(1) Section 230(3) of the Act, together with Section 204, provides for the protection of foreign works in New Zealand. The countries which qualify for the protection provided for in Section 230(3) are listed in the schedules to the 1995 Order as provided for in Section 232(2) of the Act. The 1995 Order also clarifies the way in which foreign works are protected under the Act. Section 235 of the Act provides for the transitional provisions in the First Schedule to the Act to have effect for the purposes of the Act. The First Schedule applies to all works, both domestic and foreign. The Schedule contains the transitional and savings provisions ensuring consistency between the 1994 Act and previous legislation. It also makes provision for works which span the commencement of the 1994 Act and earlier legislation. This includes retroactive protection. (2)Prior to 1962 New Zealand only provided for works to qualify for copyright by reference to first publication in New Zealand or a prescribed foreign country. Works of the type mentioned in the supplementary question may, therefore, not qualify for copyright although it should be noted that the list of prescribed foreign countries is broader than just WTO Members. It also includes members of the Berne Convention and the Universal Copyright Convention and therefore currently includes some members of these conventions who are not yet members of the WTO. (3) Either December 1945 or a later date, if within that period, it is made available to the public (Section 23(1)). (4) Either December 1945 of the term provided for in another country where this has not already expired (Section 170(2)). (5) - Sound recordings before the commencement of the 1913 Act unless copyright already existed. - Performances before 1945. - Artistic works intended for industrial application before the commencement of the 1962 Act. - Cinematograph films before the commencement of the 1962 Act (although copyright was possible in the works comprising a film for example, the dramatic work). - Television and sound broadcasts made in New Zealand before the commencement of the 1962 Act and television and sound broadcasts made overseas before the commencement of the 1994 Act. - Typographical works before the commencement of the 1962 Act. - Anonymous or pseudonymous works before the commencement of the 1962 Act. - Models before 1985.

New Zealand provides copyright protection for cinematographic works by virtue of Section 14 of the Copyright Act 1994 which includes dramatic works (screen plays), musicals, sound recordings and films as original works to which copyright applies. Section 16 of the Act provides copyright owners with exclusive rights in respect to their works. These include rights in respect to copying a work, showing the work in public and broadcasting the work or including the work in a cable programme service. In respect to adaptation, a copyright owner of a literary, dramatic or musical work has an exclusive right to make an adaptation of his/her work (Sections 16 and 34 refer). This includes an adaptation of a screen play. In respect to films, no specific adaptation right is provided since it is considered that an "adaptation" of a film is not possible without infringing one of the rights already existing in the work. This could, for example, involve adapting the screen play in which case the author's rights will have been infringed or adapting the music in which case there could be an infringement associated with the words or the performance. If the film is copied, then this will be a breach of the copyright owner's exclusive right in regard to copying. It is possible that a new work could be created, in which case it will become an original work entitled to copyright.

An adaption of the type mentioned in the original response is one where infringement could occur if a substantial part of the existing work is being used in the creation of the new work. Nevertheless, copyright can exist in the new work.

Sections 12(6) and 76 of the Copyright Act allow the Crown to use copyright works associated with medicines imported under the Medicines Act without infringing copyright. This enables the Crown to import legitimately produced copies of off-patent medicines where a medicine is not being supplied to the New Zealand market or is only available on unreasonable terms. The Crown can, therefore, ensure that the New Zealand public is not deprived of the benefits of the medicine. (This power has not been used by the Crown.) Accordingly, these provisions are not encompassed by Berne Article 9(2), which does not cover distribution rights. Neither is it covered by TRIPS Article 13 by virtue of TRIPS Article 6 (exhaustion of intellectual property rights).

Incidental copying, whether accidental or intentional, of a copyright work is provided for so long as the focus of the work containing the copied item is not that of the included item. It should be noted, however, that the deliberate copying of certain works is specifically excluded. The intention, therefore, is not to unreasonably prejudice the legitimate interests of the author (Berne Article 9(2)). By way of an example, the reporting of a news event, which included a television broadcast present in the background, and therefore incidental to the broadcast, would not infringe copyright in the broadcast which was accidentally shown.

