been made when its making was completed.

(4)

Unless the context otherwise requires, provisions of the 1913 Act or the 1962 Act referred to in this schedule shall be taken as continuing in force for the purposes of this schedule, notwithstanding the repeal of the 1913 Act and the 1962 Act.

Compare: 1962 No 33 Schedule 1 cl 47(2); Copyright, Designs and Patents Act 1988 Schedule 1 paras 1, 2(1) (UK)

2 Continuity of the law

(1)

A reference in an enactment, instrument, or other document to copyright that, apart from this Act, would be construed as referring to copyright under the 1962 Act or any corresponding earlier enactment, shall be construed, so far as may be required for continuing its effect, as being, or as the case may require including, a reference to copyright under this Act.

(2)

A reference in an enactment, instrument, or other document to a work in which copyright exists that, apart from this Act, would be construed as referring to a work in which copyright exists under the 1962 Act or any corresponding earlier enactment, shall be construed, so far as may be required for continuing its effect, as being, or as the case may require including, a reference to a work in which copyright exists under this Act.

(3)

Express or implied references in this Act or any other enactment, instrument, or document to any of the new copyright provisions shall, so far as the context permits, be construed as including, in relation to times, circumstances, and purposes before commencement, a reference to corresponding earlier provisions.

(4)

An express or implied reference in an instrument or other document to a provision repealed by this Act shall be construed, so far as may be required for continuing its effect, as a reference to the corresponding provision of this Act.

(5)

The provisions of this clause have effect subject to any specific transitional and savings provision and to any express amendment made by this Act.

Compare: 1962 No 33 Schedule 1 cl 46(1)(a), (b); Copyright, Designs and Patents Act 1988 Schedule 1 para 4(2), (4)–(6) (UK)

3 Copyright under new copyright provisions in works in which copyright exists at commencement

(1)

Copyright exists under the new copyright provisions in any work in which copyright existed immediately before commencement.

(2)

For the purposes of subclause (1), a work in which copyright existed immediately before commencement includes a work in which a right was conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act.

(3)

Where copyright exists under the new copyright provisions in a work in which copyright existed immediately before commencement, the copyright in that work under the new provisions is subject to any modifications made by the provisions of this schedule.

Compare: 1962 No 33 Schedule 1 cl 38(2); Copyright, Designs and Patents Act 1988 Schedule 1 paras 2(2)(a), 5(1) (UK)

4 Application of new copyright provisions to works in which copyright exists at commencement

(1)

The new copyright provisions—

(a)

apply to any work in which copyright existed immediately before commencement; and

(b)

are deemed to be satisfied, so far as they relate to qualification for copyright, by every work in which copyright existed immediately before commencement.

(2)

For the purposes of subclause (1), a work in which copyright existed immediately before commencement includes a work in which a right was conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act.

(3)

Where the new copyright provisions apply to a work in which copyright existed immediately before commencement, the new copyright provisions are subject, in their application to that work, to any modifications made by the provisions of this schedule.

Compare: 1962 No 33 Schedule 1 cls 38(2), 47(1); Copyright, Designs and Patents Act 1988 Schedule 1 paras 3, 35 (UK)

5 Works may qualify under new copyright provisions

(1)

Subject to subclause (2), a work made before commencement may qualify for copyright after commencement—

(a)

under section 19; or

(b)

under section 230; or

(c)

under an Order in Council made under section 232.

(2)

A work first published in New Zealand before 1 April 1963 does not qualify for copyright under section 19(1)(a) if the work was published elsewhere more than 14 days before the publication in New Zealand.

Compare: 1962 No 33 Schedule 1 cl 2(1); Copyright, Designs and Patents Act 1988 Schedule 1 para 5(2) (UK)

6 No copyright under new copyright provisions in certain works

(1)

No copyright exists, under the new copyright provisions, in the following works:

(a)

a film, within the meaning of this Act, made before 1 April 1963:

(b)

a broadcast made before 1 April 1963:

(c)

the typographical arrangement of a published edition made before 1 April 1963.

