Luxury Brands Attempt to Hit Back at Online Marketplaces Feb 2010 More and more people around the world are shopping online. While online shopping creates greater choice and opportunities for consumers, online commerce has also spurred a flood of counterfeit products. The sale of counterfeit products results in lost revenue to brand holders, retailers and distributors of legitimate goods and can also dilute the hard earned reputation and goodwill of brands. > Read More> View PDF
Copyright Myths and Online Content Feb 2010 Several copyright myths have been circulating for years, but some seem to have gained in popularity alongside the massive increase in information available online. In this article we explore these myths and answer some common questions regarding copyright infringement and online content. > Read More> View PDF
Copyright Insolvency - Just Another Asset Dec 2009 Copyright owners often grant licences allowing others to use their copyright works in specific ways. But when insolvency strikes and a licensee collapses, how much power does a copyright owner have over its works in the licensee's possession? This article examines the litigation between Viacom Global (Netherlands) BV and Scene 1 Entertainment Limited (in receivership), where a licensor attempted to recover a stash of Paramount DVDs from its insolvent licensee, relying solely on its rights as a copyright owner. > Read More> View PDF
Adwords - Badwords? Google wins first battle in trade mark infringement Oct 2009 In a case concerning three trade mark owners, including Louis-Vuitton, the European Court of Justice (ECJ) has been asked whether the use of registered trade marks as keywords in Google's Adwords advertising service amounts to trade mark infringement. On 22 September 2009, the Advocate General issued his opinion to the ECJ. While the ECJ is not bound by the Advocate General's opinion, it tends to follow his view. Given New Zealand's tendency to apply similar principles to those set down in Europe, the outcome will be highly relevant here too. This article takes a look at the opinion of the Advocate General, who considered that Google's Adwords service does not amount to trade mark infringement. > Read More> View PDF
Copyright Commissioning - Back to Basics Aug 2009 As reported in our May 2009 edition of On Your Marks, the National government has dropped the Copyright (Commissioning Rule) Amendment Bill which proposed the abolition of the copyright commissioning rule. This means that, for now at least, the rule under section 21(3) of the Copyright Act 1994 will still apply. > Read More> View PDF
Section 92A - The Saga Continues Aug 2009 A proposal to replace Section 92A (a contentious proposed change to the Copyright Act covering ISPs' obligations in relation to subscribers who are repeat infringers) has now been released. The proposal releases ISPs from the obligation to have a policy to terminate the internet accounts of repeat copyright infringers. Under the proposal, repeat copyright infringement and termination of accounts will now be determined by the Copyright Tribunal. > Read More> View PDF
Domain Name Dispute - Watch it on the Country Channel Jun 2009 The Dispute Resolution Service (DRS) for New Zealand domain names is relatively new. It was implemented in June 2006, and since then it has received over 160 valid complaints. Domain names are registered on a first-in, first-served basis, and there is no requirement for registrants to show that they have any rights in the particular name they register. However, another business can challenge a registration if it can show that it has prior rights in a name or mark that is similar to the domain name registered, and that the registration is unfair according to the DRS Policy (available online at http://dnc.org.nz/drs/index.php?clsid=1012). > Read More> View PDF
Disaster Danger! Is Your Software Licence Ready for a Disaster? Jun 2009 The terms of a software licence may seem to be a peripheral concern when contemplating a disaster recovery plan for your business. However, a recent Australian case, Software AG (Australia) Pty v Racing & Wagering Western Australia (the RWWA Case) illustrates the importance of having a clear provisions in a software licence agreement allowing for the creation, use and testing of back-up copies for disaster recovery purposes. Without such provisions, New Zealand's copyright legislation may leave licensees vulnerable to paying further licence and maintenance fees or even a large legal bill. > Read More> View PDF
Surprise! You're an ISP Apr 2009 The liability of Internet service providers (ISPs) for the infringing acts of their users has long been a grey area. Overseas, 'safe harbour' legislation has been passed to provide clarity to this situation by excluding ISPs from liability for copyright infringement provided certain procedures are followed.
Sections 92A to E of the Copyright Act, inserted by the Copyright (New Technologies) Amendment Act, were intended to provide similar clarity for New Zealand ISPs. Rather, as we have seen with the media furore surrounding section 92A, the new laws have only created greater uncertainty.
One largely overlooked aspect of the new laws is that almost every business falls within the definition of an ISP as set out in the Act. This will have important risk management and employment ramifications for businesses which should be addressed as soon as possible. > Read More> View PDF
Out of Commission? Apr 2009 A Bill to amend the Copyright Act 1994, which would abolish the so-called "commissioning rule", was introduced to Parliament by the Labour Government towards the end of 2008. This Bill currently sits as item 12 on Parliament's order paper and, on this basis, is likely to receive its first reading in the first half of 2009.