New Zealand considers that Sections 44-48, 68, 70, 71, 79, 81, 87, 186 and 188 comply with Berne and TRIPS, by virtue of being permitted exceptions and limitations on the rights granted under these two treaties for the reasons outlined below: -Sections 44-48 are concerned with educational purposes. Provision is made in certain circumstances for copying to be done for educational purposes; the performing, playing or showing a work in public for educational purposes; and the recording of a broadcast or cable programme for educational purposes. These limitations on owners' rights are, however, tightly prescribed including, in the case of copying of a sound recording or recording a broadcast or cable programme, not permitting the copying or recording where licenses are available under a licensing scheme. Sections 44-48 do, therefore, comply with Berne Articles 9(2) and 10(2) and TRIPS Article 13; -Section 68 is intended to deal with the situation where, for example, there is a speech or oration delivered without any notes. As copyright can only vest in a tangible expression of a work, this provision enables the speaker to obtain copyright by virtue of the speech or oration having been written down or broadcast while also enabling the writer or broadcaster, as the recorder, an opportunity to use the recording. Such use is, however, subject to limitations including the right of the speaker to prohibit the recording; The provision is considered necessary in order to comply with Berne Articles 2(1), 7(1), 8, 9(1), 10(1), and 10bis(1). The limitations in Section 68(1) are considered to provide appropriate protection for the copyright owner in terms of Berne Article 9(2) and TRIPS Article 13; -Section 70 concerning a public reading or recitation complies with Berne Articles 9(2) and 11ter since it is limited to a reading: -by one person only; -only to a reasonable extent; -which provides sufficient acknowledgement; and -which, if it involves a sound recording or broadcast, is using mainly material other than the public reading or recitation; -Section 71, concerning abstracts of scientific or technical articles, is in compliance with Berne Article 9(2) and TRIPS Article 13 in that abstracts are not a reproduction of the work and do not, therefore, conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the author; The abstracts are intended to aid in the dissemination of information. It is arguable that the abstracts are original works in their own right and, therefore, enjoy copyright protection; -Section 79 permits educational establishments and libraries to rent non-infringing copies of computer programmes, sound recordings or films for non-profit reasons. As TRIPS Article 11 is only concerned with "commercial rental", this exception is permissible; -Sections 81 and 186 relate to the playing of a sound recording in a club, society or other organization which is primarily concerned with religion, education or social welfare, which is not established for profit and where any proceeds from admission are applied for the benefit of the club, society or organization. As these provisions only provide for playing sound recordings and not reproducing sound recordings they are not inconsistent with Berne or with TRIPS Articles 14.1 and 14.2. In respect to TRIPS Article 13, the purpose and nature of the limitations are consistent with this Article; and -Section 188 provides for the playing or showing of a broadcast or cable programme to an audience not paying for admission to the place where the broadcast or cable programme is heard. It includes, for example, prisons and clubs or societies but does not include hotels, motels or camping grounds. The limitation on this exception is in terms of TRIPS Article 14.6 and is consistent with TRIPS Article 13.

The exceptions referred to in this question fall within the permissible limitations on rights envisaged in Berne and TRIPS either because the exceptions have been tightly proscribed, for example, Sections 44-48 of the Act relating to education or because the exception by its nature does not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of an author, for example, abstracts of scientific or technical articles.

Sections 45, 48, 88 and 91 of the Copyright Act 1994 allow copying in some particular circumstances. However, if a licensing scheme for copyright owners is in operation such copying can only be undertaken in terms of the license. For example, schools are permitted to copy broadcasts under Section 48(1). Once a licensing scheme is established they will no longer be able to do so under Section 48(2) unless they comply with the requirements of the license. A licensing scheme is defined in the Act (Section 2), as a scheme which sets out: "(a)the classes of cases in which the operator of the scheme, or the person on whose behalf the operator acts, is willing to grant copyright licences; and (b)the terms on which copyright licences would be granted in those classes of cases ..."

Section 192 of the Copyright Act 1994 provides that an independent tribunal, the Copyright Tribunal, may make an order giving consent to the making of a copy of a recording. In making any order under the Section, the Tribunal must consider a number of matters. These matters include consideration of whether the withholding of consent by the performer relates to the protection of any legitimate interests of the performer and whether payment should be made to the performer. New Zealand considers that the applicable Rome provision is Article 15.2. This permits limitations in respect to the rights of performers where similar limitations are provided for in respect to copyright. As New Zealand provides for licensing schemes in regard to copyright (Section 153 of the Act refers), Rome Article 15.2 permits similar limitations in respect to performers. [Follow-up question] To the extent that compulsory licenses are granted in New Zealand for the reproduction of fixations of live performances or other sound recordings, what criteria are applied to the grant of such licenses and what limitations are incorporated into such licenses? How is the grant of such licenses consistent with TRIPS Article 13? The making of an order by the Copyright Tribunal requires that the Tribunal has regard to a number of matters before making an order thereby ensuring consistency with TRIPs Article 13. These include the following matters (section 192 of the Act): - There has been compliance with the serving or publication of notices. - The performer's reasons for withholding consent do not include the protection of any legitimate interests of the performer. - The recording from which it is proposed to make a copy was made with the performer's consent and is lawfully in the possession of the person proposing to make the copy. - The making of a copy of the recording is consistent with the obligations of the parties to the arrangement under which the recording was made or is otherwise consistent with the purposes for which the recording was made. If an order is made after taking these matters into account and the parties do not agree on payment, then the Tribunal shall make an order as it sees fit.