(2)

Section 28 does not confer copyright on a work that was, before 1 April 1963, made by an officer or employee of, or published by, an international organisation to which that section applies.

Compare: 1962 No 33 Schedule 1 cls 14, 17, 20, 33; Copyright, Designs and Patents Act 1988 Schedule 1 paras 7(1), 9 (UK)

Interpretation provisions

7 Meaning of author

The question of authorship of a work made before commencement shall be determined in accordance with—

(a)

clause 11(3)(b) in relation to a soundtrack associated with a cinematograph film within the meaning of the 1962 Act:

(b)

clause 12(1) in relation to a film made before 1 April 1963:

(c)

the new copyright provisions for the purposes of the rights conferred by Part 4:

(d)

the law in force at the time the work was made, for all other works and purposes.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 10 (UK)

8 Meaning of issue to the public

(1)

Subsections (2) and (3) of section 9 do not apply in relation to a copy of a computer program, sound recording, or film acquired by any person before commencement for the purpose of renting the copy to the public.

(2)

In subclause (1),—

film includes a film that was an original dramatic work within the meaning of the 1913 Act

sound recording includes a contrivance of the kind to which section 25 of the 1913 Act applied.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 paras 2(2)(b), 14(2) (UK)

9 Meaning of publication

Section 10(2) applies only where the construction of the building began after commencement.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 45 (UK)

10 Meaning of infringing copy

For the purposes of section 12, the question of whether the making of an object constituted an infringement of copyright, or would have constituted an infringement of copyright had the object been made in New Zealand, shall be determined,—

(a)

in relation to an object made on or after 1 April 1963 and before commencement, by reference to the provisions of the 1962 Act:

(b)

in relation to an object made before 1 April 1963, by reference to the provisions of the 1913 Act.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 14(3) (UK)

Description of copyright

11 Soundtracks to be treated as sound recordings

(1)

In this clause,—

cinematograph film or film has the meaning that cinematograph film had in the 1962 Act

sound recording has the meaning it has in this Act.

(2)

A soundtrack associated with a cinematograph film, being a soundtrack to which the 1962 Act applied before commencement, shall be treated for the purposes of the new copyright provisions not as part of the film, but as a sound recording.

(3)

The following provisions apply to a soundtrack treated as a sound recording under subclause (2):

(a)

copyright exists in the sound recording only if copyright existed in the film immediately before commencement, and it continues to exist until copyright in the film expires:

(b)

the author and first owner of copyright in the film shall be treated as the author and first owner of the copyright in the sound recording:

(c)

anything done before commencement under or in relation to the copyright in the film continues to have effect in relation to the sound recording.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 8 (UK)

12 Films

(1)

The new copyright provisions have effect in relation to a film—

(a)

that was made before 1 April 1963; and

(b)

that was an original dramatic work within the meaning of the 1913 Act—

as if it were an original dramatic work within the meaning of the new copyright provisions, except that the person who was the author of the work for the purposes of the 1913 Act shall be taken to be the author for the purposes of the new copyright provisions.

(2)

The new copyright provisions in relation to photographs apply in relation to photographs forming part of a film—

(a)

that was made before 1 April 1963; and

(b)

that was an original dramatic work within the meaning of the 1913 Act.

Compare: 1962 No 33 Schedule 1 cls 15, 16; Copyright, Designs and Patents Act 1988 Schedule 1 para 7(2), (3) (UK)

Acts restricted by copyright

13 Certain dramatic or musical works published before 1 April 1914

(1)

Where—

(a)

a dramatic or musical work was published before 1 April 1914; and

(b)

the copyright that existed immediately before commencement (being the right conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act) did not include the sole right to perform the work in public,—

the acts restricted by the copyright under the new copyright provisions shall be treated as not including—

(c)

performing the work in public:

(d)

broadcasting the work or including it in a cable programme:

(e)

doing any of the above in relation to an adaptation of the work.