The commissioning rule provides that those who commission and agree to pay for the creation of computer programs, designs and other artistic works, photographs, films and sound recordings, are the first owners of any copyright in the works created. The rule applies subject to agreement to the contrary.
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Chopping the Head off the Hydra? New Zealand's Response to Digital Music Piracy Feb 2009 On 28 February 2009, the controversial provisions of the new Copyright (New Technologies) Amendment Act 2008 are likely to come into force in New Zealand, requiring internet service providers (ISPs) to adopt a greater role in reducing the proliferation of illegal downloads. As we enter a new era in digital music, how is the New Zealand music industry adapting to deal with piracy and will this responsibility for ISPs provide the answer? > Read More> View PDF
The Seven Deadly Sins Of Software Licensing Aug 2008 An IT licence is a simply grant of permission to do something that would otherwise infringe another’s intellectual property rights.
Easy? Sadly not. From a practical perspective, the purpose of any licence is to ensure certainty – for both parties. However, software doesn't easily lend itself to certainty. It dates quickly, can be modified or copied by any number of people, and scope of use can be difficult to define.
There are a number of common pitfalls for both licensors and licensees, which if not considered up front can lead to at best uncertainty, and at worst disputes. Set out below are some of the common pitfalls, and suggestions of how to avoid them. > Read More> View PDF
Free Trade With China: Big News For Business, A Soft Nudge For Intellectual Property Rights May 2008 On 7 April 2008, New Zealand became the first developed country in the world to enter into a free trade agreement (FTA) with China, heralding the beginning of a new age for trade relations between the two nations. The removal of barriers to trade under the FTA will enable New Zealand investors and exporters to capitalise on opportunities with China, New Zealand's third largest individual trading partner and the world's fastest growing economy. > Read More> View PDF
The Copyright (New Technologies) Amendment Act: Dragging Copyright Into The 21st Century May 2008 Following our article in the March edition of x-tech ("The Copyright (New Technologies) Amendment Bill: Delayed by Individual and Big Business Interests?"), we can report that New Zealand's copyright law has finally been brought into the twenty first century with the passing of the Copyright (New Technologies) Amendment Act (Act). > Read More> View PDF
Rewarding Innovation Mar 2008 A clear theme in recent economic policy has been the need to shift New Zealand's output towards innovative, high-value products which compete on the international stage. This has resulted in some proactive initiatives by Government to encourage the development of innovative growth businesses, two examples of which are discussed below. > Read More> View PDF
Reversing Software Rights in the Copyright Act A typical software licence agreement will prohibit the licensee’s right to copy, decompile and reverse engineer the software without the licensor's prior written consent. Following the Ministry of Economic Development's recommendations to the Government in the Digital Technology and the Copyright Act Position Paper in 2002, the enactment of the Copyright (New Technologies and Performer’s Rights) Amendment Bill (Bill) will, to a limited extent, override such provisions. In this article, we examine the proposed rights and restrictions on software users in the Bill in respect of copying, decompiling and reverse engineering software programs.
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Domain Name Update Good News For Rights Holders Apr 2007 New Zealand's domain name Dispute Resolution Service (DRS) came into effect on 1 June 2006, to deal with complaints over the use or registration of .nz domain names. Closely following the UK's Nominet domain name procedure, the DRS has been very successful in its first year. The lates decision, regarding the TeachNZ.co.nz has shown that, like its counterparts in the United Kingdom, the DRS is willing to take a relatively relaxed approach to what constitutes "rights in a name" for the purpose of bringing a complaint. > View PDF
Updating Copyright Law for the Digital Age Feb 2007 A new Bill has been introduced to Parliament with the intention of clarifying the application of copyright law to digital technology. It aims to strengthen the rights of both copyright owners and users in the digital age. > View PDF
Will Copyright Infringement Kill the Video (Sharing) Star? Nov 2006 Copyright infringement taking place on content and/or file sharing websites, such as YouTube.com, is now commonplace. YouTube, founded in a Silicon Valley garage in 2005, hosts a website which allows users to upload videos onto its website to share with the entire online community, and it has been reported that YouTube shows more than 100 million video clips each day with 65,000 new videos uploaded daily. Whilst it is proving difficult for the website to police such a vast amount of content, increasingly, it is not just the websites themselves, but also their end users, which are in the firing line. > View PDF
Trade Mark Genericide Nov 2006 The Ministry of Economic Development (MED) has released a discussion paper which considers certain aspects of New Zealand's copyright regime under the Copyright Act 1994 (Act). The MED is seeking input on two key issues which affect the IT industry:
circumstances where it is appropriate to contract out of copyright legislation; and
the adequacy of the so called "commissioning rule" which deals with first ownership of copyright in respect of certain commissioned works (including software).
