Copyright Act 1994

1: Short Title and commencement
1: This Act may be cited as the Copyright Act 1994.
2: Except as provided in sections 27(2) 144(5)
2: Interpretation
1: In this Act, unless the context otherwise requires,— accessible format copy adaptation
a: in relation to a literary or dramatic work, includes—
i: a translation of the work from one language to another:
ii: a version of a dramatic work in which it is converted into a literary work or, as the case may be, of a literary work in which it is converted into a dramatic work:
iii: a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine, or similar periodical:
b: in relation to a literary work that is a computer program, includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code, otherwise than incidentally in the course of running the program:
c: in relation to a musical work, means an arrangement or transcription of the work Archives New Zealand section 4 article artistic work
a: means—
i: a graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality; or
ii: a work of architecture, being a building or a model for a building; or
iii: a work of artistic craftsmanship, not falling within subparagraph (i) or subparagraph (ii); but
b: does not include a layout design or an integrated circuit within the meaning of section 2 authorised
a: by or with the licence of the copyright owner; or
b: pursuant to section 62 authorised entity
a: an entity of a type set out in section 69(1)
b: in relation to the import into and export from New Zealand of accessible format copies, includes an entity authorised or recognised by the government of the relevant Marrakesh Treaty country as an authorised entity for the purposes of the Treaty building
a: any fixed structure; and
b: a part of a building or fixed structure business charitable entity section 4(1) chief executive
a: for the purposes of Part 6A
b: for the purposes of Part 7 section 135 CMI copyright management information section 226F collective work
a: a work of joint authorship; or
b: a work in which there are distinct contributions by different authors or in which works, or parts of works, of different authors are incorporated communicate communication communication work compilation
a: a compilation consisting wholly of works or parts of works; and
b: a compilation consisting partly of works or parts of works; and
c: a compilation of data other than works or parts of works computer-generated convention country Part 9 copying
a: means, in relation to any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means; and
b:
c: includes, in relation to an artistic work, the making of a copy in 3 dimensions of a two-dimensional work and the making of a copy in 2 dimensions of a three-dimensional work; and
d: includes, in relation to a film or communication work, the making of a photograph of the whole or any substantial part of any image forming part of the film or communication work— and copy copies copyright licence copyright work section 14(1) country Crown
a: means Her Majesty the Queen in right of New Zealand; and
b: includes a Minister of the Crown, a government department, an Office of Parliament, and the Parliamentary Counsel Office
c: does not include—
i: a Crown entity; or
ii: a State enterprise named in Schedule 1 Crown entity section 2(1) director Part 4
a: the nomination is in writing and signed by the director; and
b: the nomination is made before the completion of the making of the film; and
c: the person nominated makes a creative contribution to the making of the film document Part 6A sections 144A 144C to 144E
a: any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images, or sounds, or from which symbols, images, or sounds can be derived, and includes—
i: a label, marking, or other writing that identifies or describes a thing of which it forms part, or to which it is attached:
ii: a book, map, plan, graph, or drawing:
iii: a photograph, film, or negative; and
b: information electronically recorded or stored, and information derived from that information dramatic work
a: a work of dance or mime; and
b: a scenario or script for a film educational establishment
a: a school to which the Education and Training Act 2020
b: a specialist school or special service established under section 197
c: an early childhood service within the meaning of section 10(1)
d: any of the following within the meaning of section 10(1)
i: an institution:
ii: a private training establishment:
iii: a government training establishment:
e: any body, or class of body, that is not conducted for profit and that is approved by the Minister of Education as an educational establishment for the purposes of this Act by notice published in the Gazette educational resource supplier
a: whose principal function is the copying of communication works and the supply of the copies it makes to educational establishments for educational purposes; and
b: who does not conduct its business for profit; and
c: who has been approved by the Minister of Education as an educational resource supplier for the purpose of this Act by a notice published in the Gazette electronic in electronic form employed employee employer employment exclusive licence facsimile copy film future copyright Government government department
a: a body corporate or other legal entity that has the power to contract:
b: an Office of Parliament:
c: Public Trust:
d: the Export Guarantee Office:
e: the Parliamentary Counsel Office graphic work
a: any painting, drawing, diagram, map, chart, or plan; and
b: any engraving, etching, lithograph, woodcut, print, or similar work infringing copy section 12 instruction
a: giving a lesson, either in person or by correspondence, to a student or a group of students, at an educational establishment or elsewhere; or
b: receiving a lesson, either in person or by correspondence and either alone or in a group of students, at an educational establishment or elsewhere international organisation Internet service provider
a: offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing:
b: hosts material on websites or other electronic retrieval systems that can be accessed by a user judicial proceedings
a: proceedings before any court, tribunal, or person having authority to decide any matter affecting a person's legal rights or liabilities; and
b: proceedings before any other body that is prescribed by regulations made under this Act as a judicial body for the purposes of this Act lawful user licensing body
a: negotiates copyright licences; and
b: grants copyright licences, including licences that cover the works of more than 1 author licensing scheme
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;— and for the purpose of this definition a scheme literary work
a: a table or compilation; and
b: a computer program Marrakesh Treaty country material time
a: in relation to a literary, dramatic, musical, or artistic work, means,—
i: in the case of an unpublished work, when the work is made or, if the making of the work extends over a period, a substantial part of that period; and
ii: in the case of a published work, when the work is first published or, if the author has died before that time, immediately before his or her death; and
b: in relation to a sound recording or film, means when the work is made or, if the making of the work extends over a period, a substantial part of that period; and
c: in relation to a communication work, means when the work is made or received in New Zealand; and
d: in relation to a typographical arrangement of a published edition, means when the edition is first published
e: Minister Ministerial inquiry Ministry musical work New Zealand Office of Parliament
a: the Parliamentary Commissioner for the Environment (and that Commissioner's office):
b: the Office of Ombudsmen:
c: the Auditor-General
d: performance Part 9
a: in the case of a literary work that is a lecture, address, speech, or sermon, includes delivery of that work; and
b: in general, includes any mode of visual or acoustic presentation of a literary, dramatic, musical, or artistic work, including presentation of the work by means of a sound recording, film, or communication work photograph plate prescribed foreign country
a: to which section 230
b: that is declared by Order in Council made under section 232 print disability
a: means an impairment that prevents the person from enjoying a printed copyright work to the same degree as a person who does not have that impairment; but
b: excludes an impairment of visual function that can be improved, by the use of corrective lenses, to a level that is normally acceptable for reading without a special level or kind of light proceedings published edition regulations any other secondary legislation or Part 2 rental
a: for payment (in money or money's worth); or
b: in the course of a business, as part of services or amenities for which payment is made,— on terms that it will or may be returned reprographic copy reprographic copying reprographic process
a: for making facsimile copies; or
b: involving the use of an appliance for making multiple copies;— and includes, in relation to a work held in electronic form, any copying by electronic means; but does not include the making of a film or sound recording restricted act section 16 sculpture sound recording
a: a recording of sounds, from which the sounds may be reproduced; or
b: a recording of the whole or any part of a literary, dramatic, or musical work, from which sounds reproducing the work or part may be produced,— regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced statutory inquiry sufficient acknowledgement
a: the work by its title or other description; and
b: the author of the work, unless,—
i: in the case of a published work, it is published anonymously:
ii: in the case of an unpublished work, it is not possible by reasonable inquiry to ascertain the identity of the author telecommunications system TPM technological protection measure section 226 TPM circumvention device section 226 TPM work section 226 transcript Tribunal section 205 unauthorised
a: by or with the licence of the copyright owner; or
b: pursuant to section 62 wireless communication working day
a: a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
ab: if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
b: a day in the period commencing with 25 December in any year and ending with 15 January in the following year writing written
2: References in this Act to the time at which a literary, dramatic, or musical work is made are to the time at which the work is recorded, in writing or otherwise. 1962 No 33 ss 2(1), 3(6), 3(8), 17(1), 24(5), 26(9), 36(1) 1989 No 44 s 2 Section 2(1) accessible format copy inserted 4 January 2020 section 4 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019 Section 2(1) Archives New Zealand inserted 21 April 2005 section 67(1) Public Records Act 2005 Section 2(1) authorised entity inserted 4 January 2020 section 4 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019 Section 2(1) broadcast repealed 31 October 2008 section 4(1) Copyright (New Technologies) Amendment Act 2008 Section 2(1) charitable entity inserted 4 January 2020 section 4 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019 Section 2(1) chief executive inserted 7 October 2011 section 4 Copyright Amendment Act 2011 Section 2(1) CMI copyright management information inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) communicate inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) communication work inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) convention country substituted 14 October 1999 section 3(2) Copyright Amendment Act 1999 Section 2(1) copying substituted 31 October 2008 section 4(3) Copyright (New Technologies) Amendment Act 2008 Section 2(1) copying repealed 31 October 2008 section 4(3) Copyright (New Technologies) Amendment Act 2008 Section 2(1) copying substituted 31 October 2008 section 4(4) Copyright (New Technologies) Amendment Act 2008 Section 2(1) Crown amended 5 August 2013 section 77(3) Legislation Act 2012 Section 2(1) document inserted 7 October 2011 section 4 Copyright Amendment Act 2011 Section 2(1) educational establishment replaced 1 August 2020 section 668 Education and Training Act 2020 Section 2(1) educational resource supplier inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) government department substituted 1 March 2002 section 170(1) Public Trust Act 2001 Section 2(1) government department inserted 5 August 2013 section 77(3) Legislation Act 2012 Section 2(1) infringing copy inserted 19 May 1998 section 3 Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 Section 2(1) Internet service provider inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) Marrakesh Treaty country inserted 4 January 2020 section 4 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019 Section 2(1) material time substituted 31 October 2008 section 4(5) Copyright (New Technologies) Amendment Act 2008 Section 2(1) material time substituted 31 October 2008 section 4(5) Copyright (New Technologies) Amendment Act 2008 Section 2(1) material time repealed 31 October 2008 section 4(5) Copyright (New Technologies) Amendment Act 2008 Section 2(1) Minister substituted 1 October 1995 section 10(3) Department of Justice (Restructuring) Act 1995 Section 2(1) Ministry inserted 7 October 2011 section 4 Copyright Amendment Act 2011 Section 2(1) National Archives repealed 21 April 2005 section 67(1) Public Records Act 2005 Section 2(1) Office of Parliament substituted 1 July 2001 section 53 Public Audit Act 2001 Section 2(1) Office of Parliament repealed 5 August 2013 section 77(3) Legislation Act 2012 Section 2(1) performance amended 31 October 2008 section 4(6) Copyright (New Technologies) Amendment Act 2008 Section 2(1) print disability inserted 4 January 2020 section 4 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019 Section 2(1) regulations replaced 5 August 2013 section 77(3) Legislation Act 2012 Section 2(1) regulations amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 2(1) TPM technological protection measure inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) TPM circumvention device inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) TPM work inserted 31 October 2008 section 4(2) Copyright (New Technologies) Amendment Act 2008 Section 2(1) working day replaced 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 2(1) working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013
3: Associated definitions for communication works
1: References in this Act to a person making a communication work are—
a: to the person transmitting the communication work or making it available by means of a communication technology, if that person has responsibility to any extent for its contents; and
b: any person who provides the contents of the work and who makes with the person communicating the work the arrangements necessary for its communication.
2: For the purposes of this Act, in the case of communicating a work by satellite transmission,—
a: the place from which the work is communicated is the place from which the signals carrying the work are transmitted to the satellite; and
b: the person communicating the work is the person who transmits those signals to the satellite. Section 3 substituted 31 October 2008 section 5 Copyright (New Technologies) Amendment Act 2008
4: Meaning of cable programme service, and associated definitions
Section 4 repealed 31 October 2008 section 6 Copyright (New Technologies) Amendment Act 2008
5: Meaning of author
1: For the purposes of this Act, the author
2: For the purposes of subsection (1), the person who creates
a: in the case of a literary, dramatic, musical, or artistic work that is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken:
b: in the case of a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken:
c: in the case of a communication work, the person who makes the communication work:
d: in the case of a typographical arrangement of a published edition, the publisher.
e:
3: The author of a work of any of the descriptions referred to in subsection (2) may be a natural person or a body corporate. Copyright, Designs and Patents Act 1988 s 9(1)–(3) (UK) Section 5(2)﻿(c) substituted 31 October 2008 section 7 Copyright (New Technologies) Amendment Act 2008 Section 5(2)﻿(d) substituted 31 October 2008 section 7 Copyright (New Technologies) Amendment Act 2008 Section 5(2)﻿(e) repealed 31 October 2008 section 7 Copyright (New Technologies) Amendment Act 2008
6: Meaning of work of joint authorship
1: In this Act, the term work of joint authorship
2: A communication work must be treated as a work of joint authorship in any case where more than 1 person is to be taken as making the communication work.
3: References in this Act to the author of a work shall be construed in relation to a work of joint authorship as a reference to all the authors of the work.
4: Where, in relation to a work of joint authorship, copyright would not exist in the work if 1 or more of the authors were the sole author or sole joint authors, the work shall be treated as if the other author or authors were the sole author or sole joint authors of the work. 1962 No 33 ss 12(3), (4), (6) Section 6(2) substituted 31 October 2008 section 8 Copyright (New Technologies) Amendment Act 2008
7: Meaning of unknown authorship
1: For the purposes of this Act, a work is of unknown authorship
2: For the purposes of this Act, the identity of an author shall be regarded as unknown if it is not possible for a person who wishes to ascertain the identity of the author to do so by reasonable inquiry; but if that identity is once known it shall not subsequently be regarded as unknown. 1962 No 33 s 11(3), (4)
8: Meaning of copyright owner
1: Where copyright or any aspect of copyright is owned by more than 1 person jointly, references in this Act to the copyright owner, or to the owner of the copyright in the work, are to all owners.
2: Where different persons are entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Act is the person who is entitled to the aspect of copyright relevant for that purpose.
3: Subject to the provisions of Part 7 1962 No 33 s 3(10)
9: Meaning of issue to the public
1: References in this Act to the issue of copies of a work to the public mean the act of putting into circulation copies not previously put into circulation; and do not include the acts of—
a: subsequent distribution or sale of those copies; or
b: subject to subsections (2) and (3), subsequent hiring or loan of those copies; or
c: subsequent importation of those copies into New Zealand ; or
d: distribution of imported copies that are not infringing copies within the meaning of section 12
2: The issue of copies of a work to the public, in relation to computer programs, includes the rental of copies of computer programs to the public and rental subsequent to those works having been put into circulation
a: the computer program is incorporated into any other thing; and
b: the rental of the computer program is not the principal purpose or one of the principal purposes of the rental; and
c: the computer program cannot readily be copied by the hirer.
3: The issue of copies of a work to the public, in relation to sound recordings and films, includes the rental of copies of those works to the public and rental subsequent to those works having been put into circulation Copyright, Designs and Patents Act 1988 s 18(2) (UK) Section 9(1)﻿(c) amended 19 May 1998 section 4 Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 Section 9(1)﻿(d) 19 May 1998 section 4 Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 Section 9(2) amended 31 October 2003 section 3(1) Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act 2003 Section 9(3) amended 31 October 2003 section 3(2) Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act 2003
10: Meaning of publication
1: In this Act, the term publication
a: means the issue of copies of the work to the public; and
b: includes, in the case of a literary, dramatic, musical, or artistic work, making it available to the public by means of an electronic retrieval system;— and publish
2: In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.
3: References in this Act to publication do not include publication that is not intended to satisfy the reasonable requirements of the public.
4: The following acts do not constitute publication
a: in the case of a literary, dramatic, or musical work,—
i: the performance of the work; or
ii: the communication of the work to the public
b: in the case of any artistic work,—
i: the exhibition of the work; or
ii: the issue to the public of copies of a film including the work; or
iii: the communication of the work to the public
c: in the case of an artistic work being—
i: a sculpture; or
ii: a work of architecture in the form of a building or a model for a building; or
iii: a work of artistic craftsmanship,— the issue to the public of copies of a graphic work representing, or of photographs of, the work:
d: in the case of a sound recording or film,—
i: the playing or showing of the work in public; or
ii: the communication of the work to the public.
5: No account shall be taken for the purposes of this section of any unauthorised act. 1962 No 33 s 3(1), (2), (5), (6) Section 10(4)﻿(a)﻿(ii) amended 31 October 2008 section 9(1) Copyright (New Technologies) Amendment Act 2008 Section 10(4)﻿(b)﻿(iii) amended 31 October 2008 section 9(2) Copyright (New Technologies) Amendment Act 2008 Section 10(4)﻿(d)﻿(ii) substituted 31 October 2008 section 9(3) Copyright (New Technologies) Amendment Act 2008
11: Meaning of commercial publication
In this Act, the term commercial publication
a: issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public; or
b: making the work available to the public by means of an electronic retrieval system;— and related expressions shall be construed accordingly. Copyright, Designs and Patents Act 1988 s 175(2) (UK)
12: Meaning of infringing copy
1: In this Act, the term infringing copy
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)
b: section 93(1) 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
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. 1962 No 33 s 10(5) 1990 No 71 s 2 Section 12(3) substituted 19 May 1998 section 5(1) Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 Section 12(5)﻿(a) substituted 31 October 2008 section 10 Copyright (New Technologies) Amendment Act 2008 Section 12(5A) inserted 19 May 1998 section 5(2) Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998
13: Act to bind the Crown
This Act binds the Crown.
1: Description, ownership, and duration of copyright
Description of copyright
14: Copyright in original works
1: Copyright is a property right that exists, in accordance with this Act, in original works of the following descriptions:
a: literary, dramatic, musical, or artistic works:
b: sound recordings:
c: films:
d: communication works:
e: typographical arrangements of published editions.
2: A work is not original if—
a: it is, or to the extent that it is, a copy of another work; or
b: it infringes the copyright in, or to the extent that it infringes the copyright in, another work.
3: 1962 No 33 ss 7(1), 13(1), 14(1), 15(1), 17(1) Section 14(1) substituted 31 October 2008 section 11(1) Copyright (New Technologies) Amendment Act 2008 Section 14(3) repealed 31 October 2008 section 11(2) Copyright (New Technologies) Amendment Act 2008
15: Recording necessary for some works
1: Copyright does not exist in a literary or dramatic or musical work unless and until the work is recorded, in writing or otherwise.
2: It is immaterial for the purposes of subsection (1) whether the work is recorded by or with the consent of the author.
3: Where a work is not recorded by the author, the question whether copyright exists in the record, as distinct from the work recorded, is not affected by anything in subsection (1). Copyright, Designs and Patents Act 1988 s 3(2), (3) (UK)
16: Acts restricted by copyright
1: The owner of the copyright in a work has the exclusive right to do, in accordance with sections 30 to 34
a: to copy the work:
b: to issue copies of the work to the public, whether by sale or otherwise:
c: to perform the work in public:
d: to play the work in public:
e: to show the work in public:
f: to communicate the work to the public:
g: to make an adaptation of the work:
h: to do any of the acts referred to in any of paragraphs (a) to (f) in relation to an adaptation of the work:
i: to authorise another person to do any of the acts referred to in any of paragraphs (a) to (h).
2: Subsection (1) applies subject to Parts 3 8 1962 No 33 ss 6(1), 7(3), 7(4), 13(5), 14(5), 17(3) Section 16(1)﻿(f) substituted 31 October 2008 section 12 Copyright (New Technologies) Amendment Act 2008 Qualification for copyright
17: Qualification for copyright
1: Copyright does not exist in a work unless the requirements of section 18 section 19 section 20
2: Subsection (1) does not apply to copyright that exists by virtue of section 26 section 28
3: If the requirements of section 18 section 19 section 20 section 26 section 28
4: For the avoidance of doubt, it is hereby declared that where any other provision of this Act imposes requirements, in addition to the requirements of section 18 section 19 section 20 section 18 section 19 section 20 Copyright, Designs and Patents Act 1988 s 153 (UK)
18: Qualification by reference to author
1: A work qualifies for copyright if the author is, at the material time,—
a: a New Zealand citizen; or
b: an individual domiciled or resident in New Zealand; or
c: a body incorporated under the law of New Zealand.
2: A work qualifies for copyright if the author is, at the material time,—
a: a citizen or subject of a prescribed foreign country; or
b: an individual domiciled or resident in a prescribed foreign country; or
c: a body incorporated under the law of a prescribed foreign country.
3: Subject to subsection (4), a work of joint authorship qualifies for copyright if, at the material time, any of the authors satisfies the requirements of subsection (1) or subsection (2).
4: Where a work of joint authorship qualifies for copyright under this section alone, only those authors who satisfy the requirements of subsection (1) or subsection (2) shall be taken into account for the purposes of the application, to that work, of the following provisions of this Act:
a: section 21
b: subsections (1) and (4) of section 22
c: section 67 1962 No 33 ss 7(1), 12(1), 13(1), 14(1), 15(1), 17(1)
19: Qualification by reference to country of first publication
1: A work (being a literary, dramatic, musical, or artistic work, a sound recording, a film, or a typographical arrangement of a published edition) qualifies for copyright if it is first published—
a: in New Zealand; or
b: in a prescribed foreign country.
2: For the purposes of this section, publication in one country shall not be regarded as other than the first publication by reason of simultaneous publication elsewhere; and for this purpose publication elsewhere within the previous 30 days shall be treated as simultaneous. 1962 No 33 ss 7(2), 13(2), 14(2), 17(1)
20: Qualification by reference to origin of communication work
A communication work qualifies for copyright if it is made from—
a: a place in New Zealand; or
b: a place in a prescribed foreign country. Section 20 substituted 31 October 2008 section 13 Copyright (New Technologies) Amendment Act 2008 Ownership of copyright
21: First ownership of copyright
1: Subject to the provisions of this section, the person who is the author of a work is the first owner of any copyright in the work.
2: Where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person's employer is the first owner of any copyright in the work.
3: Where—
a: a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording; and
b: the work is made in pursuance of that commission,— that person is the first owner of any copyright in the work.
4: Subsections (2) and (3) apply subject to any agreement to the contrary.
5: Subsections (1) to (4) apply subject to sections 26 28 1962 No 33 ss 9, 13(4), 14(4) Duration of copyright
22: Duration of copyright in literary, dramatic, musical, or artistic works
1: Subject to the following provisions of this section, copyright in a literary, dramatic, musical, or artistic work expires at the end of the period of 50 years from the end of the calendar year in which the author dies.
2: If the work is computer-generated, copyright expires at the end of the period of 50 years from the end of the calendar year in which the work is made.
3: If the work is of unknown authorship, copyright expires at the end of the period of 50 years from the end of the calendar year in which it is first made available to the public by an authorised act.
4: For the purposes of subsection (3), the circumstances in which a work may be made available to the public include,—
a: in the case of a literary, dramatic, or musical work,—
i: performance in public:
ii: communication to the public:
b: in the case of an artistic work,—
i: exhibition in public:
ii: the playing or showing in public of a film that includes the work:
iii: communication to the public.
5: If—
a: a work is of unknown authorship; and
b: copyright in the work has expired pursuant to subsection (3); and
c: the identity of the author becomes known after the copyright has expired,— subsection (1) does not apply to revive copyright in the work.
6: In relation to a work of joint authorship,—
a: the reference in subsection (1) to the death of the author shall be construed,—
i: if the identity of all the authors is known, as a reference to the last of them to die:
ii: if the identity of 1 or more, but not all, of the authors is known, as a reference to the death of the last of the authors whose identity is known; and
b: the reference in subsection (5) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known.
7: This section does not apply to copyright in a work to which section 26 section 28 1962 No 33 s 8(1) Section 22(4) substituted 31 October 2008 section 14 Copyright (New Technologies) Amendment Act 2008
23: Duration of copyright in sound recordings and films
1: Copyright in a sound recording or film expires—
a: at the end of the period of 50 years from the end of the calendar year in which the work is made; or
b: if it is made available to the public by an authorised act before the end of that period, 50 years from the end of the calendar year in which it is so made available,— whichever is the later.
2: For the purposes of subsection (1), a sound recording or film is made available to the public when—
a: the work is first—
i: published; or
ii: communicated to the public; or
b: in the case of a film or film soundtrack,—
i: the work is first shown in public; or
ii: the work is first played in public. 1962 No 33 ss 13(3), 14(3) Section 23(2) substituted 31 October 2008 section 15 Copyright (New Technologies) Amendment Act 2008
24: Duration of copyright in communication works
1: Copyright in a communication work expires at the end of the period of 50 years from the end of the calendar year in which the communication work is first communicated to the public.
2: Copyright in a repeated communication work expires at the same time as copyright in the initial communication work expires.
3: There is no copyright in a repeated communication work that is communicated to the public after copyright in the initial communication work has expired. Section 24 substituted 31 October 2008 section 16 Copyright (New Technologies) Amendment Act 2008
25: Duration of copyright in typographical arrangement of published editions
Copyright in a typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition is first published. 1962 No 33 s 17(2) Crown copyright
26: Crown copyright
1: Where a work is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services,—
a: the work qualifies for copyright notwithstanding section 17(1)
b: the Crown is the first owner of any copyright in the work.
2: Copyright in such a work is referred to in this Act as Crown copyright
3: Crown copyright shall expire,—
a: in the case of a typographical arrangement of a published edition, at the end of the period of 25 years from the end of the calendar year in which the work is made:
b: in the case of any other work, at the end of the period of 100 years from the end of the calendar year in which the work is made.
4: In the case of a work of joint authorship where 1 or more, but not all, of the authors are persons employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services, this section applies only in relation to those authors and the copyright existing by virtue of their contribution to the work.
5: Subject to this section and to any other express provision of this Act, the provisions of this Act apply in relation to Crown copyright as to other copyright.
6: Subsection (1) applies subject to any agreement to the contrary.
7: This section is subject to section 27 1962 No 33 s 52
27: No copyright in certain works
1: No copyright exists in any of the following works, whenever those works were made:
a: any Bill introduced into the House of Representatives:
b: any Act:
c: any regulations:
d:
e: the New Zealand Parliamentary Debates:
f: reports of select committees laid before the House of Representatives:
g: judgments of any court or tribunal:
h: reports of Royal commissions, commissions of inquiry, ministerial inquiries, or statutory inquiries ; or
i: reports of any inquiry established under section 6
1A: No Crown copyright exists in any work, whenever that work was made,—
a: in which the Crown copyright has not been assigned to another person; and
b: that is incorporated by reference in a work referred to in subsection (1).
1B: Except as specified in subsection (1A), nothing in subsection (1) affects copyright in any work that is incorporated by reference in a work referred to in subsection (1).
1C: Subsection (1A) does not affect copyright in any New Zealand Standard (as that term is defined in the Standards and Accreditation Act 2015
2: Subsection (1) shall come into force on a date to be appointed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made appointing different dates for different paragraphs of that subsection.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 27(1) brought into force 1 April 2001 Copyright Act Commencement Order 2000 Section 27(1)﻿(b) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 27(1)﻿(d) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 27(1)﻿(h) amended 27 August 2013 section 39 Inquiries Act 2013 Section 27(1)﻿(i) inserted 27 August 2013 section 39 Inquiries Act 2013 Section 27(1A) inserted 14 April 2005 section 3 Copyright Amendment Act 2005 Section 27(1B) inserted 14 April 2005 section 3 Copyright Amendment Act 2005 Section 27(1C) inserted 1 March 2016 section 44(2) Standards and Accreditation Act 2015 Section 27(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
28: Copyright vesting in certain international organisations
1: Where an original work (being a literary, dramatic, musical, or artistic work or a film) is made by an officer or employee of, or is published by, an international organisation to which this section applies,—
a: the work qualifies for copyright notwithstanding section 17(1)
b: the organisation is the first owner of any copyright in the work.
2: The copyright of an international organisation under this section shall expire,—
a: in the case of a typographical arrangement of a published edition, at the end of the period of 25 years from the end of the calendar year in which the work is made or such longer period as may be specified for the purposes of this paragraph pursuant to subsection (5):
b: in the case of any other work, at the end of the period of 50 years from the end of the calendar year in which the work is made or such longer period as may be specified for the purposes of this paragraph pursuant to subsection (5).
3: Subject to this section and to any other express provision of this Act, the provisions of this Act apply in relation to the copyright of an international organisation under this section.
4: An international organisation to which this section applies shall be deemed to have, and to have had at all material times, the legal capacities of a body corporate for the purposes of holding, dealing with, and enforcing copyright and in connection with all legal proceedings relating to copyright.
5: The Governor-General may from time to time, by Order in Council,—
a: declare that any international organisation is an international organisation to which this section applies:
b: for the purposes of complying with any international obligation of New Zealand, specify a period for the purposes of paragraph (a) or paragraph (b) of subsection (2).
6: An order under this section is secondary legislation ( see Part 3 1962 No 33 s 50 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 28(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
2: Infringement of copyright
Primary infringement of copyright
29: Infringement of copyright
1: Copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does any restricted act.
2: References in this Act to the doing of a restricted act are to the doing of that act—
a: in relation to the work as a whole or any substantial part of it; and
b: either directly or indirectly;— and it is immaterial whether any intervening acts themselves infringe copyright.
3: This Part is subject to Parts 3 8 1962 No 33 ss 3(1)
30: Infringement by copying
The copying of a work is a restricted act in relation to every description of copyright work. Copyright, Designs and Patents Act 1988 s 17(1) (UK)
31: Infringement by issue of copies to public
The issue of copies of a work to the public is a restricted act in relation to every description of copyright work. Copyright, Designs and Patents Act 1988 s 18(1) (UK)
32: Infringement by performance or playing or showing in public
1: The performance of a work in public is a restricted act only in relation to a literary, dramatic, or musical work.
2: The playing or showing of a work in public is a restricted act only in relation to a sound recording, film, or communication work
3: Where copyright in a work is infringed by the performance, playing, or showing of the work in public by means of apparatus for receiving visual images or sounds conveyed by electronic or other means,—
a: the person by whom the visual images or sounds are sent; and
b: in the case of a performance, the performers— shall not be regarded as responsible for the infringement.
4: For the purposes of subsection (3), a person who sends visual images or sounds does not include a person who retransmits visual images or sounds. Copyright, Designs and Patents Acts 1988 s 19(1), (3), (4) (UK) Section 32(2) amended 31 October 2008 section 17 Copyright (New Technologies) Amendment Act 2008
33: Infringement by communicating to public
Communicating a work to the public is a restricted act in relation to every description of copyright work. Section 33 substituted 31 October 2008 section 18 Copyright (New Technologies) Amendment Act 2008
34: Infringement by making adaptation or act done in relation to adaptation
1: The making of an adaptation of a work is a restricted act only in relation to a literary, dramatic, or musical work.
2: For the purposes of subsection (1), an adaptation is made when it is recorded, in writing or otherwise.
3: The doing of any of the acts specified in any of sections 30 to 33
4: For the purposes of subsection (3), where the act done in relation to an adaptation of a work is an act specified in section 32 section 33 Copyright, Designs and Patents Act 1988 s 21(1), (2) (UK) Secondary infringement of copyright
35: Infringement by importation
1: A person infringes copyright in a work if—
a: that person imports into New Zealand an object that is an infringing copy of the work and,—
i: in the case of a work that is a sound recording, film, or computer program to which subsection (6) applies, that person knows or ought reasonably to know that the object is an infringing copy; or
ii: in the case of other works, that person knows or has reason to believe that the object is an infringing copy; and
b: the object was imported into New Zealand without a copyright licence; and
c: the object was imported into New Zealand other than for that person's private and
2: In civil proceedings for infringement of copyright under subsection (1), in the case of a work that is a sound recording, film, or computer program to which subsection (6) applies,—
a: an object is presumed to be an infringing copy in the absence of evidence to the contrary; and
b: the court must not require any person to disclose any information concerning the sources of supply of the object if it appears to the court that it is unreasonable to do so.
3:
4:
5: Subsections (3) and (4) are repealed on 31 October 2016
6: This subsection applies to the following sound recordings, films, and computer programs:
a: a sound recording stored in a material form that is separate from any device or apparatus capable of playing sound recordings:
b: a film produced principally for cinematic release, or a copy of that film, or a copy of a substantial part of that film:
c: a computer program stored in a material form that is separate from any device or apparatus capable of executing computer programs. 2016-10-31 repeal s 35(3) and (4) Copyright Act 1994 Section 35 substituted 31 October 2003 section 4 Copyright (Parallel Importation of Films and Onus of Proof) Amendment Act 2003 Section 35(1)﻿(c) amended 31 October 2008 section 19(1) Copyright (New Technologies) Amendment Act 2008 Section 35(3) repealed 31 October 2016 Section 35(4) repealed 31 October 2016 Section 35(5) substituted 12 April 2008 section 19(2) Copyright (New Technologies) Amendment Act 2008 Section 35(5) amended 31 October 2013 section 4(2) Copyright (Parallel Importing of Films) Amendment Act 2013
36: Possessing or dealing with infringing copy
Copyright in a work is infringed by a person who, in New Zealand, other than pursuant to a copyright licence,—
a: possesses in the course of a business; or
b: in the course of a business or otherwise, sells or lets for hire; or
c: in the course of a business, offers or exposes for sale or hire; or
d: in the course of a business, exhibits in public or distributes; or
e: distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner— an object that is, and that the person knows or has reason to believe is, an infringing copy of the work. 1962 No 33 ss 10(3), (4), 18(3), (4)
37: Providing means for making infringing copies
1: Copyright in a work is infringed by a person who, other than pursuant to a copyright licence,—
a: makes; or
b: imports into New Zealand; or
c: possesses in the course of a business; or
d: in the course of a business or otherwise, sells or lets for hire; or
e: in the course of a business, offers or exposes for sale or hire— an object specifically designed or adapted for making copies of that work, knowing or having reason to believe that the object is to be used to make such infringing copies.
2: Copyright in a work is infringed by a person who, other than under a copyright licence, communicates a work to 1 or more persons, knowing or having reason to believe that infringing copies will be made by means of the reception of the communication in New Zealand or elsewhere. Copyright, Designs and Patents Act 1988 s 24 (UK) Section 37(2) substituted 31 October 2008 section 20 Copyright (New Technologies) Amendment Act 2008
38: Permitting use of premises for infringing performance
1: Where copyright in a literary, dramatic, or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless, when the person gave that permission, he or she believed on reasonable grounds that the performance would not infringe copyright.
2: In this section, the term place of public entertainment Copyright, Designs and Patents Act 1988 s 25 (UK)
39: Provision of apparatus for infringing performance, etc
1: Where copyright in a work is infringed by a performance of the work in public, or by the playing or showing of the work in public, by means of apparatus for—
a: playing sound recordings; or
b: showing films; or
c: receiving visual images or sounds conveyed by electronic means,— the persons described in subsections (2) to (4) are also liable for the infringement.
2: A person who supplied the apparatus, or any substantial part of it, is liable for the infringement if, when he or she supplied the apparatus or part,—
a: he or she knew, or had reason to believe, that the apparatus was likely to be so used as to infringe copyright; or
b: in the case of apparatus whose normal use involves a performance, playing, or showing in public, he or she had no reasonable grounds for believing that the apparatus would not be so used as to infringe copyright.
3: An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement if, when the occupier gave that permission, he or she knew, or had reason to believe, that the apparatus was likely to be so used as to infringe copyright.
4: A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement if, when the person supplied the copy, he or she knew, or had reason to believe, that the copy he or she supplied, or a copy made directly or indirectly from the copy, was likely to be so used as to infringe copyright. Copyright, Designs and Patents Act 1988 s 26 (UK)
3: Acts permitted in relation to copyright works
40: Provisions to be construed independently
The provisions of this Part are to be construed independently of one another so that the fact that an act is not permitted by one provision does not mean that it is not permitted by another provision. Copyright, Designs and Patents Act 1988 s 28(4) (UK)
41: Incidental copying of copyright work
1: Copyright in a work is not infringed by—
a: the incidental copying of the work in an artistic work, a sound recording, a film, or a communication work; or
b: the issue to the public of copies of an artistic work, the playing of a sound recording, the showing of a film, or the communication of a work to the public, in which a copyright work has been incidentally copied; or
c: the issue to the public of copies of a sound recording, film, or communication work to which paragraph (a) or (b) applies.
2: For the purposes of subsection (1), a musical work, words spoken or sung with music, or so much of a sound recording or communication work as includes a musical work or those words, must not be regarded as incidentally copied in another work if the musical work or the words, sound recording, or communication work is deliberately copied. Section 41 substituted 31 October 2008 section 21 Copyright (New Technologies) Amendment Act 2008
42: Criticism, review, and news reporting
1: Fair dealing with a work for the purposes of criticism or review, of that or another work or of a performance of a work, does not infringe copyright in the work if such fair dealing is accompanied by a sufficient acknowledgement.
2: Fair dealing with a work for the purpose of reporting current events by means of a sound recording, film, or communication work does not infringe copyright in the work.
3: Fair dealing with a work (other than a photograph) for the purposes of reporting current events by any means other than those referred to in subsection (2) does not infringe copyright in the work if such fair dealing is accompanied by a sufficient acknowledgement. 1962 No 33 ss 19(2), (3), 20(2), (3) Section 42(2) substituted 31 October 2008 section 22 Copyright (New Technologies) Amendment Act 2008
43: Research or private study
1: Fair dealing with a work for the purposes of research or private study does not infringe copyright in the work.
2: For the avoidance of doubt, it is hereby declared that fair dealing with a published edition for the purposes of research or private study does not infringe copyright in either the typographical arrangement of the edition or any literary, dramatic, musical, or artistic work or part of a work in the edition.
3: In determining, for the purposes of subsection (1), whether copying, by means of a reprographic process or by any other means, constitutes fair dealing for the purposes of research or private study, a court shall have regard to—
a: the purpose of the copying; and
b: the nature of the work copied; and
c: whether the work could have been obtained within a reasonable time at an ordinary commercial price; and
d: the effect of the copying on the potential market for, or value of, the work; and
e: where part of a work is copied, the amount and substantiality of the part copied taken in relation to the whole work.
4: This section does not authorise the making of more than 1 copy of the same work, or the same part of a work, on any one occasion, but in this subsection copy section 43A 1962 No 33 ss 19(1), (5), 20(1) Section 43(4) substituted 31 October 2008 section 23 Copyright (New Technologies) Amendment Act 2008
43A: Transient reproduction of work
A reproduction of a work does not infringe copyright in the work if the reproduction—
a: is transient or incidental; and
b: is an integral and essential part of a technological process for—
i: making or receiving a communication that does not infringe copyright; or
ii: enabling the lawful use of, or lawful dealing in, the work; and
c: has no independent economic significance. Section 43A inserted 31 October 2008 section 24 Copyright (New Technologies) Amendment Act 2008 Education
44: Copying for educational purposes of literary, dramatic, musical or artistic works or typographical arrangements
1: Copyright in a literary, dramatic, musical, or artistic work or the typographical arrangement of a published edition is not infringed by the copying of the whole or part of the work or edition if—
a: the copying is done by means of a reprographic process or by any other means; and
b: the copying is done—
i: in the course of preparation for instruction; or
ii: for use in the course of instruction; or
iii: in the course of instruction; and
c: the copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment; and
d: no more than 1 copy of the whole or part of the work or edition is made on any one occasion.
