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New Zealand is a common law jurisdiction and a member of the British Commonwealth. Until relatively recent times, New Zealand’s copyright statutes were closely modelled on the English copyright statutes of the late 19th and early 20th centuries. Some divergences from the English law have occurred in the amendments to the Copyright Act 1962.
New Zealand is a party to the Berne International Convention for the Protection of Literary and Artistic Works 1886.T[1]T The group of “moral rights” in international copyright law under the Berne Convention comprises, in general: the right of an author to attribution of authorship, the right to object to derogatory treatment of a work, and the right to object to false attribution of a work. The common law did not recognise these moral rights, as they were creatures of the civil law, in particular French civil law.T[2]T From that origin, they became incorporated in the Berne Convention.
In order to comply fully with treaty obligations, and following the 1988 English revision of English copyright statutes which incorporated moral rights provisions, it was inevitable that New Zealand in revision of its own copyright statute in the 1990s would introduce in express statutory form the concept of moral rights.T[3]T The Copyright Act 1994T[4]T was passed in December 1994 and came into effect from 1 January 1995. Part IV of the Act is concerned with moral rights. One of the main reasons for the particular timing of the Act was the signing by New Zealand of GATT TRIPs.T[5]T It is important to note however that while Article 9 of TRIPs requires members to comply with Articles 1 - 21 and with the appendix to the 1971 text of the Berne Convention, it does not require compliance with Article 6bis which is the moral rights provision.
This article outlines the moral rights protected by the Copyright Act, analyses difficulties in the reception of this concept, notes the specific areas of waiver and computer software, and attempts to predict future trends in New Zealand law.
The moral rights protected under the Act are:
the right to be identified as author or director;T[6]T
the right to object to derogatory treatment of a work;T[7]T
the right not to have work falsely attributed;T[8]T
the right not to have a literary, dramatic, or musical work falsely represented as being an adaptation of a work of which the person is the author;T[9]T
the right not to have an artistic work falsely represented as the unaltered work of the author if the work has been altered after the author parted with possession of it;T[10]T
a right to privacy of certain photographs and films commissioned by a person for private and domestic purposes.T[11]T
Under section 106, the right to be identified as the author, the right to object to derogatory treatment, and the right to privacy in photographs and films expire when the copyright in any work that is the subject of the moral right expires.T[12]T Also under section 106, the right to object to false attribution and to object to false representations expire at the end of 20 years from the end of the calendar year in which the person who is entitled to the right dies.
Any moral rights may be waived under section 107 but “[t]he rights conferred by Part IV of [the] Act are not assignable”.T[13]T While moral rights are not assignable, under section 119 certain of them are able to be transmitted to successors of their holder on the holder’s death. The successors may not assign, but obviously if the term of the right is defined to expire at some time other than the death of the holder, someone has to be able to exercise the right pending expiry. Section 119(1) reads:
On the death of a person entitled to the right conferred by section 94 or section 98 or section 105 of [the] Act, -
a) The right passes to such person as he or she may by testamentary disposition specifically direct; or
b) If there is no such direction but the copyright and the work in question forms part of the estate, the right passes to the person to whom the copyright passes; or
c) If or to the extent that the right does not pass under paragraph (a) or paragraph (b) of this subsection, the right is exercisable by the personal representatives.
There is provision that, where copyright and the moral right pass in terms of section 119(1(b) to more than one person,T[14]T the moral right passes in exactly the same manner as does the copyright.
Assertion and exercise of moral rights, and waiver, where exercisable by more than one person, are separately able to be dealt with so that the assertion, exercise, or waiver affect only the rights of the person who asserts, exercises, or waives, and does not affect the rights of the others.T[15]T
Rights which have passed on the death of a person are subject to consensual waivers previously given.T[16]T
Any infringement of rights under sections 102,T[17]T 103,T[18]T or 104T[19]T after a person’s death is actionable by the personal representatives of the deceased person.T[20]T Damages recovered by personal representatives in respect of an infringement after the death of a person entitled to any of the moral rights conferred by Part IV of the Act devolve as part of the deceased person’s estate as if the right of action had existed and been vested in the person immediately before his or her death.T[21]T This last provision emphasises the point that the moral right is the personal right of the author or creator of the work in question.
The core provision of the Berne Convention as to moral rights is Article 6 bis (1), which states that:
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor [sic] or reputation.
