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2012 – The Year that Was in Intellectual Property in New Zealand

After the excitement of the Rugby World Cup in 2011, and the government introducing legislation trying to stop people using those words, and the Rugby Union trying to stop people using the words All Blacks and silver ferns, 2012 looked as if it could be a quiet year for intellectual property.  Instead, copyright infringement was regularly in the news, making the front page of newspapers and headlining television news.

Kim Dotcom dominated in 2012.  His New Zealand trial for extradition to the United States on copyright infringement claims relating to his “Megaupload” website is due to take place later in 2013.  The falling out over the surveillance and raid on Kim Dotcom continues, with the High Court ruling on 6 December that the Government Communications Security Bureau must reveal details of their surveillance and the raid, including accusations of there being a live feed to the FBI.  It was interesting to hear New Zealand Prime Minister, John Key, call Kim Dotcom’s bluff recently, and ask why, if Kim Dotcom was so certain that he and his company had not infringed copyright, was he not willing to stand trial in the United States.

Copyright infringement featured again when the first set of complaints was made to the Copyright Tribunal in respect of the controversial “three strikes” or “skynet” legislation.  The three strikes legislation gave copyright owners the ability to lay complaints with the Copyright Tribunal in respect of infringing file sharing, for example, illegally downloading a Rihanna song on file sharing software or allowing a song to be uploaded from your computer via file sharing software.  The law makes account holders responsible for any infringing file sharing occurring on their account, which makes anyone sharing an internet connection with others – which, in reality, is most internet connections – vulnerable.  The legislation was introduced in September 2011 but copyright owners were slow to take any cases to the Copyright Tribunal.  RIANZ was the first to do so in September 2012, but promptly withdrew some of the complaints.  The Copyright Tribunal is yet to issue any decisions on the complaints that have been maintained by RIANZ.

Intellectual property has often been thought of as a low priority for the government, but 2012 saw some significant legislative movements.

The government introduced the Madrid Protocol for trade marks, which allows New Zealanders to participate in an international system of trade mark filing.  This potentially reduces the cost of protecting trade marks outside of New Zealand.

The Patents Bill had its second reading, and currently sits at number eight on the order paper at Parliament.  The Patents Bill has not been without its controversy.  The proposed ban on patenting computer software drew strong opinions, both for and against.  The Commerce Select Committee then recommended that the Intellectual Property Office of New Zealand develop guidelines on the patenting of computer software, which it did.  The guidelines proposed allowing embedded software.  The two positions seem at odds with each other – the Bill itself saying a computer program is not patentable, and the guidelines saying inventions containing embedded software are patentable.

Ngati Toa had its trade mark applications for various words of the Ka Mate haka declined as a result of an opposition by New Zealand company Prokiwi Limited, a Christchurch souvenir distributor.  The government subsequently signed a settlement deal with Ngati Toa which will give Ngati Toa (or more correctly Te Rauparaha, the composer of the Ka Mate haka) the right to be acknowledged as its composer.  The right to be acknowledged as composer does not include the right to prevent use of the haka or claim compensation or payment.  The Ka Mate haka was just one part of a 26 year Treaty of Waitangi settlement claim by Ngati Toa.

For New Zealand, 2013 is likely to see the passing of the Patents Bill, more of Kim Dotcom and some decisions from the Copyright Tribunal.  For those New Zealand businesses that have pending patent applications in Australia, or are planning on filing patent applications there, there are significant changes in the Australian patents regime that will come into effect in 2013.

It seems unlikely that 2013 will be quite as eventful as 2012 when it comes to intellectual property, although Mr Dotcom will no doubt keep us entertained.

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