Gordon Campbell | Parliament TV | Parliament Today | Video | Questions Of the Day | Search


Q and A On Theft of Intellectual Property

Some Questions and Answers on Theft of Intellectual Property - Piracy and Counterfeiting

1. What actions has the Government taken to address this issue?

The Government requested further work on preventing the trade in pirate and counterfeit goods last year. The Ministry of Commerce then commissioned a consultant's report on this issue by AJ Park & Son, a firm of patent attorneys. Submissions were invited on its findings and were received by January this year. Officials have since developed recommendations to the Government.

2. How much piracy and counterfeiting is there in New Zealand?

There is no clear evidence that New Zealand has a significant problem in respect of piracy and counterfeiting. A study by the Business Software Alliance and the Software Publishers Association included in the AJ Park Report, placed New Zealand in the bottom 10% of countries for software piracy rates and also showed that the rate of piracy had fallen in each of the three years to 1997.

These statistics are also reflected in the views of Police and Customs that there has been no significant increase in piracy and counterfeiting of goods protected by intellectual property rights since the decision to remove the prohibition on parallel importing last year.

The government nevertheless views this issue as serious and is committed to deterring piracy and counterfeiting of goods protected by intellectual property rights.

3. What measures has the Government adopted that were recommended in the AJ Park report?

The Government has adopted some of the principal recommendations of the AJ Park Report and will:

· make criminal provisions, penalties and remedies in the Trade Marks Act correspond to those in the Copyright Act;
· increase the maximum penalties for copyright piracy to five years and set penalty levels under the Trade Marks Act at the same level;
· allow forfeiture of goods by consent under the Copyright Act 1994;
· extend Customs powers to detain goods in goods in transit subject to copyright and trade mark notices; and
· allow affidavit evidence in cases of criminal copyright infringement.

However, this Report was just one of a number of considerations that the Government took into account when developing policy. Other considerations included other legislation such as the Bill of Rights Act 1990 and other policy considerations such as promoting competition and trade by not impeding parallel importing of genuine goods.

4. What are these measures expected to achieve?

Intellectual property rights are part of the Government's wider policy framework to encourage innovation and creativity in New Zealand. The Government is committed to the protection of core intellectual property rights. It will provide criminal penalties for piracy and counterfeiting of goods protected by intellectual property rights.

While the situation in New Zealand in respect of piracy and counterfeiting is not serious by international standards this does not mean that we should be complacent. If our laws are to be effective then it is important that:

· The law provides the means for intellectual property rights to be effectively enforced; and

· Penalties are sufficient to promote general deterrence.

Piracy and counterfeiting tends to take time to plan and commit. This means that those committing these crimes are more likely to weigh up the costs and benefits of the crime, and are likely to be deterred by increases in penalties.

New Zealand law already provides significant measures to ensure intellectual property rights are enforced. However, where inconsistencies have been identified the Government has adopted proposals to address these. For example, the option to forfeit goods voluntarily under the Copyright Act will be provided to make it consistent with the Trade Marks Act.

5. Will these measures adversely affect trade in genuine goods protected by intellectual property rights?

The Government considers that these measures will not deter trade in genuine goods protected by intellectual property rights. These changes will only affect those engaged in criminal copyright or criminal trade mark infringement under the proposed new offence provision.

The Government has not adopted the recommendation in the AJ Park Report that the onus of proof be placed on defendants in copyright infringement cases. The Government considers that this recommendation would be contrary to the public policy principle that a party is to be presumed innocent until proven guilty and that the extent of the counterfeiting and piracy problem is not such that it requires a change to this principle. Such a change could also undermine entrepreneurial activity and frustrate legitimate parallel importing activity.

6. What measures exist for intellectual property rights holders to take action themselves?

New Zealand has an extensive set of laws designed to allow intellectual property right holders to take action. These include:

· Border protection measures - New Zealand Customs Services can suspend the release into circulation of infringing trade mark or pirated copyright goods where the right holder has lodged a notice and security requiring Customs to detain pirated or infringing copies of the items that are in or at any time come into the control of Customs.

· Civil infringement actions for trade mark and copyright infringement and remedies (for example, damages).

· A range of statutory and common law orders to help rights holders secure evidence and seize infringing articles, property and assets (for example, section 122 of the Copyright Act that provides for "delivery up" of infringing copies and Anton Piller orders that provide for access to premises to secure evidence).

7. Why has the Government not provided for Customs to be able to prosecute for importing or attempting to import pirate or counterfeit copies?

Making Customs responsible for prosecution of importers would transfer the burden of proving infringement of a trade mark or copyright from the right holder to Customs. The Government considers that Customs does not have the same technical ability to prove ownership and authenticity of goods as the right-holder.

© Scoop Media

Parliament Headlines | Politics Headlines | Regional Headlines

Gordon Campbell: On The Perils Of Declaring Premature Victory

Sure enough, Saturday’s Vaxathon was a barrel of fun and a throwback not merely to the Telethons of the past. It also revived memories of those distant days of early 2020, when we were all carefully wiping down our groceries, not touching our faces, washing our hands for 20 seconds and responding to level four lockdowns by putting teddy bears in the window for the benefit of the little kids walking by in their family bubbles. Those were the days, when the Team of Five Million felt like a real, organic thing... More>>

RNZ: Prime Minister Jacinda Ardern announces Cabinet decision on Covid-19 alert levels

Northland will move to level 2 at 11.59pm on 19 October. Waikato will be held at level 3, to be reviewed on Friday. Auckland will remain in level 3 with current restrictions for another two weeks... More>>



Government: Red Tape Cut To Boost Housing Supply
First home buyers are set to benefit from changes to planning rules being advanced by the Government and the National Party that will enable more medium density housing and cut red tape that acts as a barrier to development... More>>


Economy: Inflation highest in over a decade
The consumers price index rose 2.2 percent in the September 2021 quarter, the biggest quarterly movement since a 2.3 percent rise in the December 2010 quarter, Stats NZ said today. Excluding quarters impacted by increases to GST rates, the September quarter movement was the highest since the June 1987 quarter... More>>


Government: New Zealand Increases Climate Aid Contribution

The Government is making a four-fold increase in the support it provides to countries most vulnerable to the climate emergency, Prime Minister Jacinda Ardern and Climate Change Minister James Shaw announced today... More>>

Pay Cheque To Pay Cheque: Half A Million New Zealanders Have No Savings
New findings from the Consumer NZ sentiment tracker found that 15% of New Zealanders had no savings, and a further 27% were anxious about their level of savings and would like to have more tucked away... More>>

Government: Mandatory Vaccination For Two Workforces

Large parts of two workforces critical to preventing the spread of COVID-19 will be required to be vaccinated, COVID-19 Response Minister Chris Hipkins said today. “Our education and health and disability workforces have done an incredible job throughout this pandemic to keep themselves and people safe,” Chris Hipkins said.... More>>

Green Party: Deeply Concerned Space Launches May Be Breaching Nuclear-free Laws

The Green Party is deeply concerned that space launches by Rocket Lab may be breaching nuclear-free laws, given our long-standing position as a signatory of the Nuclear Non-Proliferation Treaty... More>>




InfoPages News Channels