Commissioning rule to be repealed and parody satire review announced

Associate Commerce Minister, Judith Tizard has introduced to the House an amendment to the Copyright Act that would repeal the commissioning rule.  She also announced that a review on whether there should be a copyright exception for the purpose of parody and satire has begun.

The general rule is that the creator of a work holds the copyright to it.  However, the commissioning rule, which affects artistic workers such as photographers, has been an exception to this, meaning that the commissioner of a work is the default copyright holder.

"This is an important step in the promotion of creators’ rights to copyright ownership and will assist New Zealand photographers in particular to be more competitive, it also brings us in line with many other common law counties," said Judith Tizard.

The United Kingdom repealed their commissioning rule in 1988, in Australia commercial photographers have default copyright over their works, and Ireland and Canada have either amended or repealed their commissioning provisions or are in the process of doing so.

Currently, the commissioning rule allocates copyright ownership by default to the commissioner for artistic works, sound recordings and for the taking of a photograph or the making of a film. The rule does not apply to dramatic works or literary works (except computer programmes).

The recommendation to repeal comes after two rounds of consultation in both 2006 and 2007.

“Repealing the rule is intended to simplify the law by ensuring consistent application of default copyright ownership across all categories of commissioned works. It could also assist creators to retain copyright in their original works, which would in turn expand their ability to create future works,” said Judith Tizard.

A repeal of the commissioning rule will provide greater consistency across all commissioned works using the example of an author who is commissioned to write and illustrate a book.

“Currently in this situation, the default rule states that the commissioner automatically owns copyright in the illustrations as they are an ‘artistic work’, whereas the author as the creator automatically owns copyright in the literary aspect of the work," she said.

"With a repeal, the new default rule will allocate copyright ownership to the author in both the artistic and literary aspects of the work.”

There will be no alteration to section 105 of the Copyright Act which provides privacy protection for private commissioners of photographs or films. It includes a requirement that the commissioner’s permission be sought to use the work where copyright in that work is owned by someone other than the commissioner.

For the majority of private commissions, creators use standard form contracts to assert copyright ownership; therefore section 105 provides an important privacy protection mechanism and will continue to do so after the commissioning rule is repealed.

Judith Tizard pointed out the contracting out clause will be retained. “What will not change with a repeal is the ability for either the creator or the commissioner to negotiate out of the default rule.”

The Minister also used this opportunity to announce the commencement of a review on whether there should be a copyright exception for the purpose of parody and satire.

"The impetus for the review is to ensure the Copyright Act continues to provide clarity to copyright users, rights-holders and internet service providers as to what constitutes infringing material," she said.

“The Copyright Act is currently silent on the issue of parody and satire. With the recent introduction of the Copyright (New Technologies) Amendment Act, there is further need to ensure our legislation remains unambiguous when assessing what amounts to copyright infringement.”

Key considerations in the review will be whether a parody and satire exception is necessary in New Zealand, and whether providing such an exception would disrupt the balance between the competing interests of copyright creators, owners and users.

A discussion document on the issue of parody and satire is planned for public release in December 2008.