(2)

Where—

(a)

a dramatic or musical work was published before 1 April 1914; and

(b)

the copyright that existed immediately before commencement (being the right conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act) consisted only of the sole right to perform the work in public,—

the acts restricted by the copyright under the new copyright provisions shall be treated as consisting only of the acts of—

(c)

performing the work in public:

(d)

broadcasting the work or including it in a cable programme:

(e)

doing any of the above in relation to an adaptation of the work.

Compare: 1962 No 33 Schedule 1 cls 38, 40; Copyright, Designs and Patents Act 1988 Schedule 1 para 17 (UK)

Ownership of copyright

14 First ownership

The question of first ownership of copyright in a work made before commencement shall be determined in accordance with the law in force at the time the work was made.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 11(1) (UK)

15 Certain literary works made before 1 April 1963

Where a literary work—

(a)

was made before 1 April 1963; and

(b)

was made in the course of the author’s employment;—

the ownership of copyright in the work, under section 8(1)(b) of the 1913 Act, by the person by whom the author was employed shall be subject to a right in the author to restrain the publication of the work otherwise than as part of a newspaper, magazine, or similar periodical (being the right referred to in paragraph (b) of the proviso to section 8(1) of the 1913 Act).

Compare: 1962 No 33 Schedule 1 cl 7(2)

16 Certain literary works published before 1 April 1914

Where a literary work—

(a)

was published before 1 April 1914; and

(b)

consists of an essay, article, or portion forming part of and first published in a review, magazine, or other periodical or work of a like nature,—

any copyright in that work under the new copyright provisions is subject to the right of the author to publish the essay, article, or portion in a separate form at the end of the period of 28 years from its first publication in a review, magazine, or other periodical or work of a like nature (being the right referred to in section 18 of the Copyright Act 1842 (UK)).

Compare: 1962 No 33 Schedule 1 cl 41; Copyright, Designs and Patents Act 1988 Schedule 1 para 18 (UK)

Duration of copyright

17 Duration of copyright in works generally

(1)

In this clause,—

dramatic work includes a film of the kind to which the definition of dramatic work in section 2(1) of the 1913 Act applied

generated by computer, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work

sound recording includes a contrivance of the kind to which section 25 of the 1913 Act applied.

(2)

In relation to—

(a)

a literary, dramatic, musical, or artistic work that was generated by computer before commencement, section 22(2) applies; and

(b)

a literary, dramatic, musical, or artistic work (other than a photograph) of joint authorship published before 1 April 1963, the period of the copyright is the longer of the periods of—

(i)

the life of the author who died first and a term of 50 years after his or her death; and

(ii)

the life of the author who died last; and

(c)

a literary, dramatic, musical, or artistic work (other than a photograph) of joint authorship made before commencement but not published before 1 April 1963, section 22(6) applies; and

(d)

a work of unknown authorship, being a literary, dramatic, musical, or artistic work (other than a photograph),—

(i)

if the work was published before commencement, subsections (3) to (5) of section 22 apply; and

(ii)

if the work was unpublished before commencement, copyright exists until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the meaning of subsection (4) of section 22, the date on which copyright expires under subsection (3) of that section; and

(e)

a literary, dramatic, musical, or artistic work made before commencement, other than a work to which paragraphs (a) to (d) or clause 18 or clause 19 applies, section 22(1) applies.

(3)

If, in any case to which subclause (2)(d)(ii) applies, the identity of the author becomes known before the date on which the copyright would otherwise have expired, copyright expires in accordance with section 22(1).

