Business Mentor: Copyright rules are commonly misunderstood

Our small business needs some promotional material. We picked up a brochure at an overseas trade show which we like. We thought we'd copy some of the text and pictures from the brochure and then add our own trade mark and other bits and pieces. We heard that there is no copyright problem, so long as we copy less than 50 per cent of their material. Is this right?

Small business sector specialist Sarah Trotman asked Corinne Blumsky, intellectual property lawyer and partner at AJ Park, to explain:

The short answer is that copying is against the law, irrespective of how much you copy.

Under the Copyright Act, the owner of a copyright work has the exclusive right to copy the work, issue copies to the pubic and authorise someone else to do so.

If you copy someone else's brochure without their consent, even just a little bit of it, you will infringe their copyright.

New Zealand is a signatory to international copyright treaties. This means that although you picked up the brochure overseas, it cannot be copied in New Zealand without consent. It also means that when you come up with your own brochure, your copyright will be recognised in most overseas countries.

Copyright protection is one of the most misunderstood forms of intellectual property protection. It is often relied on because it is free and automatic. But what is copyright, how is it created and what rights do you get?

* Copyright protects the expression of an idea. The form in which the idea is expressed is protected but not the idea itself.

Copyright protects the written words and pictures in the brochure from copying, but not the message and information itself.

You are free to come up with your own brochure covering the same subject matter, but you must use all your own words and pictures.

* Copyright exists automatically, from the time of creation, in original literary, dramatic, musical and artistic works, sound recordings, films, broadcasts, cable programmes and published editions. There is no formal registration system.

* Copyright exists irrespective of the quality or merit of the work - so long as it's original, it's protected. Examples of copyright works are literary works including books and printed matter (such as brochures and other advertising material) as well as databases and multimedia productions.

Artistic works include plans, photographs, sculptures, collages, drawings and models. A logo or pictorial trade mark can also attract copyright as an artistic work (although trade mark registration provides better protection). Films cover any moving images including videos and DVDs.

* The owner of the copyright work is presumed under the Copyright Act to be the author; or the employer, if the work was created by an employee during employment; or the commissioner, if the work was commissioned. These presumptions can be altered but changes must be in writing to be effective.

* Generally, copyright lasts for 50 years from either the end of the calendar year in which the work was created, or from when the author dies.

* No formal system exists in New Zealand for copyright registration, so a copyright notice is the best way to inform others that a work is protected and consent is required to copy it.

A copyright notice contains the symbol, the name of the copyright holder and the year the work was first published. An example of a typical copyright notice is "Our Small Business Limited 2005".

* Copyright does not provide a monopoly right. It only gives you the right, as the name suggests, to stop someone copying your work.

If you cannot prove that your work has been copied, or if the alleged copier can prove independent creation, then you may not be able to successfully sue for infringement.

* Although copyright is free to own, it can be expensive to enforce. To avoid being sued for copyright infringement, you either need to come up with your own form of expression or get the consent of the copyright owner to copy their work.