Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill 2002

In May 1998 the New Zealand Government removed the ban on parallel importation of copyright works contained in the Copyright Act 1994. This was done without any prior consultation or Select Committee hearings. Following this abrupt move, the music recording industry was vocal in its concern that copyright owners were obliged to show that the imported product was an infringing copy in the country in which it was made (section 12(3)(a)) and that proof of this might be difficult. In particular, the music industry was keen to have in New Zealand a provision similar to section 130A of the Australian Copyright Act which, in respect of sound recordings, reversed the onus of proof as to whether or not an article was an infringing copy.

In December 2001 in a media release, the Minister of Commerce and the Associate Minister of Arts, Culture and Heritage, foreshadowed changes to the onus of proof to make it easier for rightholders to take action against persons "blatantly importing pirated material". In the same press release, the Government announced its intention to ban the parallel imports of films, videos and DVDs for nine months from a title's first introduction. This was designed "to give the film distribution industry a period of protection to allow for the orderly release of films, videos and DVDs . This will ensure that distributors can supply provincial and smaller cinemas with copies of film prints so that as many New Zealanders as possible have access to new release titles".

On 17 December 2002, The Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill was introduced into Parliament. This has now been referred to a Select Committee. Despite its title, the Bill affects not only copyright but also one aspect of trade mark law.

The changes affected by the Bill are:

1. To introduce the ban on parallel importation of films made primarily for public showing in cinemas (including copies of those films and other formats) for nine months after a title's first international release. The ban is to remain in effect for a period of five years;
   
2. To clarify the scope of rental rights granted to owners of copyright in films, sound recordings and computer programs - in particular that the rental of parallel imported DVD copies and films infringes the rental right;
   
3.  In respect of sound recordings, films and software products (including electronic books and computer games) to shift the evidentiary onus as to whether the goods in question are infringing copies on to the defendant in civil proceedings concerning the act of importation;
   
4. To lower the knowledge requirement in the case of importation of sound recordings, films (including DVDs, VHS videos and video CDs) and software products from "knows or has reason to believe" to the lower requirement of "knows or ought reasonably to know";
   
5. Finally, the Act includes a provision designed to ensure that registered trade marks cannot be used to frustrate legitimate parallel importing. The Bill introduces an amendment to the Trade Marks Act 2002 in clause 97A: 
   
   "A registered trade mark is not infringed by the use of the trade mark (including use for the purpose of advertising) in relation to goods that have been put on the market anywhere in the world under that trade mark by the owner or with his or her express or implied consent"