(4)

In relation to—

(a)

a sound recording made before commencement, section 23(1) applies; and

(b)

a cinematograph film, within the meaning of the 1962 Act, made on or after 1 April 1963 and before the commencement, section 23(1) applies; and

(c)

a broadcast made—

(i)

on or after 1 April 1963 and before commencement, section 24(1) applies:

(ii)

before 1 April 1963, section 24(2) applies as if such a broadcast had not been made; and

(d)

the typographical arrangement of any published edition made on or after 1 April 1963 and before commencement, section 25 applies; and

(e)

a work made by or under the direction or control of the Crown before commencement (other than a work to which section 27 applies), section 26(3) applies; and

(f)

a work that was, on or after 1 April 1963 and before commencement, made by an officer or employee of, or published by, an international organisation to which section 28 applies, section 28(2) applies.

Compare: 1962 No 33 Schedule 1 cl 11; Copyright, Designs and Patents Act 1988 Schedule 1 paras 9, 12(3), (6) (UK)

18 Duration of copyright in certain works made on or after 1 April 1963 and before commencement

(1)

In relation to a literary, dramatic, musical, or artistic work (other than a photograph)—

(a)

made on or after 1 April 1963 and before commencement; and

(b)

the author of which died before commencement; and

(c)

that was not, after the death of the author and before commencement, published or performed in public or included in a broadcast, or offered for sale to the public on a record,—

copyright exists until the end of the period of 75 years from the end of the calendar year in which the author died.

(2)

In relation to a literary, dramatic, musical, or artistic work (other than a photograph)—

(a)

made on or after 1 April 1963 and before commencement; and

(b)

the author of which died before commencement; and

(c)

that was, after the death of the author and before commencement, published or performed in public or included in a broadcast, or offered for sale to the public on a record,—

copyright exists until the expiry of the shorter of the following periods:

(d)

50 years from the end of the calendar year in which an act referred to in paragraph (c) was first done:

(e)

75 years from the end of the calendar year in which the author died.

Compare: 1962 No 33 s 8(1)(b)

19 Duration of copyright in certain works made before 1 April 1963

In relation to a literary, dramatic, or musical work or an engraving—

(a)

made before 1 April 1963; and

(b)

the author of which died before 1 April 1963; and

(c)

in which copyright existed immediately before the death of the author or, where the work was of joint authorship, at or before the death of the author who died last; and

(d)

being a literary, dramatic, or musical work or an engraving that was published, or being a dramatic or musical work that was performed in public, or being a lecture that was delivered in public after the death of the author and before 1 April 1963,—

copyright exists until the end of the period of 50 years from the end of the year that includes the earliest occasion on which the work,—

(e)

being a literary, dramatic, or musical work or an engraving, was published; or

(f)

being a dramatic or musical work, was performed in public; or

(g)

being a lecture, was delivered in public.

Compare: 1962 No 33 Schedule 1 cl 6

Crown copyright

20 Crown copyright

The provisions of section 26 apply to a work made before commencement if—

(a)

section 52 of the 1962 Act applied to the work immediately before commencement; and

(b)

the work is not one to which section 27 applies.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 40 (UK)

Infringement of copyright

21 Acts done before commencement

The provisions of the 1962 Act that specify acts constituting infringements of copyright continue to apply in relation to acts done before commencement.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 14(1) (UK)

22 Acts done after commencement

The provisions of this Act that specify acts constituting infringements of copyright apply only in relation to acts done after commencement.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 14(1) (UK)

23 Infringement by issue of copies to public

(1)

Where a person gave the notice required under the proviso to section 6 of the 1913 Act before the repeal of that section, that proviso and section 22(1) of the 1913 Act shall, in relation to copies of the relevant work made by that person after commencement, have effect as if that proviso and section 22(1) had been re-enacted in this Act as a proviso to section 31.

(2)

For the purposes of the operation of the proviso to section 6 of the 1913 Act,—

(a)

any regulations made before the repeal of that section shall have effect as if they had been made under this Act; and

(b)

the power of the Governor-General in Council to make further regulations under that section shall apply as if the proviso had been re-enacted in this Act as a proviso to section 31.

