The copyright commissioning conundrum

Article  \  12 Feb 2009

All around the world, of all the members of the intellectual property family, copyright is showing the greatest signs of stress. New Zealand is no exception.

There have recently been piecemeal reforms of the local legislation in an attempt to deal with technological change, including some controversial requirements recently imposed on internet service providers. There are also a number of other reforms underway, ranging from an artist’s resale right, parody and satire and the commissioning rule in copyright.

Copyright law is rapidly becoming an incomprehensible mess. One local commentator has suggested that the new government should start again with a blank sheet of paper (Matt Sumpter [2008] NZIPJ 481).

The commissioning rule is one of the areas that is most confused. Currently section 21(3) of the Copyright Act 1994 is one of two exceptions to the default position that the author of an original work owns copyright in it (the other being that the employer owns the work of employees created in the course of their employment). It provides essentially that apart from dramatic and literary works (except computer programs) the commissioning party owns copyright in the work by default. Both the commissioning exception and the employment exception can be overridden by agreement.

This can create the situation where a commissioning party can own the artistic parts of work it has commissioned from an outside agency, but not the literary or written parts, unless that written part is a computer program. Confused? So are many New Zealanders.

The United Kingdom dropped the commissioning rule when it reformed its law in 1988. Although it based much of its 1994 legislation on the UK Act, New Zealand chose not to do the same. Many New Zealanders continue to stumble over the issue: many don’t even turn their minds to the issue at the time of creation.

In September 2008, the previous government introduced a bill to abolish the commissioning rule. The bill was reinstated by the new government before parliament went into recess for the summer vacation but is yet to be scrutinised by a select committee. The question is whether that approach is the correct one?

Shouldn’t the person who pays for creation of the work own it, no matter what type of work it is? Or is the act of creation of a copyright work so sacrosanct that only the creator should have any right to it unless he or she has agreed to give that right away?

The proposed change shifts control to the creator on the basis that a licence may be all the commissioner needs. Consistency would be good: whether this is the right way to achieve it is another issue.

This article appeared in the February 2009 edition of Managing Intellectual Property.