2: Copyright in a literary, dramatic, musical, or artistic work or the typographical arrangement of a published edition is not infringed by the copying of the whole or part of the work or edition if—
a: the copying is not done by means of a reprographic process; and
b: the copying is done—
i: in the course of preparation for instruction; or
ii: for use in the course of instruction; or
iii: in the course of instruction; or
iv: after the course of instruction; and
c: the copying is done by a person who is to give, is giving, or has given the lesson or by a person who is to receive, is receiving, or has received the lesson; and
d: 1 or more copies of the whole or part of the work or edition is or are made on any one occasion.
3: Copyright in a literary, dramatic, or musical work or the typographical arrangement of a published edition is not infringed by the copying of part of the work or edition if—
a: the copying is done by means of a reprographic process or by any other means; and
b: the copying is done for an educational purpose; and
c: the copying is done by or on behalf of an educational establishment; and
d: 1 or more copies of part of the work or edition is or are made on any one occasion; and
e: no charge is made for the supply of a copy to any student or other person who is to receive, is receiving, or has received a lesson; and
f: subject to subsection (4), either,—
i: in the period beginning with the commencement of this Act and ending with the close of 31 December 1997, the copying is of no more than the greater of 5% of the work or edition or 5 pages of the work or edition; or
ii: on and after 1 January 1998, the copying is of no more than the greater of 3% of the work or edition or 3 pages of the work or edition.
4: If the effect of subparagraph (i) or subparagraph (ii) of subsection (3)﻿(f) would be that the whole of a work or edition is copied, those subparagraphs shall not apply and the copying that is permitted under subsection (3) shall be of no more than 50% of the whole work or edition.
4A: A copy of a work made in accordance with subsections (3) and (4) may be communicated to a person who is a student or other person who is to receive, is receiving, or has received, a lesson that relates to the work.
5: Copyright in an artistic work is not infringed by the copying, by means of a reprographic process or by any other means, of the whole or a part of that work if the artistic work is included within the part of any work or edition copied under subsection (3).
6: Where any part of a work or edition is copied under subsection (3) by or on behalf of an educational establishment,—
a: that part of that work or edition may not, within 14 days of that copying, be copied again under that subsection by or on behalf of that educational establishment; and
b: no other part of that work or edition may, within 14 days of that copying, be copied under that subsection by or on behalf of that educational establishment.
7: In subsections (3) to (6),— published edition edition work Copyright, Designs and Patents Act 1988 ss 32(1), 36(1) (UK) Section 44(4A) inserted 31 October 2008 section 25 Copyright (New Technologies) Amendment Act 2008
44A: Storing copies for educational purposes
1: An educational establishment does not infringe copyright in a work that is made available on a website or other electronic retrieval system by storing a copy of the page or pages in which the work appears if—
a: the material is stored for an educational purpose; and
b: the material—
i: is displayed under a separate frame or identifier; and
ii: identifies the author (if known) and source of the work; and
iii: states the name of the educational establishment and the date on which the work was stored; and
c: the material is restricted to use by authenticated users.
2: Subsection (1) does not apply, and the educational establishment does infringe copyright in the work, if the educational establishment knowingly fails to delete the stored material within a reasonable time after the material becomes no longer relevant to the course of instruction for which it was stored.
3: In subsection (1), authenticated user
a: is a participant in the course of instruction for which the material is stored; and
b: can access the stored material only through a verification process that verifies that he or she is entitled to access the stored material. Section 44A inserted 31 October 2008 section 26 Copyright (New Technologies) Amendment Act 2008
45: Copying for educational purposes of films and sound recordings
1: Copyright in any work that is a film, sound recording, or communication work, or any work included in a film, sound recording, or communication work, is not infringed by the copying of that work in the circumstances set out in subsection (2).
2: The circumstances referred to in subsection (1) are—
a: that the copying consists of or includes the making of a film or film soundtrack—
i: in the course of preparation for instruction; or
ii: for use in the course of instruction; or
iii: in the course of instruction; or
iv: after the course of instruction,— where the lesson is on how to make films or film soundtracks; and
b: that the copying is done by or on behalf of a person who is to give, is giving, or has given the lesson or by or on behalf of a person who is to receive, is receiving, or has received the lesson; and
c: that no charge is made for the supply of a copy to any student or other person who is to receive, is receiving, or has received the lesson.
3: Copyright in—
a: any work that is a sound recording; or
b: any work included in a sound recording— is not infringed by the copying of that work in the circumstances set out in subsection (4).
4: The circumstances referred to in subsection (3) are—
a: that the copying is done—
i: in the course of preparation for instruction; or
ii: for use in the course of instruction; or
iii: in the course of instruction; or
iv: after the course of instruction,— where the lesson—
v: relates to the learning of a language; or
vi: is conducted by correspondence; and
b: that the copying is done by or on behalf of a person who is to give, is giving, or has given the lesson or by or on behalf of a person who is to receive, is receiving, or has received the lesson; and
c: that no charge is made for the supply of a copy to any student or other person who is to receive, is receiving, or has received the lesson.
5: Subsections (3) and (4) do not apply if or to the extent that licences authorising the copying of a work in the circumstances set out in subsection (4) are available under a licensing scheme and the person doing the copying knew that fact. Copyright, Designs and Patents Act 1988 s 32(2) (UK) Section 45(1) substituted 31 October 2008 section 27 Copyright (New Technologies) Amendment Act 2008
46: Anthologies for educational use
1: The copying of a short passage from a published work (being a literary, dramatic, or musical work) in a collection that—
a: is intended for use in educational establishments and is so described in its title, and in any advertisements issued by or on behalf of the publisher of that collection; and
b: consists mainly of material in which no copyright exists or in which copyright is owned by the publisher of that collection or the Crown— does not infringe copyright in the work if—
c: the publisher of the work did not intend it to be used in such establishments; and
d: the passage is accompanied by a sufficient acknowledgement.
2: Subsection (1) does not authorise the copying of more than 2 passages from copyright works by the same author in collections published by the same publisher over any period of 5 years.
3: In relation to any given passage, the reference in subsection (2) to passages from copyright works by the same author—
a: shall be taken to include passages from collective works of which that author is one of the authors; and
b: if the passage in question is from such a collective work, shall be taken to include passages from works by any of the authors, whether alone or in collaboration with another.
4: References in this section to the use of a work in an educational establishment are to any use for the educational purposes of such an establishment.
5: Subsection (1) does not apply to a literary work that is a computer program. 1962 No 33 s 19(6)
47: Performing, playing, or showing work in course of activities of educational establishment
1: The performance of a literary, dramatic, or musical work before an audience consisting of persons who are students or staff members at an educational establishment or are directly connected with the activities of the establishment—
a: by a student or staff member in the course of the activities of the establishment; or
b: at the establishment, by any person for the purposes of instruction,— is not a performance in public for the purposes of section 32(1)
2: The playing or showing, for the purposes of instruction, of a sound recording, film, or communication work to the audience described in subsection (1) at an educational establishment is not a playing or showing of the work in public for the purposes of section 32(2)
3: For the purposes of this section, a person shall not be treated as a person directly connected with the activities of an educational establishment by reason only that the person is a parent or guardian of a student at that educational establishment. 1962 No 33 s 21(5) Section 47(2) substituted 31 October 2008 section 28 Copyright (New Technologies) Amendment Act 2008
48: Copying and communication of communication work for educational purposes
1: This section applies when a copy of a communication work is—
a: made or communicated by or on behalf of an educational establishment; or
b: made and supplied by an educational resource supplier to an educational establishment.
2: In any case to which subsection (1)﻿(a) applies, the making or communication of a copy of the communication work by or on behalf of an educational establishment, and the subsequent communication of the copy within the educational establishment, does not infringe copyright in the communication work or in any work included in it if the copy is made or communicated for the educational establishment’s educational purposes.
3: In any case to which subsection (1)﻿(b) applies, the making and supply of a copy of the communication work by an educational resource supplier does not infringe copyright in the communication work or in any work included in it if the copy is made and supplied for the educational purposes of the educational establishment to which it is supplied.
4: However, the exclusions from infringement of copyright in subsections (2) and (3) do not apply to—
a: the copying of a communication work if or to the extent that—
i: licences authorising the copying of the communication work by or on behalf of educational establishments or by educational resource suppliers are available under a licensing scheme; and
ii: the educational establishment or the educational resource supplier, as the case may be, knew that fact; or
b: the communication of a communication work if or to the extent that—
i: licences authorising the communication of the copy by or on behalf of educational establishments are available under a licensing scheme; and
ii: the educational establishment knew that fact; or
c: the supply of a communication work by an educational resource supplier if or to the extent that—
i: licences authorising the supply of the communication work are available under a licensing scheme; and
ii: the educational resource supplier knew that fact. Section 48 substituted 31 October 2008 section 29 Copyright (New Technologies) Amendment Act 2008
49: Things done for purposes of examination
Copyright is not infringed by anything done for the purposes of an examination, whether by way of setting the questions, communicating the questions to the candidates, or answering the questions. 1962 No 33 s 21(4)﻿(b) Libraries and archives
50: Interpretation
1: In sections 51 to 56C archive
a: means—
i: Archives New Zealand (Te Rua Mahara o te Kāwanatanga); or
ii: the National Library; or
iii: the sound archive maintained by Radio New Zealand Limited; or
iv: the film archive maintained by Television New Zealand Limited; or
v: the film archive maintained by the New Zealand Film Archive Incorporated; or
vi: any collection of documents (within the meaning of section 2
b: includes, in relation only to its holding of public archives (within the meaning of section 4 prescribed library
a: the National Library; or
b: the Parliamentary Library; or
c: every law library provided and maintained under section 375(1) or provided and maintained by the New Zealand Law Society
d: a library maintained by an educational establishment, government department, or local authority; or
e: a library of any other class of library prescribed by regulations made under this Act, not being a library conducted for profit.
2: In sections 51 to 56C Copyright, Designs and Patents Act 1988 s 37(6) (UK) Section 50(1) amended 31 October 2008 section 30 Copyright (New Technologies) Amendment Act 2008 Section 50(1) archive substituted 21 April 2005 section 67(1) Public Records Act 2005 Section 50(1) archive substituted 21 April 2005 section 67(1) Public Records Act 2005 Section 50(1) prescribed library substituted 1 August 2008 section 348 Lawyers and Conveyancers Act 2006 Section 50(1) prescribed library amended 7 July 2010 section 4 Copyright Amendment Act 2010 Section 50(2) amended 31 October 2008 section 30 Copyright (New Technologies) Amendment Act 2008
51: Copying by librarians of parts of published works
1: The librarian of a prescribed library may, if the conditions contained in subsection (2) are complied with, make from a published edition (other than a published edition that is an article in a periodical), for supply to any person, a copy of a reasonable proportion of any literary, dramatic, or musical work, and may include in the copy any artistic work that appears within the proportion copied, without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.
2: The conditions referred to in subsection (1) are—
a: that no person is supplied on the same occasion with more than 1 copy of the same material; and
b: that, where any person to whom a copy is supplied is required to pay for the copy, the payment required is no higher than a sum consisting of the total of the cost of production of the copy and a reasonable contribution to the general expenses of the library.
3: Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, that person may use the copy only for the purposes of research or private study.
4: This section does not apply to a literary work that is a computer program.
5: In this section, copy section 56B 1962 No 33 s 21(1) Section 51(5) added 31 October 2008 section 31 Copyright (New Technologies) Amendment Act 2008
52: Copying by librarians of articles in periodicals
1: The librarian of a prescribed library may, if the conditions contained in subsection (2) are complied with, make for supply to any person a copy of—
a: a literary, dramatic, or musical work, and any artistic work included in that work, that is contained in an article in a periodical; or
b: a published edition that is an article in a periodical,— without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.
2: The conditions referred to in subsection (1) are—
a: that no person is supplied on the same occasion with more than 1 copy of the same article; and
b: that no person is supplied on the same occasion with copies of more than 1 article contained in the same issue of a periodical, unless the copies supplied all relate to the same subject matter; and
c: that, where any person to whom a copy is supplied is required to pay for the copy, the payment required is no higher than a sum consisting of the total of the cost of production of the copy and a reasonable contribution to the general expenses of the library.
3: Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, that person may use the copy only for the purposes of research or private study.
4: In this section, copy section 56B 1962 No 33 s 21(1) Section 52(4) added 31 October 2008 section 32 Copyright (New Technologies) Amendment Act 2008
53: Copying by librarians for users of other libraries
1: The librarian of a prescribed library may, if the condition contained in subsection (2) is complied with, make from a published edition, for supply to another prescribed library, a copy of,—
a: subject to paragraph (b), a reasonable proportion of any literary, dramatic, or musical work (and the librarian may include in the copy any artistic work that appears within the proportion copied):
b: in relation to a literary, dramatic, or musical work that is contained in an article in a periodical,—
i: the whole article and any artistic work included in that article; and
ii: if there is any other article in the same issue of the periodical relating to the same subject matter as the first article copied, the whole of that other article and any artistic work included in that article,— without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.
2: The condition referred to in subsection (1) is that a person has requested the library to which the copy is being supplied to supply him or her with the copy for the purposes of research or private study.
3: Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, that person may use the copy only for the purposes of research or private study.
4: This section does not apply to a literary work that is a computer program.
5: In this section, copy section 56C Section 53(5) added 31 October 2008 section 33 Copyright (New Technologies) Amendment Act 2008
54: Copying by librarians for collections of other libraries
1: The librarian of a prescribed library may, if the conditions contained in subsection (2) are complied with, make a copy of a literary, dramatic, or musical work and any artistic work included in the work, where the copy is—
a: from a published edition that is a book; and
b: for supply to the librarian of another prescribed library,— without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.
2: The conditions referred to in subsection (1) are that the librarian to whom the copy of the work is supplied—
a: has been unable to obtain the work at an ordinary commercial price within the 6 months preceding the supply; and
b: makes and keeps a record sufficient to identify the work copied; and
c: permits the inspection of the record by the copyright owner during normal office hours; and
d: pays, on demand, equitable remuneration to the copyright owner for the work copied.
3: In subsection (2)﻿(d), the term equitable remuneration section 168
4: This section does not apply to a literary work that is a computer program.
5: In this section, copy section 56C 1962 No 33 s 21(2) Section 54(5) added 31 October 2008 section 34 Copyright (New Technologies) Amendment Act 2008
55: Copying by librarians or archivists to replace copies of works
1: The librarian of a prescribed library or the archivist of an archive may make a copy (other than a digital copy)
a: preserving or replacing that item by placing the copy in the collection of the library or archive in addition to or in place of the item; or
b: replacing in the collection of another prescribed library or archive an item that has been lost, destroyed, or damaged,— without infringing copyright in any work included in the item.
2: Subsection (1) applies only where it is not reasonably practicable to purchase a copy of the item in question to fulfil the purpose.
3: The librarian of a prescribed library or the archivist of an archive may make a digital copy of any item (the original item
a: the original item is at risk of loss, damage, or destruction; and
b: the digital copy replaces the original item; and
c: the original item is not accessible by members of the public after replacement by the digital copy except for purposes of research the nature of which requires or may benefit from access to the original item; and
d: it is not reasonably practicable to purchase a copy of the original item.
4: The librarian of a prescribed library or the archivist of an archive may make a digital copy of any item (the original item
a: the digital copy is used to replace an item in the collection of another prescribed library or archive that has been lost, damaged, or destroyed; and
b: it is not reasonably practicable to purchase a copy of the original item. Copyright, Designs and Patents Act 1988 s 42 (UK) Section 55(1) amended 31 October 2008 section 35(1) Copyright (New Technologies) Amendment Act 2008 Section 55(3) added 31 October 2008 section 35(2) Copyright (New Technologies) Amendment Act 2008 Section 55(4) added 31 October 2008 section 35(2) Copyright (New Technologies) Amendment Act 2008
56: Copying by librarians or archivists of certain unpublished works
1: The librarian of a prescribed library or the archivist of an archive may, if the conditions contained in subsection (3) are complied with, copy for supply to any person a copy of an unpublished work in the library or archive, without infringing copyright in that work.
2: This section does not apply if the copyright owner has prohibited copying of the work and at the time the copy is made the librarian or archivist making it is, or ought to be, aware of that fact.
3: The conditions referred to in subsection (1) are—
a: that no person is supplied on the same occasion with more than 1 copy of the same work; and
b: that, where any person to whom a copy is supplied is required to pay for the copy, the payment required is no higher than a sum consisting of the total of the cost of production of the copy and a reasonable contribution to the general expenses of the library or archive.
4: Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, that person may use the copy only for the purposes of research or private study.
5: The provisions of this section do not apply to the sound archive maintained by Radio New Zealand Limited, the film archive maintained by Television New Zealand Limited, or the film archive maintained by the New Zealand Film Archive Incorporated.
6: In this section, copy section 56B 1962 No 33 s 21(3) Section 56(6) added 31 October 2008 section 36 Copyright (New Technologies) Amendment Act 2008
56A: Library or archive may communicate digital copy to authenticated users
1: The librarian of a prescribed library or the archivist of an archive does not infringe copyright in a work by communicating a digital copy of the work to an authenticated user if the following conditions are met:
a: the librarian or archivist has obtained the digital copy lawfully; and
b: the librarian or archivist ensures that each user is informed in writing about the limits of copying and communication allowed by this Act, including that a digital copy of a work may only be copied or communicated by the user in accordance with the provisions of this Act; and
c: the digital copy is communicated to the user in a form that cannot be altered or modified; and
d: the number of users who access the digital copy at any one time is not more than the aggregate number of digital copies of the work that—
i: the library or the archive has purchased; or
ii: for which it is licensed.
2: In subsection (1), authenticated user
a: has a legitimate right to use the services of the library or archive; and
b: can access the digital copy only through a verification process that verifies that the person is entitled to access the digital copy. Section 56A inserted 31 October 2008 section 37 Copyright (New Technologies) Amendment Act 2008
56B: Additional conditions for supply of copy of work in digital format by librarian or archivist under section 51, 52, or 56
A copy of a work to which section 51 52 56 A
a: the librarian or archivist must give A, when the copy is supplied, a written notice that sets out the terms of use of the copy; and
b: the librarian or archivist must, as soon as is reasonably practicable, destroy any additional copy made in the process of making the copy that is supplied to A. Section 56B inserted 31 October 2008 section 37 Copyright (New Technologies) Amendment Act 2008
56C: Additional condition for making digital copies under section 53 or 54
A copy of a work to which section 53 54 Section 56C inserted 31 October 2008 section 37 Copyright (New Technologies) Amendment Act 2008
57: Playing or showing sound recordings or films
1: The sound archive maintained by Radio New Zealand Limited may play a sound recording held in the archive to an audience consisting of members of the public, without infringing copyright in the sound recording or in any work included in the sound recording, if the condition contained in subsection (3) is complied with.
2: The film archive maintained by Television New Zealand Limited or by the New Zealand Film Archive Incorporated may show a film, and play any sound recording associated with the film, held in the archive to an audience consisting of members of the public, without infringing copyright in the film or in any sound recording associated with the film or in any work included in the film or sound recording, if the condition contained in subsection (3) is complied with.
3: The condition referred to in subsections (1) and (2) is that, where any person is required to pay to—
a: hear any sound recording played under subsection (1); or
b: see any film shown, and hear any sound recording associated with the film played, under subsection (2),— the payment required is no more than a reasonable contribution towards the maintenance of the archive in which the sound recording or film is held.
4: This section does not apply if or to the extent that licences authorising the playing of a sound recording, or the showing of a film and the playing of a sound recording associated with the film, by an archive to which this section applies are available and if the archive knew that fact.
57A: Making archived works available for public viewing
1: The communication of an archived work in accordance with section 29C
2: In this section, archived work section 29A Section 57A inserted 23 July 2011 section 14 Television New Zealand Amendment Act 2011 Public administration
58: Copying by Parliamentary Library for members of Parliament
1: An officer of the Parliamentary Library may, if the conditions contained in subsection (3) are complied with, supply to any member of Parliament a copy of a literary or dramatic work, and any artistic work included in that work, without infringing copyright in that literary, dramatic, or artistic work or the typographical arrangement of a published edition.
2: An officer of the Parliamentary Library may, if the conditions contained in subsection (3) are complied with, supply to any member of Parliament a recording of a communication work communication work communication work communication work
3: The conditions referred to in subsections (1) and (2) are—
a: that no member of Parliament is supplied on the same occasion with more than 1 copy or recording or transcript, as the case may be, of the same material; and
b: that the copy or recording or transcript is required by that member of Parliament for the purposes of performing his or her duties as such a member. Section 58(2) amended 31 October 2008 section 38 Copyright (New Technologies) Amendment Act 2008
59: Parliamentary and judicial proceedings
1: Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.
2: Copyright is not infringed by anything done for the purposes of reporting parliamentary or judicial proceedings. 1962 No 33 ss 19(4), 20(7)
60: Royal commissions and statutory inquiries
1: Copyright is not infringed by anything done for the purposes of the proceedings of a Royal commission, commission of inquiry, ministerial inquiry, or statutory inquiry.
2: Copyright is not infringed by anything done for the purposes of reporting any proceedings of a Royal commission, commission of inquiry, ministerial inquiry, or statutory inquiry that are held in public.
3: Copyright in a work is not infringed by the issue to the public of copies of the report of a Royal commission, commission of inquiry, ministerial inquiry, or statutory inquiry containing the work or material from it. Copyright, Designs and Patents Act 1988 s 46 (UK)
61: Material open to public inspection or on official register
1: Subject to any Order in Council made under subsection (4), where material is open to public inspection or public reference pursuant to a statutory requirement, or is on a statutory register, copyright in the material is not infringed by the copying of the material, by or with the authority of the appropriate person, for a purpose that does not involve the issuing of copies to the public.
2: Subject to any Order in Council made under subsection (4), where material is open to public inspection or public reference pursuant to a statutory requirement, copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.
3: Subject to any Order in Council made under subsection (4), where material that is open to public inspection or public reference pursuant to a statutory requirement, or that is on a statutory register, contains information about matters of general scientific, technical, commercial, or economic interest, copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of disseminating that information.
4: The Governor-General may from time to time, by Order in Council, provide that all or any of subsections (1) to (3) shall, in such cases as may be specified in the order, apply only to copies marked in such manner as may be so specified.
5: The Governor-General may from time to time, by Order in Council, provide that all or any of subsections (1) to (3) apply, to such extent and with such modifications as may be specified in the order, in relation to—
a: material made open to public inspection or public reference by—
i: an international organisation specified in the order; or
ii: a person specified in the order who has functions in New Zealand under an international agreement to which New Zealand is a party; or
b: a register maintained by an international organisation specified in the order,— as those provisions apply in relation to material open to public inspection or public reference pursuant to a statutory requirement or by virtue of being on a statutory register.
6: In this section,— appropriate person statutory register statutory requirement
7: An order under this section is secondary legislation ( see Part 3 1962 No 33 s 61 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 61(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
62: Material communicated to the Crown in course of public business
1: This section applies where—
a: a literary, dramatic, musical, or artistic work has, in the course of public business, been communicated to the Crown for any purpose, by or with the licence of the copyright owner; and
b: a document (within the meaning of section 2
2: The Crown may, for—
a: the purpose for which the work was communicated to the Crown; or
b: any related purpose that could reasonably have been anticipated by the copyright owner,— copy the work, and issue copies of the work to the public, without infringing copyright in the work.
3: The Crown may not copy a work, or issue copies of a work to the public, under this section if the work has previously been published otherwise than under this section.
4: In subsection (1), the term public business
5: This section has effect subject to any agreement to the contrary between the Crown and the copyright owner. Copyright, Designs and Patents Act 1988 s 48 (UK)
63: Use of copyright material for services of the Crown
1: Copyright in a work is not infringed by anything done in relation to the work, by or on behalf of the Crown or any person authorised in writing by a government department,—
a: for the purpose of national security or during a period of emergency; or
b: in the interests of the safety or health of the public or any members of the public.
2: Where any act is done under subsection (1), the Crown shall be liable to pay, out of money appropriated by Parliament for the purpose, equitable remuneration to the copyright owner upon such terms as may be agreed upon between the Crown and the copyright owner or, in the absence of agreement, upon such terms as shall be determined by the Tribunal.
3: No act to which subsection (1) applies shall—
a: constitute publication of a work; or
b: affect the term of copyright in a work. 1962 No 33 s 53(1), (3), (4)
64: Rights of third parties in respect of Crown use
1: No provision of any assignment or licence in force between the copyright owner and a person other than a government department shall be effective to prevent any act being done in relation to a copyright work, where that act is done under section 63
2: Where—
a: an act is done under section 63
b: an exclusive licence is in force in respect of the work in relation to which the act is done,— the Crown shall be liable to pay, out of money appropriated by Parliament for the purpose, equitable remuneration to the licensee upon such terms as may be agreed between the Crown and the licensee or, in the absence of agreement, upon such terms as shall be determined by the Tribunal.
3: Where—
a: a person has a right in relation to a work, by any licence other than an exclusive licence; and
b: a payment is made, in respect of that work, under section 63 the person is entitled to recover from the owner or exclusive licensee, as the case may be, such part of any payment as may be agreed between that person and the copyright owner or the exclusive licensee, as the case may be, or, in the absence of agreement, as shall be determined by the Tribunal. 1962 No 33 s 54
65: Proceedings against the Crown
1: Where any employee or agent of the Crown infringes copyright in a work, and the infringement is committed with the authority of the Crown, civil proceedings in respect of the infringement shall, subject to this Act, lie against the Crown under the Crown Proceedings Act 1950
2: Nothing in subsection (1) shall affect the rights of the Crown, or any person authorised by a government department, under section 63 1962 No 33 s 55(1), (2)
66: Acts done under statutory authority
1: Where the doing of a particular act is specifically authorised by an enactment, the doing of that act does not infringe copyright, unless the enactment provides otherwise.
2: Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or pursuant to any enactment. Copyright, Designs and Patents Act 1988 s 50 (UK) Literary, dramatic, musical, or artistic works
67: Acts permitted on assumptions as to expiry of copyright or death of author in relation to anonymous or pseudonymous works
1: Copyright in a literary, dramatic, musical, or artistic work is not infringed by any act done at a time when, or in pursuance of arrangements made at a time when,—
a: it is not possible for a person who wishes to do so to ascertain the identity of the author by reasonable inquiry; and
b: it is reasonable to assume—
i: that copyright has expired; or
ii: that the author died 50 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.
2: Subsection (1)﻿(b)﻿(ii) does not apply in relation to—
a: a work in which Crown copyright exists under section 26
b: a work—
i: in which copyright originally vested in an international organisation under section 28
ii: in respect of which an order made under that section specifies a copyright period longer than 50 years.
3: In relation to a work of joint authorship,—
a: the reference in subsection (1)﻿(a) to its being possible to ascertain the identity of the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors; and
b: the reference in subsection (1)﻿(b)﻿(ii) to the author having died shall be construed as a reference to all the authors having died. Copyright, Designs and Patents Act 1988 s 57 (UK)
68: Use of recording of spoken words in certain cases
1: Where a recording of spoken words is made, in writing or otherwise, for the purpose of—
a: reporting current events; or
b: communicating to the public it is not an infringement of copyright in the words as a literary work to use the recording or material taken from it (or to copy the recording, or any such material, and use the copy) for that purpose, if the conditions in subsection (2) are complied with.
2: The conditions referred to in subsection (1) are that—
a: the recording is a direct record of the spoken words and is not taken from a previous recording or from a communication work
b: the making of the recording was not prohibited by the speaker and, where copyright already existed in the work, did not infringe copyright; and
c: the use made of the recording or material taken from it is not of a kind prohibited by or on behalf of the speaker or copyright owner before the recording was made; and
d: the use is by or with the authority of a person who is lawfully in possession of the recording. Copyright, Designs and Patents Act 1988 s 58 (UK) Section 68(1)﻿(b) amended 31 October 2008 section 39(1) Copyright (New Technologies) Amendment Act 2008 Section 68(2)﻿(a) amended 31 October 2008 section 39(2) Copyright (New Technologies) Amendment Act 2008
69: Authorised entity types
1: An entity that is 1 or more of the following may undertake the activities set out in section 69A
a: an educational establishment:
b: an educational resource supplier:
c: a prescribed library within the meaning given in section 50(1)
d: a charitable entity that has a purpose consistent with making accessible format copies available to persons who have a print disability.
2: Before beginning activities under section 69A Section 69 replaced 4 January 2020 section 5 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019
69A: Accessible format copy activities by authorised entity
1: An authorised entity does not infringe copyright in the relevant work if the entity acts in accordance with this section.
2: An authorised entity may make an accessible format copy if the entity—
a: has taken all reasonable steps to notify the owner of the copyright in the work of its intention to make an accessible format copy; and
b: is making the copy to provide it only to persons who have a print disability, persons acting on their behalf, or other authorised entities; and
c: ensures that the copy respects the integrity of the original work, as far as is reasonably possible and taking into account changes needed to make the work accessible in the alternative format.
3: An authorised entity ( A B
a: has taken all reasonable steps to notify the owner of the copyright in the work of its intention to make an accessible format copy; and
b: is importing the copy to provide it only to persons who have a print disability, persons acting on their behalf, or other authorised entities; and
c: has taken all reasonable steps to ensure that the copy respects the integrity of the original work, as far as is reasonably possible and taking into account changes needed to make the work accessible in the alternative format.
4: An authorised entity may do 1 or more of the following:
a: export from New Zealand an accessible format copy to an authorised entity, or a person who has a print disability, in another Marrakesh Treaty country:
b: reproduce copies—
i: made or imported into New Zealand under this section; or
ii: provided to the entity under section 69B(2)﻿(c)
c: provide, by communication or otherwise, accessible format copies made or imported under this section or provided to the entity under section 69B(2)﻿(c)
i: persons in New Zealand who have a print disability or persons acting on their behalf; and
ii: other authorised entities in New Zealand. Section 69A inserted 4 January 2020 section 5 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019
69B: Accessible format copy activities by person who is not authorised entity
1: A person who is not an authorised entity does not infringe copyright in the relevant work if he or she—
a: has a print disability or is acting on behalf of someone who has a print disability; and
b: intends the accessible format copy to be only for the use of the person who has a print disability; and
c: acts in accordance with subsection (2).
2: The person may do 1 or more of the following:
a: make an accessible format copy that respects the integrity of the original work, as far as is reasonably possible and taking into account changes needed to make the work accessible in the alternative format:
b: import into New Zealand an accessible format copy from an authorised entity in another Marrakesh Treaty country:
c: provide the accessible format copy that he or she made or imported under paragraph (a) or (b) to an authorised entity. Section 69B inserted 4 January 2020 section 5 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019
69C: Duties of authorised entity in regard to records and fees
1: An authorised entity must—
a: make and keep a record of a work of which it has—
i: made, provided, reproduced, imported, or exported an accessible format copy under section 69A
ii: received an accessible format copy under section 69B(2)﻿(c)
b: permit the copyright owner to inspect the record—
i: during normal office hours; or
ii: at any reasonable time, if the entity does not have office hours.
2: An authorised entity may charge a fee for providing an accessible format copy to a person, but the fee must not be higher than the sum of the cost to the entity of making, providing, reproducing, importing, or exporting the copy (as applicable) and a reasonable contribution to the general expenses of the entity. Section 69C inserted 4 January 2020 section 5 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019
69D: Ministry must publish list of authorised entities on Internet site
The Ministry must publish on its Internet site a list of authorised entities that have given notice under section 69(2) Section 69D inserted 4 January 2020 section 5 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019
70: Public reading or recitation
1: The reading in public or recitation in public by 1 person of a reasonable extract from a published literary or dramatic work shall not be treated as a performance in public for the purposes of section 32(1)
2: Copyright in a work is not infringed by the making of a sound recording, or the communication to the public, of a reading or recitation that under subsection (1) is not treated as a performance in public, if the recording or communication work consists mainly of material in relation to which it is not necessary to rely on that subsection. 1962 No 33 s 19(8) Section 70(2) substituted 31 October 2008 section 41 Copyright (New Technologies) Amendment Act 2008
71: Abstracts of scientific or technical articles
Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of the abstract to the public. Copyright, Designs and Patents Act 1988 s 60(1) (UK)
72: Recordings of folk songs
1: A sound recording of a performance of a song may be made for the purpose of including the song in an archive maintained by a body prescribed by regulations made under this Act, without infringing copyright in the words as a literary work or in the accompanying musical work, if the conditions in subsection (2) are complied with.
2: The conditions referred to in subsection (1) are that—
a: the words are unpublished and of unknown authorship at the time the recording is made; and
b: the making of the recording does not infringe any other copyright; and
c: the making of the recording is not prohibited by any performer.
3: Copies of a sound recording made in reliance on subsection (1) and included in an archive maintained by a body prescribed by regulations made under this Act may, if the condition contained in subsection (4) is complied with, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.
4: The condition referred to in subsection (3) is that no person is furnished with more than 1 copy of the same recording. Copyright, Designs and Patents Act 1988 s 61 (UK)
73: Representation of certain artistic works on public display
1: This section applies to the following works:
a: buildings:
b: works (being sculptures, models for buildings, or works of artistic craftsmanship) that are permanently situated in a public place or in premises open to the public.
2: Copyright in a work to which this section applies is not infringed by—
a: copying the work by making a graphic work representing it; or
b: copying the work by making a photograph or film of it; or
c: communicating to the public a visual image of the work.
3: Copyright is not infringed by the issue to the public of copies, or the communication to the public, of anything the making of which was, under this section, not an infringement of copyright. Copyright, Designs and Patents Act 1988 s 62 (UK) Section 73(2)﻿(c) substituted 31 October 2008 section 42(1) Copyright (New Technologies) Amendment Act 2008 Section 73(3) substituted 31 October 2008 section 42(2) Copyright (New Technologies) Amendment Act 2008
74: Special exception from protection of literary or artistic works
1: The making of any object in 3 dimensions (including, subject to subsection (2), a copy in 2 dimensions reasonably required for the making of the object) does not infringe copyright in a literary or artistic work, if the work or a copy of it forms part of—
a: a patent specification that—
i: is open to public inspection in the Intellectual Property Office of New Zealand in respect of a New Zealand patent that, for any reason, has ceased to have effect; and
ii: is used for the purpose of making the object; or
b: a representation or specimen of a design that—
i: is open to public inspection in the Intellectual Property Office of New Zealand 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: Subsection (1) does not authorise—
a: the making of a copy in 2 dimensions of an artistic work—
i: to which subsection (1) applies; and
ii: that is in 2 dimensions,— where the copy is made directly from that artistic work; or
b: the making of a copy of a literary work to which subsection (1) applies, where the copy is made directly from that literary work.
3: If a patent that has ceased to have effect is restored by an order made under subpart 12
4: If the registered protection in New Zealand of a design that has ceased to have effect is restored by an order made under section 41A 1962 No 33 s 20A 1985 No 134 s 4 Section 74(1) replaced 13 September 2014 section 249 Patents Act 2013 Section 74(3) replaced 13 September 2014 section 249 Patents Act 2013 Section 74(4) added 19 April 2011 section 8 Designs Amendment Act 2010
75: Special exception from protection of artistic work that has been applied industrially
1: The making of—
a: any object in 3 dimensions; or
b: subject to subsection (3), a copy in 2 dimensions reasonably required for the making of the object— does not infringe copyright in an artistic work if, when the object or copy is made, the artistic work has been applied industrially, in New Zealand or in any other country, by or with the licence of the copyright owner,—
c: in the case of a work of artistic craftsmanship, more than 25 years before the object or copy is made:
d: in the case of a sculpture that is a cast or pattern for an object that has a primarily utilitarian function, more than 16 years before the object or copy is made:
e: subject to subsection (2), in the case of any other artistic work, more than 16 years before the object or copy is made.
2: Subsection (1) does not apply to—
a: a sculpture that is not a cast or pattern for an object that has a primarily utilitarian function; or
b: a work of architecture, being a building or a model for a building.
3: Subsection (1) does not authorise the making of a copy in 2 dimensions of an artistic work that is in 2 dimensions, where the copy is made directly from that artistic work.
4: For the purposes of subsection (1), an artistic work is applied industrially if—
a: more than 50 copies in 3 dimensions are made of the work, for the purposes of sale or hire; or
b: the work is copied in 3 dimensions in 1 or more objects manufactured in lengths, for the purposes of sale or hire; or
c: the work is copied as a plate that has been used to produce—
i: more than 50 copies of an object in 3 dimensions for the purpose of sale or hire; or
ii: 1 or more objects in 3 dimensions manufactured in lengths for the purposes of sale or hire.
5: For the purposes of subsection (4), 2 or more copies in 3 dimensions that are of the same general character and intended for use together are a single copy. 1962 No 33 s 20B 1985 No 134 s 5
76: Special exception from protection of literary and artistic works relating to medicines
The copying or adaptation or publication of a literary work or an artistic work does not infringe copyright in that work if that work—
a: relates to a medicine that has been imported by the Crown pursuant to section 32A
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. 1962 No 33 s 20C 1990 No 71 s 5
77: Making of subsequent works by same artist
Where the author of an artistic work is not the copyright owner, he or she does not infringe copyright in that work by copying the work in making another artistic work, if the main design of the earlier work is not repeated or imitated. 1962 No 33 s 20(9)
78: Reconstruction of buildings
Anything done for the purposes of reconstructing a building does not infringe copyright—
a: in the building; or
b: in any drawings or plans in accordance with which the building was, by or with the licence of the copyright owner, constructed. 1962 No 33 s 20(10) Computer programs, sound recordings, and films
79: Rental by educational establishments and libraries
Copyright in a work (being a computer program, sound recording, or film) is not infringed by the rental of that work to any person by an educational establishment or a prescribed library within the meaning of section 50
a: the educational establishment or prescribed library does not effect the rental of the work for the purposes of making a profit; and
b: the work that is the subject of the rental has previously been put into circulation with the licence of the copyright owner.