Compare: 1962 No 33 Schedule 1 cl 10

24 Importing infringing copy

For the purposes of section 35, if a person knows or has reason to believe that an object made before commencement and imported by that person into New Zealand after commencement would have been an infringing copy if the question had fallen to be determined under the provisions of the 1962 Act or, as the case may be, the 1913 Act, that person shall be deemed to know or to have reason to believe that the object is an infringing copy under this Act.

Compare: 1962 No 33 Schedule 1 cls 8, 21

Acts permitted in relation to copyright works

25 Incidental copying of copyright work

Where the acts described in section 41(1)(b) or (c) are done after commencement, it shall be assumed that all the provisions of section 41 were in force at all material times.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 14(4) (UK)

26 Acts permitted on assumptions as to expiry of copyright or death of author in relation to anonymous or pseudonymous works

Section 67(1)(b)(ii) applies—

(a)

to a work of unknown authorship that was unpublished before commencement, being a literary, dramatic, musical, or artistic work (other than a photograph), only after the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force; and

(b)

to a work referred to in clause 17, if the work is one to which, under that clause, a section of this Act applies.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 15(3) (UK)

27 Representation of certain artistic works on public display

Where the acts described in section 73(3) are done after commencement, it shall be assumed that all the provisions of section 73 were in force at all material times.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 14(4) (UK)

Special exceptions from protection of artistic works that have been applied industrially

28 Artistic works made before 1 April 1963

(1)

No copyright exists in an artistic work that—

(a)

was made before 1 April 1963; and

(b)

at the time when the work was made, constituted a design capable of registration under the Designs Act 1953 or under the enactments repealed by that Act; and

(c)

has been used as a model or pattern to be multiplied by an industrial process or is intended to be so used.

(2)

For the purposes of subclause (1)(c), a design shall be deemed to have been used, or to be intended to be used, as a model or pattern to be multiplied by any industrial process—

(a)

when the design is copied or is intended to be copied on more than 50 single objects, unless all the objects in which the design is copied or intended to be copied together form only a single set of articles as defined in section 2(1) of the Designs Act 1953; or

(b)

when the design is applied to, or is intended to be applied to,—

(i)

printed paper hangings; or

(ii)

carpets, floorcloths, or oilcloths, manufactured or sold in lengths or pieces; or

(iii)

textile-piece goods, or textile goods manufactured or sold in lengths or pieces; or

(iv)

lace, not made by hand.

Compare: 1962 No 33 Schedule 1 cl 9; Copyright, Designs and Patents Act 1988 Schedule 1 para 6 (UK)

29 Literary and artistic works made on or after 1 April 1963

(1)

Nothing in section 74(1) shall apply to or affect—

(a)

the settlement of any action or claim made before the commencement of the 1985 Amendment; or

(b)

any proceedings completed before the commencement of the 1985 Amendment; or

(c)

any proceedings instituted or commenced before the commencement of the 1985 Amendment in which the trial of the substantive matters in issue had commenced on or before that commencement.

(2)

Where, at commencement, a copy of a literary or artistic work exists, and the making of that copy is excluded by section 74(2) from being authorised by section 74(1), that copy is not an infringing object for the purposes of this Act.

(3)

Where, at commencement, a copy of an artistic work exists, and the making of that copy is excluded by section 75(3) from being authorised by section 75(1), that copy is not an infringing object for the purposes of this Act.

(4)

Where—

(a)

an object or reproduction made pursuant to section 20B of the 1962 Act exists at commencement; and

(b)

that object is a copy in 3 dimensions of—

(i)

a work of artistic craftsmanship; or

(ii)

a sculpture that is not a cast or pattern for an object that has a primarily utilitarian function; or

(iii)

a work of architecture, being a building or a model for a building;—

and that reproduction is a reproduction in 2 dimensions reasonably required for the making of the object,—

that object or copy is not an infringing object for the purposes of this Act.

