It is important that publishers ensure they either own the copyright in the content they are using or have the relevant rights to use it. Consideration needs to be given to rights required to produce material in print or digital formats or both.
Owning copyright material
Like any other personal property, copyright may be bought and sold, gifted and bequeathed. If you do not own copyright material as a result of authorship or commission, you can acquire ownership by taking an “assignment” of the copyright. For example, a writer, illustrator or photographer can agree to transfer to the publisher all or specified rights to their work, usually in exchange for payment. To be legally valid, any assignment must be in writing and signed by the person assigning copyright.
Once copyright has been assigned to you, you own the exclusive rights for the duration of the copyright term. The term is calculated by reference to the individual creator’s lifetime, even if the creator never owned copyright, for example, because they created the material as an employee.
As the copyright rights in a single work are divisible, it is possible for an assignment of copyright to be restricted to particular rights, formats or territories.
Licensing – permission to use copyright
You can obtain the right to copy or do any of the other restricted acts in relation to a work, by getting permission or clearance (sometimes called a licence) from the copyright owner. (The terms ‘permission’, ‘licence’ and ‘clearance’ are used interchangeably in this knowledge base.) Rights can be licensed separately for a particular purpose, term or place and subject to conditions.
Exclusive, non-exclusive and implied licences
An exclusive licence is where the person or organisation who has obtained the licence (the “licensee”) has the exclusive right to use the material. Under NZ law, an exclusive licensee has the same rights and remedies as the copyright owner and may bring legal proceedings against anyone who infringes those rights.
A non-exclusive licence is where there may be more than one licensee in respect of the same rights and material.
In some circumstances, a licence can be implied from the circumstances. For instance, if you issue a media release to someone, there would generally be an implied permission for that person to communicate its contents to the public, even if there is no express permission to do so.
Although verbal agreements can be legally binding, publishers should use written agreements when dealing with copyright, which clearly state the rights and obligations of all parties. This approach minimises ambiguity and the possibility of dispute between the parties in future. Formal legal agreements may not always be necessary, but an exchange of letters or e-mails provides a record of the agreement.
To overcome the challenges of copyright licensing faced by copyright owners where there are multiple works being used by institutional or business users, copyright owners have formed collective management organisations to act on their behalf and license their works. As there is no system of copyright registration in New Zealand and no central database that you can search to find a copyright owner, collective management organisations also benefit copyright users who can deal with one locatable entity rather than a multitude of individual owners.
Certain uses of published material may be covered under a licence from a collective management organisation. As a licensee with a copyright management organisation, direct permission from the publisher or author is not required provided that the copying or other use is within the terms of the licence.
Copyright Licensing New Zealand (CLNZ) represents publishers and authors in providing licences to organisations in NZ which reproduce copyright material from books and journals. Publishers receive licensing fees from CLNZ for the reproduction of their material and then have the responsibility of on-paying an agreed share of the fees to authors. The CLNZ licensing schemes generally operate under a sampling methodology and publishers receive payment when their copyright material appears in a sample. Further information can be found on CLNZ’s website.
A list of collective management organisations operating in NZ is available in this knowledge base.