80: Back-up copy of computer program
1: Subject to subsection (3), copyright in a computer program is not infringed by the making of a copy of the computer program if—
a: the copy is made by or on behalf of the lawful user of the copy of the program (in this section referred to as the original copy
b: the copy is made solely for the purpose of being used by or on behalf of the lawful user of the original copy—
i: instead of the original copy in order to preserve the original copy for use if the copy is lost, destroyed, or rendered unusable; or
ii: if the original copy is lost, destroyed, or rendered unusable.
2: If the original copy is lost, destroyed, or rendered unusable, the copy made pursuant to subsection (1) shall be deemed for the purposes of this section to be the original copy.
3: Subsection (1) does not apply to the making of a copy of a computer program—
a: from an infringing copy of the computer program; or
b: contrary to an express direction by or on behalf of the owner of the copyright in the computer program given to the lawful user of the original copy not later than the time when the lawful user of the original copy acquired that original copy.
4: For the purposes of this section,—
a: a reference to a computer program includes a reference to an adaptation of that program; and
b: a reference to a copy of a computer program is a reference to any object in which the program is reproduced in a material form; and
c: a reference to an express direction, in relation to a copy of a computer program, includes a reference to a clearly legible direction printed on the copy or on a package in which the copy is supplied. Copyright Act 1968 s 43A (Aust)
80A: Decompilation of computer program
1: The lawful user of a copy of a computer program expressed in a low level language does not infringe copyright in the program by decompiling it, if the conditions in subsection (2) are met.
2: The conditions referred to in subsection (1) are that—
a: decompilation is necessary to obtain information necessary for the objective of creating an independent program that can be operated with the program decompiled or with another program; and
b: the information obtained from the decompilation is not used for any purpose other than the objective referred to in paragraph (a).
3: In particular, the conditions in subsection (2) are not met if—
a: the information necessary to create the independent program is readily available to the lawful user without decompiling the computer program; or
b: the lawful user does not confine decompilation of the computer program strictly to the steps that are necessary to create an independent program; or
c: the lawful user gives the information obtained from decompiling the computer program to any person when it is not necessary for creating an independent program to do so; or
d: the lawful user uses the information obtained from decompiling the computer program to create a program that is substantially similar in its expression to the program that has been decompiled; or
e: the lawful user uses the information obtained from decompiling the computer program to do any act that is restricted by copyright.
4: In this section, decompile
a: to convert a computer program expressed in a low level language into a version expressed in a higher level language; or
b: to copy the program as a necessary incident of converting it into that version. Section 80A inserted 31 October 2008 section 43 Copyright (New Technologies) Amendment Act 2008
80B: Copying or adapting computer program if necessary for lawful use
1: The lawful user of a computer program ( A
a: copying or adapting it is necessary for A’s lawful use of the program (for example, to correct an error in the program); and
b: a properly functioning and error-free copy of the program is not available to A within a reasonable time at an ordinary commercial price.
2: This section does not apply to copying or adapting that is permitted under section 80A 80C Section 80B inserted 31 October 2008 section 43 Copyright (New Technologies) Amendment Act 2008
80C: Observing, studying, or testing of computer program
The lawful user of a computer program ( A Section 80C inserted 31 October 2008 section 43 Copyright (New Technologies) Amendment Act 2008
80D: Certain contractual terms relating to use of computer programs have no effect
A term or condition in an agreement for the use of a computer program has no effect in so far as it prohibits or restricts any activity undertaken in accordance with section 80A(2) 80B(1) Section 80D inserted 31 October 2008 section 43 Copyright (New Technologies) Amendment Act 2008
81: Playing of sound recordings for purposes of club, society, etc
1: It is not an infringement of copyright in a sound recording to play the sound recording as part of the activities of, or for the benefit of, a club, society, or other organisation, if the conditions contained in subsection (2) are complied with.
2: The conditions referred to in subsection (1) are—
a: that the club, society, or organisation is not established or conducted for profit; and
b: that the main objects of the club, society, or organisation are charitable or are otherwise concerned with the advancement of religion, education, or social welfare; and
c: that the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the club, society, or organisation. 1962 No 33 s 13(6)
81A: Copying sound recording for personal use
1: Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:
a: the sound recording is not a communication work or part of a communication work; and
b: the copy is made from a sound recording that is not an infringing copy; and
c: the sound recording is not borrowed or hired; and
d: the copy is made by the owner of the sound recording; and
e: that owner acquired the sound recording legitimately; and
f: the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and
g: no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and
h: the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.
2: For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that specifies the circumstances in which the sound recording may be copied. Section 81A inserted 31 October 2008 section 44 Copyright (New Technologies) Amendment Act 2008 Communication works Heading substituted 31 October 2008 section 45 Copyright (New Technologies) Amendment Act 2008
82: Recording for purposes of maintaining standards in programmes
The author of a communication work does not infringe copyright in it, or in any work included in it, by recording it, if the recording is made and used solely for the purpose of checking on the maintenance of standards in communication works made by the author. Section 82 substituted 31 October 2008 section 45 Copyright (New Technologies) Amendment Act 2008
83: Recording for purposes of complaining
1: A person ( A
2: However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the recording, if A retains the recording for any longer than is reasonably necessary to prepare and despatch the complaint.
3: If a person infringes copyright under subsection (2), the recording is treated as an infringing copy.
4: In this section and in section 84 complaint authority Section 83 substituted 31 October 2008 section 45 Copyright (New Technologies) Amendment Act 2008
84: Recording for purposes of time shifting
1: A person ( A
a: A makes the recording solely for A’s personal use or the personal use of a member of the household in which A lives or both; and
b: A makes the recording solely for the purpose of viewing or listening to the recording at a more convenient time; and
c: the recording is not made from an on-demand service; and
d: A has lawful access to the communication work at the time of making the recording.
2: However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the communication work, if—
a: A retains the recording for any longer than is reasonably necessary for viewing or listening to the recording at a more convenient time; or
b: in the event that the person who views or listens to the recording wishes to make a complaint to a complaint authority, A retains the recording for any longer than is reasonably necessary to prepare and despatch the complaint.
3: If a person infringes copyright under subsection (2), the recording is treated as an infringing copy. Example
A records a movie to be screened on television because she will be at work when it screens. She watches the movie on the weekend and then later tapes over it. Provided the conditions in s 84(1) are met, the copy that A makes is not an infringing copy. B copies music from a streamed Internet audio service and keeps the copy as part of B’s music collection, in order to listen to it multiple times on demand. Copies made for the home library or collection in this way are infringing copies. Section 84 substituted 31 October 2008 section 45 Copyright (New Technologies) Amendment Act 2008
85: Incidental recording for purposes of
communication
1: This section applies where, under an assignment or a licence, a person is authorised to communicate the following works to the public:
a: a literary, dramatic, or musical work, or an adaptation of that work; or
b: an artistic work; or
c: a sound recording or film.
2: Where this section applies, the person so authorised may, without the consent of the copyright owner but only if the conditions contained in subsection (3) are complied with, do or authorise the doing of any of the following acts for the purposes of the communication work
a: in the case of a literary, dramatic, or musical work, or an adaptation of such a work, copy the work or adaptation by making a sound recording or film of the work or adaptation:
b: in the case of an artistic work, copy the work by taking a photograph or making a film of the work:
c: in the case of a sound recording or a film, make a copy of the recording or film.
3: The conditions referred to in subsection (2) are—
a: that the recording, film, photograph, or copy is not used for any other purpose; and
b: that the recording, film, photograph, or copy is destroyed within 6 months of being first used for communicating the work to the public Archives New Zealand (Te Rua Mahara o te Kāwanatanga)
4: A recording, film, photograph, or copy made in accordance with this section shall be treated as an infringing copy—
a: for the purposes of any use in breach of the condition contained in subsection (3)﻿(a); and
b: for all purposes after either of the conditions contained in subsection (3) is broken. 1962 No 33 s 19(9), (10) Section 85 heading amended 31 October 2008 section 46(1) Copyright (New Technologies) Amendment Act 2008 Section 85(1) substituted 31 October 2008 section 46(2) Copyright (New Technologies) Amendment Act 2008 Section 85(2) amended 31 October 2008 section 46(3) Copyright (New Technologies) Amendment Act 2008 Section 85(3)﻿(b) amended 31 October 2008 section 46(4) Copyright (New Technologies) Amendment Act 2008 Section 85(3)﻿(b) amended 21 April 2005 section 67(1) Public Records Act 2005
86: Photographs of television broadcasts or cable programmes
Section 86 repealed 31 October 2008 section 47 Copyright (New Technologies) Amendment Act 2008
87: Free public playing or showing of communication work
1: The free public playing or showing of a communication work (other than a communication work to which section 87A
a: the communication work; or
b: any sound recording or film included in the communication work.
2: For the purposes of this section, the public playing or showing of a communication work is not free if—
a: the audience has paid for admission to—
i: the place where the communication work is played or shown (which in this section is called the venue
ii: any place of which the venue is a part; or
b: goods or services are supplied at the venue or a place of which it forms part at prices that—
i: are substantially attributable to the facilities afforded for hearing or seeing the communication work; or
ii: exceed those usually charged there and that are partly attributable to those facilities; or
c: the venue is a hotel, motel, camping ground, or any other place that admits persons for a fee for purposes of temporary accommodation, and the audience is made up of persons residing at that hotel, motel, camping ground, or other place.
3: For the purposes of subsection (2)﻿(a), the following persons must not be treated as having paid for admission to the venue:
a: a person admitted as a resident or an inmate of a place (other than a hotel, motel, camping ground, or any other place to which subsection (2)﻿(c) applies):
b: a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society. Section 87 substituted 16 September 2011 section 5(1) Copyright Amendment Act 2011
87A: Free public playing or showing of communication work that is simultaneous with reception
1: This section applies to the playing or showing of a communication work that—
a: is made for reception in the area in which it is played or shown; and
b: is not a communication work for which a subscription fee must be paid in order to receive it; and
c: is played or shown simultaneously upon reception of the communication work.
2: The free public playing or showing of a communication work to which this section applies does not infringe any copyright in—
a: the communication work; or
b: any sound recording or film that is played or shown in public by reception of the communication work.
3: For the purposes of this section, the public playing or showing of a communication work is not free if—
a: the audience has paid for admission to the place where the communication work is played or shown (which in this section is called the venue
b: goods or services are supplied at the venue or a place of which it forms part at prices that—
i: are substantially attributable to the facilities afforded for hearing or seeing the communication work; or
ii: exceed those usually charged there and that are partly attributable to those facilities.
4: For the purposes of subsection (3)﻿(a), the following persons must not be treated as having paid for admission to the venue:
a: a person admitted as a resident or an inmate of a place (including a person residing in a hotel, motel, camping ground, or any other place that admits persons for a fee for the purpose of temporary accommodation):
b: a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society. Section 87A inserted 16 September 2011 section 5(1) Copyright Amendment Act 2011
87B: Assessment of damages for infringement of copyright in sound recording or film
Where the making of a communication work is an infringement of copyright, the fact that the work was heard or seen in public by the reception of the communication work must be taken into account in assessing the damages for the infringement. Section 87B inserted 16 September 2011 section 5(1) Copyright Amendment Act 2011
88: Reception and retransmission of broadcast in cable programme service
1: This section applies where a broadcast made from a place in New Zealand is, by reception and immediate retransmission, included in a cable programme service.
2: Where this section applies,—
a: copyright in the broadcast is not infringed if and to the extent that the broadcast—
i: is made for reception in the area in which the cable programme service is provided; and
ii: is not a satellite transmission or an encrypted transmission:
b: copyright in any work included in the broadcast is not infringed if and to the extent that the broadcast is made for reception in the area in which the cable programme service is provided:
c: where the making of the broadcast was an infringement of the copyright in any work included in the broadcast, the fact that the broadcast was retransmitted as a programme in a cable programme service shall be taken into account in assessing the damages for that infringement.
3: This section does not apply if or to the extent that licences authorising the reception and immediate retransmission of a broadcast and any work included in the broadcast are available to the person providing the cable programme service under a licensing scheme and the person providing the cable programme service knew that fact.
4: For the purposes of this section only,—
a: sections 3 and 4 of this Act before repeal by the Copyright (New Technologies) Amendment Act 2008 this Act
b: the definition of broadcast in section 2(1) of this Act before repeal by the Copyright (New Technologies) Amendment Act 2008 1962 No 33 s 60 Section 88(4) added 31 October 2008 section 49 Copyright (New Technologies) Amendment Act 2008
89: Provision of subtitled copies of communication work
1: A body prescribed by regulation made under this Act may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally disabled in any other way, with copies that are subtitled or otherwise modified for their special needs, make copies of a communication work and issue copies to the public, without infringing any copyright in the communication work or in any work included in the communication work.
2: A body must not be prescribed for the purposes of subsection (1) if it is established or conducted for profit. Section 89 substituted 31 October 2008 section 50 Copyright (New Technologies) Amendment Act 2008
90: Recording for archival purposes
1: A person ( A
a: the communication work is in a class of communication work prescribed by regulations made under this Act; and
b: A makes the recording or the copy for the purpose of placing it in an archive maintained by a body prescribed by regulations made under this Act.
2: A body shall not be prescribed for the purposes of subsection (1) if it is established or conducted for profit. Copyright, Designs and Patents Act 1988 s 75 (UK) Section 90(1) substituted 31 October 2008 section 51 Copyright (New Technologies) Amendment Act 2008
91: Recording by media monitors
1: This section applies to a recording, or a transcript of a recording, of a communication work that consists wholly or substantially of news or reports or discussions of current events.
1A: The person who makes the recording or transcript does not infringe copyright in the communication work, or in any work included in the communication work, if the conditions in subsection (2) are complied with.
2: The conditions referred to in subsection (1A)
a: that the recording—
i: is played solely to enable the making of a transcript of it; and
ii: is destroyed as soon as is reasonably practicable after the transcript is made and not later than 1 month after the recording is made; and
b: that the transcript of the recording is made only—
i: by or on behalf of the person who made the recording; and
ii: for the use of that person or in response to a request from another person for a transcript of the recording; and
c: that copies of the transcript are made only—
i: by or on behalf of the person who made the recording; and
ii: for the use of that person or in response to a request from another person for a copy of a transcript of the recording; and
d: that the person who made the recording pays equitable remuneration to the copyright owner.
3: In subsection (2)﻿(d), the term equitable remuneration section 168
4: This section does not apply if or to the extent that licences authorising the recording of the communication work Section 91(1) substituted 31 October 2008 section 52(1) Copyright (New Technologies) Amendment Act 2008 Section 91(1A) inserted 31 October 2008 section 52(1) Copyright (New Technologies) Amendment Act 2008 Section 91(2) amended 31 October 2008 section 52(2) Copyright (New Technologies) Amendment Act 2008 Section 91(4) amended 31 October 2008 section 52(3) Copyright (New Technologies) Amendment Act 2008 Adaptations
92: Adaptations
An act that under this Act may be done without infringing copyright in a literary, dramatic, or musical work does not, where that work is an adaptation, infringe any copyright in the work from which the adaptation was made. Copyright, Designs and Patents Act 1988 s 76 (UK) Internet service provider liability Heading inserted 31 October 2008 section 53 Copyright (New Technologies) Amendment Act 2008
92A: Internet service provider must have policy for terminating accounts of repeat infringers
Section 92A repealed 1 September 2011 section 4 Copyright (Infringing File Sharing) Amendment Act 2011
92B: Internet service provider liability if user infringes copyright
1: This section applies if a person ( A
2: Merely because A uses the Internet services of the Internet service provider in infringing the copyright, the Internet service provider, without more,—
a: does not infringe the copyright in the work:
b: must not be taken to have authorised A’s infringement of copyright in the work:
c: subject to subsection (3), must not be subject to any civil remedy or criminal sanction.
2A: An Internet service provider does not infringe the copyright in the work, or authorise A's infringement of the copyright in the work, merely because the Internet service provider knows of the infringement from information received as a result of anything done under sections 122A to 122U section 234(eb) to (eh)
3: However, nothing in this section limits the right of the copyright owner to injunctive relief in relation to A’s infringement or any infringement by the Internet service provider.
4: In subsections (1) and (2), Internet services section 2(1) Section 92B inserted 31 October 2008 section 53 Copyright (New Technologies) Amendment Act 2008 Section 92B(2A) inserted 1 September 2011 section 5 Copyright (Infringing File Sharing) Amendment Act 2011
92C: Internet service provider liability for storing infringing material
1: This section applies if—
a: an Internet service provider stores material provided by a user of the service; and
b: the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).
2: The Internet service provider does not infringe copyright in the work by storing the material unless—
a: the Internet service provider—
i: knows or has reason to believe that the material infringes copyright in the work; and
ii: does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or
b: the user of the service who provided the material is acting on behalf of, or at the direction of, the Internet service provider.
3: A court, in determining whether, for the purposes of subsection (2), an Internet service provider knows or has reason to believe that material infringes copyright in a work, must take account of all relevant matters, including whether the Internet service provider has received a notice of infringement in relation to the infringement.
4: An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.
5: Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider. Section 92C inserted 31 October 2008 section 53 Copyright (New Technologies) Amendment Act 2008
92D: Requirements for notice of infringement
A notice referred to in section 92C(3)
a: contain the information prescribed by regulations made under this Act; and
b: be signed by the copyright owner or the copyright owner’s duly authorised agent. Section 92D inserted 31 October 2008 section 53 Copyright (New Technologies) Amendment Act 2008
92E: Internet service provider does not infringe copyright by caching infringing material
1: An Internet service provider does not infringe copyright in a work by caching material if the Internet service provider—
a: does not modify the material; and
b: complies with any conditions imposed by the copyright owner of the material for access to that material; and
c: does not interfere with the lawful use of technology to obtain data on the use of the material; and
d: updates the material in accordance with reasonable industry practice.
2: However, an Internet service provider does infringe copyright in a work by caching material if the Internet service provider does not delete the material or prevent access to it by users as soon as possible after the Internet service provider became aware that—
a: the material has been deleted from its original source; or
b: access to the material at its original source has been prevented; or
c: a court has ordered that the material be deleted from its original source or that access to the material at its original source be prevented.
3: Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.
4: In this section,— cache
a: controlled through an automated process; and
b: temporary; and
c: for the sole purpose of enabling the Internet service provider to transmit the material more efficiently to other users of the service on their request original source Section 92E inserted 31 October 2008 section 53 Copyright (New Technologies) Amendment Act 2008 Subsequent dealings
93: Subsequent dealings with copies made under this Part
1: Where a copy that would otherwise be an infringing copy—
a: is either—
i: made in accordance with any of the provisions of this Act referred to in subsection (2); or
ii: made in accordance with any of the provisions of this Act referred to in subsection (2) and, where the provision in accordance with which the copy is made allows the copy to be dealt with, is dealt with; and
b: is subsequently dealt with,— it shall be treated as an infringing copy—
c: for the purposes of the dealing referred to in paragraph (b), unless that dealing is an authorised dealing; and
d: for the purposes of any dealing that is subsequent to the dealing referred to in paragraph (b), unless the first-mentioned dealing is an authorised dealing.
2: The provisions referred to in subsection (1) are as follows:
a: section 43A
b: section 44
c: section 44A
d: section 45
e: section 48
f: section 49
g: section 51
h: section 52
i: section 53
j: section 55
k: section 56
l: sections 56A to 56C
m: section 58
n: sections 69A 69B
o: section 80A
p: section 80B
q: section 81A
r: section 83
s: section 84
t: section 90
u: section 92C
v: section 92E
3: In subsection (1), the term dealt with
a: sold or let for hire in the course of a business or otherwise; or
b: offered or exposed for sale or hire in the course of a business. Copyright, Designs and Patents Act 1988 ss 32(5), 35(3), 36(5) (UK) Section 93(2) substituted 31 October 2008 section 54 Copyright (New Technologies) Amendment Act 2008 Section 93(2)﻿(n) replaced 4 January 2020 section 6 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019
4: Moral rights
Right to be identified as author or director
94: Right to be identified as author or director
1: Subject to section 97
a: the author of a literary, dramatic, musical, or artistic work that is a copyright work has the right to be identified as the author of the work; and
b: the director of a film that is a copyright work has the right to be identified as the director of the work,— in the circumstances described in this section, but the right is not infringed unless it has been asserted in accordance with section 96
2: The author of a literary work (other than words intended to be sung or spoken with music) or a dramatic work has the right to be identified as the author of the work whenever—
a: the work is published commercially, performed in public, or communicated to the public
b: copies of a film or sound recording including the work are issued to the public.
3: The author of—
a: a literary work (other than words intended to be sung or spoken with music); or
b: a dramatic work— from which an adaptation is made has the right to be identified as the author of the work from which the adaptation is made whenever any of the events described in subsection (2) occurs in relation to the adaptation of the work.
4: The author of a musical work, or a literary work consisting of words intended to be sung or spoken with music, has the right to be identified as the author of the work whenever—
a: the work is published commercially; or
b: copies of a sound recording of the work are issued to the public; or
c: a film whose soundtrack includes the work is shown in public; or
d: copies of such a film are issued to the public.
5: The author of—
a: a musical work; or
b: a literary work consisting of words intended to be sung or spoken with music— from which an adaptation is made has the right to be identified as the author of the work from which the adaptation is made whenever any of the events described in subsection (4) occurs in relation to the adaptation of the work.
6: The author of an artistic work has the right to be identified as the author of the work whenever—
a: the work is published commercially or exhibited in public; or
b: a visual image of the work is communicated to the public
c: a film including a visual image of the work is shown in public; or
d: copies of such a film are issued to the public; or
e: in the case of a sculpture, a work of architecture in the form of a building or a model for a building, or a work of artistic craftsmanship, copies of a graphic work representing the work, or of a photograph of the work, are issued to the public.
7: The author of a work of architecture in the form of a building has the right to be identified as such on the building as constructed or, where more than 1 building is constructed to the design, on the first to be constructed.
8: The director of a film has the right to be identified as the director of the film whenever—
a: the film is shown in public or communicated to the public; or
b: copies of the film are issued to the public. Copyright, Designs and Patents Act 1988 s 77(1)–(6), (9) (UK) Section 94(2)﻿(a) amended 31 October 2008 section 55(1) Copyright (New Technologies) Amendment Act 2008 Section 94(6)﻿(b) amended 31 October 2008 section 55(2) Copyright (New Technologies) Amendment Act 2008 Section 94(8)﻿(a) substituted 31 October 2008 section 55(3) Copyright (New Technologies) Amendment Act 2008
95: Content of right to be identified
1: The right conferred by section 94
a: in the case of commercial publication, or the issue to the public of copies of a film or sound recording, to be identified clearly and reasonably prominently—
i: in or on each copy published commercially or issued, as the case may be; or
ii: if identification in or on each copy is not appropriate, in some other manner likely to bring his or her identity to the attention of a person acquiring a copy:
b: in the case of identification on a building, to be identified by appropriate means visible to persons entering or approaching the building:
c: in any other case, to be identified clearly and reasonably prominently in a manner likely to bring his or her identity to the attention of a person seeing or hearing the performance, exhibition, showing, communication work
2: For the purposes of subsection (1), if the author or director, in asserting his or her right to be identified, specifies a pseudonym, initials, or some other particular form of identification, that form shall be used, but, in any other case, any reasonable form of identification may be used. Copyright, Designs and Patents Act 1988 s 77(7), (8) (UK) Section 95(1)﻿(c) amended 31 October 2008 section 56 Copyright (New Technologies) Amendment Act 2008
96: Right must be asserted
1: A person does not infringe the right conferred by section 94
2: The right may be asserted generally, or in relation to any specified circumstances,—
a: on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his or her right to be identified as the author or director, as the case may be; or
b: at any time, by instrument in writing signed by the author or director.
3: The right may be asserted in relation to the public exhibition of an artistic work—
a: by ensuring that when the author or other first owner of copyright parts with possession of the original, or of a copy made by him or her or under his or her direction or control, the author is identified as the author on the original or copy, or on a frame, mount, or other thing to which it is attached; or
b: by including in any licence by which the author or other first owner of copyright authorises the making of copies of the work a statement signed by or on behalf of the author or other first owner of the copyright that the author asserts his or her right to be identified as the author in the event of the public exhibition of a copy made in pursuance of the licence.
4: The persons bound by an assertion of the right under subsection (2) or subsection (3) are,—
a: in the case of an assertion under subsection (2)﻿(a), the assignee and anyone claiming through the assignee, whether or not the person claiming through the assignee has notice of the assertion; and
b: in the case of an assertion under subsection (2)﻿(b), anyone to whose notice the assertion is brought; and
c: in the case of an assertion under subsection (3)﻿(a), anyone into whose hands that original or copy comes, whether or not the identification is still present or visible; and
d: in the case of an assertion under subsection (3)﻿(b), the person to whom the licence is granted and any person into whose hands a copy made in pursuance of the licence comes, whether or not the person has notice of the assertion.
5: In an action for infringement of the right, the court shall, in considering remedies, take into account any delay in asserting the right. Copyright, Designs and Patents Act 1988 s 78 (UK)
97: Exceptions to right to be identified
1: The right conferred by section 94
2: The right does not apply in relation to—
a: a computer program; or
b: a computer-generated work; or
c: the design of a typeface.
3: The right is not infringed by an act that, under any of the following provisions of this Act, would not infringe copyright in the work:
a: section 41
b: section 42
c: section 43A
d: section 49
e: section 59
f: section 60
g: section 67
h: section 81A
4: The right does not apply in relation to any work made for the purpose of reporting current events.
5: The right does not apply in relation to the publication, in—
a: a newspaper, magazine, or similar periodical; or
b: an encyclopaedia, dictionary, yearbook, or other collective work of reference,— of a literary, dramatic, musical, or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.
6: The right does not apply to any act done by or with the licence of the copyright owner in relation to a work in which copyright first vested in the author's employer under section 21(2) section 5(2)﻿(b)
a: the author or director cannot readily be identified at the time of the act; or
b: in the case of a literary, dramatic, musical, or artistic work—
i: more than 2 persons were involved in the creation of the work and it is impracticable at the time of the act to identify the respective contributions of each person to the work; and
ii: the authors have not previously been identified in or on published copies of the work.
7: The right does not apply in relation to—
a: a work in which Crown copyright exists under section 26
b: a work in which copyright first vested in an international organisation under section 28 unless the author or director has previously been identified as such in or on published copies of the work.
8: The right does not apply in relation to—
a: a film that is an advertisement; or
b: a part of a film, if that part—
i: appears incidentally in another film, or is included in a communication work; and
ii: is not a substantial part of the film. Copyright, Designs and Patents Act 1988 s 79 (UK) Section 97(3) substituted 31 October 2008 section 57(1) Copyright (New Technologies) Amendment Act 2008 Section 97(8)﻿(b) substituted 31 October 2008 section 57(2) Copyright (New Technologies) Amendment Act 2008 Right to object to derogatory treatment of work
98: Right to object to derogatory treatment of work
1: For the purposes of this section and section 99
a: the term treatment
i: a translation of a literary or dramatic work; or
ii: an arrangement or transcription of a musical work involving no more than a change of key or register; and
b: the treatment of a work is derogatory if, whether by distortion or mutilation of the work or otherwise, the treatment is prejudicial to the honour or reputation of the author or director;— and in the following provisions of this section any reference to a derogatory treatment
2: Subject to section 100 101
a: the author of a literary, dramatic, musical, or artistic work that is a copyright work; and
b: the director of a film that is a copyright work— has the right not to have his or her work subjected to a derogatory treatment. Copyright, Designs and Patents Act 1988 s 80(1), (2), (8) (UK)
99: Content of right to object to derogatory treatment
1: In the case of a literary, dramatic, or musical work, the right conferred by section 98(2)
a: publishes commercially, performs in public, or communicates to the public
b: issues to the public copies of—
i: a film or sound recording of; or
ii: a film or sound recording that includes— a derogatory treatment of the work.
2: In the case of an artistic work, the right conferred by section 98(2)
a: publishes commercially or exhibits in public a derogatory treatment of the work, or communicates to the public
b: shows in public a film that includes a visual image of a derogatory treatment of the work or issues to the public copies of such a film; or
c: in the case of—
i: a sculpture; or
ii: a work of architecture in the form of a model for a building; or
iii: a work of artistic craftsmanship,— issues to the public copies of a graphic work representing, or of a photograph of, a derogatory treatment of the work.
3: Subsection (2) does not apply to a work of architecture in the form of a building; but where the author of such a work is identified on the building and it is the subject of derogatory treatment the author has the right to require the identification to be removed.
4: In the case of a film, the right conferred by section 98(2)
a: shows in public, or communicates to the public, a derogatory treatment of the film; or
b: issues to the public copies of a derogatory treatment of the film; or
c: along with the film,—
i: plays in public or communicates to the public; or
ii: issues to the public copies of— a derogatory treatment of the film soundtrack.
5: The right conferred by section 98(2)
6: The right conferred by section 98(2)
a: possesses; or
b: sells or lets for hire; or
c: offers or exposes for sale or hire; or
d: exhibits in public or distributes— an object that is, and that the person knows or has reason to believe is, a work or a copy of a work that—
e: has been subjected to derogatory treatment; and
f: has been, or is likely to be, the subject of any of the acts described in this section in circumstances infringing the right conferred by section 98(2)
7: The right conferred by section 98(2) Copyright, Designs and Patents Act 1988 ss 80(3)–(7), 83 (UK) Section 99(1)﻿(a) amended 31 October 2008 section 58(1) Copyright (New Technologies) Amendment Act 2008 Section 99(2)﻿(a) amended 31 October 2008 section 58(2) Copyright (New Technologies) Amendment Act 2008 Section 99(4)﻿(a) substituted 31 October 2008 section 58(3) Copyright (New Technologies) Amendment Act 2008 Section 99(4)﻿(c)﻿(i) substituted 31 October 2008 section 58(4) Copyright (New Technologies) Amendment Act 2008
100: Exceptions to right to object to derogatory treatment of literary, dramatic, musical, or artistic work
1: The right conferred by section 98(2)
2: The right does not apply to—
a: a computer program; or
b: a computer-generated work; or
c: the design of a typeface.
3: The right does not apply in relation to the publication, in—
a: a newspaper, magazine, or similar periodical; or
b: an encyclopaedia, dictionary, yearbook, or other collective work of reference,— of a literary, dramatic, musical, or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.
4: The right does not apply in relation to any subsequent exploitation elsewhere, without any modification of the published version, of a work to which subsection (3) applies.
5: The right is not infringed by an act that, under section 67
6: The right does not apply in relation to any work made for the purpose of reporting current events.
7: The right is not infringed by any act done for the purpose of—
a: avoiding the commission of an offence; or
b: complying with a duty imposed by or under any enactment— if,—
c: where the author is identified at the time of the act, there is a clear and reasonably prominent indication, given at the time of the act and appearing with the identification, that the work has been subjected to treatment to which the author has not consented; or
d: where the author has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of the act, that the work has been subjected to treatment to which the author has not consented.
8: The right does not apply to any act done, by or with the licence of the copyright owner, in relation to—
a: a work in which copyright first vested in the author's employer under section 21(2)
b: a work in which Crown copyright exists under section 26
c: a work in which copyright first vested in an international organisation under section 28 unless the author—
d: is identified at the time of the act; or
e: has previously been identified in or on published copies of the work.
9: Where the right applies under subsection (8), the right is not infringed if,—
a: where the author is identified at the time of the act, there is a clear and reasonably prominent indication, given at the time of the act and appearing with the identification, that the work has been subjected to treatment to which the author has not consented; or
b: where the author has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of the act, that the work has been subjected to treatment to which the author has not consented.
101: Exceptions to right to object to derogatory treatment of films
1: The right conferred by section 98(2)
2: The right does not apply in relation to any film made for the purpose of reporting current events.
3: The right is not infringed by any act done for the purpose of,—
a: in relation to the communication of a film,—
i: complying with a duty imposed under section 4
ii: maintaining standards that are consistent with the observance of good taste and decency and the maintenance of law and order; or
iii: avoiding the commission of an offence; or
iv: complying with a duty imposed by or under any enactment—
b: if,—
c: where the director is identified at the time of the act, there is a clear and reasonably prominent indication, given at the time of the act and appearing with the identification, that the film has been subjected to treatment to which the director has not consented; or
d: where the director has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of the act, that the film has been subjected to treatment to which the director has not consented.
4: The right does not apply to any act done, by or with the licence of the copyright owner, in relation to—
a: a film in which copyright first vested in the director's employer under section 5(2)﻿(b)
b: a film in which Crown copyright exists under section 26
c: a film in which copyright first vested in an international organisation under section 28 unless the director—
d: is identified at the time of the act; or
e: has previously been identified in or on published copies of the film.
5: Where the right applies under subsection (4), the right is not infringed if,—
a: where the director is identified at the time of the act, there is a clear and reasonably prominent indication, given at the time of the act and appearing with the identification, that the film has been subjected to treatment to which the director has not consented; or
b: where the director has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of the act, that the film has been subjected to treatment to which the director has not consented.
6: The right is not infringed, in relation to the communication of a film to the public, if the person ( A
a: makes a deletion or any deletions from the film that is or are reasonably required to enable A to—
i: follow guidelines as to the programmes that may be shown in particular time periods; or
ii: fit the film into the time scheduled to show it; or
b: communicates the film in separate parts because of its length; or
c: uses a clip of a film in an advertisement for the showing of the film. Copyright, Designs and Patents Act 1988 ss 81, 82 (UK) Section 101(3)﻿(a) substituted 31 October 2008 section 59(1) Copyright (New Technologies) Amendment Act 2008 Section 101(3)﻿(b) repealed 31 October 2008 section 59(1) Copyright (New Technologies) Amendment Act 2008 Section 101(6) substituted 31 October 2008 section 59(2) Copyright (New Technologies) Amendment Act 2008 False attribution
102: False attribution of identity of author or director
1: In this section, the term attribution
2: A person has the right—
a: not to have a literary, dramatic, musical, or artistic work falsely attributed to him or her as author; and
b: not to have a film falsely attributed to him or her as director.
3: The right conferred by subsection (2) is infringed by a person who—
a: issues to the public copies of—
i: a literary, dramatic, musical, or artistic work; or
ii: a film— in or on which there is a false attribution; or
b: exhibits in public—
i: an artistic work; or
ii: a copy of an artistic work,— in or on which there is a false attribution,— knowing, or having reason to believe, that the attribution is false.
4: A person ( A
a: A performs a literary, dramatic, or musical work in public, or shows a film to the public, or communicates the work or film to the public; and
b: the work or film is accompanied by a false attribution; and
c: A knows or has reason to believe that the attribution is false.
5: The right conferred by subsection (2) is infringed by—
a: the issue to the public; or
b: the public display— of material containing a false attribution in connection with any of the acts referred to in subsection (3) or subsection (4).
6: The right conferred by subsection (2) is infringed by a person who, in the course of a business,—
a: possesses a copy of—
i: a literary, dramatic, musical, or artistic work; or
ii: a film— in or on which there is a false attribution; or
b: sells or lets for hire, offers or exposes for sale or hire, exhibits in public, or distributes a copy of—
i: a literary, dramatic, musical, or artistic work; or
ii: a film— in or on which there is a false attribution; or
c: in the case of an artistic work, possesses the work when there is a false attribution in or on the work; or
d: sells, or lets for hire, offers or exposes for sale or hire, distributes, or exhibits in public an artistic work in or on which there is a false attribution,— knowing, or having reason to believe, that there is such an attribution and that the attribution is false.
7: The right conferred by subsection (2) is infringed by a person who does an act described in this section or who authorises another person to do such an act. 1962 No 33 s 62(1), (2) Section 102(4) substituted 31 October 2008 section 60 Copyright (New Technologies) Amendment Act 2008
103: False representation as to literary, dramatic, or musical work
1: In this section, the term representation
2: A person has the right not to have a literary, dramatic, or musical work falsely represented as being an adaptation of a work of which the person is the author.
3: The right conferred by subsection (2) is infringed by a person who issues to the public copies of a literary, dramatic, or musical work in or on which there is a false representation, knowing or having reason to believe that the representation is false.
4: A person ( A
5: The right conferred by subsection (2) is infringed by—
a: the issue to the public; or
b: the public display— of material containing a false representation in connection with any of the acts mentioned in subsection (3) or subsection (4).
6: The right conferred by subsection (2) is infringed by a person who, in the course of a business,—
a: possesses a copy of a literary, dramatic, or musical work in or on which there is a false representation; or
b: sells or lets for hire, offers or exposes for sale or hire, distributes, or exhibits in public a copy of a literary, dramatic, or musical work in or on which there is a false representation,— knowing, or having reason to believe, that there is such a representation and that the representation is false.
7: The right conferred by subsection (2) is infringed by a person who does an act described in this section or who authorises another person to do such an act. 1962 No 33 s 62(3) Section 103(4) substituted 31 October 2008 section 61 Copyright (New Technologies) Amendment Act 2008
104: False representations as to artistic work
1: In this section, the term representation
2: The author of an artistic work has the right—
a: not to have the work falsely represented as the unaltered work of the author if the work has been altered after the author parted with possession of the work; and
b: not to have a copy of a work that has been altered after the author parted with possession of the work falsely represented as a copy of an unaltered work of the author; and
c: not to have a copy of an artistic work falsely represented as being a copy made by the author of the artistic work.
3: The right conferred by subsection (2) is infringed by a person who exhibits in public an artistic work, or a copy of an artistic work, as the case may be, in or on which there is a false representation, knowing or having reason to believe that the representation is false.
4: The right conferred by subsection (2) is infringed by—
a: the issue to the public; or
b: the public display— of material containing a false representation in connection with any act referred to in subsection (3).
5: The right conferred by subsection (2) is infringed by a person who, in the course of a business,—
a: possesses an artistic work or a copy of an artistic work, as the case may be, in or on which there is a false representation or when there is a false representation in or on the work or copy; or
b: sells or lets for hire, offers or exposes for sale or hire, distributes, or exhibits in public an artistic work or a copy of an artistic work, as the case may be, in or on which there is a false representation or when there is a false representation in or on the work or copy,— knowing or having reason to believe there is such a representation and that the representation is false.
6: The right conferred by subsection (2) is infringed by a person who does an act described in this section or who authorises another person to do such an act. 1962 No 33 s 62(4), (6) Right to privacy of certain photographs and films
105: Right to privacy of certain photographs and films
1: A person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film has, where copyright exists in the resulting work but is owned by some other person, the right—
a: not to have copies of the work issued to the public; and
b: not to have the work exhibited or shown in public; and
c: not to have the work communicated to the public.
2: Subject to subsection (3), the right conferred by subsection (1) is infringed by a person who does an act of the kind described in paragraph (a) or paragraph (b) or paragraph (c) of subsection (1).