Section 92 of the Copyright Act 1994 is intended to ensure that where an adaptation which is itself a literary, dramatic or musical work, that any act done in respect to that adaptation will not infringe copyright in the original work. It should be noted that Section 82 does not diminish the rights conferred by Berne Articles 2(3) and 12, in respect of adaptations, to any greater extent than that permitted with respect to the original works from which an adaptation is made.

Computer programmes are protected under the Copyright Act 1994 by virtue of: -being a literary work (Section 2(1)(a) "Literary work" refers); -copyright existing in original literary works (Section 14(1)(a) refers); -copyright owners having exclusive rights including the right to copy a work (Section 16(1)(a) refers) which includes reproducing or recording the work in any material form (Section 2(1) "Copyright" refers) and the right to adapt a work (Section 16(1)(g) refers) which, in the case of a computer programme, includes conversion of it into a different computer language or work (Section 2(1) "Adaptation" refers); and -copyright infringement occurring where a person, other than the copyright owner, does any restricted act (Section 29 refers). These provisions meet the requirements of both Berne and TRIPS.

It is an infringement of the rights of an owner of copyright to copy the owner's work (Section 30 of the Act). In relation to a literary work (which includes computer programmes) copying is defined as including the storing of a work "in any medium by any means" (Section 2(1) "copying" of the Act refers). This definition of copying would, therefore be applicable to a situation involving the storing of a work in a computer memory or displaying a work on a computer screen.

The criminal and civil remedies available in New Zealand for copyright infringement and the way in which the TRIPS Articles are implemented are shown in the attached table: [Part of the response is in Table format]

Because the TRIPS Agreement only entered into force in January 1996, there is no case law yet. However, the possibility of direct applicability of provisions of the Berne Convention was already accepted in a Supreme Court Decision in 1936 (Decision NJ 443 of 13 February 1936). Please confirm that all revenues generated from the imposition of blank tape levies in the Netherlands are distributed on the basis of national treatment to rightholders from all WTO Members, regardless of the type of rightholder. Under the Dutch system, different types of rightholders are represented by separate organizations, so payments are not made irrespective of the type of rightholder. The system provided for in the Netherlands is as follows. The Home Copy Foundation distributes the monies according to a schedule which has been approved by the Ministry of Justice. The schedule distinguishes between audio and video tapes. Three organizations receive audio revenues; four others are entitled to the video revenues. These private organizations in turn distribute amongst (organizations of) rightholders. The main organization, Stemra, has informed us that it does so both to (organizations of) Dutch and foreign rightholders. Stemra's own regulation provides for distribution on the basis of "rights and entitlements by force of law, treaty or regulation wherever in the world". They liaise with their counterparts in other countries.

No. The term of protection under the Act on Neighbouring Rights is 50 years.

As to the first part of the question, we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(c)the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.

As to the first part of the question we confirm that the relevant parts of Article 6 of the Act on Neighbouring Rights read as follows: Article 6(1): "The producer of phonograms has the exclusive right to give permission for: "(...) "(c) the broadcasting or re-broadcasting or otherwise making public the phonogram produced by him or a reproduction thereof." The specific issue as to whether the right of reproduction also includes digital temporary reproduction is still open and under discussion at a national and international level.

The provisions of Berne including its Article 18 have been applicable in the Netherlands since its accession on 1 November 1912. As from 1 January 1996 the term of protection under the Copyright Act is 70 years. Neighbouring rightholders are protected by the Act on neighbouring rights of 1993. The term of protection under the Act on neighbouring rights is 50 years. The protection extends to performances which took place before the Act entered into force. The same applies to phonograms which were made before that date. The wording of the relevant provision in the Act is quite general, which means that the protection could extend to fifty years before the Act went into force.

Further to its decision of 21 November 1995, the TRIPS Council has presented all Member States with a checklist of issues on enforcement (Doc. No. IP/C/5 of 30 November 1995) which fully covers your question 5. All lists will be reviewed in 1997.

Databases that constitute works in the sense of the Copyright Act are protected as collective works under Article 5 of the Copyright Act. A database will constitute a work in the sense of the Copyright Act, if it is an intellectual creation by reason of the selection or arrangement of its contents.