So the international obligation in terms of the Berne Convention clearly separates moral rights from economic rights and links the rights to object with prejudice to the honour or reputation of an author. New Zealand, as a common law country, has difficulties with those areas because of the traditions that:
∗ the common law has regarded all copyrights other than Crown (or government) copyright as being only economic rights.T[22]T While almost the entire history of private copyright in the English common law has been by virtue of statute, the original statutes were made in order to enable time-limited monopoly rights to be exercised so that authors or the assignees of authors could harvest the fruits of their labours before other people could make other use of those fruits.T[23]T
∗ by and large, the common law has left the legal protection of reputation and honour to defamation law, in civil and in some limited criminal jurisdictions, rather than allowing those concepts to be protected within other defined sets of legal relationships, such as intellectual property law.T[24]T
Moral rights may be broadly differentiated into two types, even though authenticity in the expression of the author’s intention is central to each of the types of moral rights. The types of moral rights usually called the “paternity” rights are those requiring acknowledgment of the identity of the author or alternatively giving a right to object to false attribution. The “integrity” rights are those which prohibit the work from being published or represented in a form which is different from that in which it was expressed at the time of the author’s release of the work.
People used to a system in which the only rights under copyright law have been economic rights encounter some difficulty in navigating the intersection between economic rights and moral rights. The introduction in New Zealand of moral rights legislation in recent times could therefore be expected to have a delay in utilisation due in part to misunderstanding.
It is relatively simple to make the distinction between economic rights and moral rights, with reference to the physical treatment of an individual work of art such as a painting. The painter completes the work and sells it. At that stage, unless by agreement between the painter and the purchaser, the right of resale in the painting itself and the right to make copies of it vest in the purchaser pursuant to ordinary copyright law. These are economic rights. The purchaser also has the right to destroy the work totally, that being part of the economic rights as well as being at the centre of ordinary property law.
However, the painter has the right to object to such things as the purchaser substituting the purchaser’s signature on the painting for that of the painter,T[25]T the purchaser removing the painter’s signature from that work and attaching it to a work of altogether different origin,T[26]T or cutting out small scenes from the original painting and mounting and displaying them separately.T[27]T
In New Zealand, both before the passing of the Act and after,T[28]T concerns were expressed that moral rights enforcement would interfere with otherwise-authorised fair use of a work such as pastiche and parody. Collage is a type of artistic work recognised in the Act as a work in which copyright may subsist.T[29]T It is to be noted that a collage may itself infringe copyright, and may also infringe moral rights, while still bearing its own copyright.
More arguable is the proposition that pastiche and parody infringe moral rights, far less copyright, to an extent that the law would recognise. Essentially both of these forms of treatment are not dealing with specific works themselves, but rather the style of work. The style of a work, compared with an actual work, is subject to the same dichotomy principle as applies in copyright law generally, wherein there is a differentiation between a basic idea, which is not copyrightable, and the expression of the idea, which may be subject to copyright. In copyright law, ideas are not the subject of copyright, but only the expression of the ideas.T[30]T The style may be part of the expression of an idea but the style in itself is also an idea. Perhaps an easier way to express it is that pastiche and parody are not defacement, nor are they outright copying: therefore in themselves they should not be breaches of copyright in the sense of either economic rights or moral rights.
Certainly, the parody of a song may involve alternative words being put to the same tune, and therefore might well amount to derogatory treatment in terms of New Zealand copyright law. The use of the musical score in this way, it might be noted, is a breach of the economic copyright in the score in any event and thus would have been actionable even under the previous New Zealand copyright legislation. In such countries as Australia and the United States of America, there are schemes whereby compulsory licensing for use of musical works is available, though in the USA compulsory licensing is subject to a fair use limitation.
Another point which common law lawyers have difficulties with is the expression “moral rights”. The term seems to have connotations of rights which are binding only in honour rather than at law.
However section 125 of the Act clarifies the right of action:
(i) An infringement of a right conferred by part IV of [the] Act [the part dealing with moral rights] is actionable by the person entitled to the right.
(ii) In proceedings for infringement of a right granted by part IV of [the] Act, relief by way of damages and injunction is available to the plaintiff.
(iii) In proceedings for infringement of the right conferred by s 98 (2) of [the] Act [the right of the author of a literary dramatic musical or artistic work and of the director of a film not to have the work subjected to a derogatory treatment], the court may, if it thinks it is an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, disassociating the author or director from the treatment of the work.