3: The right conferred by subsection (1) is not infringed by an act that, under any of the following provisions of this Act, would not infringe copyright in the work:
a: section 41 or communication work
b: section 59
c: section 60
d: section 66
e: section 67
4: The right conferred by subsection (1) is infringed by a person who does an act described in subsection (2) or who authorises another person to do such an act. Copyright, Designs and Patents Act 1988 s 85 (UK) Section 105(1)﻿(c) substituted 31 October 2008 section 62(1) Copyright (New Technologies) Amendment Act 2008 Section 105(3)﻿(a) amended 31 October 2008 section 62(2) Copyright (New Technologies) Amendment Act 2008 Supplementary provisions
106: Duration of rights
1: The rights conferred by the following provisions of this Act expire when the copyright in any work that is the subject of the right expires:
a: section 94
b: section 98
c: section 105
2: The rights conferred by the following provisions of this Act expire at the end of the period of 20 years from the end of the calendar year in which the person who is entitled to the right dies:
a: section 102
b: section 103
c: section 104 1962 No 33 s 62(5)
107: Consent and waiver of rights
1: It is not an infringement of any of the rights conferred by this Part to do any act to which the person who is entitled to the right has consented.
2: Any of the rights conferred by this Part may be waived by instrument in writing signed by the person waiving the right.
3: A waiver given pursuant to subsection (2)—
a: may relate to a specific work, or to works of a specified description that are in existence, in progress, or about to be commenced; and
b: shall state the rights to which the waiver relates; and
c: may be expressed to be subject to revocation; and
d: if made in favour of the owner or prospective owner of the copyright in the work or works to which the waiver relates, shall be presumed to extend to his or her licensees and successors in title unless a contrary intention is expressed. Copyright, Designs and Patents Act 1988 s 87 (UK)
108: Application of provisions to joint works other than films
1: This section does not apply to a film.
2: A consent or waiver under section 107
3: The right conferred by section 94 section 96
4: The right conferred by section 98
5: The right conferred by section 102
a: by any false statement as to the authorship of a work of joint authorship; and
b: by the false attribution of joint authorship in relation to a work of sole authorship;— and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.
6: The right conferred by section 103
7: The right conferred by section 104
8: The right conferred by section 105
a: the right of each person is satisfied if he or she consents to the act in question; and
b: a waiver under section 107 Copyright, Designs and Patents Act 1988 s 88(1)–(4), (6) (UK)
109: Application of provisions to joint works that are films
1: Where a film was, or is alleged to have been, jointly directed,—
a: a consent or waiver under section 107
b: the right conferred by section 94 section 96
c: the right conferred by section 98
d: the right conferred by section 102
i: by any false statement as to the directorship of the film; or
ii: by the false attribution of joint directorship in relation to a film of sole directorship;— and such a false attribution infringes the right of every person to whom directorship of any description is, whether rightly or wrongly, attributed.
2: For the purposes of subsection (1), a film is jointly directed
3: The right conferred by section 105
a: the right of each person is satisfied if he or she consents to the act in question; and
b: a waiver under section 107 Copyright, Designs and Patents Act 1988 s 88(5) (UK)
110: Application of provisions to parts of works
1: The rights conferred by section 94 section 105
2: The rights conferred by the following provisions of this Act apply in relation to the whole or any part of a work:
a: section 98
b: section 102
c: section 103
d: section 104 Copyright, Designs and Patents Act 1988 s 89 (UK)
5: Dealing with rights in copyright works
Licences to deal with copyright works
111: Licences
1: A licence granted by a copyright owner is binding on every successor in title to that person's interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Act to doing anything—
a: with, or without, the licence of the copyright owner; or
b: other than pursuant to a copyright licence— shall be construed accordingly.
2: The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as that licensee has against the copyright owner. 1962 No 33 s 56(4)
112: Warranty implied in certain licences
1: This section applies to a licence that has been granted for—
a: the performance or communication to the public of a copyright work that is a literary, dramatic, or musical work or a sound recording or film; or
b: the inclusion of a copyright work that is an artistic work in a performance or a communication work.
2: A warranty is implied in the licence that the person by whom or on whose behalf the licence is granted is—
a: the owner of the copyright in the work, sound recording, or film that is the subject of the licence; or
b: authorised to grant the licence by the copyright owner. Section 112 substituted 31 October 2008 section 63 Copyright (New Technologies) Amendment Act 2008
112A: Damages for falsely claiming copyright ownership or licence
1: This section applies if—
a: a person ( A
b: A has threatened or commenced proceedings for preventing, or claiming damages in respect of, a performance or communication to the public of the work, sound recording, or film (which in this section is called the event
c: as a result of the threat or commencement of proceedings, the event has not taken place.
2: A court may award damages to compensate any of the following persons for any loss sustained because the event did not take place:
a: in the case of a threat of proceedings, the person to whom A made the threat:
b: in the case of the commencement of proceedings, a defendant:
c: any other person interested in the event. Section 112A inserted 31 October 2008 section 63 Copyright (New Technologies) Amendment Act 2008
112B: Provisions of sections 112 and 112A to have effect no matter what licence says
The provisions of sections 112 112A Section 112B inserted 31 October 2008 section 63 Copyright (New Technologies) Amendment Act 2008 Transmission of copyright
113: Transmission of copyright
1: Copyright is transmissible, as personal or moveable property, by—
a: assignment; or
b: testamentary disposition; or
c: operation of law.
2: A transmission of copyright may be partial, that is, limited so as to apply—
a: to 1 or more, but not all, of the things the copyright owner has the exclusive right to do:
b: to part, but not the whole, of the period for which the copyright is to exist. 1962 No 33 s 56(1), (2)
114: Assignment
An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor. 1962 No 33 s 56(3)
115: Copyright to pass under will with unpublished works
Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—
a: an original document or other material thing recording or embodying a literary, dramatic, musical, or artistic work that was not published before the death of the testator; or
b: an original material thing containing a sound recording or film that was not published before the death of the testator,— the bequest shall, unless a contrary intention is indicated in the testator's will or a codicil to that will, be construed as including the copyright in the work in so far as the testator was the copyright owner immediately before his or her death. 1962 No 33 s 59
116: Future copyright
1: Future copyright shall be capable of being assigned, wholly or partially, in the same manner and in all respects as if the copyright were then in existence, and on coming into existence the copyright shall vest in the assignee or the assignee's successor in title accordingly.
2: Sections 111(1) 113(2) 114
3: A licence granted by a person to whom future copyright has been assigned is binding on every successor in title to that person's interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Act to doing anything—
a: with, or without, the licence of the copyright owner; or
b: other than pursuant to a copyright licence— shall be construed accordingly. 1962 No 33 s 57; Copyright, Designs and Patents Act 1988 s 91 (UK)
117: Right to make conditions in respect of certain unpublished works
1: This section applies where the owner of the copyright in an unpublished literary, dramatic, or musical work, or an unpublished artistic work other than a photograph, has, whether before or after the commencement of this Act, transferred or bequeathed to an institution—
a: the property in or possession of the manuscript of the literary, dramatic, or musical work or a copy of the manuscript; or
b: the property in or possession of the artistic work,— subject to any conditions prohibiting, restricting, or regulating publication of the work for a specified period or without any limit on the period.
2: While the manuscript, copy, or work is in the possession of the institution, any publication of the work in breach of such a condition by—
a: the institution owning the manuscript, copy, or work; or
b: the institution having possession of the manuscript, copy, or work; or
c: any other person— shall, notwithstanding that the copyright in the work may have expired, be actionable as if copyright continued to exist in the work and the publication were an infringement of the copyright.
3: Nothing in this section applies to any publication with the consent of the person who would be the owner of the copyright in the work if the copyright had not expired.
4: In this section, the term institution section 50 section 10(1) 1962 No 33 s 58 Section 117(4) amended 1 August 2020 section 668 Education and Training Act 2020 Moral rights
118: Moral rights not assignable
The rights conferred by Part 4 Copyright, Designs and Patents Act 1988 s 94 (UK)
119: Transmission of moral rights on death
1: On the death of a person entitled to the right conferred by section 94 section 98 section 105
a: the right passes to such person as he or she may by testamentary disposition specifically direct; or
b: if there is no such direction but the copyright in the work in question forms part of the estate, the right passes to the person to whom the copyright passes; or
c: if or to the extent that the right does not pass under paragraph (a) or paragraph (b), the right is exercisable by the personal representatives.
2: Where—
a: under subsection (1)﻿(b) any right passes to the person to whom the copyright passes; and
b: the copyright passes in part to one person and in part to another,— the right shall pass in the same manner as the copyright.
3: Where under paragraph (a) or paragraph (b) of subsection (1) a right becomes exercisable by more than 1 person,—
a: in the case of the right conferred by section 94
b: in the case of the right conferred by section 98 section 105
c: any waiver of the right in accordance with section 107
4: A consent or waiver previously given or made binds any person to whom a right passes under subsection (1).
5: Any infringement after a person's death of the right conferred by section 102 section 103 section 104
6: Any damages recovered by personal representatives in respect of an infringement after the death of a person entitled to a right conferred by Part 4 Copyright, Designs and Patents Act 1988 s 95 (UK)
6: Remedies for infringement
Rights and remedies of copyright owner
120: Infringement actionable by copyright owner
1: An infringement of copyright is actionable by the copyright owner.
2: In proceedings for infringement of copyright, all such relief by way of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
3: This section has effect subject to the following provisions of this Part. 1962 No 33 s 24(1)
121: Provisions as to damages in infringement proceedings
1: Where, in proceedings for infringement of copyright, it is proved or admitted that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright existed in the work to which the proceedings relate, the plaintiff is not entitled to damages but, without prejudice to the award of any other remedy, is entitled to an account of profits.
2: In proceedings for infringement of copyright, the court may, having regard to all the circumstances and in particular to—
a: the flagrancy of the infringement; and
b: any benefit accruing to the defendant by reason of the infringement,— award such additional damages as the justice of the case may require.
3: In proceedings for infringement of copyright in respect of the construction of a building, no injunction or other order shall be made—
a: after the construction of the building has been begun, so as to prevent the building from being completed; or
b: so as to require the building, in so far as it has been constructed, to be demolished. 1962 No 33 s 24(2)–(4)
122: Order for delivery up in civil proceedings
1: Where a person—
a: has an infringing copy of a work in that person's possession, custody, or control in the course of a business; or
b: has in that person's possession, custody, or control an object specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that the object has been or is to be used to make infringing copies,— the owner of the copyright in the work may apply to the court for an order that the infringing copy or object be delivered up to the copyright owner or such other person as the court may direct.
2: No order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 134
3: A person to whom an infringing copy or other object is delivered up in pursuance of an order under this section shall, if an order under section 134
4: Notwithstanding any rule of court, an order may be made pursuant to this section on an ex parte
5: Nothing in this section affects any other power of the court. Copyright, Designs and Patents Act 1988 s 99 (UK) Infringing file sharing Heading inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122A: Interpretation for sections 122B to 122U
1: In this section and sections 122B to 122U account holder detection notice see section 122D enforcement notice see section 122F file sharing
a: material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and
b: uploading and downloading may, but need not, occur at the same time infringement infringement notice
a: is issued to an account holder by an IPAP; and
b: identifies a particular infringement that triggers the notice; and
c: in the case of a warning notice or an enforcement notice, identifies any other infringements that have occurred since the date of the detection notice IP address IPAP Internet protocol address provider
a: offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing; and
b: allocates IP addresses to its account holders; and
c: charges its account holders for its services; and
d: is not primarily operated to cater for transient users on-notice period Example
1: A detection notice is issued on Monday, 1 March. The on-notice period ends with the close of Sunday, 28 March.
2: A warning notice is issued on Friday, 16 April. The on-notice period ends with the close of Thursday, 6 May. quarantine period Example
1: An enforcement notice is issued on Monday, 1 March. The quarantine period ends with the close of Sunday, 4 April.
2: An enforcement notice is issued on Saturday, 18 December. The quarantine period ends with the close of Friday, 21 January. rights owner
a: a copyright owner; or
b: a person acting as agent for 1 or more copyright owners warning notice see section 122E
2: If a rights owner acts as agent for 1 or more copyright owners,—
a: a reference to the copyright of a rights owner is to be taken as a reference to the copyright of any of the copyright owners for whom the rights owner acts as agent; and
b: a reference to infringement against a rights owner is to be taken as a reference to infringement against the copyright of any of the copyright owners for whom the rights owner acts as agent.
3: In this section and sections 122B to 122U
a: in the case of an infringement, the date on which it is recorded by a rights owner as having occurred:
b: in the case of an infringement notice, the date on which it is issued by the IPAP:
c: in the case of a challenge made under section 122G
d: in the case of a response to a challenge, the date on which the IPAP receives the response from the rights owner.
4: Despite section 55 sections 122B to 122U
5: Examples used in this section and sections 122B to 122U Section 122A inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122A(4) amended 28 October 2021 section 3 Secondary Legislation Act 2021
122B: Overview of infringing file sharing regime
1: Sections 122A to 122U
2: The regime provides that, at the instigation of rights owners, IPAPs must issue infringement notices to alleged infringers.
3: The 3 kinds of infringement notices, in the order in which they are given, are a detection notice, a warning notice, and an enforcement notice.
4: After an enforcement notice is issued to an alleged infringer, the rights owner may take enforcement action by seeking the following orders against the alleged infringer:
a: an order from the Tribunal for a sum of up to $15,000:
b: an order from the District Court
5: Time limits apply to all stages of the regime.
6: This section is by way of explanation only. If any provision is inconsistent with it, the other provision prevails. Section 122B inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122B(4)﻿(b) amended 1 March 2017 section 261 District Court Act 2016
122C: IPAPs to send infringement notices
1: If a rights owner provides an IPAP with information that identifies an IP address at which an infringement of its copyright is alleged to have occurred as a result of file sharing, the IPAP must—
a: match the IP address with the account holder to whom it related at the time of the infringement; and
b: issue the appropriate infringement notice to the account holder no later than 7 days after receiving the information. Example
An IPAP receives infringement information on Monday, 1 March. The IPAP must issue the infringement notice before the close of Monday, 8 March.
2: If information from a rights owner indicates that more than 1 infringement against the rights owner has occurred, any infringement notice sent to the account holder must identify the infringement that triggers that infringement notice, which must be the earliest recorded infringement for which the infringement notice could be issued.
3: An IPAP need not comply with the obligation in subsection (1)﻿(a) to match IP addresses if—
a: the alleged infringement occurred more than 21 days before the IPAP received the relevant information from the rights owner; or
b: the alleged infringement occurred after an infringement that triggered a detection notice but before the date of that detection notice; or
c: the alleged infringement occurred during a quarantine period applying to the account holder with respect to the rights owner; or
d: the rights owner has not complied with regulations made under section 234
e: the rights owner has not paid, or has not agreed to pay, a fee required by the IPAP, as permitted by section 122U
4: An IPAP need not comply with the obligation in subsection (1)﻿(b) to issue notices if—
a: any of subsection (3)﻿(a) to (e) applies; or
b: the alleged infringement occurred within an on-notice period applying to the account holder with respect to the rights owner; or
c: the rights owner agrees, or asks, that a notice not be issued.
5: Notices issued to account holders must be sent by whatever method the IPAP uses to communicate with the account holder for billing purposes, unless the account holder and IPAP agree in writing to use a different method. Section 122C inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122D: Detection notices
1: An IPAP must issue a detection notice in relation to a rights owner to an account holder—
a: the first time the IPAP matches the account holder with an IP address at which an infringement is alleged by the rights owner to have occurred; and
b: the first time, following the end of a quarantine period, the IPAP matches the account holder with an IP address at which an infringement is alleged by the rights owner to have occurred.
2: A detection notice must be in the prescribed form (if a form is prescribed) and must—
a: identify the rights owner; and
b: identify the alleged infringement that has triggered the issue of the notice; and
c: identify the date of that alleged infringement; and
d: state the date of the detection notice; and
e: explain the consequences to the account holder if further infringing occurs; and
f: explain how the account holder may challenge the notice; and
g: comply with any other requirements that may be prescribed in regulations.
3: A detection notice expires 9 months after the date of the detection notice, unless the notice expires earlier under section 122F(4) Section 122D inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122E: Warning notices
1: An IPAP must issue a warning notice in relation to a rights owner to an account holder if—
a: the IPAP matches the account holder with an IP address at which an infringement is alleged by the rights owner to have occurred; and
b: the infringement occurred at least 28 days after the date of a detection notice issued to the account holder in relation to the same rights owner, but before that detection notice expires. Example
A detection notice is issued on Monday, 1 March. It will expire with the close of Wednesday, 1 December. A warning notice can be issued on Monday, 29 March, and at any time up to and including Wednesday, 1 December.
2: A warning notice must be in the prescribed form (if a form is prescribed) and must—
a: identify the rights owner; and
b: identify the infringement that has triggered the issue of the warning notice; and
c: identify the date of that alleged infringement; and
d: identify the most recent detection notice issued to the account holder in relation to the rights owner (the preceding detection notice
e: identify any other alleged infringements by the account holder against that rights owner that have occurred since the date of the preceding detection notice; and
f: state the date of the warning notice; and
g: explain the consequences to the account holder if further infringing occurs; and
h: explain how the account holder may challenge the notice; and
i: comply with any other requirements that may be prescribed in regulations.
3: A warning notice expires 9 months after the date of the preceding detection notice, unless the notice expires earlier under section 122F(4) Section 122E inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122F: Enforcement notices
1: An IPAP must issue an enforcement notice in relation to a rights owner to an account holder if—
a: the IPAP matches the account holder with an IP address at which an infringement is alleged by the rights owner to have occurred; and
b: the infringement occurred at least 28 days after the date of a warning notice issued to the account holder in relation to the same rights owner, but before that warning notice expires.
2: An enforcement notice must be in the prescribed form (if a form is prescribed) and must—
a: identify the rights owner; and
b: identify the infringement that has triggered the issue of the enforcement notice; and
c: identify the date of that alleged infringement; and
d: identify the most recent warning notice issued to the account holder in relation to the rights owner, and the preceding detection notice; and
e: identify any other alleged infringements against the rights owner that have occurred since the date of the preceding detection notice; and
f: state the date of the enforcement notice; and
g: explain that enforcement action may now be taken against the account holder; and
h: explain that, unless the enforcement notice is cancelled, no further infringement notices may be issued in respect of infringements against the rights owner until the end of the quarantine period; and
i: explain how the account holder may challenge the notice; and
j: comply with any other requirements that may be prescribed in regulations.
3: An enforcement notice expires at the end of a period of 35 days beginning on the date of the enforcement notice.
4: On the date that an enforcement notice expires under subsection (3), the preceding detection notice and warning notice also expire.
5: On issuing an enforcement notice to an account holder, the IPAP must send a copy of the notice to the relevant rights owner, but must omit any information that discloses the name or contact details of the account holder. Section 122F inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122G: Challenging infringement notices
1: An account holder may challenge an infringement notice by sending a challenge, in the prescribed form, to the IPAP that issued the infringement notice.
2: A challenge is not valid if it is received more than 14 days after the date of the infringement notice to which it relates.
3: An IPAP that receives a valid challenge to an infringement notice must immediately forward it to the relevant rights owner. Example
A warning notice is issued on Monday, 1 March. A challenge sent before the close of Monday, 15 March is valid and must be forwarded to the rights owner. A challenge received on or after Tuesday, 16 March is not valid.
4: If the rights owner rejects the challenge,—
a: it must send to the IPAP a response setting out the rejection and the reasons for it; and
b: the IPAP must immediately forward the response to the account holder.
5: If a challenge is rejected, it may be raised again by the account holder in any enforcement proceedings. Section 122G inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122H: Effect of challenge to, and cancellation of, infringement notice
1: A challenge is deemed to be accepted if it has not been rejected by the relevant rights owner before the close of the 28th day after the date of the infringement notice to which it relates. Example
A detection notice is issued on Monday, 1 March. A challenge is received by the IPAP on Monday, 15 March. If the challenge is not rejected before the close of Monday, 29 March, it is deemed to be accepted.
2: If a challenge to a detection notice is accepted or deemed to be accepted,—
a: the detection notice is cancelled and treated as if it had not been issued; and
b: no infringements against that rights owner that occurred between the date of the infringement, that triggered the detection notice, and the date on which the detection notice is cancelled may be included in an infringement notice relating to that rights owner.
3: If a challenge to a warning notice or an enforcement notice is accepted or deemed to be accepted,—
a: the notice is cancelled and treated as if it had not been issued; but
b: if the challenge related only to an infringement that was not an infringement that triggered a notice, the notice is not cancelled but the infringement is treated as if it were not included in the notice. Section 122H inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122I: Enforcement action after issue of enforcement notice
1: A rights owner may take enforcement action against an account holder who has been issued with an enforcement notice in respect of infringements against the rights owner by doing either or both of the following:
a: applying to the Tribunal for an order under section 122O
b: applying to the District Court section 122P
2: Nothing in sections 122A to 122U Section 122I inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122I(1)﻿(b) amended 1 March 2017 section 261 District Court Act 2016
122J: Application to Tribunal
1: After an enforcement notice is issued, any application to the Tribunal for an order under section 122O
a: before the end of the quarantine period for the enforcement notice; but
b: after either—
i: the last day on which a valid challenge to the enforcement notice could be made; or
ii: if a valid challenge has been made to the enforcement notice, the last day on which the challenge could be rejected. Example
An enforcement notice is issued on Monday, 1 March, and—
1: by the close of Monday, 15 March, no challenges have been received. The rights owner can apply to the Tribunal at any time after that, up until the close of Sunday, 4 April (end of quarantine period); or
2: on Monday, 15 March, a valid challenge is received. Whether or not the challenge is rejected, the rights owner cannot apply to the Tribunal until after Monday, 29 March (last day on which challenge could be rejected) and must do so before the close of Sunday, 4 April (end of quarantine period).
2: The application must be in a form approved by the chief executive of the Ministry of Justice after consultation with the chairperson of the Tribunal,
a: a copy of the enforcement notice as forwarded to the rights owner; and
b: evidence that the rights owner is the owner, or acts as agent for the owner, of the material in which copyright is alleged to be infringed; and
c: a statement of which of the alleged infringements identified in the enforcement notice the rights owner is seeking to enforce; and
d: a copy of any challenges received by the rights owner in respect of any of those alleged infringements, along with any responses to those challenges; and
e: a statement of the amount that the rights owner is seeking from the account holder; and
f: the prescribed fee for the application.
3: If the Tribunal is satisfied that an enforcement notice has been sent to the account holder in accordance with this Act, the Tribunal must order the relevant IPAP to produce to the Tribunal—
a: the name and contact details of the account holder; and
b: copies of the detection and warning notices sent to the account holder.
4: The IPAP must provide those contact details and notices to the Tribunal as soon as practicable.
5: If an infringement notice expires, and the notice relates to an application made in accordance with subsection (1), the expiry does not affect the continuation and completion of any proceedings. Section 122J inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122J(2) amended 29 October 2019 section 6 Tribunals Powers and Procedures Legislation Act 2018
122K: Notice of proceedings
1: The Tribunal must give notice of the proceedings, in a form approved by the chief executive of the Ministry of Justice after consultation with the chairperson of the Tribunal
2: The notice of proceedings must—
a: identify all the infringements in relation to which the rights owner seeks an order; and
b: specify the amount sought; and
c: set out the account holder's right to make submissions and request a hearing.
3: The parties to proceedings before the Tribunal for an order under section 122O
a: the applicant rights owner; and
b: the account holder identified in the enforcement notice; and
c: any other party that the Tribunal directs be added as a party in accordance with section 212(2) Section 122K inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122K(1) amended 29 October 2019 section 7 Tribunals Powers and Procedures Legislation Act 2018
122L: Decisions generally made on papers and without hearing
1: Proceedings before the Tribunal for an order under section 122O
a: any party to the proceedings requests a hearing; or
b: the Tribunal considers that a hearing should be held.
2: The papers on which the proceedings are determined are—
a: the rights owner's application to the Tribunal; and
b: copies of the infringement notices sent to the account holder; and
c: copies of challenges to any infringement notice, and any responses to those challenges; and
d: any additional information provided by the rights owner; and
e: any submissions by the account holder made within the time specified by the Tribunal.
3: The Tribunal may determine its own procedure for determining an application that is dealt with on the papers, subject to any regulations.
4: The Tribunal must make all reasonable efforts to ensure that, unless it orders otherwise or an order is made against the account holder, the identity and contact details of the account holder are not disclosed to the rights owner. Section 122L inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122M: If hearing is held
1: If a hearing is held, sections 211 to 224 sections 213(2) 214(1)
2: Every party to the proceedings may appear personally and be heard.
3: A party may not be represented at a hearing by a representative, except as follows:
a: a corporation or unincorporated body of persons may be represented by an officer, employee, or member of the corporation or body, or a person who holds a majority interest in it:
b: a person jointly liable or entitled with another or others may be represented by one of the persons jointly liable or entitled:
c: a partnership may be represented by an employee of a partnership:
d: a minor, or a person under a disability, may be represented by another person:
e: if the Tribunal is satisfied that, for sufficient cause, a party is unable to appear in person or is unable to present his or her case adequately, the party may be represented by a representative approved by the Tribunal:
f: if it appears to the Tribunal to be proper in all the circumstances to allow the party to be represented, the party may be represented by a representative approved by the Tribunal.
4: A representative may not be a lawyer, unless the Tribunal gives leave. 1988 No 110 s 38 Section 122M inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122N: Infringement notice as evidence of copyright infringement
1: In proceedings before the Tribunal, in relation to an infringement notice, it is presumed—
a: that each incidence of file sharing identified in the notice constituted an infringement of the rights owner's copyright in the work identified; and
b: that the information recorded in the infringement notice is correct; and
c: that the infringement notice was issued in accordance with this Act.
2: An account holder may submit evidence that, or give reasons why, any 1 or more of the presumptions in subsection (1) do not apply with respect to any particular infringement identified in an infringement notice.
3: If an account holder submits evidence or gives reasons as referred to in subsection (2), the rights owner must satisfy the Tribunal that, in relation to the relevant infringement or notice, the particular presumption or presumptions are correct. Section 122N inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122O: Tribunal order requiring payment to rights owner
1: The Tribunal must order an account holder to pay a rights owner a sum if the Tribunal is satisfied that—
a: each of the 3 alleged infringements that triggered the infringement notices issued to the account holder—
i: was an infringement of the rights owner's copyright; and
ii: occurred at an IP address of the account holder; and
b: the 3 notices were issued in accordance with this Act.
2: The sum specified in the Tribunal order must be determined in accordance with regulations made under this Act and must include a sum in relation to every infringement identified in the enforcement notice that the Tribunal is satisfied was committed against the rights owner at an IP address of the account holder.
3: If the Tribunal makes an order under subsection (1), it may also make an order requiring the account holder to pay to the rights owner either or both of the following:
a: a sum representing a contribution towards the fee or fees paid by the rights owner to the IPAP under section 122U
b: reimbursement of the application fee paid by the rights owner to the Tribunal.
4: The total amount ordered by the Tribunal to be paid by the account holder must not exceed $15,000.
5: Despite subsection (1), the Tribunal may decline to make the order required by that subsection if, in the circumstances of the case, the Tribunal is satisfied that making the order would be manifestly unjust to the account holder.
6: An order made under this section may be enforced as if it were a judgment for a sum of money made by the District Court
7: The Tribunal may award costs against a party to the proceedings only if the Tribunal is satisfied that the party has engaged in conduct intended to impede the prompt determination of the proceedings. Section 122O inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122O(6) amended 1 March 2017 section 261 District Court Act 2016
122P: Court order suspending account holder's account
1: The District Court
2: A suspension order may be for any period up to 6 months.
3: The court may make an order under this section only if it is satisfied that—
a: at least 1 enforcement notice has been issued to the account holder in accordance with this Act; and
b: the account holder has, by way of file sharing (whether as recorded in that enforcement notice or otherwise), infringed the copyright of the rights owner; and
c: suspension of the account holder's account is justified and appropriate in the circumstances, given the seriousness of the infringing.
4: When considering the circumstances, and in determining the duration of a proposed suspension, the matters that the court may consider include, but are not limited to,—
a: the degree of the account holder's reliance on access to the Internet; and
b: the identity (if known) of the user who engaged in the infringements identified in the notices; and
c: any other matter that may be specified in regulations; and
d: whether it would be manifestly unjust to suspend the account holder's account.
5: An application to the District Court
a: by the rights owner whose copyright is alleged to have been infringed; and
b: no later than 1 month after the rights owner receives the contact details of an account holder from an IPAP following an order made under section 122Q(2) Section 122P inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122P(1) amended 1 March 2017 section 261 District Court Act 2016 Section 122P(5) amended 1 March 2017 section 261 District Court Act 2016
122Q: Order requiring IPAP to disclose account holder details
1: This section applies if a rights owner wishes to apply for an order under section 122P
2: The District Court
a: the rights owner applies to the District Court for an order under this section; and
b: the District Court is satisfied, on the basis of information included in the application, that an enforcement notice has been sent to the account holder in accordance with this Act in relation to infringements against the rights owner; and
c: the rights owner has given an undertaking to the court that, if the account holder's details are released to it, it will use that information only for the purpose of seeking and enforcing an order made under section 122P Section 122Q inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122Q(2) amended 1 March 2017 section 261 District Court Act 2016
122R: Suspension orders and orders under section 122Q not available until date set by Order in Council
1: No person may apply to the District Court section 122P section 122Q
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, set a date after which applications for orders under sections 122P 122Q
3: An order under subsection (2) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 122R inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122R(1) amended 1 March 2017 section 261 District Court Act 2016 Section 122R(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
122S: Application of section 122C to cellular mobile networks
1: An IPAP need not comply with either of the obligations in section 122C(1)
2:
3: The Governor-General may, by Order in Council made on the recommendation of the Minister, do all or any of the following:
a: repeal this section:
b: repeal subsection (2):
c: amend subsection (2) by replacing the date specified in that subsection with any other date, whether that date is earlier or later than the one it replaces:
d: revoke or amend any Order in Council made under this section (the principal order
4: The powers in subsection (3) may be exercised more than once.
5: An order under subsection (3) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 122S inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Section 122S(2) repealed 30 September 2015 clause 3 Copyright (Infringing File Sharing and Cellular Mobile Networks) Order 2015 Section 122S(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
122T: Obligations of IPAPs
1: Every IPAP must retain, for a minimum of 40 days, information on the allocation of IP addresses to each account holder.
2: Every IPAP must retain, for a minimum of 12 months, the following information:
a: any information about infringements that is sent by rights owners to the IPAP for the purpose of matching infringements to account holders:
b: in relation to each of the IPAP's account holders,—
i: any infringement notices issued to the account holder; and
ii: any challenges to infringement notices and any responses to them; and
iii: which infringement notices (if any) have been cancelled or have expired; and
iv: any orders made under section 122P
3: No IPAP may release the name or contact details of an account holder to a rights owner unless—
a: authorised to do so by the account holder; or
b: required to do so by the Tribunal or a court.
4: On or before 31 December 2012, and annually thereafter, every IPAP must publish on its Internet site a report on its compliance with this section during the period starting on 1 October in the previous year and ending on 30 September in the year of the report. Section 122T inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011
122U: Fees payable by rights owners to IPAPs
1: An IPAP may charge a rights owner for performing the functions required of IPAP under sections 122A to 122T
2: If regulations are made that prescribe a rate or rates, or a method or methods for calculating the rate or rates, that may be charged by an IPAP, an IPAP must not charge more than the rate or rates prescribed by, or calculated in accordance with, the regulations. Section 122U inserted 1 September 2011 section 6 Copyright (Infringing File Sharing) Amendment Act 2011 Rights and remedies of exclusive licensee
123: Rights and remedies of exclusive licensee
1: An exclusive licensee has, except against the copyright owner, the same rights and remedies under any of sections 120 to 122P
2: The rights and remedies of the exclusive licensee under any of sections 120 to 122P
3: In proceedings brought by an exclusive licensee pursuant to this section, a defendant may avail himself or herself or itself of any defence that would have been available if the proceedings had been brought by the copyright owner. 1962 No 33 s 26(2)﻿(a), (b), (4) Section 123(1) amended 1 September 2011 section 7(1) Copyright (Infringing File Sharing) Amendment Act 2011 Section 123(2) amended 1 September 2011 section 7(2) Copyright (Infringing File Sharing) Amendment Act 2011
124: Exercise of concurrent rights
1: Where proceedings for infringement of copyright brought by the copyright owner or an exclusive licensee relate (wholly or partly) to an infringement in respect of which the copyright owner and the exclusive licensee have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed unless the other is either joined as a plaintiff or added as a defendant.
2: A copyright owner or exclusive licensee who is joined as a plaintiff or added as a defendant pursuant to subsection (1) is not liable for any costs in the proceedings unless that person takes part in the proceedings.
3: Subsections (1) and (2) do not affect the granting of interlocutory relief on an application by a copyright owner or exclusive licensee alone.
4: Whether or not the copyright owner and the exclusive licensee are both parties to proceedings for infringement of copyright that relate (wholly or partly) to an infringement in respect of which they have or had concurrent rights of action,—
a: the court shall, in assessing damages, take into account—
i: the terms of the licence; and
ii: any pecuniary remedy already awarded or available to either the copyright owner or the exclusive licensee in respect of the infringement; and
b: no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of either the copyright owner or the exclusive licensee in respect of the infringement; and
c: the court shall, if an account of profits is directed, apportion the profits between the copyright owner and the exclusive licensee in such manner as the court considers just, subject to any agreement between them.
5: The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 122 1962 No 33 s 26(3)–(8) Rights and remedies in relation to moral rights
125: Infringement of moral rights actionable
1: An infringement of a right conferred by Part 4
2: In proceedings for infringement of a right conferred by Part 4
3: In proceedings for infringement of the right conferred by section 98(2) 1962 No 33 s 62(8) Presumptions
126: Presumptions relevant to literary, dramatic, musical, or artistic works
1: The presumptions set out in subsections (2) to (5) apply in proceedings brought under this Act with respect to a literary, dramatic, musical, or artistic work.
2: Where a name purporting to be that of the author appeared on copies of a literary, dramatic, or musical work as published or on an artistic work when it was made, the person whose name appeared shall be presumed, until the contrary is proved,—
a: to be the author of the work; and
b: to have made the work in circumstances not falling within subsections (2) and (3) of section 21 section 26 section 28
3: In the case of a work alleged to be a work of joint authorship, subsection (2) applies in relation to each person alleged to be one of the authors.
4: Where no name purporting to be that of the author appeared on copies of the work as published or on the work when it was made, but—
a: the work qualifies for copyright under section 19
b: a name purporting to be that of the publisher appeared on copies of the work as first published,— the person whose name appeared shall be presumed, until the contrary is proved, to represent the author and shall be entitled to protect and enforce the author's rights.
5: If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, until the contrary is proved,—
a: that the work is an original work; and
b: that the plaintiff's allegations as to what was the first publication of the work and as to the country of first publication are correct. 1962 No 33 s 27(2)–(5)
127: Presumptions relevant to certain artistic works
1: This section applies to any proceedings for infringement of copyright in any artistic work of which copies in 3 dimensions have been issued to the public by or with the licence of the owner of the copyright in that artistic work.
2: In any proceedings to which this section applies, where copies as issued to the public, whether in New Zealand or in any other country, bear a clear and legible label or other mark indicating the following claims, namely,—
a: that copyright existed in the artistic work of which the copy was made; and
b: that a named person was the owner of the copyright in the artistic work at the time the copy was issued to the public; and
c: that a named person was the exclusive licensee of the copyright owner at the time the copy was issued to the public; and
d: that the copy was first issued to the public in a specified year,— it shall be presumed until the contrary is proved—
e: that at all material times the defendant had knowledge of each of the claims specified in paragraphs (a) to (d); and
f: that the copy was first made available to the public in the year specified.
3: For the purposes of subsection (2), the symbol ©
4: Nothing in this section limits or affects section 126 1962 No 33 s 27A 1985 No 134 s 7(1)
128: Presumptions relevant to computer programs, sound recordings, and films
1: In proceedings brought under this Act with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—
a: that a named person was the owner of copyright in the program at the date of the issue of the copies in electronic form; or
b: that copies of the program were first issued to the public in electronic form in a specified year or that the program was first published in a specified country,— the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.
2: In proceedings brought under this Act with respect to a sound recording, where copies of the recording as issued to the public bear a label or other mark stating—
a: that a named person was the owner of copyright in the recording at the date of the issue of the copies; or
b: that the recording was first published in a specified year or in a specified country,— the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.
3: In proceedings brought under this Act with respect to a film, where copies of the film as issued to the public bear a statement—
a: that a named person was the author or director of the film; or
b: that a named person was the owner of copyright in the film at the date of the issue of the copies; or
c: that the film was first published in a specified year or in a specified country,— the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.
4: The presumptions created in subsections (1) to (3) apply in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public in the same manner as they apply in proceedings relating to an infringement alleged to have occurred after the date on which the copies were issued to the public.
5: In proceedings brought under this Act with respect to a film, where the film as shown in public or communicated to the public
a: that a named person was the author or director of the film; or
b: that a named person was the owner of copyright in the film immediately after it was made,— the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.
6: The presumption created by subsection (5) applies in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public or communicated to the public public or communicated to the public 1962 No 33 s 27(7) Section 128(5) amended 31 October 2008 section 64(1) Copyright (New Technologies) Amendment Act 2008 Section 128(6) amended 31 October 2008 section 64(2) Copyright (New Technologies) Amendment Act 2008
129: Presumptions relevant to works subject to Crown copyright
In proceedings brought under this Act with respect to a literary, dramatic, or musical work in which Crown copyright exists, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement shall be admissible as evidence of the fact stated and shall be presumed to be correct until the contrary is proved. Copyright, Designs and Patents Act 1988 s 106 (UK)
130: Unjustified proceedings
1: Where a person brings proceedings alleging an infringement of copyright or a contravention of section 226A
a: make a declaration that the bringing of proceedings was unjustified:
b: make an order for the payment of damages for any loss suffered by the person against whom the proceedings are brought.
2: A court shall not grant relief under this section if the person who brought the proceedings proves that the acts in respect of which proceedings were brought constituted, or would have constituted if they had been done, an infringement of the copyright concerned.