Compare: 1985 No 134 s 4(3)

30 Models made before the commencement of the 1985 Amendment

Copyright does not exist by virtue of any amendment made to the 1962 Act by the 1985 Amendment in any model made before the commencement of the 1985 Amendment.

Compare: 1985 No 134 s 10

31 Reconstruction of buildings

In section 78, the reference to the owner of the copyright in the drawings or plans is, in relation to buildings constructed before commencement, to the person who at the time of the construction was the owner of the copyright in the drawings or plans under the 1962 Act, the 1913 Act, or any enactment repealed by the 1913 Act.

Compare: 1962 No 33 Schedule 1 cl 23(2); Copyright, Designs and Patents Act 1988 Schedule 1 para 14(7) (UK)

32 Incidental recording for purposes of broadcast or cable programme

Section 85 does not apply where the authority to broadcast a work or include it in a cable programme was given before 1 April 1963.

Compare: 1962 No 33 Schedule 1 cl 22

Moral rights

33 Moral rights

(1)

No act done before commencement is actionable under any provision of Part 4.

(2)

Section 62 of the 1962 Act continues to apply in relation to acts done on or after 1 April 1963 and before commencement.

Compare: 1962 No 33 Schedule 1 cl 37; Copyright, Designs and Patents Act 1988 Schedule 1 para 22 (UK)

34 Application of moral rights

(1)

Subject to subclause (5), the following provisions of this clause have effect in relation to—

(a)

the rights conferred by section 94; and

(b)

the rights conferred by section 98.

(2)

The rights described in subclause (1) do not apply—

(a)

in relation to a literary, dramatic, musical, or artistic work of which the author died before commencement; or

(b)

in relation to a film made before commencement.

(3)

The rights described in subclause (1) in relation to a literary, dramatic, musical, or artistic work made before commencement do not apply,—

(a)

where copyright first vested in the author, to anything that by virtue of an assignment of copyright made or licence granted before commencement may be done without infringing copyright; or

(b)

where copyright first vested in a person other than the author, to anything done by or with the licence of the copyright owner.

(4)

The rights described in subclause (1) do not apply to anything done in relation to a record made in pursuance of sections 22 and 23 of the 1962 Act.

(5)

The rights conferred by section 94 do not apply in respect of any work in which, before commencement, the copyright vested in the employer of the author or director, unless the author or director has previously been identified as such in or on published copies of the work.

(6)

In this clause, the term dramatic work includes a film of the kind to which the definition of dramatic work in section 2(1) of the 1913 Act applied.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 23 (UK)

35 Right to privacy of certain photographs and films

The right conferred by section 105 does not apply to photographs taken or films made before commencement.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 24 (UK)

Dealing with rights in copyright works

36 Licences

Section 111(2) does not apply in relation to an exclusive licence granted before commencement.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 29 (UK)

37 Documents or events before commencement

(1)

Where copyright exists in a work under the new copyright provisions, any document that—

(a)

was made before commencement; and

(b)

had any operation affecting the title to copyright in the work under the 1913 Act, or would have had such an operation if the 1913 Act had continued in force; or

(c)

had any operation affecting the title to copyright in the work under the 1962 Act or would have had such an operation if the 1962 Act had continued in force,—

shall, subject to subclause (2), have the corresponding operation in relation to copyright in the work under the new copyright provisions.

(2)

If the operation of any such document was or would have been limited to a period specified in the document, it shall not have any operation in relation to the copyright under the new copyright provisions, except in so far as that period extends beyond commencement.

(3)

For the purposes of the operation of a document in accordance with subclause (1),—

(a)

expressions used in the document shall be construed in accordance with their effect immediately before commencement, notwithstanding that a different meaning is assigned to them for the purposes of this Act; and

(b)

section 116 shall not apply in respect of any agreement made before 1 April 1963.

