The Copyright Act 1994 provides protection for works, phonograms and performances before commencement of the Act as well as at the commencement of the Act. The First Schedule of the Act details the circumstances in which protection prior to the commencement of the Act will occur. This can include protection in terms of the Copyright Act 1913 and the Copyright Act 1962. In the light of this each case needs to be considered on its own facts. Accordingly, only the general principles which apply are discussed in this response.
Protection for works made prior to the commencement of the 1994 Act is provided to WTO Members through Section 230(3) of the Act and through the Copyright (Application to Other Countries) Order 1995. The response to question 1 provides further details on the Order.
The Order also clarifies which foreign works are protected in New Zealand as follows:
-A foreign work does not qualify for copyright by reference to author if published before the 1962 Act commenced (clause 4(a)), since New Zealand did not provide for such protection to its own nationals prior to this date. Such protection is, however, available after the 1962 Act commenced (clauses 5(1)(a) and 6);
-Irrespective of whether a work qualifies for copyright by reference to author, a foreign work will qualify for protection if it is first published in a prescribed foreign country (clauses 7(a) and 8). Protection by reference to country of first publication is not limited in time;
-Sound recordings are also covered (clause 9(1)(a)); and
-Clause 12 of the Order is a transitional provision which continues protection for any foreign work where copyright existed under New Zealand law immediately before the commencement of the Act but which falls outside the Order.
Section 230(3) of the Act applies if:
-copyright existed under the 1962 Act immediately before the commencement of the 1994 Act (refer also to clauses 3 and 4 of the First Schedule of the 1994 Act); or
-the work is protected in the Convention country and protection had not expired in the Convention country before the commencement of the 1994 Act; or
-the work is first published in a Convention country.
Where the work is a performance, reciprocal protection is required in the Convention country (Section 204(3) of the 1994 Act).
Provision is also made for prior existing works to qualify for copyright after commencement of the 1994 Act if either of the three circumstances in Section 230(3) above apply (clause 5(1) of the First Schedule refers). There are exceptions to this principle. These include the following:
-A work which is first published in New Zealand before 1 April 1963, and which was published elsewhere more than 14 days before being published in New Zealand, is not protected (clause 5(2) of the First Schedule). This provision is a transitional provision covering the Copyright Act 1913 which required simultaneous publication to be no more than 14 days (at this time the Berne Convention did not provide for 30 days). The transitional provision ensures that protection is not provided to works which did not qualify under the 1913 Act;
-Works which are first protected under the 1962 Act, that is films, broadcasts and typographical arrangements are excepted (clause 6 of the First Schedule). As New Zealand did not provide specific protection for these works (although protection was provided for the individual works comprising a film) prior to the commencement of the 1962 Act, the 1994 Act maintains this exception which applies to both New Zealand and foreign works. The exception is qualified, however, by providing that the 1994 Act will apply in respect to a film that was made before the commencement of the 1962 Act and was an original dramatic work in terms of the 1913 Act; and to a photograph in a film made before the commencement of the 1962 Act and which is an original dramatic work in terms of the 1913 Act (clause 12 of the First Schedule of the 1994 Act); and
-Where a work is an artistic work made before the commencement of the 1962 Act; the work is protected under the Designs Act; and the work has been industrially applied it is not protected (clause 28 of the First Schedule). This limits the scope of dual protection for designs consistent with a subsequent amendment to the 1962 Act.
In terms of the First Schedule to the 1994 Act (clause 17), protection available for works before commencement of the 1994 Act includes the following:
-Literary, dramatic, musical or artistic works (other than a photograph):
-generally: 50 years from the death of the author;
-computer generated: 50 years from the end of the calendar year in which the work is made;
-published before 1 April 1963: the longer of the period of the life of the first author plus 50 years or 50 years from the life of the author who dies last;
-published after 1 April 1963 but before commencement of the Act: 50 years after death of the last author;
-published before commencement: 50 years from the end of the calendar year in which the work is first made available to the public by an authorized act;
-unpublished at commencement: 50 years from the end of the calendar year in which the new copyright provisions came into force or if during that period the work is first made available to the public then as applying to a published work;
-Sound recordings: 50 years from the end of the calendar year in which the recording is made; and
-Performances: 50 years from the end of the calendar year in which the performance takes place.