3: Nothing in this section makes a barrister or solicitor of the High Court of New Zealand liable to any proceedings under this section in respect of any act done in his or her professional capacity on behalf of a client. 1994 No 116 s 40 Section 130(1) amended 31 October 2008 section 65 Copyright (New Technologies) Amendment Act 2008 Offences
131: Criminal liability for making or dealing with infringing objects
1: Every person commits an offence against this section who, other than pursuant to a copyright licence,—
a: makes for sale or hire; or
b: imports into New Zealand otherwise than for that person's private and domestic use; or
c: possesses in the course of a business with a view to committing any act infringing the copyright; or
d: in the course of a business,—
i: offers or exposes for sale or hire; or
ii: exhibits in public; or
iii: distributes; or
e: in the course of a business or otherwise, sells or lets for hire; or
f: distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner— an object that is, and that the person knows is, an infringing copy of a copyright work.
2: Every person commits an offence against this section who—
a: makes an object specifically designed or adapted for making copies of a particular copyright work; or
b: has such an object in that person's possession,— knowing that the object is to be used to make infringing copies for sale or hire or for use in the course of a business.
3: Subject to subsection (4), every person commits an offence against this section who—
a: causes a literary, dramatic, or musical work to be performed, where that performance infringes copyright in that work; or
b: causes a sound recording or film to be played in public or shown in public, where that playing or showing infringes copyright in that sound recording or film,— knowing that copyright in the work or, as the case requires, the sound recording or film would be infringed by that performance or, as the case requires, that playing or that showing.
4: Nothing in subsection (3) applies in respect of infringement of copyright by the reception of a communication work
5: Every person who commits an offence against this section is liable on
a: in the case of an offence against subsection (1), to a fine not exceeding $10,000 for every infringing copy to which the offence relates, but not exceeding $150,000 in respect of the same transaction, or to imprisonment for a term not exceeding 5 years
b: in the case of an offence against subsection (2) or subsection (3), to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 5 years
6: Where any person is convicted of an offence against this section in circumstances where that offence involves the making of profit or gain, that offence shall be deemed to have caused a loss of property for the purposes of section 32(1)﻿(a)
7: Sections 126 to 129
8: 1962 No 33 s 28(1)–(3), (5) 1990 No 71 s 3 Section 131(4) amended 31 October 2008 section 66 Copyright (New Technologies) Amendment Act 2008 Section 131(5) substituted 19 May 1998 section 6(1) Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 Section 131(5) amended 20 August 2003 section 201 Trade Marks Act 2002 Section 131(5)﻿(a) amended 20 August 2003 section 201 Trade Marks Act 2002 Section 131(5)﻿(b) amended 20 August 2003 section 201 Trade Marks Act 2002 Section 131(6) amended 30 June 2002 section 186 Sentencing Act 2002 Section 131(8) repealed 19 May 1998 section 6(2) Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998
131A: Time for laying information
Section 131A repealed 1 July 2013 section 413 Criminal Procedure Act 2011
132: Order for delivery up in criminal proceedings
1: The court before which proceedings are brought against a person for an offence against section 131
a: the defendant had in the defendant's possession, custody, or control in the course of a business an infringing copy of a copyright work; or
b: the defendant had in the defendant's possession, custody, or control an object specifically designed or adapted for making copies of a particular copyright work, knowing that the object had been or was to be used to make infringing copies,— order that the infringing copy or object be delivered up to the copyright owner or to such other person as the court may direct.
2: An order may be made under subsection (1) by the court of its own motion or on the application of the prosecution, and may be made whether or not the person is convicted of the offence, but shall not be made—
a: after the end of the period of 6 years from the date on which the infringing copy or object in question was made; or
b: if it appears to the court unlikely that any order will be made under section 134
3: Sections 126 to 129
4: A person to whom an infringing copy or other object is delivered up pursuant to an order made under this section shall retain the copy or object pending the making of an order, or the decision not to make an order, under section 134 1962 No 33 s 28(4)
133: Liability of officers of body corporate
Where any body corporate is convicted of an offence against section 131
a: that the act that constituted the offence took place with his or her authority, permission, or consent; and
b: that he or she—
i: knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
ii: failed to take all reasonable steps to prevent or stop it. 1991 No 69 s 340
133A: Evidence in proceedings
1: In proceedings for an offence against section 131
2: A party to the proceedings may apply to the court to require a person whose evidence has been given by affidavit to attend the proceedings for the purposes of cross-examination; and the court may make an order accordingly. Section 133A inserted 20 August 2003 section 201 Trade Marks Act 2002 Disposal of infringing copy or other object
134: Order as to disposal of infringing copy or other object
1: An application may be made to the court for an order that an infringing copy or other object delivered up pursuant to an order made under section 122 section 132
a: forfeited to the copyright owner; or
b: destroyed or otherwise dealt with as the court thinks fit.
2: In considering what order (if any) should be made under subsection (1), the court shall have regard to—
a: whether other remedies available in proceedings for infringement of copyright would be adequate to compensate the copyright owner and to protect the interests of the copyright owner; and
b: the need to ensure that no infringing copy is disposed of in a manner that would adversely affect the copyright owner.
3: The court shall issue directions as to the service of notice on persons having an interest in the copy or other object.
4: Any person having an interest in the copy or other object is entitled—
a: to appear in proceedings for an order under this section, whether or not that person is served with notice; and
b: to appeal against any order made, whether or not that person appears in the proceedings;— and an order made under subsection (1) shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
5: Where there is more than 1 person interested in a copy or other object, the court may direct that the object be sold, or otherwise dealt with, and the proceeds divided, and shall make any other order as it thinks just.
6: If the court decides that no order should be made under this section, the person in whose possession, custody, or control the copy or other object was before being delivered up is entitled to its return. 1962 No 33 s 28(4)
6A: Enforcement officers
Part 6A inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Appointment and functions of enforcement officers Heading inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134A: Chief executive may appoint enforcement officers
The chief executive may appoint enforcement officers, on a permanent or temporary basis, to perform the functions set out in section 134C Section 134A inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134B: Authority to act as enforcement officer
1: The chief executive must issue a warrant of appointment to every person appointed as an enforcement officer.
2: A warrant of appointment must—
a: be in the prescribed form; and
b: bear the photograph and signature of the holder; and
c: contain a statement of the power conferred by section 134D
d: contain any other prescribed particulars.
3: A warrant of appointment is, in the absence of evidence to the contrary, sufficient proof that the holder of the warrant may exercise the powers conferred on an enforcement officer.
4: A person who ceases to be an enforcement officer must return the person’s warrant of appointment.
5: A person who fails to comply with subsection (4) commits an offence and is liable on Section 134B inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Section 134B(5) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
134C: Functions of enforcement officer
An enforcement officer must, to the extent that is reasonably practicable, promote compliance with this Act by carrying out the following functions:
a: gathering information relating to offences under this Act:
b: investigating offences under this Act:
c: reporting to the chief executive on any matters relating to the enforcement officer’s functions. Section 134C inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Enforcement officer's power of entry and examination without warrant Heading inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134D: Enforcement officer’s power of entry and examination without warrant
1: For the purpose of carrying out his or her functions, an enforcement officer may enter and examine any place ( place A
a: place A is in a public place and the entry is made when place A is open to the public; or
b: place A is a place of business and the entry is made—
i: when it is open for carrying on business; and
ii: only to those parts of it that are open to the public; or
c: the occupier of place A consents to the entry and examination after the enforcement officer has informed the occupier—
i: of the purpose of the entry and examination; and
ii: that the occupier may refuse to give consent to the entry and examination; and
iii: that the occupier may revoke his or her consent at any time; and
iv: that any thing seized during the examination may be used in evidence in proceedings.
2: In subsection (1),— place A
a: includes (without limitation)—
i: a structure or tent, whether fully or partly erected; and
ii: a stand or stall; and
iii: a vehicle; and
iv: a caravan, trailer, or other conveyance; but
b: does not include a private dwellinghouse public place
3: For the purposes of this section, any person who appears to be under 14 years of age may not be treated as the occupier. Section 134D inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134E: What enforcement officer and person assisting may do when exercising power of entry and examination without warrant
1: The power of entry and examination conferred by section 134D
a: examine the place and all things, including any document:
b: seize any thing that he or she has reasonable grounds to believe is evidence of, or of significant relevance to the investigation of, an offence under this Act:
c: bring and use in or on the place equipment for the purposes of carrying out the examination:
d: take photographs or sound or video recordings of the place, and of any thing found in that place, if the enforcement officer has reasonable grounds to believe that the photographs or sound or video recordings may be relevant in any proceedings (including future proceedings) related to the entry and examination:
e: take any person to the place to assist him or her with the examination.
2: A person who assists an enforcement officer exercising the power of entry and examination may, under the direction of the enforcement officer,—
a: exercise any of the powers described in subsection (1)﻿(a), (c), and (d); and
b: seize any thing that the enforcement officer determines may lawfully be seized.
3: If an enforcement officer enters and examines a place under section 134D(1)﻿(c)
4: Subsection (3) is subject to subsection (5).
5: The enforcement officer may, before leaving the place, seize any thing already identified by him or her before the revocation of consent as a thing that he or she has reasonable grounds to believe is evidence of, or of significant relevance to the investigation of, an offence under this Act.
6: If a member of the Police assists an enforcement officer, nothing in this section prevents that member of the Police from exercising any power ordinarily exercisable by him or her.
7: Sections 134P to 134S Section 134E inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Entry and search under search warrant Heading inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134F: Enforcement officer or member of Police may apply for search warrant
1: An enforcement officer or a member of the Police may apply for a search warrant to search a place or thing.
2: Any District Court Judge, Justice of the Peace, Community Magistrate, or any Registrar of the District Court issuing officer
a: an offence under this Act has been, or is being, committed at the place or involving the thing; or
b: there is at, in, on, over, or under the place or thing, any thing that is—
i: evidence of an offence under this Act; or
ii: intended to be used for the purpose of committing an offence under this Act.
3: Sections 134G to 134S Section 134F inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Section 134F(2) amended 1 March 2017 section 261 District Court Act 2016
134G: Application for search warrant
1: An application for a search warrant must contain, in reasonable detail, the following particulars:
a: the name of the applicant:
b: the provision of this Act authorising the making of the application:
c: the grounds on which the application is made:
d: the address or other description of the place or thing proposed to be searched:
e: a description of the item or items believed to be at, in, on, over, or under the place or thing that are sought by the applicant:
f: the period for which the warrant is sought:
g: if the applicant wants to be able to execute the warrant on more than 1 occasion, the grounds on which execution on more than 1 occasion is believed to be necessary.
2: The issuing officer may require the applicant to supply further information concerning the grounds on which the search warrant is sought.
3: The applicant must disclose in the application—
a: details of any other application for a search warrant that the applicant knows to have been made within the previous 3 months in respect of the place or thing proposed to be searched:
b: the result of that application or those applications.
4: The applicant must, before making an application for a search warrant, make reasonable inquiries within the agency in which the applicant is employed or engaged for the purpose of complying with subsection (3).
5: The issuing officer may authorise the search warrant to be executed on more than 1 occasion during the period in which the warrant is in force if he or she is satisfied that this is required for the purposes for which the warrant is being issued. Section 134G inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134H: Mode of application for search warrant
1: Unless subsection (3) applies, an application for a search warrant—
a: must be in writing; and
b: must be in the prescribed form (if any); and
c: may be transmitted to the issuing officer electronically.
2: The applicant must appear in person before the issuing officer, unless subsection (3) applies.
3: An issuing officer may allow an application for a search warrant to be made verbally (for example, by telephone call) and excuse the applicant from making a personal appearance if the issuing officer is satisfied that—
a: the delay that would be caused by requiring an applicant to appear in person would compromise the effectiveness of the search; and
b: the question of whether the warrant should be issued can properly be determined on the basis of a verbal communication (including the information described in paragraph (c)); and
c: the information required by section 134G(1) to (3)
4: An issuing officer who allows an application for a search warrant to be made verbally must record the grounds for the application as soon as practicable. Section 134H inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134I: Form and content of search warrant
1: Every search warrant issued must be in the prescribed form.
2: Every search warrant issued must be directed generally to every enforcement officer and every member of the Police.
3: A search warrant—
a: may be executed by any of the persons to whom it is directed:
b: may be subject to any conditions specified in the warrant that the issuing officer considers reasonable:
c: may be executed only once, unless execution on more than 1 occasion is authorised.
4: Every search warrant must contain, in reasonable detail, the following particulars:
a: the name of the issuing officer and the date of issue:
b: the provision of this Act authorising the issue of the warrant:
c: that the person executing the warrant may use any assistance that is reasonable in the circumstances:
d: that the person executing the warrant may use any force that is reasonable in the circumstances to enter or break open or access any place being searched, or any area within that place, or any thing being searched or thing found:
e: the address or description of the place or thing that may be searched:
f: a description of what may be seized:
g: the period during which the warrant may be executed, being—
i: a period specified by the issuing officer not exceeding 14 days from the date of issue; or
ii: if the issuing officer is satisfied that a period of longer than 14 days is necessary for execution, a period specified by the issuing officer not exceeding 30 days from the date of issue:
h: any conditions specified by the issuing officer under subsection (3)﻿(b):
i: if the warrant may be executed on more than 1 occasion, the number of times that the warrant may be executed. Section 134I inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134J: Transmission of search warrant
If it is not possible for the person charged with executing the warrant to have it in his or her possession at the time of execution, 1 of the following documents (which is deemed for all purposes to constitute the warrant) may be executed:
a: a facsimile or other electronic copy of a warrant issued by the issuing officer:
b: a copy of the text of a warrant, made at the direction of the issuing officer, and endorsed to that effect by the person who made the copy. Section 134J inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134K: Retention of documents
1: A copy of every written application for a search warrant or, in the case of a verbal application, the written record of the application made by the issuing officer must be retained at the District Court at which, or the District Court that is closest to the place at which, the application was made, until,—
a: in a case where a search warrant is issued, the completion of any proceedings in respect of which the search warrant may be in issue; and
b: in any other case, the expiry of 2 years after the documents were first retained by the District Court.
2: An applicant to whom a search warrant is issued must retain the warrant, a copy of the application (if made in written form), and all documents tendered by the applicant in support of the application until,—
a: in the case of a warrant that is executed, the completion of any proceedings in respect of which the validity of the warrant may be in issue; and
b: in any other case, the destruction or transfer of the warrant and other documents is required by the Public Records Act 2005 Section 134K inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134L: When search warrant is executed
A search warrant is executed when the person executing the warrant—
a: has seized all the items specified in the warrant; or
b: leaves the place or thing being searched and does not return within 4 hours. Section 134L inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134M: Powers of entry and search under warrant
1: Every search warrant authorises the person executing it to do any of the following:
a: to enter and search the place or thing that the person is authorised to enter and search, and any item or items found in that place, at any time that is reasonable in the circumstances:
b: to request any person to assist with the entry and search (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi):
c: to use any force that is reasonable for the purposes of the entry and search:
d: to seize any thing authorised to be seized:
e: to bring and use in or on the place or thing searched any equipment, to use any equipment found on the place or thing, and to extract any electricity from the place or thing to operate the equipment that it is reasonable to use in the circumstances, for the purposes of carrying out the entry and search:
f: to copy any document, or part of a document, that may lawfully be seized:
g: to take photographs or sound or video recordings of the place or thing searched, and of any thing found in that place, if the person exercising the power has reasonable grounds to believe that the photographs or sound or video recordings may be relevant in any proceedings related to the entry and search.
2: The person executing the warrant may, in a manner and for the duration that is reasonable for the purposes of carrying out the search,—
a: secure the place or thing searched, any area within that place or thing, or any thing found within that place or thing; and
b: exclude any person from the place or thing searched, or from any area within the place or thing, or give any other reasonable direction to such a person, if the person carrying out the search has reasonable grounds to believe that the person will obstruct or hinder the exercise of the power.
3: The powers conferred by this section are subject to any conditions imposed under section 134I(3)﻿(b)
4: Section 198B Section 134M inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134N: Powers of persons called to assist
1: Every person called on to assist a person executing a warrant is subject to the control of the person executing the warrant.
2: Every person called on to assist a person executing a warrant may do any of the following:
a: enter the place or thing to be searched:
b: while in the company and under the direction of the person executing the warrant, use reasonable force in respect of any property for the purposes of carrying out the entry and search:
c: search areas within the place or thing that the person executing the warrant determines may lawfully be searched:
d: seize any thing that the person executing the warrant determines may lawfully be seized:
e: take photographs and sound and video recordings of the place or thing and things found in the place or thing if the person executing the warrant determines that those things may lawfully be done:
f: bring in or on to the place or thing and use any equipment, make use of any equipment found on the place or thing, or extract electricity from the place or thing for the purposes of operating the equipment that the person executing the warrant determines may lawfully be used:
g: copy any document, or part of a document, that the person executing the warrant determines may lawfully be copied.
3: If a member of the Police is assisting another person executing the warrant, that member of the Police may exercise any power ordinarily exercisable by him or her.
4: The person executing the warrant must—
a: accompany any assistant on the first occasion when the assistant enters the place or thing to be searched; and
b: provide such other supervision of any assistant as is reasonable in the circumstances. Section 134N inserted 7 October 2011 section 6 Copyright Amendment Act 2011 General provisions that apply to powers of entry and search and entry and examination Heading inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134O: Application of sections 134P to 134S
1: Sections 134P to 134S
2: Sections 134P(1) 134Q to 134S section 134D
3: In sections 134P to 134S
a: power of entry and search
b: power of entry and examination section 134D Section 134O inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134P: Powers and duties of person exercising power of entry and search or power of entry and examination
1: A person exercising a power of entry and search or a power of entry and examination must,—
a: before initial entry into or onto the place or thing to be searched or examined,—
i: announce his or her intention to enter and search or to enter and examine the place or thing under a statutory power; and
ii: identify himself or herself; and
b: before or on initial entry into or onto the place or thing to be searched or examined,—
i: give the occupier of the place or thing a copy of the search warrant or, in the case of an examination, a copy of section 134D authority
ii: produce to the occupier of the place or thing evidence of his or her identity (which may include details of a unique identifier instead of a name).
2: The person exercising a power of entry and search is not required to comply with subsection (1) if he or she believes on reasonable grounds that—
a: no person is lawfully present in or on the place or thing to be searched; or
b: compliance with subsection (1) would—
i: endanger the safety of any person; or
ii: prejudice the successful exercise of the power of entry and search; or
iii: prejudice ongoing investigations under this Act.
3: The person exercising a power of entry and search may use reasonable force in order to effect entry into or onto the place or thing if—
a: subsection (2) applies; or
b: following a request, the person present refuses entry or does not allow entry within a reasonable time.
4: If the occupier is not present at any time during the exercise of a power of entry and search, the person carrying out the search must,—
a: on completion of the search, leave a copy of the authority referred to in subsection (1)﻿(b)﻿(i) and the notice referred to in subsection (5) in a prominent position at the place or on the thing; or
b: if this is not reasonably practicable, provide the copy of the authority referred to in subsection (1)﻿(b)﻿(i) and the notice referred to in subsection (5) to the occupier no later than 7 days after the execution of the warrant.
5: The notice required by subsection (4) is a written notice containing the following particulars:
a: the date and time of the commencement and completion of the search:
b: the name or unique identifier of the person who had overall responsibility for that search:
c: the address of the office to which inquiries should be made:
d: if nothing is seized, the fact that nothing was seized:
e: if any thing was seized, the fact that seizure occurred and, if an inventory is not provided at the same time under section 134Q
6: For the purposes of this section and section 134Q
7: Subsections (4) and (5) are subject to sections 134R 134S Section 134P inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134Q: Inventory of things seized
1: A person who exercises a power of entry and search or a power of entry and examination must, at the time he or she seizes any thing, or as soon as practicable after the seizure of any thing, and in any case not later than 7 days after that seizure, provide to the occupier, and to every other person whom the person who carried out the search or examination has reason to believe is the owner of the thing that was seized,—
a: written notice specifying what was seized; and
b: a copy of the authority referred to in section 134P(1)﻿(b)﻿(i)
2: A written notice referred to in subsection (1)﻿(a)—
a: must contain information about the extent to which a person from whom a thing was seized or the owner of the thing has a right—
i: to have access to the thing; and
ii: to have access to any document relating to the application for a search warrant or the exercise of the power of entry and examination that led to the seizure; and
b: must contain information about the right to bring a claim that any privileged or confidential information has been seized; but
c: need not be provided to the occupier if the person who carries out the search or examination is satisfied that none of the things seized are owned by the occupier.
3: If the occupier is not present at the time of seizure, the written notice referred to in subsection (1)﻿(a) and a copy of the authority referred to in section 134P(1)﻿(b)﻿(i)
4: A person who exercises a power of entry and search or a power of entry and examination must make reasonable inquiries for the purposes of complying with subsections (1) and (2).
5: Subsection (1) is subject to subsections (2) and (3).
6: This section is subject to sections 134R 134S Section 134Q inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134R: Compliance with certain provisions may be deferred in certain circumstances
1: A person exercising a power of entry and search or a power of entry and examination may apply to a District Court Judge for an order postponing the obligation to comply with section 134P(4) or (5) 134Q
a: endanger the safety of any person; or
b: prejudice ongoing investigations under this Act or exercises of the power of entry and search or the power of entry and examination on subsequent occasions.
2: An application may be made under subsection (1),—
a: in the case of a search warrant, at the time of the initial application or until the expiry of 7 days after the warrant is finally executed; and
b: in the case of the power of entry and examination, until the expiry of 7 days after the power of entry and examination is exercised.
3: On an application under subsection (1), the District Court Judge may make an order postponing for a specified period not exceeding 12 months the obligation to comply with section 134P(4) or (5) 134Q Section 134R inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134S: Further extension to, or dispensation from, obligation to comply with certain provisions
1: A person who has obtained an order under section 134R(3) section 134P(4) or (5) 134Q section 134R(1)
2: An application for a further postponement may only be made on 1 occasion.
3: On an application under subsection (1), the District Court Judge may postpone for a further specified period not exceeding 12 months, or order a permanent dispensation from, the obligation to comply with section 134P(4) or (5) 134Q section 134R(1)
4: A District Court Judge may not grant, under subsection (3), any postponement of, or dispensation from, an obligation in respect of any thing that has been seized, unless the thing seized is a copy of any information taken or made. Section 134S inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Provisions relating to things seized Heading inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134T: Period things seized may be retained
1: A thing seized under this Act may be retained by the Commissioner of Police or by the chief executive while it is required for the purposes of investigating or prosecuting an offence under this Act.
2: Subsection (1) is subject to—
a: any order of the court under section 134U
b: section 134W
3: If a thing seized is no longer required for the purposes of investigating or prosecuting an offence under this Act, the Commissioner of Police or chief executive must return it to the person he or she believes is entitled to it.
4: The Commissioner of Police or chief executive may apply to the court for an order for directions as to the disposal of the thing if—
a: the person who is entitled to it cannot be found; or
b: the Commissioner of Police or chief executive is in doubt about who is entitled to it.
5: On an application under subsection (4), the court may make such order concerning the disposal of the thing that it thinks appropriate in the circumstances. Section 134T inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134U: Application for order to return things seized
1: A person who claims to be entitled to a thing seized may apply to the court for an order that the thing be delivered to him or her.
2: On an application under subsection (1), the court may make an order for delivery of the thing to the applicant if it is satisfied—
a: that the applicant is the person entitled to it; and
b: that it would be contrary to the interests of justice for the thing to be retained, having regard to—
i: the gravity of the alleged offence in respect of which the thing is being retained; and
ii: any loss or damage to the applicant caused, or likely to be caused, by retention of the thing; and
iii: the likely evidential value of the thing, having regard to any other evidence held by the Commissioner of Police or the chief executive, as the case may be; and
iv: whether the evidential value of the thing can be adequately preserved by means other than its retention. Section 134U inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134V: Disposal of things seized
1: In any proceedings for an offence relating to a thing seized, the court may, either at the trial or on an application, order—
a: that the thing be delivered to the person who appears to the court to be entitled to it; or
b: that the thing be destroyed or otherwise disposed of in the manner that the court thinks appropriate; or
c: if a person is convicted of an offence to which the thing relates,—
i: that the thing be forfeited to the copyright owner; or
ii: that the thing be destroyed or otherwise disposed of as the court directs at the expense of the convicted person.
2: In considering what order, if any, should be made under subsection (1)﻿(c)﻿(ii), the court must consider the need to ensure that no infringing goods are disposed of in a manner that would adversely affect the copyright owner.
3: If the court makes an order under subsection (1)﻿(c), it may order that the convicted person pay any reasonable costs incurred by the Commissioner of Police or chief executive in retaining the thing for the purpose of the proceedings.
4: If no order for delivery, forfeiture, destruction, or other disposal is made in respect of a thing seized and retained for the purpose of proceedings, it must, on completion of the proceedings, be returned by the Commissioner of Police or chief executive to the person entitled to it.
5: The Commissioner of Police or chief executive may apply to the court for an order for directions as to the disposal of the thing if—
a: the person who is entitled to it cannot be found; or
b: the Commissioner of Police or chief executive is in doubt about who is entitled to it.
6: On an application under subsection (5), the court may make any order concerning the disposal of the thing that it thinks appropriate in the circumstances. Section 134V inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134W: Disposal of perishable things
If, in the opinion of the Commissioner of Police or chief executive, a thing seized may rot, spoil, deteriorate, or otherwise perish, he or she may dispose of it in the way and at the price (if any) or the cost he or she may determine. Section 134W inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Other powers of enforcement officers Heading inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134X: Enforcement officer may apply for production order
1: If an enforcement officer believes on reasonable grounds that a person has in his or her possession, custody, or control, 1 or more documents that are evidence of, or may be of significant relevance to the investigation of, an offence against any of sections 131 198 226C
2: An application by an enforcement officer for an order under subsection (1) must—
a: be in writing; and
b: be in the prescribed form (if any); and
c: be made on oath; and
d: set out, in reasonable detail, the grounds for the application; and
e: provide details of the documents in respect of which the order is sought. Section 134X inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134Y: Judge may order documents to be produced
1: If an application is made under section 134X sections 131 198 226C
2: An order under subsection (1)—
a: must be in the prescribed form (if any); and
b: must specify—
i: when the documents are to be produced for inspection; and
ii: the place where the documents are to be produced for inspection; and
iii: the enforcement officer to whom the documents are to be produced for inspection; and
c: may be subject to any further terms and conditions the District Court Judge thinks fit. Section 134Y inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134Z: Powers of enforcement officer to whom documents produced
An enforcement officer to whom any document is produced for inspection under an order under section 134Y
a: inspect the document:
b: take extracts from the document:
c: make copies of the document. Section 134Z inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134ZA: Offence of failing to comply with order to produce documents
1: No person may, without reasonable excuse, fail to comply with an order under section 134Y
2: Every person who breaches subsection (1) commits an offence and is liable on
a: in the case of an individual, to imprisonment for a term not exceeding 6 months or a fine not exceeding $10,000; and
b: in the case of a body corporate, to a fine not exceeding $50,000. Section 134ZA inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Section 134ZA(2) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013 Powers of Police Heading: inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134ZB: Powers of Police
Every member of the Police has all, and may exercise any, of the powers of an enforcement officer under this Part. Section 134ZB inserted 7 October 2011 section 6 Copyright Amendment Act 2011 Miscellaneous Heading: inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134ZC: Privilege against self-incrimination
1: An order under section 134Y section 60
2: Any assertion of a privilege against self-incrimination must be based on section 60
3: If any individual refuses to produce a document on the ground that it is a privileged communication under section 60
4: To avoid doubt, nothing in this section affects the application of section 65 section 60
5: Section 63 section 134Y Section 134ZC inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134ZD: Other privileges
1: If, in a criminal proceeding, a person could assert a privilege under section 54 56 section 134D section 134F section 134Y
2: Subsection (3) applies to documents that are books of account or accounting records referred to in section 55(1)
3: The application, by subsection (1), of section 54
a: the issue or execution of a search warrant under section 134F
b: the making of an order under section 134Y
c: the admissibility, in a criminal proceeding under this Act, of any evidence that relates to the contents of a document to which this subsection applies obtained as a result of a search warrant issued under section 134F section 134Y
4: A person who has a privilege under this section has the right—
a: to prevent the examination under section 134D section 134F section 134Y
b: to require the return of any such communication or information if it is seized by a person exercising the power of examination under section 134D section 134F
5: If a person asserts a claim to privilege under this section in respect of any communication or information, an enforcement officer or a member of the Police may apply to a District Court Judge for an order determining whether or not the claim to privilege is valid; and, for the purpose of determining any such application, the District Court Judge may require the communication or information to be produced to him or her.
6: A District Court Judge may, on the application of an enforcement officer or a member of the Police, disallow a privilege claimed under this section if the Judge is satisfied that the claim to privilege would, under section 67(1)
7: Section 65 Section 134ZD inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134ZE: Disclosure of information
1: The chief executive (or any employee of the Ministry authorised in that behalf), the chief executive of the New Zealand Customs Service (or any employee of the New Zealand Customs Service authorised in that behalf), and the Commissioner of Police (or any member of the Police authorised in that behalf) may disclose information to each other, on request, for the purpose of investigating and prosecuting offences under this Act.
2: Information obtained under subsection (1) must not be disclosed except—
a: to the persons authorised under that subsection; or
b: for the purpose of any proceedings that have been commenced or that are reasonably in contemplation and that are connected with a matter in relation to which those persons perform their duties.
3: No obligation as to secrecy or other restriction on the disclosure of information imposed by any enactment or otherwise prevents a disclosure under this section. Section 134ZE inserted 7 October 2011 section 6 Copyright Amendment Act 2011
134ZF: No liability if functions performed or powers exercised in good faith
1: This section applies to—
a: an enforcement officer:
b: a person who assists an enforcement officer or a member of the Police under this Part:
c: a member of the Police who exercises any power of an enforcement officer under this Part.
2: No person to whom this section applies is liable for any act done or omitted to be done by the person in the performance or intended performance of his or her functions or the exercise or intended exercise of his or her powers under this Act if the person acted—
a: in good faith; and
b: in a reasonable manner; and
c: in the reasonably held belief that the prerequisites for the performance of any function or the exercise of any power had been satisfied. Section 134ZF inserted 7 October 2011 section 6 Copyright Amendment Act 2011
7: Border protection measures
135: Definitions
In this Part, unless the context otherwise requires,— accepted notice section 136(1) chief executive section 5(1) claimant section 136(1) control of the Customs is to be read in accordance with the definition of subject to the control of Customs in section 6 court Customs Customs officer section 5(1) exporter section 5(1) importer section 5(1) pirated copy
a: means any copy of a copyright work that is a literary, dramatic, musical, or artistic work or the typographical arrangement of a published edition or a sound recording or a film, where the copy is made—
i: directly or indirectly from the copyright work; and
ii: without the licence of the person who owns, in the country where the copy is made, the copyright in the work; and
iii: in circumstances in which the making of the copy—
A: constitutes an infringement of copyright under this Act; or
B: would, if it had been done in New Zealand, have constituted an infringement of copyright under this Act; and
b: includes any illicit recording within the meaning of section 169
c: does not include—
i: any other copyright work sold in a country other than New Zealand by or with the licence of the owner of the copyright in the work in that country; or
ia: any other work that is not an infringing copy within the meaning of section 12
ii: specified item Section 135 accepted notice inserted 16 September 2011 section 7 Copyright Amendment Act 2011 Section 135 chief executive inserted 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 135 chief executive amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 135 collector repealed 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 135 Comptroller repealed 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 135 control of the Customs substituted 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 135 control of the Customs amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 135 Customs inserted 16 September 2011 section 7 Copyright Amendment Act 2011 Section 135 Customs officer inserted 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 135 Customs officer amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 135 exporter inserted 30 December 2018 section 9(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 135 importer inserted 30 December 2018 section 9(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 135 officer of Customs repealed 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 135 pirated copy replaced 30 December 2018 section 9(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 135 pirated copy inserted 19 May 1998 section 7 Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 Section 135 pirated copy repealed 20 August 2003 section 201 Trade Marks Act 2002 Section 135 specified item inserted 30 December 2018 section 9(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
135A: Detention of items suspected of being pirated copies
1: Any item in the control of the Customs may be detained in the custody of the chief executive or a Customs officer if a Customs officer has reasonable cause to suspect that the item is a pirated copy.
2: The chief executive must, as soon as is reasonably practicable after the item is detained, take reasonable steps to notify the detention to—
a: the owner of the copyright (to enable that person to consider whether to give a notice under section 136(1)
b: the importer or exporter from whom the item has been detained, if that person is identified but was not present when the detention took place.
3: The detention of an item under subsection (1) subsection (2)﻿(a) or (b) Section 135A inserted 30 December 2018 section 10 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
135B: Notice
1: The chief executive may give notice to a person under section 135A(2)﻿(a) or (b)
a: by personal delivery to the person; or
b: by posting it to the last known address of the person; or
c: by sending it by fax to the last known fax number of the person; or
d: if the person has a known email address, by sending it to the person at that address by email.
2: A notice that is posted to a person must be treated as received by the person when it would have been delivered in the ordinary course of post and, in proving delivery,—
a: it is sufficient to prove that the letter was properly addressed and posted; and
b: in the absence of proof to the contrary, the notice must be treated as having been posted on the day on which it was dated.
3: A notice that is sent to a person at a fax number must, in the absence of proof to the contrary, be treated as received by the person on the day after the date on which it is sent, and in proving sending, it is sufficient to prove that a fax machine generated a record of the transmission of the notice to the fax number.
4: A notice that is sent to a person by email must, in the absence of proof to the contrary, be treated as received by the person not later than 2 days after the date on which it is sent. Section 135B inserted 30 December 2018 section 10 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
135C: Release of items
1: The item is no longer detained under section 135A(1)
a: no notice under section 136(1) section 135A(2)﻿(a)
b: a notice under section 136(1) section 135A(2)﻿(a)
i: the notice given under section 136(1)
ii: the notice given under section 136(1)
c: the chief executive considers that it is not reasonably practicable for notice to be given under section 135A(2)﻿(a)
d: the chief executive considers that there is no longer a reason to detain the item.
2: The chief executive must release any item no longer detained under section 135A(1)
3: However, the chief executive may release an item under subsection (2) section 140
a: any other legal requirements as to importation or exportation of the item are satisfied; and
b: any requirements, made pursuant to any regulations made under this Act, requiring the deposit of a security have been satisfied; and
c: the release of the item is not otherwise contrary to law. Section 135C inserted 30 December 2018 section 10 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
136: Notice may be given to chief executive
1: A person who owns the copyright in any 1 or more literary, dramatic, musical, or artistic works, or 1 or more typographical arrangements of a published edition, or 1 or more sound recordings or films may give a notice in writing to the chief executive—
a: claiming that an item is a work, or items are works, as the case may be, in which the person owns the copyright; and
b: requesting the chief executive to detain any pirated copies of the item or items, as the case may be, that are in, or at any time come into, the control of the Customs.
2: A notice under subsection (1) shall—
a: contain such particulars in support of the claim that the item is a pirated copy, or items are pirated copies, as the case may be, as may be prescribed in regulations made under this Act; and
b: specify the period for which the notice is to be in force, which period shall be—
i: not longer than 5 years from the date of the notice; or
ii: if the copyright in the work or any of the works to which the notice relates will expire within the period of 5 years from the date of the notice, not longer than the period for which that copyright will last.
3: The chief executive shall, in relation to any notice given under subsection (1),—
a: accept the notice if the claimant and the notice given by the claimant comply with the requirements of this section and any regulations made under this Act:
b: decline the notice if the claimant or the notice given by the claimant does not comply with the requirements of this section and any regulations made under this Act,— and shall within a reasonable period of receiving the notice advise the claimant whether the notice has been accepted or declined.
4: Section 136 substituted 1 October 1996 Copyright Amendment Act 1996 Section 136(4) repealed 16 September 2011 section 8 Copyright Amendment Act 2011
136A: Chief executive may suspend accepted notice
1: The chief executive may suspend an accepted notice if the chief executive is satisfied that—
a: the information held in respect of the accepted notice is not correct or is no longer current; or
b: there has been a failure to comply with a requirement concerning the giving of security or indemnity or both; or
c: there has been a failure to comply with an obligation under an indemnity given for an amount in respect of the accepted notice.
2: Before suspending an accepted notice, the chief executive must—
a: give written advice of the chief executive’s intention to suspend the accepted notice to—
i: the person who gave the notice under section 136
ii: if the chief executive has received notification of an assignment or transmission of the copyright to which the notice relates, the person notified as the current owner of the copyright; and
b: include in or with the advice a statement of the chief executive’s reasons; and
c: give the person to whom the advice is given not less than 20 working days to respond; and
d: consider any response made by that person to the chief executive within the time allowed.
3: The written advice under subsection (2) may be given—
a: by delivering it to that person; or
b: by posting it to the most recent address for that person that has been notified to the chief executive ; or
c: by emailing it to the person at an email address that is used by the person.
4: In the absence of proof to the contrary, written advice that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the advice was emailed, it is sufficient to prove that the advice was properly addressed and sent to the email address. Section 136A inserted 16 September 2011 section 9 Copyright Amendment Act 2011 Section 136A(3)﻿(b) amended 16 December 2017 section 52(1) Electronic Interactions Reform Act 2017 Section 136A(3)﻿(c) inserted 16 December 2017 section 52(2) Electronic Interactions Reform Act 2017 Section 136A(4) inserted 16 December 2017 section 52(3) Electronic Interactions Reform Act 2017
136B: Notice of suspension
1: If the chief executive decides to suspend an accepted notice, the chief executive must give written notice of the suspension to the person referred to in section 136A(2)﻿(a)
2: The notice of suspension may be given—
a: by delivering it to that person; or
b: by posting it to the most recent address for that person that has been notified to the chief executive ; or
c: by emailing it to the person at an email address that is used by the person.
3: In the absence of proof to the contrary, a notice of suspension that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the notice was emailed, it is sufficient to prove that the notice was properly addressed and sent to the email address. Section 136B inserted 16 September 2011 section 9 Copyright Amendment Act 2011 Section 136B(2)﻿(b) amended 16 December 2017 section 53(1) Electronic Interactions Reform Act 2017 Section 136B(2)﻿(c) inserted 16 December 2017 section 53(2) Electronic Interactions Reform Act 2017 Section 136B(3) inserted 16 December 2017 section 53(3) Electronic Interactions Reform Act 2017
136C: Chief executive may reinstate accepted notice
The chief executive may reinstate an accepted notice suspended under section 136A Section 136C inserted 16 September 2011 section 9 Copyright Amendment Act 2011
136D: Duration of accepted notice
1: An accepted notice remains in force for the period specified in the notice unless—
a: it is revoked by the claimant by notice in writing; or
b: the court orders, in proceedings under section 141(1)
2: However, an accepted notice is not in force during the period of any suspension under section 136A Section 136D inserted 16 September 2011 section 9 Copyright Amendment Act 2011
137: Determination whether item is pirated copy
1: Where—
a: a notice that has been accepted under section 136(3)﻿(a)
b: the chief executive forms the opinion that any item the chief executive may conduct such investigation as he or she considers necessary in order to establish whether or not the item appears to be a pirated copy to which the notice relates.