(4)

Where copyright exists in a work under the new copyright provisions, any event that—

(a)

occurred before commencement; and

(b)

had any operation affecting the title to copyright in the work under the 1913 Act, or would have had such an operation if the 1913 Act had continued in force; or

(c)

had any operation affecting the title to copyright in the work under the 1962 Act or would have had such an operation if the 1962 Act had continued in force,—

shall have the corresponding operation in relation to copyright in the work under the new copyright provisions.

(5)

In this clause,—

copyright in the work under the 1913 Act includes, in relation to a film, any copyright under the 1913 Act in the film in so far as it constituted a dramatic work for the purposes of the 1913 Act and any copyright under the 1913 Act in photographs forming part of the film

operation affecting the title means any operation affecting the ownership of that copyright, or creating, transferring, or terminating an interest, right, or licence in respect of that copyright.

Compare: 1962 No 33 Schedule 1 cl 36(1), (2), (4)(b), (5); Copyright, Designs and Patents Act 1988 Schedule 1 paras 25, 26(1) (UK)

38 Certain assignments or licences on or after 1 April 1914 and before 1 April 1963

(1)

Where a document to which clause 37(1) applies is an assignment made or a licence granted—

(a)

on or after 1 April 1914 and before 1 April 1963; and

(b)

by the author of a literary, dramatic, musical, or artistic work, where the author is the first owner of copyright in the work; and

(c)

otherwise than by will,—

the assignment or licence shall not be operative to vest in the assignee or licensee any rights with respect to copyright in the work beyond the expiration of 25 years from the death of the author.

(2)

After commencement and during the life of the author, the author may assign the reversionary interest in the copyright expectant on the termination of the period specified in subclause (1).

(3)

If the author does not make an assignment as permitted by subclause (2), the reversionary interest in the copyright expectant on the termination of the period specified in subclause (1) shall, on the author’s death, devolve on his or her legal personal representatives as part of his or her estate.

(4)

Nothing in this clause affects—

(a)

an assignment of the reversionary interest by a person to whom it has been assigned; or

(b)

an assignment of the reversionary interest after the death of the author by his or her personal representatives or any person becoming entitled to it; or

(c)

any assignment of the copyright after the reversionary interest has fallen in.

(5)

Nothing in this clause applies to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

(6)

In subclause (5), the term collective work means—

(a)

any encyclopaedia, dictionary, yearbook, or similar work:

(b)

a newspaper, review, magazine, or similar periodical:

(c)

any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated.

Compare: 1962 No 33 Schedule 1 cl 36(3); Copyright, Designs and Patents Act 1988 Schedule 1 para 27 (UK)

39 Assignments or grants made before 1 April 1914

(1)

This clause applies where the author of a literary, dramatic, musical, or artistic work published before 1 April 1914 assigned or granted, before 1 April 1914, an interest in the copyright or performing right in the work for the full term of that right under the law in force before the 1913 Act (being such an assignment or grant as was mentioned in paragraph (a) of the proviso to section 32(1) of the 1913 Act).

(2)

If, before commencement, any thing was done in relation to the copyright in the work under paragraph (a) of the proviso to section 32(1) of the 1913 Act, that thing has a corresponding operation under the new copyright provisions.

(3)

Any right that, before commencement,—

(a)

was exercisable in relation to the work or copyright in it under paragraph (a) of the proviso to section 32(1) of the 1913 Act; or

(b)

would have been exercisable in relation to the work or copyright in it under paragraph (a) of the proviso to section 32(1) of the 1913 Act, if that provision had continued in force—

is exercisable in relation to the work or copyright in it under the new copyright provisions.

(4)

If, in accordance with paragraph (a) of the proviso to section 32(1) of the 1913 Act, copyright would have reverted to the author or his or her personal representatives on the date referred to in that paragraph, and that date falls after commencement, then, on that date—

(a)

the copyright in the work shall revert to the author or his or her personal representatives, as the case may be; and

(b)

any interest of any other person in the copyright that exists on that date by virtue of any document made before the commencement of the 1913 Act shall cease to exist.

