Can I copyright that?

The recent discussion about “copyrighting” the Tino Rangatiratanga flag gives a good example of what intellectual property (IP) rights might exist in a design such as a flag and what steps should be taken to protect those rights.

Under the Copyright Act 1994 copyright exists in any new original literary, artistic, musical, dramatic etc work. A work is original if it is not copied from another work, or in other words if it is independently created.

As copyright comes into existence automatically there is no need to apply to register it. However, I would recommend that you use the universally recognised copyright symbol ©; in conjunction with the name of the owner of the copyright and the year of creation. The first owner is usually the creator of the work, although the Copyright Act does provide for some important exceptions relating to works created during employment or subject to a commission.

In the case of most types of work, copyright exists for the life of the creator plus 50 years. There may be joint authors of the copyright if the work is a collaboration.

As the owner of the copyright, you have the exclusive right to use and licence the use of the work subject to such conditions as appropriate, relating for example to method of use, term of use, and any payment for use.

So would copyright exist in the Tino Rangatiratanga flag? Based on the publicly available information it would appear that it would. Ms Munn states that she designed the Tino Rangatiratanga flag with Jan Dobson and Hiraina Marsden about 30 years ago and that she is the only surviving member of the trio. Contrary to the story as reported, Ms Munn does not have to take any steps to register the copyright and can assert ownership and any conditions of use.

What other steps can be taken to protect such a design?

Potentially a “new” or original design for a flag might be registrable with the Intellectual Property Office under the Designs Act 1953. A registered design grants the owner the exclusive right to make, sell, and hire etc that design for a total of 15 years, subject to renewal fees being paid.

Unfortunately the Tino Rangatiratanga flag could not be registered as a design as it has already been put into the public domain which means that it is not “new”.

Finally, if the Commissioner of Trade Marks agrees that it is distinctive, a design such as the Tino Rangatiratanga flag may be registered with the Intellectual Property Office as a trade mark under the Trade Marks Act 2002.

The owner of a registered trade mark has the exclusive right to use and authorise the use of their trade mark for the term of that trade mark. A trade mark is initially registered for a period of ten (10) years and may be renewed for successive terms of 10 years for as long as the owner uses the trade mark. The oldest continuously registered trade mark in New Zealand dates back to 1877 (a de Kuyper’s label for spirits)!

Another benefit of registering your IP is the fact that the public will be put on notice of the existence of your rights and claim to ownership by virtue of the registered design and trade mark being entered on the publicly searchable Register of Designs and Trade Marks.

The Tino Rangatiratanga flag shows that a number of valuable IP rights can exist is the one design with registration being necessary and recommended in some cases. Your Patent Attorney or IP lawyer can make sure you take the right steps to protect your IP.

By Elena Szentivanyi. An edited version of this article appeared in B2B Southland, April 2010.