2: Where the chief executive conducts an investigation, he or she may, subject to section 138
a: the claimant; or
b: any other person appearing to the chief executive to have an interest in the item— to supply such information as the chief executive may specify for the purpose of the investigation, within 10 working days of being required to do so.
3: Whether or not the chief executive conducts any investigation, he or she must, within a reasonable period of forming an opinion under subsection (1), make a determination whether or not the item appears to be a pirated copy to which the notice relates.
4: This section applies only to a specified item. Section 137 substituted 28 July 1997 section 2 Copyright Amendment Act 1997 Section 137(1)﻿(b) amended 30 December 2018 section 11(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 137(4) replaced 30 December 2018 section 11(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
138: Limitations on requirement to supply information
1: The chief executive must not require any person to supply any information under section 137(2) section 137(1)
2: Every person who is required to supply information to the chief executive under section 137(2)
3: Where any person refuses or fails to supply information required by the chief executive under section 137(2) section 137(1) section 137(3) Section 138 substituted 28 July 1997 section 2 Copyright Amendment Act 1997
139: Notice of determination
1: Where the chief executive makes a determination under section 137(3)
a: the claimant; and
b: any other person appearing to the chief executive to have an interest in the item— within such period as may reasonably be necessary to effect service.
2: Every notice required to be served on the claimant or other person under subsection (1) may be given to the claimant or other person—
a: by personal delivery to the claimant or other person; or
b: by posting it to the last known address of the claimant or other person; or
c: by faxing it to the last known fax number of the claimant or other person; or
d: by emailing it to the claimant or other person at an email address that is used by the claimant or other person.
2A: A notice that is posted to a claimant or any other person must be treated as served on the claimant or other person at the time when it would have been delivered in the ordinary course of post, and, in proving the delivery,—
a: it is sufficient to prove that the letter was properly addressed and posted; and
b: in the absence of proof to the contrary, the notice must be treated as having been posted on the day on which it was dated.
2B: A notice that is faxed to a claimant or any other person must, in the absence of proof to the contrary, be treated as served on the claimant or other person on the day after the date on which it is faxed, and, in proving that it was faxed, it is sufficient to prove that a fax machine generated a record of the transmission of the notice to the fax number.
2C: In the absence of proof to the contrary, a notice that is emailed to a claimant or any other person must be treated as served on the claimant or other person on the second working day after the date on which it is emailed, and, in proving that the notice was emailed, it is sufficient to prove that the notice was properly addressed and sent to the email address.
3: The detention of any item under section 140 Section 139(1) substituted 28 July 1997 section 3 Copyright Amendment Act 1997 Section 139(2)﻿(b) replaced 16 December 2017 section 54(1) Electronic Interactions Reform Act 2017 Section 139(2)﻿(c) replaced 16 December 2017 section 54(1) Electronic Interactions Reform Act 2017 Section 139(2)﻿(d) inserted 16 December 2017 section 54(1) Electronic Interactions Reform Act 2017 Section 139(2A) inserted 16 December 2017 section 54(2) Electronic Interactions Reform Act 2017 Section 139(2B) inserted 16 December 2017 section 54(2) Electronic Interactions Reform Act 2017 Section 139(2C) inserted 16 December 2017 section 54(2) Electronic Interactions Reform Act 2017
140: Detention of pirated copy
1: Where the chief executive has formed an opinion that an item section 136(3)﻿(a)
a: the chief executive is served with an order made in proceedings under section 141(1)
b: the chief executive is served with an order made in proceedings under section 141(2)
c: any proceedings under section 141(3)
d: any proceedings under section 141(3)
e: 10 working days have elapsed since notice was served under section 139 section 141(3) exporter whereupon the item shall, subject to subsection (3), be released to the person entitled to it.
2: The chief executive may in any particular case extend the period referred to in subsection (1)﻿(e) to 20 working days if he or she considers it appropriate to do so in all the circumstances.
3: The chief executive or any Customs officer shall not release any item under subsection (1) unless—
a: any other legal requirements as to importation or exportation
b: any requirements made pursuant to any regulations made under this Act requiring the deposit of a security have been satisfied; and
c: the release of the item is not otherwise contrary to law. Section 140 substituted 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 140(1) amended 30 December 2018 section 12(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 140(1)﻿(c) replaced 30 December 2018 section 12(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 140(1)﻿(e) amended 30 December 2018 section 12(3) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 140(3)﻿(a) amended 30 December 2018 section 12(4) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
141: Proceedings
1: Any person may apply to the court for an order that a notice accepted under section 136(3)﻿(a)
2: Any person may apply to the court for an order that an item detained under section 140
3: Any person may apply to the court for a decision on whether an item that is the subject of a determination made under section 137(3)
4: Notice of proceedings under subsection (3) shall be served on the chief executive
5: In proceedings under subsection (3), the court shall issue directions as to the service of notice on persons having an interest in the item that is the subject of proceedings, and any such person is entitled—
a: to appear in those proceedings, whether or not that person was served with notice under section 139
b: to appeal against any order made in those proceedings, whether or not that person appeared in the proceedings.
6: No order made in proceedings under subsection (3) shall take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal. Section 141(3) replaced 30 December 2018 section 13 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 141(4) amended 1 October 1996 section 289(1) Customs and Excise Act 1996
141A: Forfeiture of goods by consent
If any pirated copies have been detained in the custody of the chief executive or any Customs officer, the importer or exporter Section 141A inserted 20 August 2003 section 201 Trade Marks Act 2002 Section 141A amended 30 December 2018 section 14 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
142: Powers of court
1: If, in proceedings under section 141(3) section 137(3)
a: forfeited to the Crown; or
b: destroyed; or
c: otherwise dealt with as the court thinks fit.
2: In considering what order should be made under subsection (1), the court shall have regard to—
a: whether other remedies available in proceedings for infringement of copyright would be adequate to compensate the claimant and to protect that person's interests; and
b: the need to ensure that no pirated copy is disposed of in a manner that would adversely affect the claimant.
3: Where more than 1 person is interested in an item, the court may direct that the item be sold, or otherwise dealt with, and the proceeds divided, and shall make any other order as it thinks just.
4: If, in proceedings under section 141(3) Section 142(1) replaced 30 December 2018 section 15(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 142(4) replaced 30 December 2018 section 15(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
143: Inspection of item
1: The chief executive or a Customs officer
a: a notice given under section 136(1)
b: an investigation under section 137
c: proceedings under section 141 allow any person claiming to have an interest in—
d: the item; or
e: any investigation under section 137 section 141 to inspect that item.
2: A person referred to in subsection (1) may—
a: inspect the item during normal office hours; or
b: with the approval of the chief executive or a Customs officer, remove the item or an example of the item to such place, for such period, and on such conditions as the chief executive or Customs officer may specify, for the purpose of inspecting it.
3: Any person who intends to inspect any item under this section shall give the chief executive or Customs officer Section 143(1) amended 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 143(2) substituted 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 143(3) amended 1 October 1996 section 289(1) Customs and Excise Act 1996 Enforcement powers of Customs officers Heading inserted 7 October 2011 section 10 Copyright Amendment Act 2011
144: Customs officer may seize goods in control of Customs
1: A Customs officer may seize any imported goods that are in the control of the Customs if the officer has reasonable cause to believe that they are evidence of, or of significant relevance to the investigation of, an offence against section 131(1)﻿(b) 198(1)﻿(b) 226C(1)
2: The provisions of sections 134T to 134W Section 144 substituted 7 October 2011 section 10 Copyright Amendment Act 2011
144A: Chief executive may require person to produce documents concerning goods in control of Customs
1: If a Customs officer believes on reasonable grounds that goods in the control of the Customs have been imported in breach of this Act, the chief executive may, by notice in writing, require any person whom the Customs officer believes to have imported the goods, or any person whom the Customs officer believes to have acted as agent of that person, to produce to a Customs officer for inspection any specified document or class of documents in the person's possession or control that the Customs officer considers relevant to determining whether the goods should be seized under section 144
2: A notice under this section requiring a person to produce any document must—
a: be in the prescribed form; and
b: specify the Customs officer to whom the person must produce the document; and
c: specify a reasonable time and place at which the document must be produced; and
d: be served on the person by—
i: delivering it to him or her in person; or
ii: posting it to the person's address or delivering it to a box at a document exchange that the person is using at the time; or
iii: sending it by fax machine to a telephone number used by the person for the transmission of documents by fax; or
iv: if the person is a registered user of a registered user system (within the meaning of section 322
v: emailing it to the person at an email address that is used by the person.
2A: In the absence of proof to the contrary, a notice that is emailed to a person must be treated as served on the person on the second working day after the date on which it is emailed, and, in proving that the notice was emailed, it is sufficient to prove that the notice was properly addressed and sent to the email address.
3: A Customs officer to whom a document is produced for inspection may do 1 or more of the following:
a: inspect the document:
b: take extracts from the document:
c: make copies of the document. Section 144A inserted 7 October 2011 section 10 Copyright Amendment Act 2011 Section 144A(2)﻿(d)﻿(iv) replaced 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 144A(2)﻿(d)﻿(v) inserted 16 December 2017 section 55(2) Electronic Interactions Reform Act 2017 Section 144A(2A) inserted 16 December 2017 section 55(3) Electronic Interactions Reform Act 2017
144B: Chief executive may require person to appear and answer questions concerning goods in control of Customs
1: If a Customs officer believes on reasonable grounds that goods in the control of the Customs have been imported in breach of this Act, the chief executive may, by notice in writing, require any person whom the Customs officer believes to have imported the goods, or any person whom the Customs officer believes to have acted as agent of that person, to appear before a Customs officer and to answer questions that the Customs officer considers relevant to determining whether the goods should be seized under section 144
2: A notice under this section requiring a person to appear before a Customs officer and to answer questions must—
a: be in the prescribed form; and
b: specify the Customs officer before whom the person must appear; and
c: specify a reasonable time and place at which the person must appear; and
d: be served on the person by—
i: delivering it to him or her in person; or
ii: posting it to the person's address or delivering it to a box at a document exchange that the person is using at the time; or
iii: sending it by fax machine to a telephone number used by the person for the transmission of documents by fax; or
iv: if the person is a registered user of a registered user system (within the meaning of section 322
v: emailing it to the person at an email address that is used by the person.
3: In the absence of proof to the contrary, a notice that is emailed to a person must be treated as served on the person on the second working day after the date on which it is emailed, and, in proving that the notice was emailed, it is sufficient to prove that the notice was properly addressed and sent to the email address. Section 144B inserted 7 October 2011 section 10 Copyright Amendment Act 2011 Section 144B(2)﻿(d)﻿(iv) replaced 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 144B(2)﻿(d)﻿(v) inserted 16 December 2017 section 56(2) Electronic Interactions Reform Act 2017 Section 144B(3) inserted 16 December 2017 section 56(3) Electronic Interactions Reform Act 2017
144C: Customs officer may apply for production order
1: If a Customs officer believes on reasonable grounds that a person has in his or her possession, custody, or control, 1 or more documents that are evidence of, or may be of significant relevance to the investigation of, an offence against section 131 198 226C
2: An application by a Customs officer for an order under subsection (1) must—
a: be in writing; and
b: be in the prescribed form (if any); and
c: be made on oath; and
d: set out, in reasonable detail, the grounds for the application; and
e: provide details of the documents in respect of which the order is sought. Section 144C inserted 7 October 2011 section 10 Copyright Amendment Act 2011
144D: Judge may order documents to be produced
1: If an application is made under section 144C section 131 198 226C
2: An order under subsection (1)—
a: must be in the prescribed form (if any); and
b: must specify—
i: when the documents are to be produced for inspection; and
ii: the place where the documents are to be produced for inspection; and
iii: the Customs officer to whom the documents are to be produced for inspection; and
c: may be subject to any further terms and conditions the District Court Judge thinks fit. Section 144D inserted 7 October 2011 section 10 Copyright Amendment Act 2011
144E: Powers of Customs officer to whom documents produced
A Customs officer to whom any document is produced for inspection under an order under section 144D
a: inspect the document:
b: take extracts from the document:
c: make copies of the document. Section 144E inserted 7 October 2011 section 10 Copyright Amendment Act 2011
144F: Issue of search warrants to Customs officers
1: A Customs officer may apply for a search warrant to search a place or thing.
2: Any District Court Judge, Justice of the Peace, Community Magistrate, or Registrar of the District Court issuing officer section 131 198 226C
3: Sections 134G to 134S
4: Sections 134T to 134W Section 144F inserted 7 October 2011 section 10 Copyright Amendment Act 2011 Section 144F(2) amended 1 March 2017 section 261 District Court Act 2016
144G: Privilege against self-incrimination
1: A notice under section 144A 144B section 144D section 60
2: Any assertion of a privilege against self-incrimination must be based on section 60
3: If any individual refuses to produce any information or document or to answer any question on the ground that it is a privileged communication under section 60
4: To avoid doubt, nothing in this section affects the application of section 65 section 60
5: Section 63 section 144D Section 144G inserted 7 October 2011 section 10 Copyright Amendment Act 2011
144H: Other privileges
1: If, in a criminal proceeding, a person could assert a privilege under section 54 56 section 144A 144B section 144D section 144F
2: Subsection (3) applies to documents that are books of account or accounting records referred to in section 55(1)
3: The application, by subsection (1), of section 54
a: the issue of a notice under section 144A
b: the making of an order under section 144D
c: the issue of a search warrant under section 144F
d: the admissibility, in a criminal proceeding under this Act, of any evidence that relates to the contents of a document to which this subsection applies obtained under a notice issued under section 144A section 144D section 144F
4: A person who has a privilege under this section has the right—
a: to refuse to disclose a communication or information to which the privilege would apply if it were sought to be disclosed in a criminal proceeding; and
b: to prevent the search of any such communication or information; and
c: to require the return of any such communication or information if it is seized by a person exercising a power of search pending determination of the claim to privilege.
5: If a person asserts a claim to privilege under this section in respect of any communication or information, a Customs officer or a member of the Police may apply to a District Court Judge for an order determining whether the claim to privilege is valid; and, for the purpose of determining any such application, the District Court Judge may require the communication or information to be produced to him or her.
6: A District Court Judge may, on the application of a Customs officer or a member of the Police, disallow a privilege claimed under this section if the Judge is satisfied that the claim to privilege would, under section 67(1)
7: Section 65 Section 144H inserted 7 October 2011 section 10 Copyright Amendment Act 2011
144I: Offences
1: No person may, without reasonable excuse, refuse or fail to comply with a notice given under section 144A
2: No person who is required by a notice given under section 144B
a: refuse or fail to appear before the Customs officer in accordance with the notice; or
b: refuse to answer any question.
3: No person may, without reasonable excuse, refuse or fail to comply with an order made under section 144D
4: Every person who breaches any of subsections (1) to (3) commits an offence and is liable on
a: in the case of an individual, to imprisonment for a term not exceeding 6 months or to a fine not exceeding $10,000; and
b: in the case of a body corporate, to a fine not exceeding $50,000. Section 144I inserted 7 October 2011 section 10 Copyright Amendment Act 2011 Section 144I(4) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013 Miscellaneous matters Heading inserted 16 September 2011 section 11 Copyright Amendment Act 2011
145: Delegation of powers, duties, and functions
1: With the written consent of the Minister of Customs, the chief executive may from time to time, either generally or particularly, by writing under his or her hand, delegate to any Customs officer all or any of the powers, duties, and functions conferred or imposed on the chief executive by or under this Part.
2: No delegation under subsection (1) shall include the power to delegate under that subsection.
3: Subject to any general or special directions given or conditions imposed from time to time by the Minister of Customs or the chief executive, as the case may be, the officer to whom any powers are so delegated may exercise those powers in the same manner and with the same effect as if they had been conferred on that officer directly by this Act and not by delegation.
4: Every Customs officer purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.
5: Any delegation under this section may be made to any specified person or to the holder or holders for the time being of any specified office or class of offices.
6: Every such delegation shall be revocable at will, and no such delegation shall prevent the exercise of any power by the chief executive.
7: Any such delegation shall, until revoked, continue in force according to its tenor, notwithstanding the fact that the chief executive by whom it was made has ceased to hold office, and shall continue to have effect as if made by the successor in office of the chief executive. Section 145 substituted 1 October 1996 section 289(1) Customs and Excise Act 1996
146: Protection of persons acting under authority of Act
Neither the Crown nor the chief executive nor any Customs officer nor any person who assists a Customs officer chief executive or any Customs officer or any person who assists a Customs officer 1966 No 19 s 228A 1971 No 42 s 10 Section 146 amended 7 October 2011 section 12(1) Copyright Amendment Act 2011 Section 146 amended 7 October 2011 section 12(2) Copyright Amendment Act 2011 Section 146 amended 1 October 1996 section 289(1) Customs and Excise Act 1996
8: Copyright licensing
147: Works of more than 1 author
1: References in this Part to licences or licensing schemes covering works of more than 1 author do not include licences or licensing schemes covering only—
a: a single collective work or collective works of which the authors are the same; or
b: works made by or by employees of, or commissioned by, a single individual, firm, company, or group of companies.
2: In subsection (1), group of companies sections 5 6 Copyright, Designs and Patents Act 1988 s 116(4) (UK) Section 147(2) substituted 31 October 2008 section 67 Copyright (New Technologies) Amendment Act 2008 References and applications with respect to licensing schemes
148: Licensing schemes to which sections 149 to 155 apply
Sections 149 to 155
a: licensing schemes that—
i: are operated by licensing bodies; and
ii: relate to copyright in literary, dramatic, musical, or artistic works, or films, or film soundtracks when accompanying a film; and
iii: cover works of more than 1 author; and
iv: relate to licences for copying the work or performing, showing, or playing the work in public or communicating the work to the public:
b: all licensing schemes in relation to copyright in sound recordings (other than film soundtracks when accompanying a film), communication works
c: all licensing schemes that—
i: relate to copyright in computer programs, sound recordings, or films; and
ii: relate to licences for the rental of copies of works of those descriptions to the public:
d: all licensing schemes that authorise—
i: copying of literary, dramatic, musical, or artistic works or the typographical arrangements of published editions by or on behalf of educational establishments; or
ii: copying in the circumstances set out in section 45(4)
iii: recording in the circumstances set out in sections 48(1) 91(2)
iv: and in those sections the term licensing scheme Copyright, Designs and Patents Act 1988 s 117 (UK) Section 148(a)﻿(iv) substituted 31 October 2008 section 68(1) Copyright (New Technologies) Amendment Act 2008 Section 148(b) amended 31 October 2008 section 68(2) Copyright (New Technologies) Amendment Act 2008 Section 148(d)﻿(iii) substituted 31 October 2008 section 68(3) Copyright (New Technologies) Amendment Act 2008 Section 148(d)﻿(iv) repealed 31 October 2008 section 68(3) Copyright (New Technologies) Amendment Act 2008 References with respect to licensing schemes
149: Reference of proposed licensing scheme to Tribunal
1: The terms of a licensing scheme that—
a: is proposed to be operated by a licensing body; and
b: is proposed to apply generally or in relation to any description of cases— may be referred to the Tribunal by—
c: the operator of the proposed scheme; or
d: an organisation claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply.
2: The Tribunal shall first decide whether to entertain the reference and may decline to do so on the ground that the reference is premature.
3: If the Tribunal decides to entertain the reference, it shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
4: The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Copyright, Designs and Patents Act 1988 s 118 (UK)
150: Reference of licensing scheme to Tribunal
1: If, while a licensing scheme is in operation, a dispute arises between the operator of the scheme and—
a: a person claiming that he or she requires a licence in a case of a description to which the scheme applies; or
b: an organisation claiming to be representative of such persons,— the operator or that person or organisation may refer the scheme, in so far as it relates to cases of that description, to the Tribunal.
2: A scheme that has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
3: The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
4: The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. 1962 No 33 s 39(1), (3)–(5)﻿(a)
151: Further reference of scheme to Tribunal
1: Where the Tribunal has on a previous reference of a licensing scheme (whether under this section or section 149 section 150
a: the operator of the scheme; or
b: a person claiming that he or she requires a licence in a case of the description to which the order applies; or
c: an organisation claiming to be representative of such persons— may again refer the scheme, so far as it relates to cases of that description, to the Tribunal.
2: Except with the special leave of the Tribunal, a licensing scheme shall not be referred again to the Tribunal under subsection (1) in respect of the same description of cases at a time earlier than—
a: the end of the period of 12 months from the date of the order on the previous reference; or
b: if the order was made so as to be in force for 15 months or less, the beginning of the period of 3 months immediately before the expiry of the order,— whichever occurs first.
3: A scheme that has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
4: The Tribunal shall consider the matter in dispute and make such order, either confirming, varying, or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
5: The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. 1962 No 33 s 40
152: Effect of order of Tribunal made on reference
1: A licensing scheme that has been confirmed or varied by an order of the Tribunal made under section 149 section 150 section 151
2: While an order is in force, a person who, in a case of a class to which the order applies,—
a: pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained; and
b: complies with the other terms applicable to such a licence under the scheme— shall be in the same position as regards infringement of copyright as if that person had at all material times been the holder of a licence granted by the owner of the copyright in question in accordance with the scheme.
3: The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which the order is made, but not earlier than the date on which the reference was made or, if later, on which the scheme came into operation.
4: If such a direction is made,—
a: any necessary repayments, or further payments, shall be made in respect of charges already paid; and
b: the reference in subsection (2)﻿(a) to the charges payable under the scheme shall be construed as a reference to the charges so payable under the order. 1962 No 33 ss 39(5)﻿(b), 45(1)–(3) Applications with respect to licensing schemes
153: Application for grant of licence in connection with licensing scheme
1: A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant to that person or procure the grant to that person of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Tribunal for a licence.
2: A person who claims, in a case excluded from a licensing scheme,—
a: that the operator of the scheme has refused to grant to that person or procure the grant to that person of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted; or
b: that the operator of the scheme proposes terms for a licence that are unreasonable— may apply to the Tribunal.
3: A case shall be regarded as excluded from a licensing scheme for the purposes of subsection (2) if—
a: the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception; or
b: the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.
4: If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.
5: The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. 1962 No 33 ss 36(3), 38(1)–(4)
154: Application for review of order as to entitlement to licence
1: Where the Tribunal has made an order under section 153
2: Except with the special leave of the Tribunal, an application shall not be made under subsection (1) at a time earlier than—
a: the end of the period of 12 months from the date of the order, or of the decision on a previous application under this section; or
b: if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, the beginning of the period of 3 months immediately before the expiry date,— whichever occurs first.
3: The Tribunal shall on an application for review under this section confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case. Copyright, Designs and Patents Act 1988 s 122 (UK)
155: Effect of order of Tribunal made on application
Where the Tribunal has made an order under section 153
a: pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained; and
b: complies with the other terms specified in the order,— be in the same position as regards infringement of copyright as if that person had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order. 1962 No 33 s 45(1)–(3) References and applications with respect to licensing by licensing bodies
156: Licences to which sections 157 to 160 apply
Sections 157 to 160
a: licences that—
i: relate to copyright in literary, dramatic, musical, or artistic works, or films, or film soundtracks when accompanying a film; and
ii: cover works of more than 1 author; and
iii: authorise the copying of the work or the performance, showing, or playing of the work in public or the communication of the work to the public:
b: any licence relating to copyright in a sound recording (other than a film soundtrack when accompanying a film), communication work
c: all licences relating to copyright in computer programs, sound recordings, or films, so far as the licences relate to the rental of copies to the public:
d: licences that authorise the copying of literary, dramatic, musical, or artistic works or the typographical arrangements of published editions by or on behalf of educational establishments;— and in those sections the term licence Copyright, Designs and Patents Act 1988 s 124 (UK) Section 156(a)﻿(iii) substituted 31 October 2008 section 69(1) Copyright (New Technologies) Amendment Act 2008 Section 156(b) amended 31 October 2008 section 69(2) Copyright (New Technologies) Amendment Act 2008
157: Reference to Tribunal of proposed licence
1: The terms on which a licensing body proposes to grant a licence may be referred to the Tribunal by the licensing body or the prospective licensee.
2: The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
3: If the Tribunal decides to entertain the reference, it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms, as it may determine to be reasonable in the circumstances.
4: The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Copyright, Designs and Patents Act 1988 s 125 (UK)
158: Reference to Tribunal of expiring licence
1: A licensee under a licence that is due to expire, either by effluxion of time or as a result of notice given by the licensing body, may refer the licence to the Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.
2: Such a reference may not be made earlier than the beginning of the period of 3 months immediately before the licence is due to expire.
3: A licence in respect of which a reference has been made to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
4: If the Tribunal finds the reference well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.
5: An order of the Tribunal under this section may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Copyright, Designs and Patents Act 1988 s 126 (UK)
159: Application for review of order as to licence
1: Where the Tribunal has made an order under section 157 section 158
2: Except with the special leave of the Tribunal, an application shall not be made under subsection (1) at a time earlier than—
a: the end of the period of 12 months from the date of the order or of the decision on a previous application under this section; or
b: if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, the beginning of the period of 3 months immediately before the expiry date,— whichever occurs first.
3: The Tribunal shall on an application for review under this section confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances. Copyright, Designs and Patents Act 1988 s 127 (UK)
160: Effect of order of Tribunal as to licence
1: Where the Tribunal has made an order under section 157 section 158
a: pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained; and
b: complies with the other terms specified in the order,— be in the same position as regards infringement of copyright as if that person had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.
2: The benefit of the order may be assigned,—
a: in the case of an order made under section 157
b: In the case of an order made under section 158
3: The Tribunal may direct that an order made under section 157 section 158 section 159
4: If such a direction is made,—
a: any necessary repayments, or further payments, shall be made in respect of charges already paid; and
b: the reference in subsection (1)﻿(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable under the later order. Copyright, Designs and Patents Act 1988 s 128 (UK) Factors to be taken into account in certain classes of cases
161: Unreasonable discrimination
In determining what is reasonable on a reference or application under this Part relating to a licensing scheme or licence, the Tribunal shall have regard to—
a: the availability of other schemes, or the granting of other licences, to other persons in similar circumstances; and
b: the terms of those schemes or licences;— and shall exercise its powers so as to ensure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person. Copyright, Designs and Patents Act 1988 s 129 (UK)
162: Licences for reprographic copying
Where a reference or application is made under this Part relating to the licensing of reprographic copying of published literary, dramatic, musical, or artistic works, or the typographical arrangements of published editions, the Tribunal shall have regard to—
a: the extent to which published editions of the works in question are otherwise available; and
b: the proportion of the work to be copied; and
c: the nature of the use to which the copies are likely to be put. Copyright, Designs and Patents Act 1988 s 130 (UK)
163: Licences for educational establishments in respect of works included in communication works
1: This section applies to references or applications made under this Part in relation to licences for—
a: the recording, for educational purposes, by or on behalf of educational establishments, of communication works that include copyright works; or
b: making copies of those recordings for educational purposes.
2: When this section applies, the Tribunal must, in considering what charges (if any) should be paid for a licence, have regard to the extent to which the owners of the copyright in the works included in the communication work have already received, or are entitled to receive, payment in respect of their inclusion. Section 163 substituted 31 October 2008 section 70 Copyright (New Technologies) Amendment Act 2008
164: Licences to reflect conditions imposed by promoters of events
1: Where a reference or application is made under this Part in respect of a licence relating to a sound recording, film, or communication work
a: shall have regard to any conditions imposed by the promoters of the entertainment or other event; and
b: shall not hold a refusal or failure to grant a licence to be unreasonable if the licence could not have been granted consistently with any such conditions.
2: Nothing in this section shall require the Tribunal to have regard to any such conditions in so far as they—
a: purport to regulate the charges to be imposed in respect of the grant of licences; or
b: relate to payments to be made to the promoters of any entertainment or other event in consideration of the grant of facilities for making the recording, film, or communication work Copyright, Designs and Patents Act 1988 s 132 (UK) Section 164(1) amended 31 October 2008 section 71(1) Copyright (New Technologies) Amendment Act 2008 Section 164(2)﻿(b) amended 31 October 2008 section 71(2) Copyright (New Technologies) Amendment Act 2008
165: Licences to reflect payments in respect of underlying rights
1: In considering what charges (if any) should be paid for a licence on a reference or application made under this Part in relation to licences for the rental to the public of copies of computer programs, sound recordings, or films, the Tribunal shall take into account any reasonable payments that the owner of copyright in the computer program, sound recording, or film is liable to make, in consequence of the granting of the licence or of the acts authorised by the licence, to owners of copyright in works included in the program, recording, or film.
2: On any reference or application made under this Part in relation to licensing in respect of copyright in sound recordings, films, or communication works or communication work Copyright, Designs and Patents Act 1988 s 133 (UK) Section 165(2) amended 31 October 2008 section 72(a) Copyright (New Technologies) Amendment Act 2008 Section 165(2) amended 31 October 2008 section 72(b) Copyright (New Technologies) Amendment Act 2008
166: Licences in respect of works included in retransmissions
1: This section applies to applications under this Part in relation to licences to include literary, dramatic, musical, or artistic works or sound recordings or films in a communication work when one communication work (in this section referred to as the first transmission further transmission
2: So far as the further transmission is to the same area as the first transmission, the Tribunal shall, in considering what charges (if any) should be paid for licences for either transmission, have regard to the extent to which the copyright owner has already received, or is entitled to receive, payment for the other transmission that adequately remunerates the copyright owner in respect of transmissions to that area.
3: So far as the further transmission is to an area outside that to which the first transmission is made, the Tribunal shall not take the further transmission into account in considering what charges (if any) should be paid for licences for the first transmission. Copyright, Designs and Patents Act 1988 s 134 (UK) Section 166(1) substituted 31 October 2008 section 73 Copyright (New Technologies) Amendment Act 2008 Implied indemnity in schemes or licences for reprographic copying
167: Implied indemnity in certain schemes and licences for reprographic copying
1: This section applies to—
a: schemes for licensing reprographic copying of published literary, dramatic, musical, or artistic works, or the typographical arrangements of published editions; and
b: licences granted by licensing bodies for such copying,— where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work.
2: There is implied—
a: in every scheme to which this section applies an undertaking by the operator of the scheme to indemnify a person granted a licence under the scheme; and
b: in every licence to which this section applies an undertaking by the licensing body to indemnify the licensee— against any liability incurred by the licensee by reason of the licensee having infringed copyright by making or authorising the making of reprographic copies of a work in circumstances within the apparent scope of the licence.
3: For the purposes of this section, the circumstances of a case are within the apparent scope of a licence if—
a: it is not apparent from inspection of the licence and the work in question that the work does not fall within the description of works to which the licence applies; and
b: the licence does not expressly provide that it does not extend to copyright of the description infringed.
4: In this section, the term liability
5: A scheme or licence to which this section applies may contain reasonable provision—
a: with respect to the manner in which, and time within which, claims under the undertaking implied by this section are to be made:
b: enabling the operator of the scheme or, as the case may be, the licensing body to take over the conduct of any proceedings affecting the amount of the operator's or, as the case may be, the licensing body's liability to indemnify under such an undertaking. Copyright, Designs and Patents Act 1988 s 136 (UK)
168: Determination of equitable remuneration
1: Where—
a: a copyright owner and a librarian cannot agree as to the remuneration to be paid to the copyright owner under section 54(2)﻿(d)
b: a copyright owner and the Crown cannot agree as to the remuneration to be paid to the copyright owner under section 63(2)
c: an exclusive licensee and the Crown cannot agree as to the remuneration to be paid to the exclusive licensee under section 64(2)
d: a licensee and the copyright owner or the exclusive licensee, as the case may be, cannot agree on the part of the payment to be paid to the licensee under section 64(3)
e: a copyright owner and a person who makes a recording of a communication work section 91(2)﻿(d) either party may apply to the Tribunal to determine the remuneration to be paid.
2: The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.
3: Either party to an order made under this section may apply to the Tribunal to review its order.
4: Except with the special leave of the Tribunal, an application under subsection (3) shall not be made earlier than the end of the period of 12 months from the date of the original order or of the order on a previous application under that subsection.
5: The Tribunal shall on an application for review under this section confirm or vary its original order as the Tribunal may determine to be reasonable in the circumstances of the case.
6: An order under subsection (5) has effect from the date on which it is made or such later date as may be specified by the Tribunal. Section 168(1)﻿(e) amended 31 October 2008 section 74 Copyright (New Technologies) Amendment Act 2008
9: Performers' rights
169: Interpretation
1: In this Part, unless the context otherwise requires,— commercial exploitation
a: issuing recordings or copies of recordings to the public; or
b: playing recordings or copies of recordings in public; or
c: showing recordings or copies of recordings in public; or
d: communicating recordings or copies of recordings to the public convention country copy
a: means a copy of a recording made directly from that recording; and
b: includes a copy of a recording made indirectly from that recording exclusive performer’s rights licence exclusive recording contract illicit recording
a: means a recording of the whole or any substantial part of a performance made without the performer's consent and otherwise than for private and domestic use; and
b: includes a copy, made without the performer's consent and otherwise than for private and domestic use, of a recording where—
i: the recording was made without the performer's consent; or
ii: the copy is made for purposes different from those for which the performer gave his or her consent to the recording; or
iii: the recording was made in accordance with any of the exemptions contained in sections 175 to 179 sections 181 to 191 performance
a: means—
i: a dramatic performance, including a dance, a mime, and a performance given with the use of puppets; or
ii: a musical performance; or
iii: a reading or recitation of a literary work; or
iv: a performance of a variety act or any similar presentation,— being in each case either—
v: a live performance given in any country by a New Zealand citizen or a person domiciled or resident in New Zealand, or by a citizen or subject of or a person domiciled or resident in a convention country; or
vi: a live performance given in New Zealand or a convention country; or
vii: a performance to which this Part applies pursuant to section 170(2) section 203 section 204
b: does not include—
i: a performance referred to in section 47(1)
ii: a reading, recital, or delivery of any item of news and information; or
iii: a performance of a sporting activity; or
iv: participation in a performance as a member of an audience performers’ property rights subpart 4 person having recording rights
a: any person who is a party to, and has the benefit of, an exclusive recording contract to which the performance is subject; or
b: any person to whom the benefit of an exclusive recording contract has been assigned; or
c: any person who is authorised to make recordings or copies of recordings for the purposes of commercial exploitation by a person to whom paragraph (a) or paragraph (b) applies recording
a: made directly from the performance; or
b: made from a communication work that includes
2: In sections 197 199 illicit recording
a: a copy of a recording referred to in section 174C
b: a recording referred to in section 198(1A)﻿(b) Copyright Act 1968 s 248A(2) (Aust); Copyright, Designs and Patents Act 1988 s 180(2) (UK) Section 169(1) commercial exploitation substituted 31 October 2008 section 75(1) Copyright (New Technologies) Amendment Act 2008 Section 169(1) convention country substituted 14 October 1999 section 2(2) Copyright Amendment Act 1999 Section 169(1) exclusive performer’s rights licence inserted 30 December 2018 section 16(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 169(1) performers’ property rights inserted 30 December 2018 section 16(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 169(1) recording amended 31 October 2008 section 75(2) Copyright (New Technologies) Amendment Act 2008 Section 169(2) inserted 30 December 2018 section 16(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170: General provisions relating to performers’ rights
1:
2:
3:
4: The rights conferred by this Part are independent of—
a: any copyright in, or moral rights conferred by Part 4 communication work
b: any other right or obligation arising otherwise than under this Part.
5: The rights conferred by this Part on a performer are conferred only in relation to performances by that performer, whether alone or with others. Copyright, Designs and Patents Act 1988 s 180(3), (4) (UK) Section 170 heading replaced 30 December 2018 section 17(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 170(1) repealed 30 December 2018 section 17(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 170(2) repealed 30 December 2018 section 17(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 170(3) repealed 30 December 2018 section 17(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 170(4)﻿(a) amended 30 December 2018 section 17(3) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 170(4)﻿(a) amended 31 October 2008 section 76 Copyright (New Technologies) Amendment Act 2008
1: Performers’ moral rights
Subpart 1 inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Right to be identified Heading inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170A: Right to be identified as performer
1: A performer’s rights are infringed by a person referred to in subsection (2) section 170B
2: The person is a person who—
a: produces or puts on a performance that is given in public; or
b: communicates live to the public a performance; or
c: communicates to the public a recording of a performance; or
d: issues to the public copies of a recording of a performance.
3: Subsection (2)﻿(c) and (d)
4: Subsection (1) sections 170B to 170D 170H Section 170A inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170B: Content of right to be identified as performer
1: For the purposes of section 170A
a: in the case of a performance given in public, be identified in any programme accompanying the performance or in some other manner likely to bring the performer’s identity to the notice of a person seeing or hearing the performance:
b: in the case of a performance that is communicated live, be identified in a manner likely to bring the performer’s identity to the notice of a person seeing or hearing the communication:
c: in the case of a recording referred to in section 170A(2)﻿(c)
d: in the case of a recording referred to in section 170A(2)﻿(d)
2: In any of the cases in subsections (1)﻿(a) to (d) section 170A
3: If the assertion under section 170C
4: A performer’s rights are not infringed as referred to in section 170A
a: in a case to which any of paragraphs (a) to (c) subsection (1) subsection (2)
b: in a case to which subsection (1)﻿(d)
i: the group itself is identified in the manner referred to in that paragraph or in subsection (2) (applied in each case with all necessary modifications); and
ii: it is not reasonably practicable for each member of the group to be identified.
5: In this section, group Section 170B inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170C: Right to be identified as performer must be asserted
1: A person does not infringe a performer’s rights by failing to identify the performer in the circumstances described in section 170A
2: The right may be asserted generally, or in relation to any specified circumstances,—
a: on an assignment of the performer’s property rights, by including in the instrument effecting the assignment a statement that the performer asserts in relation to the performance the performer’s right to be identified as the performer; or
b: at any time, by instrument in writing signed by the performer.
