Subject: Cars as copyrighted goods
James Love (love@cptech.org)
Date: Wed, 03 Jun 1998 16:22:51 -0400
Message-Id: <3575B09B.C027C6D9@cptech.org> Date: Wed, 03 Jun 1998 16:22:51 -0400 From: James Love <love@cptech.org> To: Roundtable <roundtable@cni.org> Subject: Cars as copyrighted goods
This is an interesting comment from someone who is following the New
Zealand dispute concerning the use of copyright laws to bar imports
of cars. (For more on this, see:
http://www.essential.org/listproc/info-policy-notes/msg00302.html)
Jamie
-- James Love Consumer Project on Technology P.O. Box 19367, Washington, DC 20036 love@cptech.org | http://www.cptech.org/ 202.387.8030, fax 202.234.5176--------------- Subject: Re: USTR New Zealand Review over copyright and parallel imports Date: Tue, 02 Jun 1998 18:26:53 +1200 From: Barry Allan <B.C.Allan@massey.ac.nz> To: AT-MEMBERS <AT-MEMBERS@ABANET.ORG>
James Love <love@cptech.org> wrote: > > It is my understanding, from a report in FT.Com, that this > dispute concerns New Zealand's decision to liberalize parallel > imports of copyrighted goods. Moreover, the FT story said that > firms had used the ban on parallel imports of copyrighted goods > to block imports of "nearly new" automobiles, skis and > other items, that we don't typically think of being protected by > copyright.
This is true. As part of New Zealand's liberalisation of its tarrif regime and opening up the car import market in particular, the Government decided to remove the parallel import prohibition contained in the Copyright Act. This was done with very little notice (approximately one week advance warning was given) although last year there were surveys carried out to ascertain the impact of removal of the ban. As I understand it, this survey was limited to books, music (consistent with Australian moves to relax prohbitions in these areas) and vehicles (of particular importance to New Zealand, because removal of the tariff protection meant the end of any domestic assembly).
Consistent with other commonwealth jurisdictions, copyright covers a multitude of products which do not appear to be copyright; vehicles, for example, because they are a three dimensional representation of plans, which are copyright. The importation of vehicles for non-private use is therefore an indirect secondary infringement of copyright in the plans(!) under the former legislation.
As a result, there has been what I hope is a lot of posturing on the part of the US Government about imposing trade barriers on New Zealand, because its industries want to be able to price discriminate without regard to economic consequences here. Because a particular book, vehicle or whatever is unlikely to constitute a market in its own right, our antitrust laws do not override the previous ban on parallel importing; the claim being that by adding "Levis" only differentiates the product, rather than creating a seperate market for Levis notwithstanding the fact that the brand allows a premium to be extracted ($NZ130 or so for 501's - although with our dollar dropping the way it is, the discrepancy between local and US pricing is narrowing). Of course, removal of the ban will have adverse effects.
As the world lurches towards globalisation, maintaining of trade barriers such as parallel import bans seems a little inconsistent and what does not seem to be recognised yet is that it is only in respect of copyright that the ban has been lifted. Our Trademark legislation, the tort of passing off and our statutory prohibition on misleading and deceptive conduct have all been used in the past (particulalrly in Australia) to prevent parallel imports without recourse to copyright interests yet no amendment has been made to these causes of action. What I personally find most odious is that Josiah Beeman (US Ambassador to NZ) has not mentioned is that the US market is not exactly impervious to parallel imports itself.
I have a question: should we take the review of our intellectual property regime seriously?
Barry Allan ******* Barry Allan, Lecturer in Business Law, Massey University, Palmerston North, New Zealand
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