Injunction and damages are available by way of remedy. The measure of damages is not restricted by any of the considerations applying in economic copyright, and tends to be an accounting of profits and some small punitive element. Since the Act’s provisions are predicated on Article 6bis(1) of the Berne Convention, which is aimed at the preservation of “honor and reputation”, the measure of damages should be as for a successful claim in defamation.T[31]T
Moral rights and moral obligations are concepts which do not sit squarely with traditional New Zealand common law.T[32]T New Zealand law is familiar with legal redress being available for failure to meet some general moral obligations, but only in fairly narrow contexts.
The best known context is that of claims under the Family Protection Act 1955, whereby a family member of a deceased person may take legal action against the deceased estate for provision out of the assets of the estate if the claimant can prove failure by the deceased person to provide by testamentary disposition for the claimant where there was a legal or moral duty so to provide. The particular circumstances are founded on a specific statutory provision.T[33]T
There has also been discussion in some of the case law of moral obligations owed by joint venturers to one another, in circumstances where joint venture documents may have been predicated on mutual understandings, not all of which have been recorded in the joint venture documents. In that there is no fixed legal definition of a joint venture in New Zealand law, statutory or otherwise, it has been open for the courts to consider such things as moral duties as distinct from, but allied with, legal duties in that context. The discussion in the judgments, however, has largely been couched in terms of fiduciary duty and constructive trust, albeit extensions of traditional formulations of the duties of fiduciary trustees.T[34]T
The difference between the copyright moral rights and the sorts of moral duty under the Family Protection Act 1955, or described in the dismissive sense noted above, is that copyright moral rights are designated now in detail in New Zealand law, pursuant to a more general requirement of international treaty. The court has a discretion as to remedies, including a particular mix of remedies for a particular case, but the particular breaches are carefully circumscribed rather than being left to the judge to find according to conscience.
The term “moral rights” is also used in contexts outside intellectual property law, for instance by philosophers to describe rights which are generally recognised but which may or may not be legally recognised. Professor Raymond Frey defined a moral right as
a right which is not the product of community legislation or social practice, which persists even in the face of contrary legislation or practice, and which prescribes the boundary beyond which neither individuals nor the community may go in pursuit of their overall ends.T[35]T
Professor Gerald Feinberg pointed out that “the categories of moral and legal rights overlap, so that a given moral right can also be a legal right if a rule calling for its recognition and enforcement has been duly enacted into law”.T[36]T Feinberg made a distinction between those moral rights that are exercisable even prior to legal recognition and those which cannot be exercised before being enacted into law.T[37]T
In the context of intellectual property law, there is a claimT[38]T being made under the Treaty of Waitangi Act 1975 before the Waitangi Tribunal for what the claimants describe among other things as “intellectual and property rights”T[39]T in the flora and fauna of New Zealand. What the claimants mean is that they consider that, as the descendants of the indigenous inhabitants of New Zealand, and pursuant to the Treaty of Waitangi between the M_ori people and the British Crown signed in 1840, they have rights to the control, use, and derivatives of the naturally-occurring flora and fauna of the country. Their argument is essentially that, because the indigenous people were in the country first and the Treaty preserves for them the treasures as regarded in their society and the right of control over the land and forests which they retained, they have a moral right in the philosophers’ sense to control the use of, the exploitation of, and the derivatives of the naturally occurring flora and fauna of the country.
The WAI 262 claim is to establish whether that claimed moral right is actually a legally exercisable right under the terms of the Treaty of Waitangi. If the Waitangi Tribunal determines that the right is one which is legally exercisable under the Treaty, then it may make a recommendation accordingly to the New Zealand Government. The Government may then legislate to define the extent of the right and who may exercise it, in order that the right becomes a legal right.
Regardless, the claim is not of an intellectual property right as recognised either at international law or in domestic New Zealand law. Even though it is a claim of a moral right in the sense described by Frey and Feinberg, it is not in any way a moral right claim as defined under the Act.
There is a specific permission in section 107 for creators of works to waive their moral rights in existing works, or those works yet to be created. Section 107(1) provides that it is not an infringement of any moral right to do an act to which the person who is entitled to the right has consented. Section 107(2) goes on to provide that:
any of the rights conferred by this part of this Act may be waived by instrument in writing signed by the person waiving the right.
