Ownership of copyright in literary, dramatic, musical, and artistic works

Special exceptions from protection of literary and artistic works

Special exception from protection of artistic work which has been applied industrially

Rights of owner of copyright in respect of infringing copies, etc.

Proof of facts in action for infringement of copyright in artistic work

Penalties and summary proceedings in respect of dealings which infringe copyright

Repeal

Transitional provision in respect of models

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Copyright Amendment Act 1985

Public Act		1985 No 134
Date of assent		1 October 1985

An Act to amend the Copyright Act 1962

BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:

1 Short Title

This Act may be cited as the Copyright Amendment Act 1985, and shall be read together with and deemed part of the Copyright Act 1962 (hereinafter referred to as the principal Act).

2 Interpretation

Section 2(1) of the principal Act is hereby amended by inserting in paragraph (a) of the definition of the term “artistic work”, after the word “engravings,”, the word “models,”.

3 Ownership of copyright in literary, dramatic, musical, and artistic works

Section 9(3) of the principal Act is hereby amended by inserting, after the word “engraving,”, the word “model,”.

4 Special exceptions from protection of literary and artistic works

(1)

The principal Act is hereby amended by inserting, after section 20, the following section:

“20a

The making of any object in 3 dimensions (including a reproduction in 2 dimensions reasonably required for the making of the object) does not infringe the copyright in a literary or an artistic work, if the work or a reproduction thereof forms part of—

“(a)

A patent specification which—

“(i)

Is open to public inspection in the New Zealand Patent Office in respect of a New Zealand patent which has ceased to exist; and

“(ii)

Is used for the purpose of making the object; or

“(b)

A representation or specimen of a design which—

“(i)

Is open to public inspection in the New Zealand Patent Office in respect of a design for which registered protection in New Zealand has ceased; and

“(ii)

Is used for the purpose of making the object.”

(2)

Subject to subsection (3) of this section, this section shall be deemed to have come into force on the commencement of the principal Act.

(3)

Nothing in section 20a of the principal Act (as enacted by subsection (1) of this section) shall apply to or affect—

(a)

The settlement of any action or claim made before the commencement of this Act; or

(b)

Any proceedings completed before the commencement of this Act; or

(c)

Any proceedings instituted or commenced before the commencement of this Act in which the trial of the substantive matters in issue has commenced.

5 Special exception from protection of artistic work which has been applied industrially

(1)

The principal Act is hereby amended by inserting, after section 20a (as inserted by section 4 of this Act), the following section:

“20b

“(1)

The making of any object in 3 dimensions (including a reproduction in 2 dimensions reasonably required for the making of the object) does not infringe the copyright in an artistic work, if, when the object or reproduction is made, the artistic work has been lawfully applied industrially in New Zealand or in any other country more than 16 years before the object or reproduction is made.

“(2)

For the purposes of subsection (1) of this section, an artistic work is applied industrially if—

“(a)

More than 50 reproductions in 3 dimensions are made of it, for the purposes of sale or hire; or

“(b)

It is reproduced in 3 dimensions in I or more articles manufactured in lengths, for the purposes of sale or hire; or

“(c)

It is reproduced as a plate which has been used to produce—

“(i)

More than 50 reproductions of an object in 3 dimensions for the purposes of sale or hire; or

“(ii)

One or more articles in 3 dimensions manufactured in lengths for the purposes of sale or hire.

“(3)

For the purposes of subsection (2) of this section, 2 or more reproductions in 3 dimensions which are of the same general character and intended for use together are a single reproduction.”

(2)

This section shall come into force on the 1st day of October 1986.

6 Rights of owner of copyright in respect of infringing copies, etc.

(1)

Section 25 of the principal Act is hereby amended by inserting, after subsection (2), the following subsection:

“(2a)

Notwithstanding subsection (1) of this section, a plaintiff shall not be entitled to the rights and remedies referred to in that subsection in respect of infringing copies which are reproductions in 3 dimensions of any artistic work, or which are reproductions in 2 dimensions reasonably required for the making of the reproduction in 3 dimensions, or in respect of any plate used or intended to be used for making those infringing copies, unless the Court orders otherwise having regard to—

“(a)

The flagrancy of the infringement:

“(b)

Any benefit shown to have accrued to the defendant by reason of the infringement:

“(c)

The sufficiency of the remedy of damages for infringement:

“(d)

Any other matters the Court thinks fit.”

(2)

Subject to subsection (3) of this section, this section shall be deemed to have come into force on the commencement of the principal Act.

(3)

Nothing in section 25(2a) of the principal Act (as enacted by subsection (1) of this section) shall apply to or affect—

(a)

The settlement of any action or claim made before the commencement of this Act; or

(b)

Any proceedings completed before the commencement of this Act; or

(c)

Any proceedings instituted or commenced before the commencement of this Act in which the trial of the substantive matters in issue has commenced.

7 Proof of facts in action for infringement of copyright in artistic work

(1)

The principal Act is hereby amended by inserting, after section 27, the following section:

“27a

“(1)

This section applies to any action for infringement of copyright in any artistic work of which reproductions in 3 dimensions have been made available to the public by or with the licence of the owner of the copyright in that artistic work.

“(2)

Where, in any action to which this section applies, it is proved that at the time the reproductions were made available to the public, whether in New Zealand or in any other country, every such reproduction was clearly and legibly labelled or marked so as to indicate the following claims, namely,—

“(a)

That copyright existed in the artistic work of which the reproduction was made; and

“(b)

That the person named on the label or mark as the owner of the copyright was the owner of the copyright and any person named as an exclusive licensee of the owner was an exclusive licensee; and

“(c)

That the reproduction was first made available to the public in a year specified on the label or mark—

it shall be presumed in the absence of evidence to the contrary—

“(d)

That at all material times the defendant had knowledge of each of the claims specified in paragraphs (a) to of this subsection; and

“(e)

That the reproduction was first made available to the public in the year specified.

“(3)

For the purposes of subsection (2) of this section, evidence that the reproduction was labelled or marked with the symbol “©” together with the name of the owner of the copyright in the artistic work and any person who holds an exclusive licence granted by the owner of that copyright to make the reproduction and the year the reproduction was first made available, is evidence that the reproduction was labelled or marked so as to indicate the claims specified in paragraphs (a) to (c) of subsection (2) of this section.

“(4)

Nothing in this section limits or affects section 27 of this Act.”

(2)

All proceedings for infringement of copyright commenced before the commencement of this Act and which are pending at the commencement of this Act, shall be heard and determined—

(a)

If the hearing of the substantive matters in issue in those proceedings has commenced, as if this section had not been passed; and

(b)

If the hearing of the substantive matters in issue in those proceedings has not commenced, in accordance with section 27a of the principal Act as enacted by this section.

8 Penalties and summary proceedings in respect of dealings which infringe copyright

Section 28(3) of the principal Act is hereby amended—

(a)

By omitting from paragraph (a) the expressions “$4” and “$100”, and substituting the expressions “$50” and “$1,000” respectively; and

(b)

By omitting from paragraph (b) the expression “$100”, and substituting the expression “$1,000”.

9 Repeal

Section 20(8) of the principal Act is hereby repealed.

10 Transitional provision in respect of models

Copyright shall not subsist by virtue of any amendment made to the principal Act by this Act in any model made before the commencement of this Act.

This Act is administered in the Department of Justice.

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Copyright Amendment Act 1985