Copyright Case Study
Ngahuia7, our kuia, is the main composer of all waiata taught to her Awhina Kapa Haka group. Most of the waiata are historical in content and recite stories told to her by her elders about her hapū and the land and resources within their rohe. As the tutor of Awhina Kapa Haka, she has recently become aware of IP rights. She isn't too sure which IP rights apply, but is keen to protect the waiata she creates.
Copyright is the applicable IP right in this case, because copyright applies to literary, artistic and musical works. ngahuia wants to protect the lyrics (literary) and the tunes (music) of her waiata.
How does Ngahuia copyright her work?
As we discussed above, copyright automatically exists in any new creation, provided the four following requirements are met:
- The work must be either artistic, literary or musical.
- The work must be sufficiently original (not copied).
- The author must be a "qualified person" (this just means you have to be an Aotearoa-New Zealand Citizen).
- The works must be fixed either in writing or some other material form.
There can be several layers of copyright in one work, for example, Ngahuia will have copyright in the lyrics and the tune. The performers of her song may also have performers' rights. Sound recordings and broadcasters' rights might also apply.
Layers of copyright
How much will it cost Ngahuia to copyright her work?
It won't cost Ngahuia anything to copyright her work as there is no formal registration process.
Does Ngahuia have to use the copyright symbol © on all of her original works?
No, Ngahuia does not have to display the copyright symbol © on her original literary and/or musical works. The symbol does, however, let others know that copyright exists in that work. If Ngahuia does wish to notify others that copyright exists in her work, the notice is usually written in the following way: © with the creator's name, and the date of the creation. For example: © Ngahuia Koi, 1 January 2007.
Without Ngahuia's consent, no-one can:
- copy her work;
- publish, issue or sell copies of her work to the public;
- perform her work in public;
- play her work in public;
- Show her work in public;
- broadcast her work or include her work in a cable programme service;
- make an adaptation of her work or do any of the above activities in relation to an adaptation; or
- authorise any other person to do any of the restricted activities listed above.
If they do, they are infringing Ngahuia's copyright. For example, if another kapa haka ropu chooses to perform one of Ngahuia's original compositions without her permission, they are infringing Ngahuia's copyright.
Ngahuia's waiata are based on tribal stories – does that make her the author?
In copyright terms, yes. Although Ngahuia gets the inspiration to write her waiata from old tribal stories handed down over time, she invests time and energy into telling those stories in a new, and therefore original way. This makes her the "author" of the new waiata even though they are based on traditional material.
Does copyright allow Ngahuia to prevent others from copying the stories about her hapu that Ngahuia has retold through waiata?
No, it does not. Copyright only protects the expression of the idea, not the underlying idea itself. Therefore, the way Ngahuia has chosen to express the stories passed down from her ancestors is protected, but other people can come up with their own expression. This means someone else can tell the same story using different words and a different tune without infringing Ngahuia's copyright.
It isn't the information used in a work that is protected, but the way in which it is expressed by the author.
So, can Ngahuia prevent others from using the tribal stories of her hapu?
Because the IP regime was originally created to encourage creativity, innovation and the sharing of ideas, rather than to prevent others from accessing those ideas, there are limits to how much protection IP rights can provide for traditional knowledge. The fact that IP rights are generally time limited rather than offering perpetual protection is one example of these limitations.
Moral rights (see page 12), may, however, offer a limited form of help in this situation.
The right of the author to object to derogatory treatment of their original expression is important in this case, particularly if Ngahuia wishes to preserve the overall integrity of the work and the underlying story or ritual knowledge.
Moral rights are based on an assumption that a creator's work is an extension of the creator's personality and, therefore, any interference with the work that offends the honour or reputation of the creator should be refrained from.
Although this kind of example has not yet been tested in the Aotearoa-New Zealand Courts, moral rights could potentially be extended to protect works from cultural misuse.
For example, if a reproduction of one of Ngahuia's original compositions (based on her tipuna history) was altered and used to sell a product or service that was at odds with the tikanga of her hapu, Ngahuia could claim that the song was used in a culturally derogatory manner, and that affected her reputation and honour among her people.
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