Trading an Employer's Trade Secrets Nov 2006 Recently, three people in the United States were prosecuted for trying to sell Coca-Cola's trade secrets to its rivals PepsiCo. One was an employee of Coca-Cola, who photocopied highly sensitive documents, and took home a sample of a new drink in her handbag. The trio then offered the information to undercover agents for US$2.25 million. As an employer, what could you do if someone in your company tried to sell your condiential information. And on the flipside, what should you do if you are on the receiving end of stolen information? > View PDF
Rated E Sep 2006 In the last five years, a unique industry has developed in the United States which specialises in the sale of DVD versions of
Hollywood movies, such as Titanic or The Godfather. Yet, in these versions, digital corsets cover Kate Winslet’s nudity
and Don Corleone lips occasionally move without sound. When a film is altered, a directors' reputation, vision and unique
presentation to audiences may be compromised. To protect their work against unauthorised editing, film directors in the
US have turned to copyright law. As this article will explain, copyright law in New Zealand may also provide recourse for
directors who feel that their works have been mauled in a new editing suite. > View PDF
Experimental Use Exception to Patent Infringement: The Inventors' Trojan Horse Sep 2006 This article considers Cabinet's recommendation to introduce an "experimental use" exception to New Zealand patent legislation, and discusses the implications of the proposed exception for patent owners and those involved in research and development in New Zealand. > View PDF
STOP THIEF! Fighting for your Rights in Cyberspace Jun 2006 What can you do if a competitor is using a domain name similar to yours? In this article, we seek to answer this question by considering a hypothetical example involving two competing hair salon businesses, Cutz and Stylit. The example may seem far fetched to some, but has actually been fairly common and Simpson Grierson has dealt with many similar cases. > View PDF
.EU Domain Gathers Momentum Jun 2006 In this article we provide an update on the article in last November's x-tech e-zine (Sun Rises for .EU Domain Names). The four month priority "sunrise" period for registration for .EU domains came to an end in April 2006. Interest in the new European domain already appears to have been significant, but it is not too late for anyone doing business in Europe to obtain a .EU domain name. > View PDF
Confidence in Confidentiality Agreements Apr 2006 First published in IT Brief Magazine. In recent years, confidentiality agreements seem to have pervaded the IT and technology industries. People involved in IT contracting and technology development are constantly either being asked to, or asking others to, enter into confidentiality agreements. Just what are you signing up for? > View PDF
Contracting Out Of Copyright Law And The Commissioning Rule May 2006 The Ministry of Economic Development is currently seeking input on two copyright issues which affect the IT industry - contracting out of copyright legislation (for example by shrink-wrap licence) and the adequacy of the commissioning rule, which currently provides an exception to the general rule of first ownership of copyright.
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A New GNU Mar 2006 A consultation process was launched in January 2006 relating to the commonest form of open source software licence, the GNU General Public Licence. This article looks at the controversial features of the amended draft licence, which is known as GPLv3. GPLv3 seeks to address, in particular, the twin challenges facing open source software of digital rights management and software patents. > View PDF
Submissions Received on Draft Domain Name Dispute Resolution Policy Mar 2006 In the July 2005 issue of FYI x-tech ("New Zealand follows the UK in choosing a domain name dispute resolution process"), we reported that InternetNZ had decided to adopt and implement a domain name dispute resolution procedure based upon the UK Nominet model. A draft policy was prepared and public comment was sought. Here are some of the comments received. > View PDF
Plant Variety Rights Enforced Against Director and Company Mar 2006 A recent decision of the New Zealand Court of Appeal serves as a useful reminder to those operating in the bio-tech and agri-tech industries that intellectual property rights may exist in raw materials such as plant varieties, as well as in brands, inventions, and creative or industrial works. Such rights are valuable tools in trade, as they enable rights holders to obtain economic returns by way of licences and, if necessary, to enforce prohibitions against the unauthorised use of protected varieties by others. > View PDF
Blogging; Risks, Rewards and Regulation Feb 2006 The "web log" or "blog" is an online diary through which people publish their opinions, thoughts and photographs over the Internet. People usually blog about their personal life and in their personal time. However, organisations are quickly becoming aware that the personal blogs of employees can have a impact on their business, for better or for worse. This article addresses the risks and rewards associated with employee blogging and the steps an organisation can take to educate its employees on the good and the bad about blogging. > View PDF