A waiver must be specific as to the rights to which the waiver relates,T[40]T may be expressed to be subject to revocation,T[41]T and, if made in favour of the owner or prospective owner of the copyright and the work or works to which the waiver relates, shall be presumed to extend to the licensees and successors in title of the owner or prospective owner unless a contrary intention is expressed.T[42]T
There is potential therefore for publishers and others to try to create a practice or custom that authors and creators of work waive their moral rights. This potential was referred to as “the obvious blot on [the] legislative landscape” in the article by van Melle referred to above.T[43]T However, the observation and personal experience of the present writer, is that publishers are not universally requesting a waiver of moral rights. On the contrary, it seems that publishers are currently keen in New Zealand to assure writers that works will be properly attributed, and that textual alterations will be made only with consent. It may be that publishers in fields other than the law are more heavy-handed.
If extensive use is made of waivers, then the entire scheme of moral rights in the Act will be undermined, with the exception of the parts relating to the rights of privacy in section 105 which are specific and limited.
It seems pointless to have provision in the statute for rights which are stated to be inalienable but then which are subsequently stated to be subject to waiver. Waiver, if not expressed to be revocable, is equivalent to destruction of the right. It would seem logical that a right specifically preserved for the benefit of someone’s “honour and reputation”, as the Berne Convention puts it, and attaching to the personality, should not be capable of being destroyed. There is, of course, the argument that persons destroy their own honour and reputation with appalling regularity and in some cases with appalling frequency.
There are at least two reasons for the insertion in the New Zealand statute of the ability to waive moral rights. It would appear that one reason is preserving the distinction between economic rights and moral rights. Moral rights should not be sold: therefore the only way a creator of a work would allow others to deal with the work in any possible way would be to assign economic copyright and waive moral copyright. The other reason may well have come from publishers wishing to protect editorial freedom in the face of possible authors’ allegations of derogatory treatment.
There are exceptions to the application of moral rights. One major area of exception is the application of moral rights to computer software and to computer-generated work.T[44]T There is no conceptual difference either in economic rights or in moral rights between computer software and computer-generated works using software written for the purpose and other works of authorship. Although computer programs have been patentable in New Zealand since the 1995 decisions on the Hughes Aircraft Corporation applications,T[45]T the major protection in New Zealand and for the rest of the world is still in copyright.T[46]T
There would be some significant advantages to the protection of software in moral rights. Software piracy is a notorious problem, compounded by the fact that much if not most new software depends on re-engineering of other previously-existing software in order to operate. Legal protection of paternity and integrity rights in software, coupled with measures of damages as for defamation, could be useful but fair weapons for software creators to use in fighting the appropriation of their works by other software creators.
Software, like any other work of literature, is a manifestation of personality. Art 6bis(1) of the Berne Convention is designed to protect against the erosion of personality in the sense of reputation and honour. The defamation measures of damages are appropriate.
There are as yet no reported cases in New Zealand as to moral rights under the current copyright legislation. The decisions of the superior courts of other common law jurisdictions, particularly the British, Australian, Canadian, and United States of America jurisdictions, are of persuasive authority for the New Zealand courts. Relevant overseas common law decisions therefore might give some guide as to the likely reactions of the New Zealand courts to claims under Part IV of the Act.
The New Zealand courts are also not averse to considering court decisions in civil law jurisdictions where principles originated which have since been adopted into our local statute law. It is likely, for example, that in the area of copyright moral rights the New Zealand courts will take into account decisions which have been made by the French courts.
Such eclectic gathering of judicial authority in order to assist municipal judicial decision-making is not at all unusual in New Zealand, and has recently been plainly apparent in the area of competition law. The statutory provisions in the Commerce Act 1986T[47]T as to distortion of markets and abuse of dominant position were clearly inspired by the provisions of Articles 85 and 86 of the Treaty of Rome.T[48]T Initially the New Zealand Court of Appeal looked to European Court of Justice decisions and the decisions of national courts of European Union countries for assistance in interpretation and application of the New Zealand statute;T[49]T regard was also had to economic theories of the Chicago school and USA anti-trust litigation; decisions of the Australian superior courts came to be taken into account,T[50]T not least following legislative amendment to the Commerce Act pursuant to the Australia and New Zealand Closer Economic Relations-Trade Agreement deeming for some purposes Australia and New Zealand to be one market;T[51]T and in more recent times the New Zealand Court of Appeal has found for itself sufficient confidence to be more forthright about applying the statute according to its view of current New Zealand conditions.T[52]T
Australia has yet to legislate for moral rights in copyright. It appears likely that it will do so. Copyright law was an area of law identified by both countries in 1988 as one where harmonisation would assist in the processes of creating a closer economic and trade relationship between them in terms of the Australia New Zealand Closer Economic Relations-Trade Agreement 1983.T[53]T
Although New Zealand jurisprudence concerning moral rights will take time to emerge, in the meantime its development may safely be predicted according to understanding of the origins of copyright moral rights, the receipt and application thereof in Britain, the USA, and possibly Australia if it legislates accordingly, with perhaps a more idiosyncratic approach applying as time goes by.
