Part VI of the Copyright and Neighbouring Rights Act 2000 contains three short sections, one of which is unusually powerful.
Section 32 — the priority rule
The provisions of any international treaty in respect of copyright and related rights to which Papua New Guinea is a party shall apply to matters dealt with under this Act and, in case of any conflict with a provision of this Act, the treaty shall prevail to the extent of any inconsistency.
This is a strong provision. Two things follow.
Treaty provisions apply directly to matters dealt with under the Act — they are not merely an aid to interpretation.
Where there is a conflict, the treaty wins — to the extent of the inconsistency. An Act of Parliament yields to the treaty on the point of conflict.
The practical consequence is that the Act cannot be read in isolation. Terms of protection, the treatment of foreign right holders, formalities, and the scope of exceptions all have to be checked against the instruments to which Papua New Guinea is party.
It also explains features of the Act that would otherwise look odd. The section 8(2)(e) limit — no private copying where reproduction would conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the owner — is the language of the international three-step test, and appears in the Act because that is the standard the treaties impose on exceptions.
Section 3 — how foreign works and right holders come in
(4) The provisions of this Act shall apply to works that are eligible for protection in Papua New Guinea by virtue of, and in accordance with, any international convention or other international agreement to which Papua New Guinea is party.
(8) The provisions of this Act shall apply to performers, producers of sound recordings and broadcasting organizations that are eligible for protection by virtue of, and in accordance with, any international convention or other international agreement to which Papua New Guinea is party.
The domestic connecting factors in section 3(3), (5), (6) and (7) — citizenship or habitual residence of the author, first publication here or within thirty days, an audiovisual producer headquartered here, architecture erected here; performances taking place here; recordings first fixed or published here; broadcasts from organisations headquartered here or transmitters situated here.
The treaty route in subsections (4) and (8) — anything eligible under a convention to which Papua New Guinea is party.
The second route is what makes the system work internationally. Without it, a novel written and first published abroad by a foreign author would have no protection here, and a Papua New Guinean author would have none abroad. Copyright is territorial; treaties are what make it travel.
Note the words “in accordance with”. The treaty determines not only whether foreign subject matter is protected but on what terms — which is where questions of national treatment, reciprocity and comparison of terms arise.
One consequence: no formalities
Section 4(2) provides that works are protected by the sole fact of their creation, irrespective of the mode or form of expression, content, quality or purpose. There is no application, no examination, no registration and no fee.
That is not an accident of drafting. The prohibition on formalities as a condition of protection is a core principle of the international copyright system, and section 32 would in any event require the Act to yield to it.
The practical consequences run through the whole Act: ownership is established by the section 19 presumptions rather than a certificate; transfers must be in writing signed by both parties under section 20(2) because there is no register to record them; and evidence of creation and authorship is what a claimant assembles instead.
Contrast trade marks, where registration under the Trade Marks Act (Chapter 385) is the source of the exclusive right.
Sections 3(1) and (2) — material existing at commencement
(1) The Act applies to works, performances, sound recordings and broadcasts existing at its coming into operation — provided that the terms of any protection have not expired under any Act, or under a law of the country of origin that requires protection under an international treaty to which Papua New Guinea is a party.
(2) Nothing in the Act constitutes a breach of, or default under, or terminates an agreement or obligation under a contract on works, performances, sound recordings or broadcasts concluded or existing at its coming into operation.
Subsection (1) brings existing material under the new Act — but only where protection had not already expired. Material in the public domain stayed there. Note the second limb: expiry is tested both under domestic law and, where a treaty requires protection, under the law of the country of origin.
Subsection (2) protects existing contracts. Licences and assignments made under the repealed law were not disturbed, and nothing in the new Act put a party in breach.
Sections 33 and 34
33. The Head of State, acting on advice, may make regulations not inconsistent with this Act, prescribing all matters required to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
34. The Copyright Act 1978 is repealed.
Note the limit on the regulation-making power: regulations must be not inconsistent with this Act. Read with section 32, the hierarchy is therefore treaty, then Act, then regulations.
Section 1 — the constitutional footing
(1) For the purposes of section 29 of the Organic Law on Provincial Governments and section 41 of the Organic Law on Provincial Governments and Local-level Governments, it is declared that this law relates to a matter of national interest.
(2) To the extent that it regulates or restricts the qualified rights in Subdivision III.3.C of the Constitution — freedom from arbitrary search and entry (s 44), freedom of expression (s 46), freedom of employment (s 48) and privacy (s 49) — it is a law made for the purpose of giving effect to the public interest in public welfare.
Search and entry — because section 26 allows impounding of copies, implements and business papers, and applies the search and seizure provisions of the Criminal Code Act (Chapter 262).
Expression — because copyright restrains what may be copied, quoted, performed and published, subject to the free uses in sections 8 to 16.
Employment — because criminal liability and injunctions can shut down a business built on infringement.
Privacy — for the same reasons as search and entry.
The declaration is the Act’s statement that these restrictions are justified in the public interest — a necessary step for a law that limits qualified constitutional rights.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 1, 3, 4, 8, 19, 20, 26, 32, 33, 34
- Trade Marks Act (Chapter 385); Criminal Code Act (Chapter 262)
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.