Cars as copyrighted goods

[James Love <love@cptech.org>]

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


---------------
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  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