In general, copyright is infringed if a person does any of the restricted acts listed in the Copyright Act in regard to someone else’s copyright.
The most common ground for infringement is copying, which is a restricted act in relation to all categories of copyright work. Copying a work means reproducing or recording that work in any material form, such as by hand, photocopying, scanning, downloading or storing on a computer.
Copying occurs when all, or a substantial part, of the copyright material is copied. “Substantial” refers to any important, distinctive or essential part. There are no legal guidelines about the quantity of material or percentage of a work which may be copied without permission ― it is a matter of fact and degree in each case. However, it is often said that it is the quality of what is taken, rather than the quantity that matters. It may be enough to infringe copyright by reproducing a very small part of another person’s work if it is important or significant in some way, for example by reproducing a few lines from a poem, an extract from a book or a paragraph from a journal article.
A publisher’s rights in their published edition will be infringed if all or a substantial part of the typographical arrangement is reproduced without their permission. Court cases have established that the layout of each individual literary work incorporated in the published edition (for instance, an article in a newspaper) is not considered a substantial part of the typographical arrangement. A substantial part in relation to the copying of a typographical work, refers to the layout of one page at a minimum.
Often publishers are entitled to take action in relation to copyright infringement in the works contained in their published editions, due to agreements in place with authors or artists.
A person may be liable for copyright infringement committed by others if they authorised the infringing act, for example, an employer may be liable for an employee’s infringement. To authorise generally means to “sanction, approve or countenance” the infringing conduct. However, there are many factors at play in considering what will amount to authorisation and “turning a blind eye” may in some cases amount to authorisation. Care needs to be taken when you make available the means by which others might infringe copyright. It is important to take steps to actively discourage the use of your computer systems and other work equipment to infringe copyright works.
Other types of infringement
There are prohibitions on people importing infringing copies of copyright material, commercial dealing with infringing copies and providing assistance to others to infringe copyright.
The restriction on importation of infringing copies is limited to people importing illegally produced copies of copyright material. There is no restriction on the parallel importation of material, i.e. goods that are legitimately produced in the country of manufacture, even if it would have infringed copyright had they been made in NZ.
In some situations, copyright owners can take action against people who alter digital copyright management information or who deal in devices intended to circumvent technological protection measures. Refer below under “Protecting Copyright Material”.
If your copyright is infringed
It is generally a good idea to get legal advice if you think your copyright has been infringed. You may need advice about whether a “substantial” part of your work has been used and if the person who used your work may have been able to use the work under a special exception. A lawyer can assist with the drafting of a “letter of demand” if necessary, and advise you on your legal rights and remedies and the likelihood of success if you decide to bring legal proceedings.
There are a range of legal remedies available in a copyright case, including:
- an injunction (an order that the infringement stop);
- an order that infringing copies of your material be delivered to you, or disposed of as you direct;
- damages (money payable to compensate the copyright owner for money lost, or spent, in respect of the infringement;
- an “account of profits” (payment of the profit made by the infringer from continuing to infringe copyright).
If your copyright is being administered by a collective management organisation, you should notify the organisation of the infringement as it may be able to help with the matter.
In some circumstances, in particular where there is commercial-scale piracy, infringement of copyright is a criminal offence to which fines and jail terms may apply.