Copyright rules can be varied by agreement
The operation of copyright in New Zealand is all set out in the Copyright Act 1994. However, many of the default rules in the Act can be modified by agreement. Modifications will commonly be agreed through a contract between the copyright owner and another person (or entity), where the copyright owner grants their rights in exchange for payment or some other undertaking. The law will enforce the contract if it’s been properly made, which means the contract takes precedence over the Copyright Act.
How could a contract vary a copyright owner’s exclusive rights?
A copyright owner could enter a contract to allow another person (or entity) to use the copyrighted work in a specific way, for a particular length of time, or for a particular purpose. Contracts may also require acknowledgement of authorship and will generally require the user to pay a fee to the copyright owner.
Common types of contractual terms include:
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Assignments of copyright:
An assignment of copyright is where rights are transferred or sold to another person. Where copyright is assigned, ownership is permanently transferred. An assignment must be in writing and signed by the person assigning copyright to be legally effective.
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Variation of the “first ownership” rule:
The rules of first ownership set out in the Copyright Act can be varied by a contract. For example, some employment contracts may contain a provision that an employee owns copyright in certain works they create during the term of an employment contract, and some commissioning agreements may stipulate that the artist retains copyright in works created. For more see the “
Ownership of Copyright
” fact sheet.
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Copyright licensing:
Licensing is not a transfer of ownership, but is where a copyright owner gives another person permission to exercise one or more of their copyright rights, for example, allowing a publisher to publish a book. A licence can be for a limited period of time, operate in a specific part of the world (known as a “territory” in copyright speak) and be exclusive or non-exclusive.
What’s the difference between exclusive and non-exclusive licences?
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An exclusive licence means the person who obtains the licence is the only person with the right to use that material during the agreed term and in the territory.
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A non-exclusive licence means there may be more than one person who has a licence in respect of the same rights and material at the same time.
Can moral rights be transferred?
Because moral rights are personal to the creator, they cannot be sold or transferred to another person. However, the right relating to false attribution may be enforced by a creator’s personal representative after the creator’s death.
What makes a contract enforceable?
To prove that an enforceable binding contract has been formed under New Zealand law, the parties (the copyright owner and person using the material) must establish the following elements:
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Intention:
that the parties intended to enter into an agreement and create a legal relationship. Ask yourself whether there was a “meeting of minds” between the parties;
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Offer:
that one party made an offer - for example, the copyright owner offered the use of their copyrighted material subject to certain conditions;
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Acceptance:
that the other party accepted that offer and agreed to the conditions;
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Consideration:
that there was something of value provided in exchange for the promise made in the contract. For example, consideration would be the payment provided to the copyright owner in exchange for the use of the material.
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Clarity:
that the terms of the contract are clear and certain - it helps to have them written down!
Did you know you can store contracts in Catalogue? If you don't have a formal contract, you can store accompanying documents or a copy of an email detailing your agreement here too!
A contract does not need to be in writing as it can be agreed orally. However, if something goes wrong and there’s nothing written down, it can be difficult to prove what the terms of the contract are meant to be. Therefore, it’s good practice for all contracts dealing with copyright to be in writing.
Contracts aren’t the only way to assign copyright
Dealings with copyright do not have to be by way of contract. For instance, someone may gift copyright to another person by signing a deed of transfer to this effect, or assigning the copyright in their will. Using either a deed or a will to transfer copyright does not require consideration for it to be enforceable, however are other elements required. For more see the “Ownership of Copyright” fact sheet and speak to your lawyer or Legal Service advisor.
Copyright is nuanced. All copyright cases should be dealt with on a case-by-case basis, and to get clear answers about your situation it's best to get tailored legal advice. We offer access to experienced legal advisors. You can get in touch by asking a question in Legal Service.