Compare: 1962 No 33 Schedule 1 cl 42; Copyright, Designs and Patents Act 1988 Schedule 1 para 28 (UK)

40 Copyright to pass under will with unpublished works

(1)

Section 115

(a)

does not apply where the testator died before 1 April 1963; and

(b)

where the testator died on or after that date and before commencement, applies only in relation to an original document embodying a work.

(2)

In the case of an author who died before 1 April 1963, the ownership after the author’s death of a manuscript of the author, where such ownership has been acquired under a testamentary disposition made by the author and the manuscript is of a work that has not been published or performed in public, is prima facie proof of the copyright being with the owner of the manuscript.

Compare: Copyright, Designs and Patents Act 1988 Schedule 1 para 30 (UK)

Remedies for infringement

41 Remedies for infringement

(1)

The following provisions apply in relation to an infringement of copyright:

(a)

in relation to an infringement of copyright committed after commencement, sections 120 to 122 apply:

(b)

in relation to an infringement of copyright committed on or after 1 April 1963 and before commencement, sections 24 and 25 of the 1962 Act and section 6(2) of the 1985 Amendment continue to apply:

(c)

in relation to an infringement of copyright committed before 1 April 1963, sections 9(1) and (2) and 10 to 13 of the 1913 Act continue to apply.

(2)

The following provisions apply in relation to the rights and remedies of an exclusive licensee:

(a)

sections 123 and 124 apply where sections 120 to 122 apply:

(b)

section 26 of the 1962 Act continues to apply where sections 24 and 25 of that Act continue to apply:

(c)

sections 123 and 124 of this Act and section 26 of the 1962 Act do not apply to a licence granted before 1 April 1963.

(3)

The following provisions apply in relation to presumptions:

(a)

sections 126 to 129 apply only in proceedings brought under this Act:

(b)

sections 27 and 27A of the 1962 Act continue to apply to proceedings brought under that Act:

(c)

section 9(3) of the 1913 Act continues to apply to proceedings brought under that Act.

(4)

The following provisions apply in relation to criminal liability for making or dealing with infringing objects:

(a)

in relation to acts done after commencement, section 131 applies:

(b)

in relation to acts done before commencement, including acts done before 1 April 1963, section 28 of the 1962 Act continues to apply.

Compare: 1962 No 33 Schedule 1 cls 25–28; Copyright, Designs and Patents Act 1988 Schedule 1 paras 31–33 (UK)

Effect of notices given under section 22 or section 29 of the Copyright Act 1962

42 Records of musical works

(1)

Where, before commencement, a person gave notice under section 22(1)(b) of the 1962 Act of his or her intention to make or import a record of a musical work, any making or importing of the record by that person after commencement shall not be an infringement of any copyright in the musical work if the conditions set out in section 22 of the 1962 Act are fulfilled.

(2)

The provisions of—

(a)

sections 22 and 23 of the 1962 Act; and

(b)

regulations 3(2) and 4 to 7 of the Copyright (Record Royalties) Regulations 1963—

that are in force immediately before commencement shall continue to apply for the purpose of completing or perfecting any matter in progress immediately before commencement.

Compare: 1962 No 33 Schedule 1 cl 24; Copyright, Designs and Patents Act 1988 Schedule 1 para 21 (UK)

43 Notice may be given to Comptroller of Customs

(1)

Subject to subclause (2), where, before commencement, a notice was given in respect of a work under section 29 of the 1962 Act, and that notice had not been withdrawn and had not otherwise ceased to have effect before commencement, the notice shall have effect after commencement as if it had been accepted under section 136, and section 136 shall apply with any necessary modifications.

(2)

The notice shall, upon commencement, cease to have any effect in respect of—

(a)

any items sold in another country by or with the consent of the owner of the copyright in that country; and

(b)

any items in transit to a country other than New Zealand.

Compare: 1962 No 33 Schedule 1 cl 29