G. Available Laws
G1. In principle, piracy and counterfeiting are best dealt with by laws relating to copyright and trade marks.
G2. Copyright is a right against unauthorised copying of an original work, such as a drawing or other artistic work, a literary work such as a computer programme, a musical work, or a film. It exists upon creation and is unique because of its originality.
G3. International conventions require all countries to provide certain minimum standards of protection for copyright works. Generally registration is not required. The protection is limited in time, but may be up to 50 years after the death of the author. Infringement of copyright is principally by unauthorised reproduction, or by distribution by way of trade of unauthorised reproductions.
G4. Ownership of interests in copyright is capable of division, for example territorially, or by the kind of exploitation such as film rights to a book, or multi-media rights to a drawing. Such rights may be assigned or may be licensed on an exclusive or non-exclusive basis, whether in consideration of a single payment or a royalty, and this gives the copyright owner flexibility to maximise the return.
G5. Copyright has value to its owner because of the desire of consumers to enjoy the use of reproductions of the work.
G6. Copyright is inherently capable of being used to control parallel importation because of the ability to divide the rights in the copyright.
G7. Conceptually, trade marks are an indication of origin. They connect in the consumer's mind a particular product with a particular trade source, believed by the consumer to be providing product of a particular desired quality or origin. The appearance of a known trade mark on a product is a shorthand way of ensuring that the consumer is getting what was intended.
G8. Trade marks may exist and be protected for as long as they are used and maintain goodwill. In common law countries they may be protected solely on the basis of provable goodwill, but are best protected by registration in relation to specific goods and services. Proof of copying is not necessary in establishing infringement, as it is a question of likelihood of confusion.
G9. Trade marks have value to their owners because of the goodwill which they generate amongst consumers. Use of trade marks may be licenced, but only where the licenced product is accepted as being connected to the proprietor.
G10. The same trade mark may in some cases be used without confusion by different businesses for quite different goods, and by different businesses in different territories.
G11. Trade marks are inherently less able to be used to control parallel importation. Under English and American law they can generally only be used to prevent parallel importation where the local proprietor is unrelated to the entity who authorised the affixing of the trade mark to the overseas sourced goods, or where the imported product is sufficiently different from the local product for there to be a likelihood of deception or confusion. New Zealand courts are more likely to adopt English precedents. In a sense such situations are not really parallel import cases because they are not about obstructing the import of the same product.
G12. Insofar therefore as pirate and counterfeit goods are readily replicated by simply copying the original skill and labour of the author, or are sold riding on the reputation of a well-known brand, copyright and trade mark laws are inherently adaptable to control piracy and counterfeiting.
G13. Accordingly this study will concentrate on copyright and trade mark laws.
G14. Intellectual property may also be protected by registered designs and patents. These are infringed by making or selling something which is found to be within the scope of the defined monopoly, and in this sense are closer to trade marks than copyright. No issue of actual copying arises, but the rights are publicly recorded on a register.
G15. In practice registered designs and patents are used to protect advances in technology and are usually only applied for to give a medium to longer term advantage over competition. Most registered designs and patent infringement actions are against competing and usually legitimate manufacturers. Because of validity issues they are less suitable for the urgent and immediate relief required against counterfeiters. Therefore while these rights are available against counterfeiters, they are in practice less used.
G16. Patents can be used against counterfeit pharmaceuticals. However many of the counterfeits are in fact less effective substitutes outside the patent protection.
G17. Actions for breach of confidence can also be used against counterfeiters, but are usually only relevant where there has been a previous relationship between the parties.
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