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IV. INFRINGEMENT AND ENFORCEMENT
The dictionary meaning of “appropriate” is “to set apart for a particular use” or “to take for one’s
own use.” I think that by photocopying the plaintiff ’s records the police appropriated the
plaintiff ’s work for their own use in the investigating of possible crimes and the prosecution of
possible offenders. I conclude, therefore, that (subject to the effect of [the specific exceptions in
the Act]) this photocopying constituted an infringement of the plaintiff ’s copyright in the records
copied.
[The Court went on to find that the photocopying fell within a specific exception in
the New Zealand Copyright Act allowing certain uses for governmental purposes.]
- Infringement may occur even if the plaintiff is not harmed by, and
may even have benefited, from the unauthorized act
EXAMPLE 1:
The plaintiff, the composer of an original musical work, sued the defendant
television station for making an unauthorized tape of the work. The defendant
had a licence to broadcast the music.
It argued that
(a) making the tape was customary in the broadcasting industry;
(b) the tape was made only for technical reasons;
(c) the tape was only a temporary or “ephemeral” copy and would later
be destroyed; and
(d) the taping did not harm the plaintiff.
The court dismissed these arguments and gave judgment for the plaintiff.
Bishop v. Stevens, [1990] 2 S.C.R. 467 (Canada: Supreme Court)
JUSTICE McLACHLIN for the Court:
The appellant ... argues that ... an ephemeral recording ... is not made for the purpose of being
reproduced or sold, but rather for technical reasons. But as the respondent points out, section
3(1)(d) [of the Copyright Act] contains no mention of purpose. It simply provides that copyright
includes the sole right “ to make any record ... or other contrivance by means of which the work
may be mechanically performed or delivered”. ...
[N]othing in this section restricts its application to recordings made for the purpose of
reproduction and sale. A recording may be made for any purpose, even one not prejudicial to the
copyright holder, but if it is not authorized by the copyright holder then it is an infringement of
his rights. For example, it would seem to me that an agent who made an unauthorized recording
of a songwriter’s work for the purpose of getting record companies interested would not have
infringed the Act any less because his action ultimately benefited the songwriter. ...
Even though the purpose for which the recordings are made is not one that is prejudicial to the
copyright holder, that is not to say that the copyright holder has no interest in whether or not they
are made. ... [T]he existence of a studio recording increases the possibility of unauthorized