Important areas of endeavour and commerce such as the computer industry would be well served by the statutory extension, and the application, of the scheme of moral rights. Important protections of the rights of indigenous peoples, as requested in the WAI 262 claim, could likewise be served by the application of the copyright moral rights, not just the philosopher’s “moral rights.”
The level of damages for breach, if calculated using similar criteria as for a claim in defamation for harm to honour and reputation, would be a strong disincentive to breach of moral rights.
T[*]T Senior Lecturer in Law, University of Waikato. This article is a modified version of the paper “Moral Rights in New Zealand Copyright Law” presented to the LAWASIA Biennial Conference, Manila, 30 August 1997.
T[1]T Paris text, 1971, hereafter referred to as “the Berne Convention”.
T[2]T It is important to note that moral rights in one form or another were present in many other countries. For instance, the authors’ rights for the No plays of Japan were protected by way of moral rights as long ago as the 16th century: Prof Teruo Doi, chairman’s address, LAWASIA Biennial Conference, Manila, 30 August 1997.
T[3]T Some indirect modes of protection were previously available, as for instance by the passing-off action in tort.
T[4]T Hereafter styled “the Act”.
T[5]T The Agreement on Trade-Related Aspects of Intellectual Property Rights Protection, signed at Marrakesh 16 April 1994 at the conclusion of the Uruguay Round of negotiations of the General Agreement on Tariffs and Trade.
T[6]T Section 94.
T[7]T Section 98.
T[8]T Section 102.
T[9]T Section 103.
T[10]T Section 104.
T[11]T Section 105.
T[12]T That is, when the economic copyright expires. Economic copyright expires after the life of the author (or creator of the work) plus 50 years: s 22. See in particular s 22(1) to (3):
“(1) Subject to the following provisions of this section, copyright in a literary, dramatic, musical, or artistic work expires at the end of the period of 50 years from the end of the calendar year in which the author dies.
(2) If the work is computer-generated, copyright expires at the end of the period of 50 years from the end of the calendar year in which the work is made.
(3) If the work is of unknown authorship, copyright expires at the end of the period of 50 years from the end of the calendar year in which it is first made available to the public by an authorised act.”
There are also subsequent provisions as to works of unknown authorship and joint authorship. Specific provisions in respect of films and the like in s 23 set out details of dating the commencement of the 50 year term. Some limitations in the term of protection for industrially-applied works appear in s 75, having been carried forward from the Copyright Amendment Act 1985.
T[13]T Section 118.
T[14]T Section 119 (2) (b): “in part to one person and in part to another”. It is unclear whether this provision partitions all moral rights in shares or allows separate moral rights to devolve upon separate persons.
T[15]T Section 119 (3).
T[16]T Section 119 (4).
T[17]T False attribution.
T[18]T False representation as to literary, dramatic, or musical works.
T[19]T False representation as to artistic works.
T[20]T Section 119(5).
T[21]T Section 119(6).
T[22]T See general discussion as to New Zealand law in Brown, B and others, Copyright and Design (1996).
T[23]T See discussion in Copinger and Skone James on Copyright (13 ed, 1991).
T[24]T See discussion as to defamation in Butterworths Laws of New Zealand Vol 10 paras 1, 4, 40, 41. Note, intellectual property law extends to the protection of reputation and honour where the author has established goodwill. See eg Sykes and Sons v John Fairfax Ltd (1978) FSR 312, a case involving passing-off of a pseudonym, where the goodwill attaching to the pseudonym was a critical element.
T[25]T Paternity - attribution.
T[26]T Paternity - false attribution.
T[27]T Integrity - false representation of an unaltered work.
T[28]T Eg van Melle, “Moral Rights; the Right of Integrity in the Copyright Act 1994” [1995] NZLJ 301.
T[29]T Section 2(1): “Artistic work - (a) Means (I) A graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality...”.