3: The persons bound by an assertion of the right under subsection (2)
a: in the case of an assertion under subsection (2)﻿(﻿a)
b: in the case of an assertion under subsection (2)﻿(b)
4: In an action for infringement of the right, the court must, in considering remedies, take into account any delay in asserting the right. Section 170C inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170D: Exceptions to right to be identified as performer
A performer’s rights are not infringed as referred to in section 170A
a: if it is not reasonably practicable to identify the performer (or, if applicable, the group) in accordance with section 170B
b: in relation to any performance given for the purposes of reporting current events:
c: in relation to any performance given for the purposes of advertising any goods or services:
d: by an act that, under any of sections 175 to 176 177(2) 181 182 subpart 4 Section 170D inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Right relating to derogatory treatment of performance Heading inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170E: Right relating to derogatory treatment of performance
1: A performer’s rights are infringed by a person if the person subjects a performance to derogatory treatment.
2: Subsection (1) sections 170F to 170H Section 170E inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170F: Content of right relating to derogatory treatment of performance
1: For the purpose of section 170E
a: with any distortion, mutilation, or other modification that is prejudicial to the honour or reputation of the performer,—
i: communicates live to the public the performance; or
ii: by means of a recording, plays in public, or communicates to the public, the performance; or
b: in the course of a business, possesses, sells, lets for hire, offers or exposes for sale or hire, or distributes a recording of the performance with any distortion, mutilation, or other modification that is prejudicial to the honour or reputation of the performer.
2: Subsection (1) Section 170F inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170G: Exceptions to right relating to derogatory treatment of performance
A performer’s rights are not infringed as referred to in section 170E
a: in relation to any performance given for the purposes of reporting current events:
b: where modifications have been made to a performance that are consistent with reasonable editorial or production practice:
c: where any act is done for the purpose of avoiding the commission of an offence, or complying with a duty imposed by or under any enactment, if,—
i: where the performer is identified at the time of the act, there is a clear and reasonably prominent indication, given at the time of the act and appearing with the identification, that the performance has been subjected to treatment to which the performer has not consented; or
ii: where the performer has previously been identified in relation to the performance, there is a clear and reasonably prominent indication, given at the time of the act, that the performance has been subjected to treatment to which the performer has not consented. Section 170G inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Other provisions relating to moral rights Heading inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170H: Consent and waiver of rights
1: A performer’s rights are not infringed as referred to in sections 170A 170E
a: by any act to which the person who is entitled to the right has consented; or
b: if the person who is entitled to the right has waived the right by instrument in writing signed by the person.
2: A waiver—
a: may relate to a specific performance, or to performances of a specified description that are in existence, in progress, or about to be commenced; and
b: must state the rights to which the waiver relates; and
c: may be expressed to be subject to revocation; and
d: if made in favour of the person entitled (or prospectively entitled) to exercise the performer’s property rights in the performance to which the waiver relates, is presumed to extend to the person’s licensees and successors in title unless a contrary intention is expressed. Section 170H inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
170I: Application to parts of performances
1: The right conferred by section 170A
2: The right conferred by section 170E Section 170I inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
2: Consent required for recording, live transmission, or use of recording of performance
Subpart 2 heading inserted 30 December 2018 section 18 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Performers' rights Heading repealed 30 December 2018 section 19 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
171: Consent required for recording or live transmission of performance
1: A performer's rights are infringed by a person who, without the performer's consent,—
a: makes, otherwise than for his or her private and domestic use, a recording of the whole or any substantial part of a performance; or
b: communicates live to the public the whole or any substantial part of a performance.
2: In proceedings for infringement of a performer's rights brought under this section, damages shall not be awarded against a defendant who shows that at the time of the infringement the defendant believed on reasonable grounds that the performer's consent had been given. Copyright, Designs and Patents Act 1988 s 182 (UK) Section 171(1)﻿(b) substituted 31 October 2008 section 77 Copyright (New Technologies) Amendment Act 2008
172: Infringement by use of recording made without performer’s consent
A person ( A if,
a: without the performer’s consent and by means—
i: of a recording that is a sound recording, A shows in public or plays in public the whole or a substantial part of a performance; or
ii: of a recording that is a film, A shows in public, plays in public, or communicates to the public the whole or a substantial part of a performance; and
b: the recording was made without the performer’s consent; and
c: A knows or has reason to believe that the recording was made without the performer’s consent. Section 172 substituted 31 October 2008 section 78 Copyright (New Technologies) Amendment Act 2008 Section 172 amended 30 December 2018 section 20(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 172(a) replaced 30 December 2018 section 20(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
3: Performers’ rights relating to film
Subpart 3 heading heading 30 December 2018 section 21 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
173: Copying of
film
1: A performer's rights are infringed by a person who, without the performer's consent and otherwise than for that person's private and domestic use, copies a recording that is a film
2: In proceedings for infringement of a performer's rights brought under this section, damages shall not be awarded against a defendant who shows that at the time of the infringement the defendant believed on reasonable grounds that the performer's consent to the recording had been given.
3: A performer's rights are infringed by a person who, without the performer's consent and otherwise than for that person's private and domestic use, copies a recording that is a film
a: if the copy is made for purposes different from those for which the performer gave his or her consent to the recording; or
b: if the recording was made in accordance with any of the exemptions contained in any of sections 175 to 179 sections 181 to 191
4: In proceedings for infringement of a performer's rights brought under this section, damages shall not be awarded against a defendant who shows that at the time of the infringement the defendant believed on reasonable grounds that the performer's consent to the copying of the recording had been given. Section 173 heading amended 30 December 2018 section 22(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 173(1) amended 30 December 2018 section 22(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 173(3) amended 30 December 2018 section 22(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
174: Infringement by importing, possessing, or dealing with illicit recording
1: A performer's rights are infringed by a person who, without the performer's consent,—
a: imports into New Zealand otherwise than for that person's private and domestic use; or
b: in the course of a business, possesses, sells, lets for hire, offers or exposes for sale or hire, or distributes— a recording that is a film and
2: Where, in proceedings for infringement of a performer's rights brought under this section, a defendant shows that the recording was innocently acquired by the defendant or a predecessor in title of the defendant, the only remedy available against the defendant in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.
3: In subsection (2), the term innocently acquired Copyright, Designs and Patents Act 1988 s 184 (UK) Section 174(1) amended 30 December 2018 section 23 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
4: Performers’ property rights relating to sound recordings
Subpart 4 inserted 30 December 2018 section 24 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
174A: Application
This subpart applies only to recordings that are sound recordings. Section 174A inserted 30 December 2018 section 24 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
174B: Consent required to communicate or play sound recording to public
A performer’s rights are infringed by a person who, without the performer’s consent, and by means of a recording,—
a: communicates to the public the whole or a substantial part of a performance; or
b: plays in public the whole or a substantial part of a performance. Section 174B replaced 31 May 2023 section 4 United Kingdom Free Trade Agreement Legislation Act 2022
174C: Consent required for copying of sound recording
1: A performer’s rights are infringed by a person who, without the performer’s consent, copies a recording of the whole or a substantial part of a performance.
2: Subsection (1)
a: the recording is not a communication work or part of a communication work; and
b: the copy is made from a recording that is not an illicit recording; and
c: the recording is not borrowed or hired; and
d: the copy is made by the owner of the recording; and
e: that owner acquired the recording legitimately; and
f: the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives, or both; and
g: no more than 1 copy is made for each device for playing recordings that is owned by the owner of the recording; and
h: the owner of the recording retains the ownership of both the recording and of any copy that is made under this section.
3: However, subsection (2) Section 174C inserted 30 December 2018 section 24 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
174D: Consent required for issue of copies to public
1: A performer’s rights are infringed by a person who, without the performer’s consent, issues to the public a copy of a recording, including the original recording, of the whole or any substantial part of a performance.
2: Subsection (1)
a: the copy was made in a foreign country with the consent of the person entitled, in that country, to exercise the property rights; or
b: no person was entitled, in the foreign country in which the copy was made, to exercise the property rights, and any of the following applies:
i: the property rights in that country had expired:
ii: the person otherwise entitled, in that country, to exercise the property rights failed to take some step legally available to the person to secure, in that country, the property rights:
iii: the copy was made in that country by or with the consent of the person entitled, in New Zealand, to exercise the performers’ property rights related to the performance.
3: In subsection (2) paragraph (b)﻿(iii) property rights Section 174D inserted 30 December 2018 section 24 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
5: Acts permitted in relation to performances
Subpart 5 heading inserted 30 December 2018 section 24 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Acts permitted in relation to performances Heading repealed 30 December 2018 section 25 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
175: Incidental copying of performance or recording
1: The rights conferred by subparts 2 to 4
a: the incidental inclusion of a performance or recording in a sound recording, film, or communication work; or
b: the playing of a sound recording, the showing of a film, or the making of a communication work, where the performance or sound recording has been incidentally included in that sound recording, film, or communication work; or
c: the issue to the public of copies of a sound recording, film, or communication work in which a performance or recording has been incidentally included.
2: For the purposes of this section, a performance or recording, so far as it consists of—
a: music; or
b: words spoken or sung with music,— shall not be regarded as incidentally copied in another work if the performance or recording is deliberately copied. Copyright, Designs and Patents Act 1988 Schedule 2 para 3 (UK) Section 175(1) substituted 31 October 2008 section 79 Copyright (New Technologies) Amendment Act 2008 Section 175(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
175A: Transient reproduction of recording of performance
A reproduction of a recording of a performance of a work does not infringe the rights conferred by subparts 2 to 4
a: is transient or incidental; and
b: is a necessary part of a technological process for the viewing of, or listening to, the recording by a member of the public to whom the recording is lawfully made available; and
c: has no independent economic significance. Section 175A inserted 31 October 2008 section 80 Copyright (New Technologies) Amendment Act 2008 Section 175A amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
176: Permitted acts in relation to performances, criticism, reviews, and news reporting
Fair dealing with a performance or recording—
a: for the purposes of criticism or review, of that or another performance or recording, or of a work; or
b: for the purposes of reporting current events— does not infringe any of the rights conferred by subparts 2 to 4 Copyright, Designs and Patents Act 1988 Schedule 2 para 2 (UK) Section 176 amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
177: Things done for purposes of instruction or examination
1: The rights conferred by subparts 2 to 4
a: the copying is done—
i: in the course of preparation for instruction; or
ii: for use in the course of instruction; or
iii: in the course of instruction; or
iv: after the course of instruction— where the lesson is on how to make films or film soundtracks or relates to the learning of a language or is conducted by correspondence; and
b: the copying is done by or on behalf of a person who is to give, is giving, or has given the lesson or by or on behalf of a person who is to receive, is receiving, or has received the lesson; and
c: no charge is made for the supply of a copy to any student or other person who is to receive, is receiving, or has received the lesson.
2: The rights conferred by subparts 2 to 4
a: by the copying of a recording of a performance for the purposes of setting or answering the questions in an examination; or
b: by anything done for the purposes of an examination by way of communicating the questions to the candidates. Copyright, Designs and Patents Act 1988 Schedule 2 para 4(1), (2) (UK) Section 177(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 177(2) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
178: Playing or showing sound recording, film,
or communication work
1: The playing or showing of a sound recording, film, or communication work subparts 2 to 4
2: For the purposes of this section, a person shall not be treated as a person directly connected with the activities of an educational establishment by reason only that the person is a parent or guardian of a student at that educational establishment. Copyright, Designs and Patents Act 1988 Schedule 2 para 5 (UK) Section 178 heading amended 31 October 2008 section 81(1) Copyright (New Technologies) Amendment Act 2008 Section 178(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 178(1) amended 31 October 2008 section 81(2) Copyright (New Technologies) Amendment Act 2008
179: Recording of
communication works A recording of a communication work subparts 2 to 4 Copyright, Designs and Patents Act 1988 Schedule 2 para 6(1) (UK) Section 179 heading amended 31 October 2008 section 82(1) Copyright (New Technologies) Amendment Act 2008 Section 179 amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 179 amended 31 October 2008 section 82(2) Copyright (New Technologies) Amendment Act 2008
180: Subsequent dealings
1: Where a recording, or a copy of a recording, that would otherwise be an illicit recording—
a: is made in accordance with section 177 179 192A(2)
b: is subsequently dealt with,— it shall be treated as an illicit recording—
c: for the purposes of the dealing referred to in paragraph (b), unless that dealing is authorised by the performer; and
d: for the purposes of any dealing that is subsequent to the dealing referred to in paragraph (b), unless the first-mentioned dealing is authorised by the performer.
2: In subsection (1), the term dealt with Copyright, Designs and Patents Act 1988 Schedule 2 paras 4(3), 6(2) (UK) Section 180(1)﻿(a) amended 30 December 2018 section 26(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
181: Parliamentary and judicial proceedings
The rights conferred by subparts 2 to 4 Copyright, Designs and Patents Act 1988 Schedule 2 para 8 (UK) Section 181 amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
182: Royal commissions and statutory inquiries
The rights conferred by subparts 2 to 4 Copyright, Designs and Patents Act 1988 Schedule 2 para 9 (UK) Section 182 amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
183: Acts done under statutory authority
1: Where the doing of a particular act is specifically authorised by an enactment, the doing of that act does not infringe the rights conferred by subparts 2 to 4
2: Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or pursuant to any enactment. Copyright, Designs and Patents Act 1988 Schedule 2 para 11 (UK) Section 183(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
184: Use of recordings of spoken works in certain cases
1: It is not an infringement of the rights conferred by subparts 2 to 4
a: it was made for the purpose of—
i: reporting current events; or
ii: communicating all or part of the reading or recitation to the public; and
b: the conditions in subsection (2) are complied with.
2: The conditions referred to in subsection (1) are that—
a: the recording is a direct recording of the reading or recitation and is not taken from a previous recording or from a communication work
b: the making of the recording was not prohibited by or on behalf of the person giving the reading or recitation; and
c: the use made of the recording is not of a kind prohibited by or on behalf of that person before the recording was made; and
d: the use is by or with the authority of a person who is lawfully in possession of the recording. Copyright, Designs and Patents Act 1988 Schedule 2 para 13 (UK) Section 184(1) substituted 31 October 2008 section 83(1) Copyright (New Technologies) Amendment Act 2008 Section 184(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 184(2)﻿(a) amended 31 October 2008 section 83(2) Copyright (New Technologies) Amendment Act 2008
185: Recordings of folk songs
1: A recording of a performance of a song may be made for the purpose of including the song in an archive maintained by a body prescribed by regulations made under this Act without infringing any of the rights conferred by subparts 2 to 4
2: The conditions referred to in subsection (1) are that—
a: the words are unpublished and of unknown authorship at the time the recording is made; and
b: the making of the recording does not infringe any copyright; and
c: the making of the recording is not prohibited by any performer.
3: Copies of a recording made in reliance on subsection (1) and included in an archive maintained by a body prescribed by regulations made under this Act may, if the condition contained in subsection (4) is complied with, be made and supplied by the archivist without infringing any of the rights conferred by subparts 2 to 4
4: The condition referred to in subsection (3) is that no person is furnished with more than 1 copy of the same recording. Copyright, Designs and Patents Act 1988 Schedule 2 para 14 (UK) Section 185(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 185(3) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
186: Playing of sound recordings for purposes of club, society, etc
1: It is not an infringement of any right conferred by subparts 2 to 4
2: The conditions referred to in subsection (1) are—
a: that the club, society, or organisation is not established or conducted for profit; and
b: that the main objects of the club, society, or organisation are charitable or are otherwise concerned with the advancement of religion, education, or social welfare; and
c: that the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the club, society, or organisation. Copyright, Designs and Patents Act 1988 Schedule 2 para 15 (UK) Section 186(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
187: Incidental recording for purposes of communication work
1: A person who proposes to communicate a recording of a performance to the public in circumstances not infringing rights under subparts 2 to 4 subparts 2 to 4
2: The conditions referred to in subsection (1) are that the further recording—
a: must only be used for communicating it to the public in circumstances not infringing rights under subparts 2 to 4
b: must be destroyed within 6 months after first being communicated to the public, unless the Minister has authorised the preservation of the recording in the records of a government department or in the national archives because of its documentary character or exceptional importance.
3: A recording made in accordance with this section is treated as an illicit recording—
a: for the purposes of any use in breach of the condition in subsection (2)﻿(a); and
b: for all purposes after either of the conditions in subsection (2) is broken. Section 187 substituted 31 October 2008 section 84 Copyright (New Technologies) Amendment Act 2008 Section 187(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 187(2)﻿(a) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
188: Free public playing or showing of communication work
1: The free public playing or showing of a communication work (other than a communication work to which section 188A subparts 2 to 4
a: the communication work; or
b: any sound recording or film that is played or shown in public by reception of the communication work.
2: For the purposes of this section, the public playing or showing of a communication work is not free if—
a: the audience has paid for admission to—
i: the place where the communication work is played or shown (which in this section is called the venue
ii: any place of which the venue is a part; or
b: goods or services are supplied at the venue or a place of which it forms part at prices that—
i: are substantially attributable to the facilities afforded for hearing or seeing the communication work; or
ii: exceed those usually charged there and that are partly attributable to those facilities; or
c: the venue is a hotel, motel, camping ground, or any other place that admits persons for a fee for the purposes of temporary accommodation, and the audience is made up of persons residing at that hotel, motel, camping ground, or other place.
3: For the purposes of subsection (2)﻿(a), the following persons must not be treated as having paid for admission to the venue:
a: a person admitted as a resident or an inmate of a place (other than a hotel, motel, camping ground, or any other place to which subsection (2)﻿(c) applies):
b: a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society. Section 188 substituted 16 September 2011 section 13(1) Copyright Amendment Act 2011 Section 188(1) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
188A: Free public playing or showing of communication work that is simultaneous with reception
1: This section applies to the playing or showing of a communication work that—
a: is made for reception in the area in which it is played or shown; and
b: is not a communication work for which a subscription fee must be paid in order to receive it; and
c: is played or shown simultaneously upon reception of the communication work.
2: The free public playing or showing of a communication work to which this section applies does not infringe a right under subparts 2 to 4
a: the communication work; or
b: any sound recording or film that is played or shown in public by reception of the communication work.
3: For the purposes of this section, the public playing or showing of a communication work is not free if—
a: the audience has paid for admission to the place where the communication work is played or shown (which in this section is called the venue
b: goods or services are supplied at the venue or a place of which it forms part at prices that—
i: are substantially attributable to the facilities afforded for hearing or seeing the communication work; or
ii: exceed those usually charged there and that are partly attributable to those facilities.
4: For the purposes of subsection (3)﻿(a), the following persons must not be treated as having paid for admission to the venue:
a: a person admitted as a resident or an inmate of a place (including a person residing in a hotel, motel, camping ground, or any other place that admits persons for a fee) for the purpose of temporary accommodation:
b: a person admitted as a member of a club or society where the payment is only for membership of the club or society and the provision of facilities for hearing or seeing communication works is only incidental to the main purposes of the club or society. Section 188A inserted 16 September 2011 section 13(1) Copyright Amendment Act 2011 Section 188A(2) amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
188B: Assessment of damages for infringement of rights under
subparts 2 to 4 Where the making of a communication work is an infringement of rights under subparts 2 to 4 Section 188B inserted 16 September 2011 section 13(1) Copyright Amendment Act 2011 Section 188B heading amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 188B amended 30 December 2018 section 26(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
189: Reception and retransmission of broadcast in cable programme service
Section 189 repealed 31 October 2008 section 86 Copyright (New Technologies) Amendment Act 2008
190: Provision of subtitled copies of communication work
1: A prescribed body that makes a recording of a communication work for the purpose of providing people who are deaf or hard of hearing or physically or mentally disabled in any other way with copies that are subtitled or otherwise modified for their special needs, does not infringe any right under this Part in relation to a performance or recording included in that communication work.
2: A body must not be prescribed for the purposes of subsection (1) if it is established or conducted for profit. Section 190 substituted 31 October 2008 section 87 Copyright (New Technologies) Amendment Act 2008
191: Recording of communication work for archival purposes
1: Any person ( A
a: the communication work falls within a prescribed class; and
b: A makes the recording or the copy for the purpose of it being placed in an archive maintained by a prescribed body.
2: A body must not be prescribed for the purposes of subsection (1) if it is established or conducted for profit. Section 191 substituted 31 October 2008 section 88 Copyright (New Technologies) Amendment Act 2008
192: Power of Tribunal to give consent on behalf of performer
1: Where a person wishes to make a copy of a recording but—
a: the consent of a performer to the making of such a copy is required; and
b: either—
i: the identity or whereabouts of the performer cannot be ascertained by reasonable inquiry; or
ii: the performer unreasonably withholds his or her consent,— the person may apply to the Tribunal for consent to make the copy.
2: The Tribunal may, subject to the provisions of this section, make an order giving consent to the making of the copy and may impose such conditions on the order as it thinks fit.
3: The consent given by the Tribunal under subsection (2) has effect as the consent of the performer for the purposes of the provisions of this Part relating to performers' rights.
4: The Tribunal shall not give consent under subsection (2) unless satisfied that such directions as to the service or publication of notices as the Tribunal may give have been complied with.
5: The Tribunal shall not give consent under subsection (2) unless satisfied that the performer's reasons for withholding consent do not include the protection of any legitimate interests of the performer; but it shall be for the performer to show what his or her reasons are for withholding consent, and in default of evidence as to his or her reasons the Tribunal may draw such inferences as it thinks fit.
6: In any case the Tribunal shall take into account the following factors:
a: whether the recording of which the applicant seeks to make a copy was made with the performer's consent and is lawfully in the possession or control of the person proposing to make the copy:
b: whether the making of the copy is consistent with the obligations of the parties to the arrangements under which the recording was made, or is otherwise consistent with the purposes for which the recording was made.
7: Where the Tribunal gives consent under this section, it shall, in default of agreement between the applicant and the performer, make such order as it thinks fit as to the payment to be made to the performer in consideration of consent being given. Copyright, Designs and Patents Act 1988 s 190 (UK)
192A: Other acts permitted in relation to performers’ property rights
1: The purpose of this section is to allow certain acts to be done without infringing a performer’s property rights.
2: For the purposes of subpart 4 sections 53 55 56 56A 57 58 79 82 83 90
a: references to infringing copyright in any work (or any similar reference) were to infringing the rights conferred by subpart 4
b: references to a work, a literary, dramatic, musical, artistic, or communication work, or a typographical arrangement of a published edition, or a transcript of a recording of a communication work were to a recording (that is a sound recording); and
c: references in sections 53 58
d: references in section 55
e: references in sections 56 79 subpart 4 Section 192A inserted 30 December 2018 section 27 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
6: Miscellaneous provisions
Subpart 6 heading inserted 30 December 2018 section 27 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Duration and transmission of rights
193: Duration of rights
The rights conferred by this Part exist in relation to a performance until the end of the period of 50 years from the end of the calendar year in which the performance takes place. Copyright, Designs and Patents Act 1988 s 191 (UK)
194: Transmission of performers’ rights
1: The rights conferred by this Part are transmissible only in accordance with sections 194A to 194J
2: References in this Part to the performer, in the context of the person having rights conferred by this Part, must be construed as references to the person for the time being entitled to exercise those rights. Section 194 replaced 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194A: Moral rights not assignable
The rights conferred by sections 170A 170E Section 194A inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194B: Transmission of moral rights on death
1: On the death of a person entitled to the rights conferred by sections 170A 170E
a: the rights pass to the person that he or she may by testamentary disposition specifically direct; or
b: if there is no such direction but the performer’s property rights in the performance in question form part of the estate, the rights pass to the person to whom the property rights pass; or
c: if or to the extent that the rights do not pass under paragraph (a) or (b)
2: If, under subsection (1)﻿(a) or (b)
a: in the case of the right conferred by section 170A
b: in the case of the right conferred by section 170E
c: any waiver of the right in accordance with section 170H
3: Any damages recovered by personal representatives under this section in respect of an infringement after a person’s death devolve as part of his or her estate as if the right of action had existed and been vested in him or her immediately before his or her death. Section 194B inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194C: Performers’ rights relating to consent for recording or live transmission and to film recordings not assignable
The rights conferred by sections 171 to 174 Section 194C inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194D: Transmission of performers’ rights relating to consent for recording or live transmission and to film recordings on death
1: On the death of a person entitled to the rights conferred by sections 171 to 174
a: the rights pass to the person that he or she may by testamentary disposition specifically direct; and
b: if or to the extent that there is no such direction, the rights are exercisable by his or her personal representatives.
2: If, under subsection (1)﻿(a)
3: Any damages recovered by personal representatives under this section in respect of an infringement after a person’s death devolve as part of his or her estate as if the right of action had existed and been vested in him or her immediately before his or her death. Section 194D inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194E: Transmission of performers’ property rights
1: A performer’s property rights are transmissible, as personal or moveable property, by—
a: assignment; or
b: testamentary disposition; or
c: operation of law.
2: Transmission of a performer’s property rights may be partial, that is, limited so as to apply—
a: to 1 or more, but not all, of the things the person entitled to exercise the performer’s property rights has the right to do:
b: to part, but not the whole, of the period for which the performer’s property rights are to exist.
3: If a performer’s property rights become exercisable by more than 1 person, the rights are not exercisable independently and must be exercised by all rights holders acting together. Section 194E inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194F: Assignment
An assignment of a performer’s property rights is not effective unless it is in writing signed by or on behalf of the assignor. Section 194F inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194G: Performers’ property rights to pass under will with unpublished original recording
1: This section applies if, under a testamentary disposition (whether general or specific), a person is entitled beneficially or otherwise to any material thing containing an original recording of a performance that was not published before the death of the testator.
2: The testamentary disposition must be construed as including any performers’ property rights in relation to the recording in so far as the testator was the person entitled to exercise the performers’ property rights immediately before the testator’s death.
3: Subsection (2) Section 194G inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194H: Future property rights
1: This section applies if a performer purports to assign future property rights (wholly or partially) to another person by an agreement signed by or on behalf of the performer.
2: If, on the rights coming into existence, the assignee or the assignee’s successor in title would be entitled as against all other persons to require the rights to be vested in the assignee or the assignee’s successor in title, they vest in the assignee or the assignee’s successor in title by virtue of this subsection.
3: A licence granted by a person to whom future property rights have been assigned is binding on every successor in title to that person’s interest in the rights, except—
a: a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence; or
b: a person deriving title from a purchaser referred to in paragraph (a)
4: In this section, future property rights Section 194H inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Licences Heading inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194I: Licences
1: A licence granted by a person entitled to exercise a performer’s property rights is binding on every successor in title to that person’s interest in the rights, except—
a: a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence; or
b: a person deriving title from a purchaser referred to in paragraph (a)
2: The licensee under an exclusive performer’s rights licence has the same rights against a successor in title who is bound by the licence as that licensee has against the person who granted the licence. Section 194I inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194J: Rights and remedies of exclusive licensee
1: The licensee under an exclusive performer’s rights licence has, except against the person granting the licence, the same rights and remedies under this Part in respect of matters occurring after the grant of the licence as if the licence were an assignment.
2: The rights and remedies of the licensee under an exclusive performer’s rights licence under this Part are concurrent with those of the person granting the licence.
3: In proceedings brought by the licensee under an exclusive performer’s rights licence under this section, a defendant may avail himself or herself or itself of any defence that would have been available if the proceedings had been brought by the person granting the licence. Section 194J inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
194K: Exercise of concurrent rights
1: This section applies if—
a: proceedings for infringement of a performer’s rights are brought by the performer or a licensee; and
b: those proceedings relate (wholly or partly) to an infringement in respect of which the performer and the licensee have concurrent rights of action.
2: The performer or, as the case may be, the licensee may not, without the leave of the court, proceed with the proceedings unless the other is either joined as a plaintiff or added as a defendant.
3: A performer or licensee who is joined as a plaintiff or added as a defendant under subsection (2)
4: Subsections (2) and (3)
5: Whether or not the performer and the licensee are both parties to proceedings for infringement of a performer’s rights that relate (wholly or partly) to an infringement in respect of which they have or had concurrent rights of action,—
a: the court must, in assessing damages, take into account—
i: the terms of the licence; and
ii: any pecuniary remedy already awarded or available to either the performer or the licensee in respect of the infringement; and
b: no account of profits may be directed if an award of damages has been made, or an account of profits has been directed, in favour of either the performer or the licensee in respect of the infringement; and
c: the court must, if an account of profits is directed, apportion the profits between the performer and the licensee in the manner that the court considers just, subject to any agreement between them.
6: The performer must notify any licensee who has concurrent rights before applying for an order under section 199, and the court may on the application of the licensee make any order under that section that it thinks fit, having regard to the terms of the licence.
7: In this section, licensee Section 194K inserted 30 December 2018 section 29 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Consent and waiver Heading replaced 30 December 2018 section 30 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
195: Consent and waiver
1: Consent for the purposes of this Part may be given in relation to a specific performance, a specified description of performances, or performances generally, and may relate to past or future performances.
2: Where a right conferred by this Part passes to another person, any consent or waiver or waiver Copyright, Designs and Patents Act 1988 s 193 (UK) Section 195 heading replaced 30 December 2018 section 31(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 195(2) amended 30 December 2018 section 31(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Remedies for infringement
196: Proceedings for infringement of performers' rights
1: An infringement of any of the rights conferred by this Part is actionable by the performer in whom the right is vested.
2: An infringement of any of the rights conferred by this Part is also actionable, on behalf of the performer, by a person having recording rights, without any need to obtain the consent of the performer to the bringing of the proceedings, unless the performer expressly requires his or her consent to be obtained.
3: In proceedings for infringement of any of the rights conferred by this Part, the relief that a court may grant includes—
a: an injunction (subject to such terms, if any, as the court thinks fit); and
b: either damages or an account of profits
4: Where, in proceedings under this Part,—
a: the infringement is established; and
b: the court is satisfied that it is proper to do so, having regard to—
i: the flagrancy of the infringement; and
ii: any benefit accruing to the defendant by reason of the infringement; and
iii: all other relevant matters,— the court may award such additional damages as the justice of the case may require.
5: If, in proceedings for infringement of a performer’s property rights, it is proved or admitted that at the time of the infringement the defendant did not know, and had no reason to believe, that the acts complained of infringed the performer’s property rights, the plaintiff is not entitled to damages but, without prejudice to the award of any other remedy, is entitled to an account of profits. Copyright Act 1968 s 248J (Aust) Section 196(3)﻿(b) amended 30 December 2018 section 32(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 196(5) inserted 30 December 2018 section 32(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
196A: Proceedings against the Crown
If any employee or agent of the Crown infringes a performer’s rights in a performance, and the infringement is committed with the authority of the Crown, civil proceedings in respect of the infringement lie against the Crown under the Crown Proceedings Act 1950 Section 196A inserted 30 December 2018 section 33 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
197: Order for delivery up in civil proceedings
1: Where a person has an illicit recording of a performance in that person's possession, custody, or control in the course of a business,—
a: any person having performers' rights in relation to the performance under this Part; or
b: any person having recording rights in relation to the performance under this Part— may apply to the court for an order that the illicit recording be delivered up to him or her or such other person as the court may direct.
2: No order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 202
3: A person to whom an illicit recording is delivered up in pursuance of an order under this section shall, if an order under section 202
4: Notwithstanding any rule of court, an order may be made pursuant to this section on an ex parte
5: Nothing in this section affects any other power of the court. Presumptions Heading inserted 30 December 2018 section 34 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
197A: Presumptions relevant to performances
1: This section applies to proceedings brought under this Act with respect to—
a: a recording that is a sound recording of a performance:
b: a copy of a recording referred to in paragraph (a)
2: If a person has previously been identified as the performer of a performance in accordance with section 170B(1)﻿(c) or (d)
a: that rights are conferred by this Part in relation to the performance; and
b: that the person is the person entitled to exercise those rights. Section 197A inserted 30 December 2018 section 34 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Offences
198: Criminal liability for making, dealing with, using, or copying illicit recordings
1: Every person commits an offence against this section who, without the consent of the performer,—
a: makes for sale or hire; or
b: imports into New Zealand otherwise than for that person's private and domestic use; or
c: possesses in the course of a business with a view to committing any act infringing the rights conferred by this Part; or
ca: distributes otherwise than in the course of a business to such an extent as to affect prejudicially the performer; or
d: In the course of a business,—
i: offers or exposes for sale or hire; or
ii: sells or lets for hire; or
iii: distributes— a specified recording
1A: In subsections (1) and (4), specified recording
a: an illicit recording, if the person referred to in subsection (1) knows that the recording is an illicit recording; or
b: a copy of a sound recording that is made without the performer’s consent, if the person referred to in subsection (1) knows that the copy was made without that consent.
2: Every person commits an offence against this section who causes a recording that is, and that the person knows is, an illicit recording, to be—
a: played in public or shown in public; or
b: communicated to the public.
3: Every person commits an offence against this section who, otherwise than for that person's private and domestic use, copies a recording—
a: without the consent of the performer, if the person knows that the recording was made without the performer's consent; or
b: if the copy is made for purposes different from those for which the performer gave his or her consent, and the person knows that the performer has not consented to the copying of the recording for different purposes; or
c: if the original recording was made in accordance with any of the exemptions contained in any of sections 175 to 179 , 181 to 191 192A
4: Every person who commits an offence against subsection (1), (2), or (3) is liable on conviction,—
a: in the case of an offence against subsection (1), to a fine not exceeding $10,000 for every specified recording to which the offence relates, but not exceeding $150,000 in respect of the same transaction, or to imprisonment for a term not exceeding 5 years:
b: in the case of an offence against subsection (2), to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 5 years:
c: in the case of an offence against subsection (3), to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 3 months.
5: Where any person is convicted of an offence against this section in circumstances where that offence involves the making of profit or gain, that offence shall be deemed to have caused a loss of property for the purposes of section 32(1)﻿(a)
6: Section 197A Copyright, Designs and Patents Act 1988 s 198(1), (2), (3)﻿(a), (5), (6) (UK) Section 198(1) amended 30 December 2018 section 35(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 198(1)﻿(ca) inserted 30 December 2018 section 35(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 198(1A) inserted 30 December 2018 section 35(3) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 198(2)﻿(b) substituted 31 October 2008 section 89 Copyright (New Technologies) Amendment Act 2008 Section 198(3)﻿(c) amended 30 December 2018 section 35(4) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 198(4) replaced 30 December 2018 section 35(5) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 198(5) amended 30 June 2002 section 186 Sentencing Act 2002 Section 198(6) inserted 30 December 2018 section 35(6) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
199: Order for delivery up in criminal proceedings
1: The court before which proceedings are brought against a person for an offence against section 198
2: An order may be made under subsection (1) by the court of its own motion or on the application of the prosecution, and may be made whether or not the person is convicted of the offence, but shall not be made if it appears to the court unlikely that any order will be made under section 202
3: A person to whom an illicit recording is delivered up pursuant to an order made under this section shall retain the recording pending the making of an order, or the decision not to make an order, under section 202
4: Section 197A Copyright, Designs and Patents Act 1988 s 199(1), (3), (5) (UK) Section 199(4) inserted 30 December 2018 section 36 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
200: False representation of authority to give consent
1: Every person commits an offence against this section who represents falsely that he or she is authorised by any person to give consent for the purposes of this Part in relation to a performance, unless he or she believes on reasonable grounds that he or she is entitled to do so.
2: A person who commits an offence against this section is liable on Copyright, Designs and Patents Act 1988 s 201 (UK) Section 200(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
201: Liability of officers of body corporate
Where any body corporate is convicted of an offence against section 198 section 200
a: that the act that constituted the offence took place with his or her authority, permission, or consent; and
b: that he or she—
i: knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
ii: failed to take all reasonable steps to prevent or stop it. 1991 No 69 s 340
201A: Evidence in proceedings
1: In proceedings for an offence against section 198
a: the existence of rights conferred by this Part in relation to a performance; and
b: a person being entitled to exercise those rights.
2: A party to the proceedings may apply to the court to require a person whose evidence has been given by affidavit to attend the proceedings for the purposes of cross-examination; and the court may make an order accordingly. Section 201A inserted 30 December 2018 section 37 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
202: Order as to disposal of illicit recording
1: An application may be made to the court for an order that an illicit recording delivered up pursuant to an order made under section 197 section 199
a: forfeited to such person having performers' rights in relation to the performance as the court may direct; or
b: destroyed or otherwise dealt with as the court thinks fit.
2: In considering what order (if any) should be made under subsection (1), the court shall have regard to—
a: whether other remedies available in proceedings for infringement of the rights conferred by this Part would be adequate to compensate the person or persons entitled to the rights and to protect the interests of that person or those persons; and
b: the need to ensure that no illicit recording is disposed of in a manner that would adversely affect a person having performers' rights in the performance.
3: The court shall issue directions as to the service of notice on persons having an interest in the recording.
4: Any person having an interest in the recording is entitled—
a: to appear in proceedings for an order under this section, whether or not he or she is served with notice; and
b: to appeal against any order made, whether or not he or she appears in the proceedings;— and an order made under subsection (1) shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
5: Where there is more than 1 person interested in a recording, the court may direct that the recording be sold, or otherwise dealt with, and the proceeds divided, and shall make any other order as it thinks just.
6: If the court decides that no order should be made under this section, the person in whose possession, custody, or control the recording was before being delivered up is entitled to its return. Copyright, Designs and Patents Act 1988 s 204 (UK) Application to foreign countries
203: Application of this Part to convention countries
Section 203 repealed 14 October 1999 section 4 Copyright Amendment Act 1999
204: Application of Part 9 to other entities
1: On the recommendation of the Minister, the Governor-General may by Order in Council apply any provision or provisions of this Part to any entity specified in the order (whether a State, part of a State, a territory for whose international relations a State is responsible, a political union, an international organisation, or any other entity).
2: An order—
a: may apply a provision unconditionally, or subject to conditions, modifications, or both; and
b: may apply a provision generally, or in relation to performances of a particular class or classes.
3: The Minister must not recommend the making of an order applying any provision of this Part to any entity unless satisfied that—
a: the entity is a convention country; or
b: provision is or will be made under the law of or applicable to the entity giving reciprocal protection to performances generally or (as the case requires) performances of the class or classes to which the order applies that provision of this Part.
4: If the Government of a State is responsible for the international relations of 1 or more territories, an order may apply a provision to—
a: the State and the territory (or 1 or more of the territories) concerned; or
b: just the State; or
c: just the territory (or 1 or more of the territories) concerned.
5: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 204 substituted 14 October 1999 section 2(1) Copyright Amendment Act 1999 Section 204(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
10: Copyright Tribunal
Constitution
205: Copyright Tribunal
The Tribunal constituted by section 30 of the Copyright Act 1962 and known as the Copyright Tribunal shall continue in being.
206: Membership of Tribunal
1: The Tribunal consists of a chairperson and at least 2
2: The chairperson of the Tribunal—
a: shall be appointed as chairperson by the Governor-General on the recommendation of the Minister made after consultation with the Minister of Justice; and
b: shall be a barrister or solicitor of the High Court of not less than 7 years' practice, whether or not the barrister or solicitor holds or has held judicial office.
