On August 25, 2008, a New Zealand Judge made the unprecedented decision of banning publication of the names and images of the persons on a murder charge on news websites, while allowing newspapers, TV and radio to name them and publish photos.[1] The issue is whether banning online reporting could lead to infringement of copyright.
The intention of the Court might have been to prevent jurors and the public from potentially googling the information on websites. However, this decision is probably a grave violation of freedom of expression in the perspective of “rights and freedoms”. Also, from a copyright perspective, it is possibly an infringement of copyright. Here, I will concentrate on the copyright perspective to argue that the banning conflicts with the copyright principles and would jeopardize copyright protection.
Even though this decision only impacts on the authors and publishers in NZ, it would have huge influences around the world. When the influences land in Canada, what will be the responses under the current legal system, especially under the copyright regime?
In Canada, under section 2.2(1) of the Copyright Act,[2] the publication was defined as “… in relation to works, making copies of a work available to the public …” Apparently there is no limitation on public publication.
Also, section 3(1) of the CA[3] provides that copyright owners have the sole and unlimited right to publish their legitimate work in any material form whatever within Canada or even overseas, including the website, newspaper, TV and radio. There is no format restriction.
Thus this huge gap forms and provides an illegitimate market. Since in NZ, online reporting is banned, copyright owners are only allowed to publish the names and images of the persons on murder charges in the newspapers, TV and radio. However, it is impossible to stop them from posting their work on websites, because alternatively they can email or fax their work to a certain overseas publisher such as Canadian publishers, and then the work will be on Canadian or other overseas websites and available for googling.
This gap may also result in potential copyright infringements. When the authors and publishers have published their work naming the names and images in the newspapers, TV and radio in NZ, potential infringers can copy the exact work in synchronization and immediately transfer it to overseas publishers and illegitimately post it on extraterritorial websites. Apparently, the banning puts the copyright protection in a major jeopardy in NZ and the world.
Even though the publication on extraterritorial websites can be blocked within NZ territory, the copyright has been already infringed extraterritorially.
To prevent this kind of infringement, there is an approach available for the copyright owners in NZ. They could publish their work in the newspapers, TV and radio in NZ and post it on extraterritorial websites in synchronization. Nevertheless, protection of the copyright should obviously be done by the legal system.
The banning is jeopardizing copyright protection in NZ, Canada and the world.
[1] NZ HERALD STAFF. “Suppressed names appear in online forum” http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10529128, last visited on the date of Oct 2, 2008.
[2] Copyright Act, R.S.C. 1985, c. C-42. [CA].
[3] Ibid.