Copyright: The inter-relationship of the Copyright Act 1994 and the Fair Trading Act 1986: World TV Limited v Best TV Limited

In a recent decision the High Court has held that the general language of the Fair Trading Act 1986 must be construed so as to conform with and not override the provisions of the Copyright Act. We look at why.

In World TV Ltd v Best TV Ltd , the respective parties each operated a subscription based television service. The plaintiff had licensed the New Zealand rights to certain Mandarin and Cantonese language programmes on an exclusive basis and alleged that the defendant was broadcasting these programmes in breach of copyright. In an earlier judgment Justice Baragwanath held that as the exclusive licensee of the copyright in these programmes in New Zealand, the plaintiff was entitled to an interim injunction that enjoined the defendant from continuing to broadcast the relevant programmes in New Zealand until the substantive issues were resolved.

However, the plaintiff also alleged that the defendant was broadcasting programmes in New Zealand in breach of copyright owned by the Chinese State Broadcaster - China International Television General Incorporation. The plaintiff was not the exclusive licensee of these particular programmes and could therefore not successfully sue for breach of copyright in respect of them (as to do so it needed to be either the owner of the relevant copyright or the exclusive licensee of the copyright - s124 Copyright Act 1994). As part of its attempts to get around this difficulty, the plaintiff alleged, among other things, that the defendant's conduct in broadcasting the relevant programmes in New Zealand, when it did not have a licence to do so, amounted to a breach of various sections of the Fair Trading Act 1986 including s9 (misleading and deceptive conduct) and s11 (misleading the public as to the nature or characteristics of services).

While Justice Baragwanath considered that the defendant's re-broadcast of the relevant programmes arguably carried with it the implication that those broadcasts were licensed, he was strongly influenced by the fact that the Copyright Act 1994 was intended to provide an exhaustive code and that included in relation to the enforcement of copyright. In this regard he said that the Fair Trading Act is to be read subject to the code established by the Copyright Act. In a passage from his judgment which captures the heart of his decision he said:

"The general language of the New Zealand fair trading legislation must equally be construed so as to conform with and not override the legislative copyright code. It is the Court's task on construction to ensure that both measures receive due effect. If the defendant were to present the CCTV 1 programme in a manner that added to the mere re-broadcasting of the CCTV 1 programme a suggestion that it did so with authority, that could in my opinion both infringe and be actionable under s 9 of the Fair Trading Act; there would be no clash with the Copyright Act which could still receive full effect. There would be no problem of inconsistency between policies of the law any more than if a defamatory broadcast resulted in consequential proceedings. But merely to rebroadcast, without more, material for which the owner of the copyright elects not to sue cannot in my opinion be the subject of a Fair Trading Act claim. The scheme of the Copyright Act includes freedom to publish copyright material unless the owner (or at interlocutory stage an exclusive licensee) elects to sue for breach of copyright. It would be inconsistent with that policy to treat conduct that in point of fact goes no further than mere copyright infringement as being in law actionable under the Fair Trading Act by a third party who being neither owner nor exclusive licensee lacks standing to sue for breach of copyright."

In essence, Justice Baragwanath simply applied the well-known principle of statutory construction that a general measure must be read down so as to be consistent with a specific measure but in this case, in doing so, he effectively allowed the defendant to continue to broadcast infringing material. His view being that it was for the copyright owner to take steps to prevent the infringement, not a third party by the side-wind of the Fair Trading Act.

Enquiries and information

For more information on copyrights or any other intellectual properties issues, please email or call Garry Williams on 64 9 916 8661.