3: The
4: No person shall be deemed to be employed in the service of the Crown for the purposes of the Public Service Act 2020
5: For the purposes of this Part, except for the reference in subsection (3), a reference to a member members 1962 No 33 s 30(1), (2), (7) Section 206(1) replaced 26 March 2015 section 4(1) Copyright Amendment Act 2015 Section 206(1) amended 14 November 2018 section 8(1) Tribunals Powers and Procedures Legislation Act 2018 Section 206(2)﻿(a) substituted 1 October 1995 section 10(3) Department of Justice (Restructuring) Act 1995 Section 206(3) amended 26 March 2015 section 4(2) Copyright Amendment Act 2015 Section 206(4) amended 7 August 2020 section 135 Public Service Act 2020 Section 206(5) inserted 14 November 2018 section 8(2) Tribunals Powers and Procedures Legislation Act 2018
207: Term of office of members of Tribunal
1: Every member of the Tribunal shall hold office for a term not exceeding 5 years.
2: Any member of the Tribunal may hold that office concurrently with any other office held by him or her and may from time to time be reappointed.
3: A member of the Tribunal continues in office despite the expiry of his or her term of office until—
a: the member is reappointed; or
b: the member’s successor is appointed; or
c: the member is notified that a replacement member will not be appointed; or
d: the member vacates or is removed from office.
3A: A member who continues in office for any period under subsection (3), unless he or she was removed from office, may act as a member during that period for the purpose of—
a: completing any proceedings partly or wholly heard by the Tribunal before the expiry of his or her term of office:
b: hearing any other proceedings.
3B: A member who has resigned, or whose successor is appointed or who will not be replaced (unless he or she was removed from office), may continue in office for the purpose of completing any proceedings that are partly or wholly heard.
4: The powers of the Tribunal shall not be affected by any vacancy in its membership. 1962 No 33 s 30(3)–(6) Section 207(3) replaced 14 November 2018 section 9 Tribunals Powers and Procedures Legislation Act 2018 Section 207(3A) inserted 14 November 2018 section 9 Tribunals Powers and Procedures Legislation Act 2018 Section 207(3B) inserted 14 November 2018 section 9 Tribunals Powers and Procedures Legislation Act 2018
208: Vacation of office
1: Any member of the Tribunal may at any time resign his or her office by delivering a notice in writing to that effect to the Minister.
2: Any member of the Tribunal shall be deemed to have vacated his or her office if he or she dies or is, under the Insolvency Act 2006
3: Any member of the Tribunal may at any time be removed from office by the Governor-General for disability affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General. 1962 No 33 ss 31, 32 Section 208(2) amended 3 December 2007 section 445 Insolvency Act 2006
209: Appointment of temporary acting chairperson or members
1: If the chairperson or a member of the Tribunal becomes incapable of acting by reason of illness, absence, or other sufficient cause, or if the chairperson or a member considers it is not proper or not desirable that he or she should adjudicate on a specified matter, the Governor-General, on the recommendation of the Minister, made, in the case of an acting chairperson, after consultation with the Minister of Justice, may appoint a suitable person as the acting chairperson or an acting member for the period or purpose stated in the appointment.
2: No person may be appointed as the acting chairperson or an acting member unless he or she is eligible for appointment to the relevant position.
3: The acting chairperson or acting member is, while acting in the position, to be treated as the chairperson or a member of the Tribunal.
4: No appointment of an acting chairperson or acting member, no act done by an acting chairperson or acting member, and no act done by the Tribunal may be questioned in any proceedings on the ground that the occasion for the appointment had not arisen or had ceased. Section 209 replaced 14 November 2018 section 10 Tribunals Powers and Procedures Legislation Act 2018
209A: Delegation by chairperson of Tribunal
1: The chairperson of the Tribunal may delegate any of the chairperson’s functions, duties, and powers to a member of the Tribunal who holds the qualifications set out in section 206(2)﻿(b)
2: A delegation—
a: must be in writing; and
b: must be to a named person; and
c: is revocable at any time, in writing; and
d: does not prevent the performance or exercise of a function, duty, or power by the chairperson.
3: A person to whom any functions, duties, or powers are delegated may perform or exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
4: A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
5: A person to whom any functions, duties, or powers are delegated must be paid remuneration and expenses (if any) determined in accordance with section 210 Section 209A inserted 29 October 2019 section 11 Tribunals Powers and Procedures Legislation Act 2018
210: Remuneration and travelling allowances
1: The Tribunal is hereby declared to be a statutory board within the meaning of the Fees and Travelling Allowances Act 1951
2: There shall be paid to members of the Tribunal, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951 1962 No 33 s 35 Jurisdiction and procedure
211: Jurisdiction of Tribunal
The Tribunal shall have such functions as are conferred on it by this Act or any other enactment. 1962 No 33 s 37
211A: Orderly and efficient operation
1: The chairperson of the Tribunal is responsible for making such arrangements as are practicable to ensure that he or she and each member performs his or her functions—
a: in an orderly and efficient manner; and
b: in a way that achieves the purposes of this Act.
2: The Ministry of Justice must provide the resources and administrative support necessary to enable the Tribunal to perform its functions. Section 211A inserted 14 November 2018 section 12 Tribunals Powers and Procedures Legislation Act 2018
212: Parties to proceedings
1: The operator of the licensing scheme or the proposed licensing scheme shall be a party to any proceedings under section 149 section 150 section 151 section 153 section 154 section 157 section 158 section 159
2: The Tribunal may direct that an organisation or person be added as a party to any proceedings before the Tribunal under this Act where the Tribunal is satisfied that the organisation or person has a substantial interest in the matter in dispute and either—
a: the organisation or person applies to be made a party to those proceedings; or
b: the Tribunal of its own motion considers it desirable.
3: The Attorney-General, if in his or her opinion the public interest is or may be involved, may, on giving such notice to other parties as the Tribunal may direct, appear and be heard, or present submissions in writing on any proceedings before the Tribunal. 1962 No 33 s 42
213: Hearing
1: The Tribunal shall fix a time and place for the hearing of proceedings and shall cause notice to be given to the parties of the time and place so fixed.
2: No sitting of the Tribunal shall take place, except for the purposes of interlocutory or other ancillary matters, unless at least 3
3: Every sitting of the Tribunal shall be held in such place as the Tribunal deems convenient.
4: Every sitting of the Tribunal shall be held in public unless the Tribunal in any particular case, having regard to the interests of the parties and of all other persons concerned, considers that the sitting or any part of it should be held in private.
5: The Tribunal may make an order prohibiting the publication of any report or description of the proceedings or of any part of the proceedings.
6: Every person commits an offence and is liable on
7: Any sitting of the Tribunal may be adjourned from time to time and from place to place.
8: Despite anything in this Act to the contrary and except as provided in section 122L
9: Before doing so, the Tribunal must give the parties a reasonable opportunity to comment on whether the proceeding should be dealt with in that manner.
10: The hearing of a matter or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the chairperson or the Tribunal considers it appropriate and the necessary facilities are available. 1962 No 33 s 43(1)–(4) Section 213 heading replaced 14 November 2018 section 13(1) Tribunals Powers and Procedures Legislation Act 2018 Section 213(2) amended 1 September 2011 section 9 Copyright (Infringing File Sharing) Amendment Act 2011 Section 213(6) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 213(8) inserted 14 November 2018 section 13(2) Tribunals Powers and Procedures Legislation Act 2018 Section 213(9) inserted 14 November 2018 section 13(2) Tribunals Powers and Procedures Legislation Act 2018 Section 213(10) inserted 14 November 2018 section 13(2) Tribunals Powers and Procedures Legislation Act 2018
214: Procedure of Tribunal
1: Any party to proceedings before the Tribunal may appear personally or by the party's barrister, solicitor, or agent.
2: The Tribunal may appoint a barrister or solicitor to appear and be heard in proceedings as counsel assisting the Tribunal.
3: The decision of the majority of members shall be the decision of the Tribunal.
3A: If the members are equally divided in opinion, the decision of the chairperson is the decision of the Tribunal.
4: Every decision of the Tribunal shall be in writing and shall state the reasons for the decision.
5: The Tribunal may regulate its procedures as it sees fit, subject to this Act, any regulations made under it, and any practice notes issued under section 224A 1962 No 33 s 43(5)–(8) Section 214(3A) inserted 14 November 2018 section 14(1) Tribunals Powers and Procedures Legislation Act 2018 Section 214(5) replaced 14 November 2018 section 14(2) Tribunals Powers and Procedures Legislation Act 2018
214A: Tribunal may strike out, determine, or adjourn proceeding
1: The Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—
a: discloses no reasonable cause of action; or
b: is likely to cause prejudice or delay; or
c: is frivolous or vexatious; or
d: is otherwise an abuse of process.
2: If a party is neither present nor represented at the hearing of a proceeding, the Tribunal may,—
a: if the party is required to be present, strike out the proceeding; or
b: determine the proceeding in the absence of the party; or
c: adjourn the hearing. Section 214A inserted 14 November 2018 section 15 Tribunals Powers and Procedures Legislation Act 2018
215: Evidence in proceedings before Tribunal
1: The Tribunal may receive as evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not the same would be admissible in a court of law.
2: The Tribunal may take evidence on oath, and for that purpose any member or officer of the Tribunal may administer an oath.
3: The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.
4: Subject to subsections (1) to (3), the Evidence Act 2006 1962 No 33 s 44 1993 No 82 s 106 Section 215(4) amended 1 August 2007 section 216 Evidence Act 2006
216: Witness summons
1: The Tribunal may of its own motion, or on the application of any party to the proceedings, issue a witness summons to any person requiring that person to attend before the Tribunal to give evidence at the hearing of the proceedings.
2: The witness summons shall state—
a: the place where the person is to attend; and
b: the date and time when the person is to attend; and
c: the papers, documents, records, or things that that person is required to bring and produce to the Tribunal; and
d: the entitlement to be tendered or paid a sum in respect of allowances and travelling expenses; and
e: the penalty for failing to attend.
3: The power to issue a witness summons may be exercised by the Tribunal or the chairperson, or by any officer of the Tribunal purporting to act by the direction or with the authority of the Tribunal or the chairperson. 1993 No 82 s 109
217: Service of summons
1: A witness summons may be served—
a: by delivering the summons personally to the person summoned, or if he or she refuses to accept it, by bringing it to his or her attention; or
b: by sending it to the person summoned, at that person’s usual place of residence, by a service that records delivery; or
c: by emailing it to the person summoned at an email address that is used by that person.
2: The summons shall,—
a: where it is served under subsection (1)﻿(a), be served at least 24 hours before the attendance of the witness is required; or
b: where it is served under subsection (1)﻿(b) or (c)
3: A summons sent to a person in accordance with subsection (1)﻿(b) must be treated as served on the person at the time when it would have been delivered in the ordinary course of business for the service it was sent by.
4: In the absence of proof to the contrary, a summons emailed to a person in accordance with subsection (1)﻿(c) must be treated as served on the person on the second working day after the date on which it is emailed, and, in proving that the summons was emailed, it is sufficient to prove that the summons was properly addressed and sent to the email address. 1993 No 82 s 110 Section 217(1)﻿(a) replaced 14 November 2018 section 16 Tribunals Powers and Procedures Legislation Act 2018 Section 217(1)﻿(b) replaced 16 December 2017 section 57(1) Electronic Interactions Reform Act 2017 Section 217(1)﻿(c) inserted 16 December 2017 section 57(1) Electronic Interactions Reform Act 2017 Section 217(2)﻿(b) amended 16 December 2017 section 57(2) Electronic Interactions Reform Act 2017 Section 217(3) replaced 16 December 2017 section 57(3) Electronic Interactions Reform Act 2017 Section 217(4) inserted 16 December 2017 section 57(3) Electronic Interactions Reform Act 2017
218: Witnesses' allowances
1: Every witness attending before the Tribunal to give evidence pursuant to a summons shall be entitled to be paid witnesses' fees, allowances, and travelling expenses according to the scales for the time being prescribed by regulations made under the Criminal Procedure Act 2011
2: On each occasion on which the Tribunal issues a summons under section 216
3: The amount fixed under subsection (2) shall be the estimated amount of the allowances and travelling expenses to which, in the opinion of the Tribunal or person, the witness will be entitled according to the prescribed scales if the witness attends at the time and place specified in the summons.
4: Where a party to the proceedings has requested the issue of the witness summons, the fees, allowances, and travelling expenses payable to the witness shall be paid by that party.
5: Where the Tribunal has of its own motion issued the witness summons, the Tribunal may direct that the amount of those fees, allowances, and travelling expenses—
a: form part of the costs of the proceedings; or
b: be paid from money appropriated by Parliament for the purpose. 1993 No 82 s 111 Section 218(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
219: Privileges and immunities
1: Witnesses appearing before the Tribunal shall have the same privileges and immunities as witnesses have in proceedings in the District Court
2: Counsel and agents appearing before the Tribunal shall have the same privileges and immunities as counsel have in proceedings in the District Court
3: The Tribunal, the chairperson, and the members are not personally liable for any act done or omitted to be done by the Tribunal, the chairperson, or any member in good faith in the performance or exercise, or intended performance or exercise, of their functions, duties, or powers under this Act. 1993 No 82 s 112 Section 219(1) amended 1 March 2017 section 261 District Court Act 2016 Section 219(2) amended 1 March 2017 section 261 District Court Act 2016 Section 219(3) inserted 14 November 2018 section 17 Tribunals Powers and Procedures Legislation Act 2018
220: Non-attendance or refusal to co-operate
1: Every person commits an offence who, after being summoned to attend to give evidence before the Tribunal or to produce to the Tribunal any papers, documents, records, or things, without sufficient cause,—
a: fails to attend in accordance with the summons; or
b: refuses to be sworn or to give evidence, or, having been sworn, refuses to answer any question that the person is lawfully required by the Tribunal or any member of it to answer concerning the proceedings; or
c: fails to produce any such paper, document, record, or thing.
2: Every person who commits an offence against subsection (1) is liable on
3: No person summoned to attend before the Tribunal shall be convicted of an offence against subsection (1) unless there was tendered or paid to that person travelling expenses in accordance with section 218 1993 No 82 s 113 Section 220(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
221: Contempt of Tribunal
1: Every person commits an offence and is liable on
a: threatens, intimidates, or intentionally insults the Tribunal or any member of it, a special adviser to the Tribunal, a witness before the Tribunal, or an officer of the Tribunal
b: intentionally interrupts the proceedings of the Tribunal or otherwise misbehaves while the Tribunal is sitting; or
c: intentionally and without lawful excuse disobeys an order or direction of a member of the Tribunal in the course of any proceedings before the Tribunal.
2: A member of the Tribunal may order the exclusion from a sitting of the Tribunal of any person whose behaviour, in that member's opinion, constitutes an offence against subsection (1), whether or not such person is charged with the offence; and any constable or any officer of the Tribunal Section 221(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 221(1)﻿(a) amended 14 November 2018 section 18(1) Tribunals Powers and Procedures Legislation Act 2018 Section 221(2) amended 14 November 2018 section 18(2) Tribunals Powers and Procedures Legislation Act 2018 Section 221(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
222: Costs
1: The Tribunal, in any proceedings before it under this Act, may make such order as to costs as it thinks fit.
2: Any such order as to costs may be filed in the District Court 1962 No 33 s 46 Section 222(2) amended 1 March 2017 section 261 District Court Act 2016
222A: Power to award interest
1: This section applies where the Tribunal makes an order under Part 8
2: The Tribunal's order may include an award of interest on the whole or part of the money, payable for the period, ending not later than the date that the money is paid, that the Tribunal thinks appropriate, as compensation for delay in payment of the money.
3: Interest awarded under this section must be calculated in accordance with (or on a basis that ensures it does not exceed interest calculated in accordance with) Schedule 2 Section 222A inserted 1 January 2018 section 4 Copyright Amendment Act 2016
223: Stating case for High Court
1: The Tribunal may, at any time, before or during the hearing or before delivering its decision, on the application of any party to the proceedings or of its own motion, state a case for the opinion of the High Court on any question of law arising in any proceedings before the Tribunal.
2: The Tribunal shall give notice to the parties to the proceedings of the Tribunal's intention to state a case under this section, specifying the registry of the High Court in which the case is to be filed.
3: Except where the Tribunal intends to state the case of its own motion, the question shall be in the form of a special case to be drawn up by the parties to the proceedings, and, if the parties do not agree, to be settled by the Tribunal.
4: Where the Tribunal intends to state a case of its own motion, it shall itself state and sign a case setting forth the facts and questions of law arising for the determination of the High Court.
5: Every case stated for the High Court under this section shall be dealt with in accordance with rules of court.
6: The High Court shall hear and determine any question submitted to it under this section, and shall remit the case with its opinion to the Tribunal. 1962 No 33 s 47 1993 No 82 s 122
224: Appeal on question of law
1: Where any party to any proceedings before the Tribunal under this Act is dissatisfied with any determination of the Tribunal as being erroneous in point of law, that party may appeal to the High Court on that question of law.
2: Every appeal under this section shall be dealt with in accordance with rules of court. 1993 No 94 s 58 Practice notes, procedural information, and publication of decisions Heading inserted 14 November 2018 section 19 Tribunals Powers and Procedures Legislation Act 2018
224A: Practice notes
1: The chairperson of the Tribunal may issue practice notes for any type of proceedings dealt with by the Tribunal as he or she thinks fit.
2: The practice notes must not be inconsistent with this Act or any regulations made under it, and are for the guidance of other members of the Tribunal, officers of the Tribunal, and parties before the Tribunal. Section 224A inserted 14 November 2018 section 19 Tribunals Powers and Procedures Legislation Act 2018
224B: Online publication of information about procedures, time frames, and progress of decisions
The following information must be published on an Internet site maintained by or on behalf of the chief executive of the Ministry of Justice:
a: information about the purpose of the Tribunal and how to commence a proceeding:
b: any requirements that must be met for a proceeding:
c: guidelines on how and when parties may obtain information on the progress of their case and when a decision may be expected. Section 224B inserted 29 October 2019 section 20 Tribunals Powers and Procedures Legislation Act 2018
224C: Online publication of final written decisions
1: Every final written decision of the Tribunal must be published on an Internet site as soon as practicable unless there is good reason not to publish it.
2: A final written decision may be published in part if there is good reason for not publishing the full decision.
3: Subsections (1) and (2) are subject to section 213(5)
4: Good reason not to publish a decision, or part of it, includes the following:
a: non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:
b: the decision falls into a category of decisions that are of limited public value:
c: taking into account the presumption in subsection (1) in favour of publication, the Tribunal nevertheless determines that the decision or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.
5: In this section, final written decision
a: a written reserved decision following an oral hearing:
b: a written decision in any case considered on the papers. Section 224C inserted 29 October 2019 section 20 Tribunals Powers and Procedures Legislation Act 2018
11: Miscellaneous provisions
225: Rights and privileges under other enactments or common law
1: Nothing in this Act affects—
a: any right or privilege of any person under any other enactment:
b: any right or privilege of the Crown existing otherwise than under an enactment:
c: any right or privilege of the House of Representatives:
d: the right of the Crown or any person deriving title from the Crown to sell, use, or otherwise deal with objects forfeited under the laws relating to customs and excise:
e: the operation of any rule of equity relating to breaches of trust or confidence.
2: Subject to subsection (1), no copyright or right in the nature of copyright shall exist otherwise than under this Act or some other enactment in that behalf.
3: Nothing in this Act affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.
4: Nothing in this Act affects any right of action or other remedy, whether civil or criminal, available otherwise than under this Act in respect of acts infringing any of the rights conferred by Part 4 1962 No 33 ss 5, 67 Technological protection measures Heading substituted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008
226: Interpretation for sections 226A to 226E
In sections 226A to 226E issuer of the TPM work issuer of a TPM work
a: a copyright owner of a TPM work that—
i: issued a copy of the TPM work to the public; or
ii: communicated the TPM work to the public; or
b: a person that, under licence from the copyright owner,—
i: issued a copy of the TPM work to the public; or
ii: communicated the TPM work to the public permitted act
a: is permitted under Part 3
b: does not infringe any specified performers’ rights in the TPM work specified performers’ rights section 172 subpart 4 TPM technological protection measure
a: means any process, treatment, mechanism, device, or system that in the normal course of its operation prevents or inhibits the infringement of copyright in a TPM work; but
b: for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work) TPM circumvention device
a: is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of a technological protection measure; and
b: has only limited commercially significant application except for its use in circumventing a technological protection measure TPM work Section 226 substituted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226 heading replaced 30 December 2018 section 37A(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226 issuer of the TPM work issuer of a TPM work inserted 30 December 2018 section 37A(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226 permitted act inserted 30 December 2018 section 37A(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226 specified performers’ rights inserted 30 December 2018 section 37A(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
226A: Prohibited conduct in relation to technological protection measure
1: A person ( A
2: A person ( A B
a: A intends the service to enable or assist B to circumvent a technological protection measure; and
b: A knows or has reason to believe that the service will, or is likely to, be used to infringe copyright in a TPM work.
3: A person ( A Section 226A inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008
226B: Rights of issuer of TPM work
1:
2: The issuer of the TPM work has the same rights and remedies section 226A
3: The issuer of the TPM work has the same rights under section 122 132
4: Sections 126 to 129 and 197A
5: Section 134
6: A performer ( A
a: the performance is fixed in a sound recording; and
b: the TPM work is the sound recording; and
c: A issued a copy of the TPM work to the public or communicated the TPM work to the public. Section 226B inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226B(1) repealed 30 December 2018 section 40(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226B(2) amended 30 December 2018 section 40(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226B(4) amended 30 December 2018 section 40(5) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226B(6) inserted 30 December 2018 section 40(6) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
226C: Offence of contravening section 226A
1: A person ( A
2: A person ( A B
a: A intends the service to enable or assist B to circumvent a technological protection measure; and
b: A knows that the service will, or is likely to, be used to infringe copyright in a TPM work.
3: A person ( A
4: A person who commits an offence under this section is liable on conviction Section 226C inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226C(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
226D: When rights of issuer of TPM work do not apply
1: The rights that the issuer of a TPM work has under section 226B
2: The rights that the issuer of a TPM work has under section 226B
a: a qualified person to exercise a permitted act
b: a person referred to in section 226E(3)
3: In this section and in section 226E qualified person
a: the librarian of a prescribed library; or
b: the archivist of an archive; or
c: an educational establishment; or
d: any other person specified by the Governor-General by Order in Council on the recommendation of the Minister.
4: A qualified person must not be supplied with a TPM circumvention device on behalf of a user unless the qualified person has first made a declaration to the supplier in the prescribed form.
5: In this section,— archive section 50(1) archivist encryption technology librarian prescribed library section 50(1)
6: In this section and in section 226E encryption research
7: An order under subsection (3)﻿(d) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 226D inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226D(2)﻿(a) amended 30 December 2018 section 37B Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226D(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
226E: User’s options if prevented from exercising permitted act by TPM
1: Nothing in this Act prevents any person from using a TPM circumvention device to exercise a permitted act
2: The user of a TPM work who wishes to exercise a permitted act
a: apply to the issuer of the TPM work
b: engage a qualified person ( see section 226D(3) issuer of the TPM work
3: Nothing in this Act prevents any person from using a TPM circumvention device to undertake encryption research if that research is a permitted act and if that person
a: is either—
i: engaged in a course of study at an educational establishment in the field of encryption technology; or
ii: employed, trained, or experienced in the field of encryption technology; and
b: has either—
i: obtained permission from the issuer of the TPM work to use
ii: has taken, or will take, all reasonable steps to obtain that permission.
4: A qualified person who exercises a permitted act on behalf of the user of a TPM work must not charge the user more than a sum consisting of the total of the cost of the provision of the service and a reasonable contribution to the qualified person’s general expenses. Section 226E inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226E(1) amended 30 December 2018 section 37C(1) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226E(2) amended 30 December 2018 section 37C(2) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226E(2)﻿(a) amended 30 December 2018 section 37C(3) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226E(2)﻿(b) amended 30 December 2018 section 37C(3) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226E(3) amended 30 December 2018 section 37C(4) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226E(3)﻿(b)﻿(i) amended 30 December 2018 section 37C(5) Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Copyright management information Heading inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008
226F: Meaning of copyright management information
In sections 226G 226H 226J CMI copyright management information
a: identifies 1 or more of the following:
i: the work:
ii: the author of the work:
iii: the copyright owner:
iv: a performer:
v: in the case of a film, the director of the film; or
b: identifies or indicates some or all of the terms and conditions for using the work, or indicates that the use of the work is subject to terms and conditions; or
c: is a number or code that represents any of the information referred to in paragraph (a) or (b). Section 226F replaced 30 December 2018 section 37D Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
226G: Interference with CMI prohibited
1: A person ( A , or appearing in connection with communicating or making available,
2: However, subsection (1) does not apply if—
a: A has the authority of the copyright owner or the exclusive licensee to remove or modify the copyright management information; or
b: A does not know, and has no reason to believe, that the removal or modification will induce, enable, facilitate, or conceal an infringement of the copyright in the work. Section 226G inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226G(1) amended 30 December 2018 section 37E Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
226H: Commercial dealing in work subject to CMI interference
1: A person ( A , or appearing in connection with communicating or making available,
2: However, subsection (1) does not apply if—
a: A has the authority of the copyright owner or the exclusive licensee to remove or modify the copyright management information; or
b: A does not know, and has no reason to believe, that the removal or modification will induce, enable, facilitate, or conceal an infringement of the copyright in the work; or
c: A does not know, and has no reason to believe, that any copyright management information attached to , or appearing in connection with communicating or making available, Section 226H inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226H(1) amended 30 December 2018 section 37F Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226H(2)﻿(c) amended 30 December 2018 section 37F Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
226I: Contravention of section 226G or 226H
1: A copyright owner or licensee of a work has the same rights in relation to a contravention of section 226G 226H
2: If the copyright management information is or includes information that identifies an author, a director, or a performer (or is a number or code that represents information that identifies that person), the author, director, or performer (or a person entitled to exercise that person’s rights under Part 4 9 sections 226G 226H
3: Subsection (2) does not limit subsection (1). Section 226I inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226I(2) inserted 30 December 2018 section 37G Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 Section 226I(3) inserted 30 December 2018 section 37G Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018
226J: Offence of dealing in work subject to CMI interference
1: A person ( A section 226H
a: A knows that the copyright management information has been removed or modified without the authority of the copyright owner or exclusive licensee; and
b: A knows that dealing in the work will induce, enable, facilitate, or conceal an infringement of the copyright in the work.
2: A person who commits an offence under subsection (1) is liable on conviction Section 226J inserted 31 October 2008 section 90 Copyright (New Technologies) Amendment Act 2008 Section 226J(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
227: Offence of fraudulently receiving programmes
1: Every person commits an offence and is liable on communication work
2: Where any body corporate is convicted of an offence against this section, every director and every person concerned in the management of the body corporate shall be guilty of the offence if it is proved—
a: that the act that constituted the offence took place with his or her authority, permission, or consent; and
b: that he or she—
i: knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
ii: failed to take all reasonable steps to prevent or stop it. 1991 No 69 s 340 Section 227(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 227(1) amended 31 October 2008 section 91 Copyright (New Technologies) Amendment Act 2008
228: Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions
1: A person who—
a: makes charges for the reception of programmes included in a communication work
b: sends encrypted transmissions of any other description from a place in New Zealand— is entitled to the rights and remedies in subsections (2) and (3).
2: A person to whom subsection (1) applies—
a: has the same rights and remedies against a person referred to in subsection (3) as a copyright owner has in respect of an infringement of copyright; and
b: has the same rights under section 122 section 132
3: The person referred to in subsection (2) is a person who—
a: makes, imports, sells, or lets for hire any apparatus or device designed or adapted to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so; or
b: publishes any information that is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so.
4: In section 121(1)
5: Section 134 Copyright, Designs and Patents Act 1988 s 298 (UK) Section 228(1)﻿(a) amended 31 October 2008 section 92 Copyright (New Technologies) Amendment Act 2008 Other countries
229: Supplementary provisions as to fraudulent reception
1: The Governor-General may from time to time, by Order in Council,—
a: provide that section 227
b: provide that section 228
2: No such order shall be made unless it appears to the Governor-General that provision has been or will be made under the laws of that country or territory giving adequate protection to persons making charges for programmes included in communication works
3: Where sections 227 228 communication work
4: An order under this section is secondary legislation ( see Part 3 Copyright, Designs and Patents Act 1988 s 299 (UK) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 229(2) amended 31 October 2008 section 93(1) Copyright (New Technologies) Amendment Act 2008 Section 229(3) amended 31 October 2008 section 93(2) Copyright (New Technologies) Amendment Act 2008 Section 229(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
230: Application to convention countries
1: Subject to subsection (2), the provisions of this Act, other than the provisions of Part 9
a: apply in relation to persons who are citizens or subjects of any convention country or are domiciled or resident there, as they apply in relation to persons who are New Zealand citizens or are domiciled or resident in New Zealand:
b: apply in relation to bodies incorporated under the law of any convention country as they apply in relation to bodies incorporated under the law of New Zealand:
c: apply in relation to works first published in any convention country as they apply in relation to works first published in New Zealand:
d: apply in relation to communication works communicated from any convention country as they apply in relation to communication works communicated from New Zealand,— until the close of 31 December 1995 or, in relation to any particular convention country, the coming into force in respect of that convention country of an Order in Council made under section 232
2: For the avoidance of doubt, it is hereby declared that subsection (1) applies, in relation to a state of affairs or an action referred to in that subsection as existing or taking place in a convention country, whether or not the country in which the state of affairs existed or the action was taken was, at the time the state of affairs existed or the action was taken, a convention country.
3: No provision of this Act shall apply, pursuant to subsection (1), to a work made before the commencement of this Act unless—
a: copyright existed in the work under the Copyright Act 1962 immediately before the commencement of this Act; or
b: the work enjoyed protection in the nature of copyright in any convention country and, at the commencement of this Act, the term of that protection had not expired; or
c: the work was first published in a convention country. Section 230(1)﻿(d) substituted 31 October 2008 section 94 Copyright (New Technologies) Amendment Act 2008
231: Expenditure or liability incurred in connection with copyright work
1: This section applies in any case where—
a: a work was made before the commencement of this Act; and
b: copyright did not exist in the work under the Copyright Act 1962 when the work was made; and
c: on the commencement of this Act, copyright exists in the work pursuant to section 230
2: Where, in any case to which subsection (1) applies, a person incurred any expenditure or liability relating to an act that, at the time the act was done, was not an act restricted by copyright in the work, the person does not do an act restricted by copyright by doing, or continuing to do, that act in respect of the work when copyright exists in the work.
3: Notwithstanding subsection (2), an act that under that subsection is not an act restricted by copyright when copyright exists in the work may become an act restricted by copyright if the owner of the copyright or his or her exclusive licensee (if any) pays the person such compensation for the person's expenditure or liability as may be agreed upon or, in default of agreement, as shall be determined by arbitration in accordance with the provisions of the Arbitration Act 1908.
232: Application of Act (other than Part 9) to other entities
1: On the recommendation of the Minister, the Governor-General may by Order in Council apply any provision or provisions of this Act (other than a provision of Part 9
2: To the extent that the nature of the entity permits, an order may apply a provision to an entity so that it has all or any of the following effects:
a: it applies to persons who are citizens or subjects of, or domiciled or resident in, the entity as it applies to persons who are citizens or subjects of, or domiciled or resident in, New Zealand:
b: it applies to bodies incorporated under the law of the entity as it applies to bodies incorporated under the law of New Zealand:
c: it applies to works first published in the entity as it applies to works first published in New Zealand:
d: it applies to communication works communicated from any convention country as it applies to communication works communicated from New Zealand.
3: An order—
a: may apply a provision unconditionally, or subject to conditions, modifications, or both; and
b: may apply a provision generally, or in relation to works or cases of a particular class or classes.
4: The Minister must not recommend the making of an order applying any provision of this Act to any entity unless satisfied that—
a: the entity is a convention country; or
b: provision is or will be made under the law of or applicable to the entity giving reciprocal protection to copyright owners in respect of works generally or (as the case requires) works or cases of the class or classes to which the order applies that provision of this Act.
5: If the Government of a State is responsible for the international relations of 1 or more territories, an order may apply a provision to—
a: both the State and the territory (or 1 or more of the territories) concerned; or
b: just the State; or
c: just the territory (or 1 or more of the territories) concerned.
6: If—
a: an unpublished work is of unknown authorship, but there are reasonable grounds to suppose that the author was at the material time a citizen or subject of, or domiciled or resident in, an entity other than New Zealand; and
b: an order under this section has applied a provision of this Act to that entity so that it applies to persons who are citizens or subjects of the entity, or are domiciled or resident there, as it applies to persons who are citizens or subjects of, or domiciled or resident in, New Zealand; and
c: a person is authorised under the law of or applicable to the entity to represent the author, or protect and enforce the rights of the author in relation to the work,— the authorised person must be treated as if he or she were the author of the work for the purposes of the provision.
7: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 232 substituted 14 October 1999 section 3(1) Copyright Amendment Act 1999 Section 232(2)﻿(d) substituted 31 October 2008 section 95 Copyright (New Technologies) Amendment Act 2008 Section 232(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
233: Denial of copyright to persons connected with countries not giving adequate protection to New Zealand works
1: Whenever it appears to the Governor-General that the law of a country, other than a convention country, fails to give adequate protection to copyright in New Zealand works, or to 1 or more classes of such works, the Governor-General may by Order in Council make provision in accordance with this section restricting the rights conferred by this Act in relation to that country.
2: An Order in Council made under this section shall designate the country concerned and provide that, for the purposes specified in the order, works first published after a date specified in the order shall not be treated as qualifying for copyright by virtue of such publication if at that time the authors are—
a: citizens or subjects of that country (not domiciled or resident in New Zealand); or
b: bodies incorporated under the law of that country;— and the order may make such provision for all purposes of this Act or for such purposes as are specified in the order, and either generally or in relation to such classes of cases as are specified in the order, having regard to the nature and extent of the failure referred to in subsection (1).
3: An Order in Council under this section may be so made as to apply generally to a country, or to any territories for whose international relations the Government of that country is responsible, or to the country exclusive of all or any such territories.
4: In this section,— New Zealand works section 18 works
5: An order under this section is secondary legislation ( see Part 3 1962 No 33 s 51 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 233(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
234: Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing a body as a judicial body for the purposes of this Act:
b: prescribing classes of libraries for the purposes of section 50
c: prescribing institutions for the purposes of section 117
d: prescribing bodies for the purposes of section 72 89 90 185 190 191
e: prescribing classes of communication works section 90 section 191
ea: prescribing the form of a notice of infringement for the purposes of section 92D
eb: prescribing the form, content, procedures, requirements, and any other matters relating to infringement notices:
ec: prescribing the form of notice for challenging an infringement notice:
ed: prescribing the fee payable by rights owners for applications to the Tribunal under section 122J
ee: prescribing the practices and procedures of the Tribunal in relation to determining applications under section 122J
ef: prescribing the sum, or a method or methods of calculating the sum, that the Tribunal may order an account holder to pay under section 122O
eg: prescribing any matters necessary or desirable in relation to an order, or an application for an order, under section 122P
eh: prescribing the rate or rates, or a method or methods for calculating the rate or rates, for the fees that may be charged by IPAPs to rights owners under section 122U
f: prescribing the form in which a notice is to be given under section 136(1)
g: prescribing the particulars to be contained in a notice given under section 136(1)
h: requiring a person giving a notice under section 136(1)
i: requiring—
i: a person giving a notice under section 136(1)
ii: a person to whom an item is to be or has been released from detention under section 140(1) to give security or an indemnity, or both, to such persons, of such amount, and on such terms and conditions as may be determined by the chief executive of the New Zealand Customs Service
j: providing for exceptions to any requirement to give security or an indemnity imposed by any regulations made under paragraph (i):
k: providing for the disposition of any security given under any regulations made under paragraph (i):
l: providing for the forfeiture to the claimant, by consent, of an item detained under section 140(1)
m: prescribing forms for the purposes of this Act; and those regulations may require—
i: the inclusion in, or attachment to, forms of specified information or documents:
ii: forms to be signed by specified persons:
n: imposing requirements in respect of licensing bodies or any specified class or classes of licensing body or any specified licensing body, in relation to all or any of the following matters:
i: the contents of the constitution or other form of rules of the licensing body or bodies:
ii: the representation of copyright owners in the management of the licensing body or bodies:
iii: the collection, holding, and distribution of money by the licensing body or bodies:
iv: the disclosure of the financial affairs of the licensing body or bodies:
v: access to, and disclosure of, records held by the licensing body or bodies:
vi: any other matter relating to the conduct or the operation of the licensing body or bodies:
o: authorising, subject to such conditions as may be specified in the regulations, the rental to the public of copies of—
i: any specified class or classes of computer programs; or
ii: any specified class or classes of sound recordings; or
iii: any film or specified class or classes of films,— without the consent of the owner of the copyright in the work:
p: regulating the making, importation, sale, hire, or use of decoding equipment:
q: prescribing offences in respect of the contravention of or non-compliance with any provision of any regulations made under paragraph (p), and prescribing fines, not exceeding $5,000, that may, on
qa: prescribing fees in relation to licensing scheme disputes before the Tribunal:
r: providing for such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration. 1962 No 33 ss 29(4), (5), 66 Section 234(d) replaced 4 January 2020 section 7 Copyright (Marrakesh Treaty Implementation) Amendment Act 2019 Section 234(e) amended 31 October 2008 section 96(1) Copyright (New Technologies) Amendment Act 2008 Section 234(ea) inserted 31 October 2008 section 96(2) Copyright (New Technologies) Amendment Act 2008 Section 234(eb) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(ec) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(ed) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(ee) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(ef) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(eg) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(eh) inserted 1 September 2011 section 10 Copyright (Infringing File Sharing) Amendment Act 2011 Section 234(i) amended 1 October 1996 section 289(1) Customs and Excise Act 1996 Section 234(m) substituted 16 September 2011 section 14 Copyright Amendment Act 2011 Section 234(q) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 234(qa) inserted 14 November 2018 section 21 Tribunals Powers and Procedures Legislation Act 2018 Transitional provisions and savings
235: Transitional provisions and savings
The transitional provisions in Schedule 1 1962 No 33 s 68(1)
236: Consequential amendments and repeals
1: The enactments specified in Schedule 2
2: The enactments specified in Schedule 3
3: The regulations specified in Schedule 4