T[30]T In copyright law the separation of the idea and the expression of the idea are usually described as “the dichotomy principle”. In patent law things have moved on from Benjamin Franklin’s conception that “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone and the receiver cannot dispossess himself of it. Inventions then cannot, in nature, be a subject of property”. I submit that a closely and well-drawn patent specification will capture the idea of an invention by corralling virtually every implementation of the idea.
T[31]T For a discussion as to damages in New Zealand defamation law, see Butterworths Laws of New Zealand, supra note 24, paras 14, 15, 16, and 17.
T[32]T It may be argued that the law of fiduciary obligations, observance of good faith, and perhaps the law of equity in general depend on the courts having some general moral stance. But the courts are apparently reluctant to express it so.
T[33]T Re Hilton (deceased) (1997) 15 FRNZ 340, [1997] NZFLR 438, and Re Estate of Leach, Prestidge and another v Black [1996] NZHC 1798; (1996) 14 FRNZ 254 are recent High Court decisions in claims where the plaintiffs were suing under the Family Protection Act based on alleged breaches of moral duty.
T[34]T See eg the Auag Resources Ltd v Waihi Mines Ltd [1994] NZHC 1166; [1994] 3 NZLR 571 (HC), and Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA). As to so-called “letters of comfort”, see Lennard, “Enforcing Moral Obligations in Commercial Transactions” (1991) 29(7) Law Society Jnl 81-83); and as to fraudulent preferences, see Re D S Edmonds Electrical Ltd, Off Ass D S Edmonds Electrical Ltd (in Liq) v Tyree Power Construction Ltd [1993] MCLR 237.
T[35]T Frey, R G Interests and Rights: The Case Against Animals (1980) 7.
T[36]T (1992) 12:2 Oxford Journal of Legal Studies, 149, 151.
T[37]T Ibid, at 152.
T[38]T Filed under number WAI 262, and referred to in this article as “the WAI 262 claim”.
T[39]T In paragraph 2.2 of the first amended statement of claim, August 1997.
T[40]T Section 107(3)(b).
T[41]T Section 107(3)(c).
T[42]T Section 107(3)(d).
T[43]T Supra note 28.
T[44]T The right of attribution exception is in s 97(2), and the exception to the right to object to derogatory treatment is in s 100(2), in both instances as to computer programs and computer-generated works which are literary, dramatic, musical or artistic works.
T[45]T Decisions by the New Zealand Commissioner of Patents on 3 May 1995; see Moon, “Software Inventions Now Patentable in New Zealand” [1995] EIPR 203.
T[46]T Recognised in respect of databases by the World Intellectual Property Organisation (WIPO) protocol on computer databases signed on 20 December 1996 at the conclusion of the Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions, Geneva, 2-20 December 1996.
T[47]T This is the main competition law statute.
T[48]T See for instance the structural determinants of market power set out in s 3(8)(a) of the Commerce Act 1986 - the factors there set out of market share, technical knowledge, and access to materials and capital can be traced back to the European Commission definition of dominance in Re Continental Can Co [1972] CMLR D11, D17.
T[49]T A New Zealand review of European case law on market dominance appears in Re Broadcast Communications Ltd [1990] NZAR 433, in which decision Hoffmann-La Roche v Commission [1979] ECR 461 was referred to in order to formulate an approach to market dominance.
T[50]T See for example Richardson J in Telecom New Zealand Ltd v Commerce Commission [1992] NZCA 595; [1992] 3 NZLR 429, 443-444, citing Trade Practices Commission v Arnotts (1990) ALR 657 and Continental Can, supra note 48.
T[51]T In New Zealand legislation as s 36A, Commerce Act 1986.
T[52]T See the Court of Appeal judgment in Port Nelson Ltd v Commerce Commission [1996] NZCA 230; [1996] 3 NZLR 554, (1996) 5 NZBLC 99,382.
T[53]T See the Memorandum of Understanding signed between the two countries as to business law harmonisation on 1 July 1988. Note that the report of the Steering Committee of government officials of June 1990 recorded that trade agreements between the two countries need to take into account multilateral treaties and United Nations instruments, of which the Berne Convention is one. See also Schott Musile 36 1 IPR 267, where the Australian Court interpreted s 55(2) of the Australian statute as having nothing to do with reputation or honour of the author, despite that statutory provision being one which relates to debasement of copyright works. It is suggested that this finding may well provoke the introduction of moral rights into Australian copyright law.
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